McArthur
J.T.C.C.:—These
appeals
were
heard
in
Sudbury,
Ontario
on
January
25,
1995,
under
the
informal
procedures
of
this
Court
on
common
evidence
upon
consent
of
all
interested
parties.
In
computing
tax
payable
for
the
1991
taxation
year,
the
appellant
Wallace
Lamondin
claimed
in
the
computation
of
his
non-refundable
tax
credits,
an
amount
of
$4,118
as
the
transfer
of
an
amount
unused
by
his
spouse,
Suzanne
Lamondin
(the
"spouse"),
in
the
computation
of
her
non-
refundable
tax
credit
for
mental
or
physical
impairment
under
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").
In
computing
tax
payable
for
the
1992
taxation
year,
the
appellant,
Suzanne
Lamondin
claimed
in
the
computation
of
her
non-refundable
tax
credits,
an
amount
of
$4,233
for
mental
and
physical
impairment
pursuant
to
subsection
118.3(1)
of
the
Act.
The
issue
is
whether
Suzanne
Lamondin
was
suffering
from
a
prolonged
mental
or
physical
impairment
which
markedly
restricted
her
in
her
abilities
to
perform
activities
of
daily
living
during
the
taxation
years
1991
and
1992.
Suzanne
Lamondin
testified
and
her
testimony
was
elaborated
upon
and
corroborated
by
her
husband
Wallace.
Counsel
for
the
appellants
submitted
several
reports
of
Dr.
Anil
Jain
in
evidence
which
the
respondent
objected
to.
Notwithstanding
the
fact
that
Dr.
Jain
was
not
in
Court,
his
reports
were
permitted
as
exhibits
to
be
given
the
weight
as
this
Court
determines.
Included
in
medical
reports
of
Dr.
Jain
was
the
following:
1.
November
2,
1993
Ms.
Lamondin
has
been
a
patient
of
this
clinic
since
April
1990
and
was
last
seen
here
October
22,
1993.
She
is
suffering
from
a
condition
called
myalgic
encephalomyelitis
(M.E.
or
chronic
fatigue
syndrome).
Ms.
Lamondin
has
been
severally
ill
since
1989
with
this
condition
and
still
remains
ill
but
showed
some
improvement
in
September
1992
which
enabled
her
to
return
back
to
work
on
a
part-time
basis.
However
from
1989
to
1992
she
remained
significantly
ill
with
marked
restriction
in
her
functionality.
She
has
apparently
been
rejected
for
income
tax
disability
credit
and
I
would
like
to
clarify
her
health
condition.
Her
major
problems
still
remains
marked
fatigue
on
a
regular
basis
and
worsening
with
exertion.
She
has
through
this
period
of
time
slept
on
an
average
of
15
hours
per
day
and
the
remainder
of
the
time
resting
mostly
within
the
house.
She
basically
ended
up
resting
on
the
couch
or
in
bed
80
to
90
per
cent
of
the
time
and
her
only
major
outings
were
to
go
see
her
physicians
or
very
minimal
activity
within
the
house.
This
resulted
in
her
having
to
be
dependent
on
her
family
for
many
of
the
basic
functions
of
daily
activity.
Hence
it
took
an
inordinate
amount
of
time
for
her
to
function
at
her
basic
activities
from
1989
to
1992.
She
has
not
only
marked
fatigue
but
significant
muscular
pain
throughout
her
body.
She
had
to
be
accompanied
to
even
walk
the
distance
of
half
a
block.
It
took
an
inordinate
amount
of
time
for
her
to
function
at
any
basic
activity.
She
again
spent
the
majority
of
the
time
within
the
household
resting.
I
would
therefore
recommend
a
reevaluation
of
her
income
tax
status
as
from
the
period
of
1989
to
1992
she
certainly
was
markedly
restricted
and
disabled
and
therefore
should
be
accepted
for
a
disability
tax
credit
for
this.
2.
January
14,
1994
Basically
Ms.
Lamondin
has
a
complex
condition
called
myalgic
encephalomyelitis
which
constitutes
a
marked
degree
of
fatigue
and
easy
fatigability
on
exertion
along
with
marked
problems
in
memory
and
concentration,
arthralgias,
myalgias
and
either
excessive
sleep
or
sleep
disturbance.
Her
functionality
is
markedly
and
substantially
limited
and
she
spends
the
majority
of
her
time
in
self
care.
It
is
difficult
to
explain
this
situation
by
a
form
and
this
probably
created
the
confusion
which
you
are
addressing
as
to
her
true
level
of
limitations.
She
is
markedly
limited
even
on
basic
activities.
If
we
ask
can
she
do
each
individual
item,
my
response
will
be
she
could
but
with
significant
limitations.
Given
in
the
form
of
April
1993,
I
had
qualified
each
response
by
explaining
the
significant
limitations.
For
example,
she
can
dress
herself
or
eat
and
each
of
these
items
take
an
inordinate
amount
of
time
to
do.
Walking
is
markedly
limited.
She
could
walk
but
has
a
very
short
walking
span
up
to
half
a
block
to
one
block
and
in
most
cases
requires
assistance
as
she
likely
will
not
return
by
herself.
Hence
the
limitations
as
you
see
are
quite
significant
and
on
the
basis
of
this
I
think
she
should
qualify
for
disability
tax
credit.
3.
June
30,
1994
There
has
been
no
major
improvement
in
this
patient
since
1989
until
1992
when
there
was
some
improvement
by
the
summer
and
hence
she
returned
back
to
part
time
work
in
September
1992.
During
1989
to
1992,
this
patient
was
severely
fatigued
and
small
exertions
such
as
even
trying
to
walk
one
to
two
blocks
was
too
much
for
her.
