G.S. Mantle v. Her Majesty the Queen (Informal Procedure), [1995] 1 CTC 2918

Kempo J.T.C.C.:-This informal procedure appeal relates to Mr. Mantle’s 1992 taxation year. It arises from a disallowance of a claim for a tax credit transferred to the appellant from his son on the basis that his son, Mark Aaron Mantle, had not been suffering from a severe and prolonged mental or physical impairment during 1992 which markedly restricted him in his activities of daily living.

The provisions of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act") that were raised by both parties as being applicable to the issues in this case are paragraphs 118.3(l)(a) and (b) and subsection 118.4(1), the relevant portions of which read as follows:

118.3(1) Credit for mental or physical impairment -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...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,

118.4(1) Nature of impairment -For the purposes of subsection... 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 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.

Mr. Mantle gave evidence. His son, Mark, born June 13, 1983, was diagnosed in about October 1990 as having Type 1 Juvenile diabetes mel- litus. It is a chronic or permanent disease with no known cure at the present.

In 1992 Mark was nine years of age and was in school at the grade three level. Mr. Mantle testified extensively as to Mark’s impairment. I shall list the details in point form. I believe this format is responsive to the statutory tests and gives a good picture concerning Mark’s impairments and inabilities to perform basic activities of daily living during 1992.

—Mark has not accepted or handled the disease very well at all. He expressed constant dread as to the future and experienced frequent mood swings, including depression and weeping;

—Two insulin injections were required to be administered on a daily basis. Although Mark learned to administer these to himself, his parents were the ones who determined, having regard to the diet and activity undertaken and to be undertaken, how much insulin would likely suffice. The amounts were based on educated estimates;

—Mark was not the same child as he was before the diagnosis. He became guarded and fearful, and suffered loss of self-esteem arising out of some fainting spells outside of school, sporting restrictions, and because of his negative feelings associated with extensive needle marks on his arms and legs;

-Mark’s school marks were average while in grade three but have been deteriorating since;

—School attendances were missed for three to four days per month on average due to required attendances at medical labs and diabetes workshops, and hospitalizations required upon contracting the flu, etc., mandating close monitoring because of its impact on the diabetic condition;

-Diet control and monitoring was constant. Mark had to eat something appropriate every one and one-half hours and he also had to exercise moderately. If he ran afoul of either of these, the earlier insulin injection would be compromised and his blood sugar level would be affected. Reactions to abnormal blood sugar levels varied;

-Mark not infrequently came home from school trembling, weak-kneed, with a vacant look on his face and with his eyes watering. While he may have heard his parents questioning him, he did not always respond or react. In some cases liquid glucose had to be given because he refused to swallow;

-An ideal blood sugar level is measured at seven. A reading of four or lower is too low and above nine is too high. Three to four times a day Mark had to monitor his blood sugar level at home by finger pin pricks. This was a necessity and was done frequently and regularly because it was the only and best indicator available;

-A low blood sugar and high blood sugar produced different reactions. Too low produced weakness, sweating, blurred speech and vision, fainting, weeping and depressed feelings. At times Mark appeared to be in a "freezing" state. During these times Mark’s cognitive skills were obviously affected; for example, he exhibited mental blanks due to his logistical abilities being inoperative. Too high a blood sugar produced copious drinking and urinating. These situations occurred a couple of times a month on average;

-Mark was expected to know what to do during a reaction. However when his mental judgment was impaired by a reaction, his ability to perform normal activities and to exercise life-saving judgments were similarly and simultaneously impaired by the effects of the disease itself. Parental monitoring on a prolonged and constant basis was essential. School teachers were notified of Mark’s condition and it was hoped they would keep an eye on him;

-Extraordinary physical activity could not be spontaneous. This was possible only after prior consideration allowing modified insulin amounts to be administered in advance;

—Mark was a moderately active child by nature. The sport he enjoyed the best was dirt-bike riding which he did only when accompanied by his father;

—Nocturnal experiences were variable notwithstanding the evening’s insulin routine. Mark’s nightmares alerted his parents that the dosage was too high. Restlessness, accompanied by frequent drinking and urination throughout the night proved the dosage had been too low. Mark frequently went to school in a fatigued state.

Mr. Mantle said he and his wife, through classes and workshops, were very aware of the seriousness of Mark’s diabetes and of the negative prognosis if the required blood sugar monitoring and timely response to reactions were allowed to fall off. They were keenly aware of Mark’s inability to self-monitor and react appropriately with sugar-taking once his blood sugar fell too low. While Mr. Mantle may not have expressed the situation in precisely these terms, the reality was that their parental monitoring was mandated entirely because of Mark’s restricted and unreliable ability to self-monitor and self-administer what was needed.

