Jane D. Taylor v. Her Majesty the Queen (Informal Procedure), [1994] 1 CTC 2234

Mogan, J.T.C.C.:— In 1978, the appellant was diagnosed with multiple sclerosis (MS), a neurological disease. In 1989 and 1990, she deducted a tax credit under section 118.3 of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act") on the basis that she had a severe and prolonged mental or physical impairment. The deduction was disallowed by the Minister of National Revenue. The only issue in this appeal is whether the appellant may deduct a tax credit under subsection 118.3(1) for 1989 and 1990. The appellant has elected the informal procedure.

A person having MS can ordinarily obtain some relief from the prescription drug cortisone. Unfortunately, the appellant was found to be allergic to cortisone and so her only relief was to rest. When she was diagnosed in 1978, the appellant was employed as a computer installer and she had only a Grade 12 education. Looking ahead, she knew that she should try to qualify herself for some kind of employment in which she would not have to move around or travel. She therefore enrolled in accounting at the Southern Alberta Institute of Technology (SAIT). She was in full time attendance at SAIT the first year but had great difficulty because of her restricted mobility, her need for rest and her obligations to attend classes during the day and study in the evening. To overcome this difficulty, she split her second academic year into two calendar years so that she was required to attend classes only half days.

In 1985, she commenced employment with Revenue Canada working a five-day week. It proved to be too much and, within four months, she had to reduce her workload to four days a week having Wednesday as a day of rest. Even the shorter work week proved to be too tiring and, in October 1989, the appellant was obliged to give up her employment at Revenue Canada and go on long-term disability. She was still on long-term disability when this appeal was heard in July 1993. One of the appellant’s problems with MS is that she has occasional periods of exacerbation and continuing periods of weakness. She described exacerbation as a flare up and onset of MS when she would have a rush of tingling sensations going down her spine if her head was bent forward. She would have to go to bed. The periods of weakness were not as severe as periods of exacerbation but they were more frequent, unpredictable and could come at any time in the day or evening.

When filing her income tax returns for 1986, 1987 and 1988, the appellant claimed the appropriate deductions on the basis that she had a severe and prolonged mental or physical impairment. Some of those claimed deductions were at first disallowed by Revenue Canada but, after filing notices of objection and providing further information, she was allowed those deductions for those three years. It is the two following years (1989 and 1990) which are now in dispute. The appellant also stated at the hearing of this appeal that she had already been assessed for 1991 and 1992 and allowed her disability tax credit for those years. Although the Minister of National Revenue could still reassess for 1991 and 1992, his assessing action to date for 1991 and 1992 is not consistent with the position taken by the respondent in these appeals. That fact may not be relevant when deciding the issue herein.

Because the appellant has MS, the principal result of the disease which limits her activity is fatigue. She tires very easily and after very little effort. The following excerpts from her testimony provide a good picture of how MS has affected her daily living:

It's been ongoing and progressive for 15 years.

So, all this time I’ve had chronic fatigue. And I need eight to ten hours sleep a night, and I usually have a sleep in the afternoon. . . .

In the morning is when I can determine what I'm able to do that day. Some days I get up and my legs are heavy, and my hands are curled and other mornings my legs are okay. They're usually weak all the time, so sometimes they're worse off than others.

. . .when I was working, no matter what I did I just couldn't seem to catch up on my sleep, so I asked for something and they gave me Symmetrel, but I don’t find any marked improvement when I take it. It doesn't seem to — it’s not a drug that makes a dramatic change.

I do drive a car, and I do go out. And I always have a cane in my car. Some days going out isn't feasible because it’s difficult to think coherently or speaking is slow. But if I do go out, I take my cane and I go along with someone, I don't drive. When I'm having difficulty, communication is slow and sometimes slurred. The heat is very draining, or showers, baths, or out in the sun.

I prepare my own meals. So I sit down to do some parts of preparing the meal and will, you know, quick meals, I don't stand for very long. But if I’m unable to prepare the meal, I don’t. I might be able to prepare a meal an hour later or someone else will prepare a meal. I have difficulty at times getting off the toilet or getting out of the bal tub. And I do have difficulty going upstairs and I need a handrail.

And I don’t use public transportation. Basically because l’m not quite certain of the distance that I'll have to walk, you know, to get on or off that public transportation. And I'm not always stable because I have a problem with my balance at times.

. . . if I'm going out in a crowd, or I don’t feel very well that day, I'll use my cane. And one of the biggest reasons, I guess, is for stability, but also in case I get bumped, because if someone bumps into me there's a good possibility I'll go down, I'll go over.

When I'm exhausted my speech is slow and slurred. Walking needs to be on a flat surface. Sand and snow are really hard. At night, I sometimes have tightness in my legs, which interrupts my sleep, but I may have just a mild pain in my legs, which I just take aspirin for.

In dressing sometimes buttons are tough. I'm not working so I usually just wear T-Shirts or something I can slip over. Something like those pull over jackets I can’t wear at all, because they're really hard to get in and out of, and to pull my arms and hands out of, I find very strenuous.

And my shoes are all slip on. So for my running shoes, I'll just tie the knot and leave it tied up so I don’t have to undo it. And I need support to put boots on and off or I sit down.

