Blondin v. R., [1996] 1 CTC 2063 (Informal Procedure)

Couture C.J.T.C.C.— On November 29, 1993, the appellant instituted an appeal from the assessments issued by the Minister of National Revenue, “the Minister”, for the 1989, 1990, 1991 and 1992 taxation years.

At the hearing, it was agreed by the parties in concert with the Court that only the appeal from the assessment for the 1991 taxation year had been filed in accordance with the requirements of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (“the Act”), and that the appeals for 1989, 1990 and 1992 had to be dismissed.

In his assessment for the 1991 taxation year, the Minister disallowed the appellant a deduction in respect of an income tax credit for mental or physical impairment. According to the evidence, the appellant suffers from an impairment of sight such that he has difficulty performing certain activities of daily living.

In her reply to the notice of appeal, the respondent submitted that the effects of this impairment were such that the appellant’s ability to perform a basic activity of daily living was not markedly restricted.

The provisions of the Act which grant an income tax credit to a taxpayer because of a mental or physical impairment applicable to the 1991 taxation year appear at subsection 118.3(1) and read:

118.3: Credit for mental or physical impairment.

(1) Where

(a) an individual has a severe and prolonged mental or physical impairment;

(a.l) the effects of the impairment are such that the individual’s ability to perform a basic activity of daily living is markedly restricted;

(a.2) a medical doctor, or where the impairment is an impairment of sight, a medical doctor or an optometrist, has certified in prescribed form that the individual has a severe and prolonged mental or physical impairment the effects of which are such that the individual’s ability to perform a basic activity of daily living is markedly restricted;

(b) the individual has filed for a taxation year with the Minister the certificate described in paragraph (a.2); and

(c) no amount in respect of remuneration for an attendant or care in a nursing home, in respect of the individual, is included in calculating a deduction under section 118.2 (otherwise than by reason of paragraph (2)(b. 1 ) thereof) for the year by the individual or by any other person,

for the purposes of computing the tax payable under this Part by the individual for the year, there may be deducted an amount determined by the formula A x $4,118

where

A is the appropriate percentage for the year.

The expressions “severe and prolonged mental impairment” and “the individual’s ability to perform a basic activity of daily living is markedly restricted” are defined for the purposes of the legislation at subsection 118.4(1) and read as follows:

118.4: Nature of impairment.

(1) For the purposes of subsection 6(16), sections 118.2 and 118.3 and this subsection:

(a) an impairment is prolonged where it has lasted, or may reasonably be expected to last, for a continuous period of at least 12 months;

(b) an individual’s ability to perform a basic activity of daily living is markedly restricted only where all or substantially all of the time, even with therapy and the use of appropriate devices and medication, the individual is blind or is unable (or requires an inordinate amount of time) to perform a basic activity of daily living;

(c) a basic activity of daily living in relation to an individual means

(i) perceiving, thinking and remembering,

(ii) feeding and dressing oneself,

(iii) speaking so as to be understood, in a quiet setting, by another person familiar with the individual,

(iv) hearing so as to understand, in a quiet setting, another person familiar with the individual,

(v) eliminating (bowel or bladder functions), or

(vi) walking; and

(d) for greater certainty, no other activity, including working, housekeeping or a social or recreational activity, shall be considered as a basic activity of daily living.

These legislative provisions thus appreciably restrict eligibility for the above-mentioned credit. It appears from a reading of the text that Parliament was contemplating two classes of persons afflicted by a mental or physical impairment. For them to be eligible for the income tax credit, their ability to perform a basic activity of daily living had to be markedly restricted.

The first class are persons who even with therapeutic care and the use of devices and medication are blind all or substantially all of the time. They are thus deemed to have a markedly restricted ability to perform basic activities of daily living. The other class are persons afflicted by a mental or physical impairment who are unable (or require an inordinate amount of time) to perform a basic activity of daily living.

There can be no doubt that the legislation applies exclusively to situations of extreme mental or physical impairment.

In the case of a blind person, the legislation is not as precise as it could be. Plainly speaking, the legislation says, in essence, that an individual’s ability to perform a basic activity of daily living is markedly restricted if that individual is blind all or substantially all of the time. Thus, if his condition is permanent, he is thereby eligible for the income tax credit. Moreover, Parliament adds that the individual must be blind all or substantially all of the time, a condition which at first glance I find strange to say the least, but which must be met since Parliament has so provided. In such a circumstance, this is purely a matter of evidence.

If the legislation had to be construed as requiring that a blind person must also prove that his ability to perform a basic activity of daily living, that is feeding himself, dressing himself or walking without requiring an inordinate amount of time, none of these persons could receive the income tax credit since it is clear that a blind person can perform these activities, maybe with some difficulty, despite this infirmity.

However, this interpretation of the application of subsections 118.3(1) and 118.4(1) does not settle the question of the validity of the assessment which is under appeal.