The Type 1 diabetes mellitus suffered by Mark occasioned dual impairments to be endured by him during 1992. One was the physiological impact on his physical and mental health, and the other arose from his physical and mental inability to do anything about it when he was in a reactive state. If all followed the way of the ideal, Mark could lead a relatively normal life. The evidence indicates, however, that this was not the case in 1992. Clearly this must be an individually focused matter as the extent of the effects of the impairment would surely turn upon the nature and abilities of each particular individual so affected.

The medical reports submitted to Revenue Canada (Taxation) under the provisions of paragraph 118.3(1)(a.2) of the Act during 1993 and early 1994 (Exhibits R-1, R-2 and R-3) were not supportive and essentially had answered all of the pertinent questions pertaining to the severity of the disease and Mark’s performance inabilities in the negative. However there appears to have been a change of heart by this physician during late 1994 or early 1995 as evidenced by Exhibit A-1. Additionally, and while not put into evidence and marked as an exhibit, there is attached to the notice of appeal a letter dated July 12, 1994 from this self-same physician to Revenue’s chief of appeals wherein he acknowledges that a child would be unable to perform any of his/her basic daily activities if proper doses of insulin were not administered at the proper time and that without the insulin the child would be physically disabled.

It is appropriate to return to the legislation itself. In my view it has been shown that during 1992 Mark had a severe and prolonged mental or physical impairment. Counsel for the respondent submitted that the severity aspect was not satisfied, and she produced some case law on this subject. In my view each case must be considered on its own individual circumstances and merits. None of the jurisprudence produced purports to find, as a matter of law, that Type 1 diabetes mellitus is not a severe disease in nature. It is the severity of the impairment and its effects upon an individual to which the legislation is focused, and it is in this light that the provisions must be interpreted.

Black's Law Dictionary, sixth ed., defines "severe" as "sharp, grave, distressing, violent, extreme...rigorous, difficult to be endured".

The Shorter Oxford English Dictionary provides that "severe" means:

III. c. Of an attack of illness or disease: attended with a maximum of pain or distress, violent 2. Of pain, suffering, loss, or the like: grievous, extreme.

In my view Mark’s impairment in 1992 arising from his diabetes was severe within the ordinary meaning of that term, and it was also prolonged.

The next determination to be made is whether Mark’s situation satisfies the requirements of paragraphs 118.4(1 )(b) and (c) of the Act, supra.

Turning firstly to paragraph 118.4(1)(c), I am satisfied the evidence in total establishes performance impairments respecting basic daily living activities did exist on Mark’s part during 1992 when his blood sugar level was abnormal. His impairments impacted on pretty well all of the activities mentioned in subparagraphs (i) to (vi) inclusive in some form or another. Perception, thought and recall were immediately adversely affected followed by impairments impacting on feeding, speaking, hearing, urinating and walking.

With respect to paragraph 118.4(1)(b) I would adopt Judge Hamlyn’s approach as expressed in Brookshaw v. Canada, [1994] 2 C.T.C. 2360 (T.C.C.), where, at page 3 of his reasons for judgment, he formulated the question as being centered around what would be an "inordinate amount of time". He considered dictionary sources relating to the meaning of the words "inordinate" and "amount". These sources indicate that the term "inordinate" signifies deviation from an ordering or regularity; that which is immoderate, intemperate or excessive, and that the word "amount" includes matters calculated in the aggregate or in total.

In my opinion the amount of time Mark spent respecting his physical and mental impairment occasioned by his diabetes was both inordinate and excessive. Indeed, all of his life’s decisions and actions evolved from and centered around his disability. Because the effects of the impairment were such that Mark’s ability to perform the basic activities of daily living were markedly restricted, he falls within the purview of paragraph 118.4(1 )(b) of the Act.

I would like to quote from page 2 of the attachment to Exhibit A-1. It was written by another physician and was fully adopted in 1995 by Mark’s pediatrician. It opines:

Until a Type I diabetic child is capable of assuming the full responsibility of managing his/her own diabetes through diet, regular physical activity, blood sugar monitoring, and insulin injections, his/her parents/guardians will be fully responsible for his/her care. In this regard, diabetes mellitus in a dependent child can be considered a severe and disabling condition with prolonged functional impairment of the neuro- or musculo-skeletal systems requiring marked restrictions in his activities of daily living.

The evidence submitted has undoubtedly put Mark’s situation squarely within this statement as during 1992 he remained incapable of assuming full responsibility.

Conclusion

In conclusion then, the appeal is allowed, with costs, and the matter referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the appellant is entitled, for his 1992 taxation year, to a disability deduction respecting his son, Mark Aaron Mantle, pursuant to the provisions of 118.3(2) of the Income Tax Act.

Appeal allowed.