Lamarre
Proulx
J.T.C.C.:—The
appellant
is
appealing
under
the
informal
procedure
for
the
1991
and
1992
taxation
years.
The
issue
is
whether
the
appellant
is
entitled
to
a
tax
credit
for
a
severe
and
prolonged
physical
impairment
within
the
meaning
of
subsection
118.3(1)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act”).
The
appellant
says
that,
due
to
a
motor
vehicle
accident,
he
suffered
for
the
years
in
question
from
an
impairment
that
lasted
for
a
period
of
at
least
12
months
and
which
restricted
markedly
his
ability
to
perform
three
basic
activities
of
daily
living,
that
are
described
at
subparagraphs
118.4(1
)(c)(ii),
(v)
and
(vi)
of
the
Act.
Subsection
118.3(1)
of
the
Act
reads
as
follows:
118.3(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
because
of
paragraph
(2)(b.l)
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.
Reference
must
be
made
to
section
118.4
of
the
Act
in
order
to
understand
the
meaning
of
a
severe
and
prolonged
impairment.
Subsection
118.4(1)
of
the
Act
reads
as
follows:
118.4(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.
In
accordance
with
subsection
118.3(1)
of
the
Act,
the
appellant
filed
a
certificate
from
his
doctor
stating
that
the
appellant
was
suffering
from
a
temporary
impairment
of
at
least
two
years.
The
certificate
describes
in
a
schematic
manner
the
fractures
that
the
appellant
suffered
and
their
disabling
effects
on
the
appellant.
A
letter
from
the
same
doctor
(Exhibit
A-2)
addressed
to
the
Disability
Appeal,
Canada
Health
and
Welfare,
dated
December
3,
1993
describes
in
much
better
terms
the
condition
of
the
appellant.
Because
this
description
corroborates
the
appellant’s
testimony,
I
find
useful
to
reproduce
the
text.
December
3,
1993
Disability
Appeal
Canada
Health
and
Welfare
Box
9720
Ottawa,
Ontario
Kl
G
4X7
Re:
Scott
Hicks
Reference
No.
473-852-697
To
Whom
It
May
Concern:
Mr.
Hicks
suffered
a
motor
vehicle
accident
July
1991,
with
severe
injuries.
He
sustained
a
right
femur
fracture,
left
fibular
fracture,
left
elbow
fracture
and
also
a
dislocation
of
the
left
elbow
followed
by
complication
of
a
compartment
syndrome
with
wound
infections.
He
also
progressed
and
developed
Volkman’s
ischaemic
contracture
of
the
left
arm.
The
left
flexor
compartment
excision
was
done
following
this
compartment
syndrome
and
the
left
brachial
artery
was
lacerated.
There
were
multiple
debridements
done
with
median
nerve
excision.
He
also
suffered
a
left
distal
radial
fracture,
left
thumb
Bennet’s
fracture,
right
radial
head
fracture
with
radial
head
resection.
He
also
suffered
a
right
hand
metacarpal
fracture.
With
these
numerous
fractures,
patient
has
undergone
numerous
surgeries
and
further
surgeries
are
anticipated
over
the
next
year.
He
suffered
the
accident
in
July
1991
and
he
was
hospitalized
until
October.
Subsequently,
he
was
discharged
in
a
wheelchair
for
another
two
months
and
crutches
for
a
year
after
that.
He
continued
to
receive
full
care
at
home
with
help
from
home
care
and
VON.
He
has
essentially
no
function
of
the
left
arm
and
initially
quite
limited
in
any
mobility
whatsoever.
During
this
time
in
1991
and
1992,
the
patient
was
totally
disabled
in
normal
living
and
he
was
unable
to
care
for
himself.
He
required
a
significant
amount
of
help.
Presently,
he
is
ambulatory
and
he
is
able
to
look
after
himself
adequately.
He
will
require
further
surgeries
on
his
left
arm
with
possible
further
tendon
transposition
or
nerve
grafting.
He
will
also
require
another
surgery
to
remove
pin
and
plate
on
his
right
femur
and
possibly
the
right
forearm.
In
summary,
this
patient
has
suffered
numerous
significant
orthopaedic
injuries
and
he
was
totally
disabled
for
1991
and
1992.
If
you
require
further
information,
please
feel
free
to
contact
the
office.
Thank
you.
Yours
sincerely,
C.H.
P’ng
MD.
The
text
of
the
notice
of
objection
(Exhibit
A-l)
was
also
brought
to
the
attention
of
the
Court.