This
would
set
her
back
significantly.
Hence
the
majority
of
the
time
she
spent
resting
in
bed
or
within
the
household.
On
many
days
self
care
was
very
difficult
and
she
certainly
needed
a
lot
of
support
through
the
family
to
sustain
herself
at
home
including
meals
etc.
As
a
result,
I
would
certainly
concur
with
my
previous
assessment
that
this
patient
did
remain
severally
disabled
and
had
a
significant
restriction
in
her
basic
activity
of
living
as
mentioned
above.
Hence
as
I
have
filled
out
the
forms
in
the
past,
I
would
certainly
concur
that
this
patient
should
have
been
eligible
for
the
tax
credit
as
filled
out
by
me
in
the
past.
Dr.
Sutherland
submitted
a
report
dated
December
5,
1994.
She
was
present
in
Court
and
was
examined
and
cross-examined.
It
was
acknowledged
by
the
appellant’s
counsel
that
she
qualified
as
an
expert
witness
to
give
evidence
with
respect
to
Suzanne
Lamondin’s
illness-M.E.
myalgic
encephalomyelitis—chronic
fatigue
syndrome.
Included
in
Dr.
Sutherland’s
report
was
the
following:
It
is
acknowledged
that
Suzanne
Lamondin
did
indeed
have
many
and
variable
symptoms
during
her
illness.
She
had
fatigue,
muscle
pain,
joint
pain
on
exertion
depression
and
dizziness
at
times
among
other
symptoms.
She
did
not
have
these
symptoms
before.
It
would
appear
from
her
own
written
statement
that
in
spite
of
these
and
other
symptoms
she
was
able
to
walk
two
blocks
and
to
walk
enough
about
the
house
to
be
able
to
do
her
basic
activities
of
daily
living.
She
could
dress
and
feed
herself
and
communicate
with
others.
At
times
she
felt
dizzy
and
had
poor
concentration
but
was
able
to
think,
perceive
and
remember
enough
to
manage
her
own
affairs
according
to
Dr.
Jain
and
herself.
It
is
a
frightening
and
disturbing
to
have
fatigue
that
prevents
you
from
doing
things
you
could
do
before.
It
helps
to
know
that
this
is
not
a
fatal
disease
and
you
will
recover,
if
you
persist
in
doing
gradual
exercise
to
prevent
muscle
strength
loss.
It
is
depressing
to
be
tired
all
the
time
and
this
feeling
of
depression
must
also
be
dealt
with.
Conclusion
Suzanne
Lamondin
is
a
47
year
old
who
had
chronic
fatigue
syndrome
and
depression
since
September
1989.
She
did
have
fatigue
after
exertion.
She
had
many
symptoms
such
as
muscle
and
joint
pains.
At
times
she
had
dizziness
and
poor
concentration.
She
became
depressed.
She
received
medical
treatment
for
her
symptoms.
To
her
credit,
she
sought
out
the
help
of
a
neurologist,
a
psychiatrist
and
went
to
Ottawa
to
see
Dr.
Jain
a
specialist
in
CFS.
She
has
more
severe
illnesses
ruled
out.
With
perseverance
she
was
able
to
return
to
work
in
1992.
There
is
no
medical
evidence
on
file
to
indicate
that
she
was
markedly
restricted
in
her
basic
activities
of
daily
living
continuously
throughout
the
taxation
years
involved.
Therefore,
on
the
basis
of
the
current
medical
information
it
would
appear
to
the
medical
advisory
group
that
Suzanne
Lamondin
did
not
meet
the
legislative
criteria
for
the
disability
tax
credit
in
the
1991-92
taxation
years.
Dr.
Sutherland
did
not
examine
Suzanne
but
relied
on
the
reports
available
to
her.
I
do
not
feel
it
serves
a
useful
purpose
to
review
the
appellant’s
evidence
in
detail.
The
Court
is
satisfied
that
Suzanne
suffered
severely
from
her
illness
in
1991
which
markedly
restricted
her
movements
in
every
respect.
In
1992,
she
showed
improvement
to
the
point
where
she
commenced
work
on
a
part-time
basis
in
September
1992.
The
Act
subsection
118.3(1)
and
section
118.4:
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
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.
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
can
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
(ii)
feeding
and
dressing
oneself,
(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.
Analysis
I
accept
the
evidence
as
presented
by
the
appellants.
Given
their
testimony
coupled
with
the
medical
evidence,
I
have
no
difficulty
in
concluding
that
Suzanne
met
the
criteria
set
out
in
the
legislation
referred
to
for
the
1991
taxation
year.
During
that
year
she
was
resting,
sleeping,
in
a
state
of
dizziness
without
balance
almost
constantly.
Surely
it
is
reasonable
to
conclude
that
in
1991,
she
suffered
from
a
prolonged
mental
or
physical
impairment
which
markedly
restricted
her
in
her
abilities
to
perform
activities
of
daily
living.
Her
condition
improved
in
1992
to
a
point
where,
with
perseverance
she
was
able
to
return
to
work,
albeit
to
a
limited
extent,
in
September
1992.
There
is
no
medical
or
other
evidence
to
indicate
that
she
was
markedly
restricted
in
her
basic
activities
of
daily
living
continuously
(the
key
word)
throughout
the
1992
taxation
year.
For
these
reasons,
the
appeal
of
Wallace
Lamondin
for
the
1991
taxation
year
is
allowed
with
costs.
The
appeal
of
Suzanne
Lamondin
for
the
1992
taxation
year
is
dismissed.
Appeal
for
1991
allowed;
Appeal
for
1992
dismissed.
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