As to the appellant’s situation, it should be noted that Parliament did not define the word “blind” for the purposes of the Act. In the absence of a statutory or regulatory definition of this word, one must therefore refer, depending on the author, to the common or ordinary sense that is attributed to it. The case law also supports the proposition that the dictionary is an important reference source in the absence of a definition in the legislation.

In his work entitled The Construction of Statutes, 2nd ed., (1983), E.A. Driedger explains:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, and the intention of parliament.

As to the ordinary sense of a word, Judge Thorson, President of the Exchequer Court as he then was, wrote as follows in Dentists’ Supply Co. of New York v. Deputy Minister of National Revenue (Customs and Excise), [1956-60] Ex. C.R. 450, 42 D.L.R. (2d) 88, at pages 456-57 (D.L.R. 94):

The ordinary meaning of a word is the meaning with which it is ordinarily used by persons having a knowledge of the language in which it is used. It is unrealistic, in my opinion, to say that such meaning is a matter of law. When it is sought to ascertain the ordinary meaning of a word resort is had to recognized dictionaries, not to judicial decisions, for it is in the dictionaries that the ordinary meaning of a word is to be found.

In Pfizer Co. v. Deputy Minister of National Revenue (Customs and Excise), [1977] 1 S.C.R. 456, 68 D.L.R. (3d) 9, Pigeon J. states at page 460 (D.L.R. 12):

The rule that statutes are to be construed according to the meaning of the words in common language is quite firmly established and it is applicable to statutes dealing with technical or scientific matters, such as....

In a very recent decision by the Supreme Court of Canada in Québec (Communauté urbaine) v. Corp. Notre-Dame de Bonsecours (sub nom. Notre-Dame de Bon-Secours v. Communauté urbaine de Québec et la ville de Québec, [1995] 1 C.T.C. 241, 95 D.T.C. 5017, Gonthier J. states:

In Canada it was Stubart Investments Ltd. v. The Queen, [1984] 1 S.C.R. 536, [1984] C.T.C. 294, 84 D.T.C. 6305, which opened the first significant breach in the rule that tax legislation must be strictly construed. This Court there held, per Estey J. at page 578 (C.T.C. 316; D.T.C. 6323), that the rule of strict construction had to be bypassed in favour of interpretation according to ordinary rules so as to give effect to the spirit of the Act and the aim of Parliament:

the role of the tax statute in the community changed, as we have seen, and the application of strict construction to it receded. Courts today apply to this statute the plain meaning rule, but in a substantive sense so that if a taxpayer is within the spirit of the charge, he may be held liable.

The Dictionnaire Quillet de la langue française defines the word “aveugle” [“blind”] as follows: “deprived of the use of sight” [translation]. The definitions of the Grand dictionnaire encyclopédique Larousse and the Dictionnaire alphabétique et analogique de la langue française de Paul Robert are to the same effect. The definition in Le Petit Robert is: “deprived of the sense of sight” [translation].

It is clear that the appellant was not blind. His sight was appreciably reduced, but he was nevertheless not blind in the ordinary sense of the word. His behaviour during the hearing and his own admission attest to this fact. He admitted that he could read the large characters in the newspapers. Prior to 1991, he could drive his car, although, according to his testimony, a driver’s licence was denied him during the year.

It should be noted that, in paragraph 4, entitled “Vision”, of Part B of the prescribed form that must be completed by the medical doctor or optometrist in support of an application for the tax credit, the appellant had to answer a question whether the patient was “legally blind” and certain standards of visual acuity were indicated and leave the impression that they constitute a definition of the word “blind” for the purposes of the legislation. First, what is confusing is that the form does not state under which Act this word must be construed. It is clearly not under the Income Tax Act. At subsection 248(1) of the Act, the definition of the word “prescribed” reads: “‘prescribed’ means (a) in the case of a form or the information to be given on a form, prescribed by order of the Minister....”

The latter unfortunately does not have the authority to define or circumscribe in a form the meaning of the word “blind” for the purposes of the Act. This would be tantamount to legislating indirectly, a power which, except where otherwise provided, belongs exclusively to Parliament. As Parliament has not given a definition of the word “blind”, the onus is on the Court to determine on the basis of the evidence whether a person is blind or not for the purposes of eligibility for the income tax credit, while ensuring that the description of the condition of that person as described in the form is indeed that of a blind person within the meaning that must be given to that word. It would be far preferable for Parliament to define what it means by a blind person for the purposes of the Act, as it has done for the other conditions, rather than leave taxpayers with the impression that an appreciable reduction in their sight could render them eligible for the income tax credit.

The Court sympathizes enormously with the appellant and admits that his quality of life is greatly reduced by his infirmity, but in accordance with the interpretation that must be given to the legislation in effect since the 1991 taxation year, it unfortunately cannot allow him to be eligible for the income tax credit provided at subsection 118.3(1) of the Act.

For these reasons, the appeals for the 1989, 1990, 1991 and 1992 taxation years are dismissed.

Appeals dismissed.