I
find
that
it
is
of
interest
to
reproduce
it:
Sirs:
Further
to
the
attached
family
doctor’s
report,
in
the
response
to
your
review
and
denial
of
my
disability
tax
credit
for
the
fiscal
years
of
1991
and
1992.
I
was
hospitalized
initially
from
July
28,
1991
until
November
8,
1991
after
which
I
was
immobilized
and
was
incapable
of
performing
any
basic
functions
such
as
feeding,
dressing,
washing
for
a
further
period
of
12
months.
Hence
my
claim
for
91-92
tax
credit.
My
condition
has
improved
in
1993
and
will
no
longer
reflect
a
claim
for
disability
credit.
On
the
basis
of
this
objection
I
request
that
you
review
my
91-92
claim
and
credit
my
account
accordingly.
If
required
I
should
be
glad
to
meet
with
you
to
discuss
this
matter
in
detail.
I
can
substantiate
multiple
surgery’s
and
hospitalization
during
this
period,
together
with
ongoing
intensive
physiotherapy
treatments.
[Emphasis
added.]
Mr.
Hicks
testified
and
described
the
state
in
which
he
was
after
the
accident,
incidents
that
occurred
at
the
time
of
hospitalization
and
the
difficulty
incurred
at
the
convalescing
state.
The
accident
took
place
in
July
1991.
He
was
hospitalized
until
October
of
the
same
year.
When
Mr.
Hicks
came
back
from
the
hospital,
his
bed
had
to
be
installed
on
the
ground
floor
of
the
family
house
and
the
family
had
to
look
to
his
care.
For
example,
he
needed
assistance
to
be
brought
to
the
washroom.
It
took
Mr.
Hicks
a
year
before
being
able
to
walk.
When
the
appellant
arrived
home,
he
was
in
a
wheelchair
for
another
two
months
and
then
on
crutches
up
to
July
1992.
When
he
was
on
crutches,
he
could
hardly
walk
because
his
right
arm
was
not
completely
healed
and
he
could
not
use
his
left
arm.
Although
the
appellant
was
able
to
put
the
spoon
or
fork
to
his
mouth,
he
needed
assistance
from
other
people
to
bring
him
his
food.
As
his
state
of
health
improved,
the
need
for
assistance
of
others
diminished.
He
considers
that
from
1993,
his
condition
has
improved
and
that
he
is
able
without
assistance
of
doing
the
basic
activities
of
daily
living.
The
Minister
of
National
Revenue
("the
Minister")
is
entitled
to
obtain
the
advice
of
the
Department
of
National
Health
and
Welfare
regarding
the
certification
by
the
attending
physician,
pursuant
to
subsection
118.3(4)
of
the
Act:
The
Minister
may
obtain
the
advice
of
the
Department
of
National
Health
and
Welfare
as
to
whether
an
individual
in
respect
of
whom
an
amount
has
been
claimed
under
subsection
(1)
or
(2)
has
a
severe
and
prolonged
impairment,
the
effects
of
which
are
such
that
the
individual’s
ability
to
perform
a
basic
activity
of
daily
living
is
markedly
restricted,
and
any
person
referred
to
in
subsection
(1)
or
(2)
shall,
on
request
in
writing
by
that
Department
for
information
with
respect
to
an
individual’s
impairment
and
its
effect
on
the
individual,
provide
the
information
so
requested.
The
Minister
obtained
it.
A
report
of
an
expert
witness
had
been
sent
to
the
appellant
and
to
the
Court’s
registry
previous
to
the
hearing
in
accordance
with
the
relevant
procedural
rule.
However,
there
was
no
expert
witness
who
came
to
testify.
The
questions
that
were
put
to
the
appellant
were
questions
that
would
have
been
pertinent
if
the
appellant
had
requested
the
tax
credit
in
the
years
1993
and
after
for
the
reasons
of
a
non
functioning
left
arm.
The
issue
here,
however,
was
not
at
that
later
stage
of
physical
state
but
concerned
the
appellant’s
physical
capacities
in
the
year
it
took
him
to
recover
from
a
serious
accident
and
be
again
able
to
perform
the
basic
activities
of
daily
living.
I
find
that
the
evidence
adduced
showed
that
for
13
months,
the
appellant
insofar
as
feeding
and
dressing
himself,
eliminating
and
walking,
was
unable
without
the
assistance
of
others
to
perform
these
activities.
From
all
this,
I
therefore
conclude
that
the
appellant
was
suffering
from
a
severe
and
prolonged
physical
impairment
as
a
result
of
which
he
was
unable,
or
required
an
inordinate
amount
of
time,
to
perform
some
basic
activities
of
daily
living.
The
appeal
is
accordingly
allowed
without
costs.
Appeal
allowed.
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