I live in a bungalow, so I don't have to go up and down stairs. If I’m out and I have to do a great deal of walking, I — at the Stampede and Expo I I visited, I used a wheelchair when I was there.

In cross-examination, the appellant gave the following answers:

Q: Could you still walk a block?

A. Hm-mmm.

Q. And you could do that without assistance in 1989?

A. Well, I was going to work. I was driving to work. I would just walk into the hospital, and I couldn't walk a block every single day, but I think most days I could.

A. I would have difficulty cutting my food for instance. And holding the fork, I'd hold it in my left hand, sometimes I'd brush my teeth with my left hand. And sometimes I was unable to take off my socks or take off my shoes. And I would have help with that, or this is just at periods of time.

Q. And over, I guess, the period of 365 days in 1989, how often would you have difficulty with these types of matters?

A. It was frequent. Because I was working, I was working those four days, and I wasn't catching up on my sleep. I was quite exhausted all of the time.

Q. In 1990 could you walk a block a day?

A. Hm-mmm.

Q. And could you take care of personal grooming matters such as feeding yourself, dressing yourself, preparing meals.

A. Well, those things were not as bad as 1989 because I was no longer working in 1990. But I still was having quite a bit of difficulty in the early part of 1990. And, you know, this making meals as I indicated before, when it came time to make meals, sometimes I coula and sometimes I couldn’t. So I’d wait until I could or just make something quick. And dressing and things were slow, I would be slow in doing those things.

There were two medical doctors who testified in this appeal as expert witnesses. Dr. Peter Seland, a physician specializing in neurology, testified for the appellant. He provided a three-page letter (Exhibit A-4) describing the appellant’s symptoms which included the following passages:

By 1992, her leg weakness had been variably but persistently impaired. Her average tolerance for exercise was two or three blocks only. She was able to shop for an hour at a time by taking frequent rests. In shopping centres, she preferred to push a cart. Otherwise, she often preferred the support of a cane out-of-doors.

Fatigue is one of the most disabling primary symptoms of multiple sclerosis and among the most frequently cited by patients. At least one study has shown that fatigue was the most likely of all primary symptoms to interfere with the activities of daily living. As was the case, particularly in the early stages, with Ms. Taylor, fatigue can be incapacitating even when the patient has normal or near normal strength and other physical signs. This apparent discrepancy is often perplexing to patients, their families and their care-givers and often will lead to a supposition of emotional "overlay" or even malingering.

It is my opinion, that at the time of my last assessment in May of 1992, Ms. Taylor was certainly completely disabled according to the definitions of the Tax Department and in all probability was similarly disabled for at least four years prior to that date.

When Dr. Seland was cross-examined on the above statements in his letter, he gave the following answers:

Q. And in 1989 she had a mild leg weakness which you'd indicated by 1992 was moderate; is that correct?

A. In 1988 she had mild leg weakness.

Q. I’m sorry, in 1988?

A. Right.

Q. And in 1992 it would have been a moderate leg weakness. So it was a mild to moderate leg weakness in 1989 and 1990; is that correct?

A. Correct.

Q. And in 1992 in your letter in the 3rd paragraph you indicated that she had an average tolerance to exercise of being able to exercise, walk two to three blocks, and shop for an hour at a time with taking frequent rests.

And that was in 1992. So in 1989 and 1990 she would have been able to walk further and shop?

A. Probably, although the neurologist didn't document her degree of activity at that time.

Dr. Kennedy O’Brien, a physician specializing in occupational medicine, testified for the respondent. Although he himself had not examined the appellant as a patient, he had reviewed all of the medical documents submitted by her to Revenue Canada. In particular, Dr. O'Brien reviewed a report submitted by Dr. Larry Fenske (the appellant’s general practitioner) dated August 21, 1992 (Exhibit A-1) in which Dr. Fenske provided the following answers to a number of specific questions:

Dr. Fenske’s answers to the above questions are consistent with the appellant's own testimony in this appeal. On the basis of all the documents before him, Dr. O'Brien concluded that the appellant did not have a severe and prolonged mental and physical impairment.

If the appellant is to succeed in this appeal, she must satisfy certain statutory conditions. The relevant provisions of the Income Tax Act are set out below:

118.3(1) Where

(a) an individual has a severe and prolonged mental or physical impairment that has been certified as such in prescribed form by a medical doctor or, where the impairment is an impairment of sight, by a medical doctor or an optometrist,

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

(c) no amount in respect of remuneration for an attendant, or care in a nursing home, by reason of the mental or physical impairment of the individual is included in calculating a deduction under subsection 118.2(1) 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. .. . .

118.4(1) For the purposes of sections 63, 118.2 and 118.3,

(a) a person shall be considered to have a severe and prolonged impairment only if by reason thereof he is markedly restricted in his activities of daily living and the impairment has lasted or can reasonably be expected to last for a continuous period of at least 12 months; and. . . .

It is acknowledged that the appellant has satisfied the conditions in paragraphs (b) and (c) of subsection 118.3(1). Therefore, the only question is whether during 1989 and 1990 the appellant had ‘’a severe and prolonged mental or physical impairment" within the meaning of paragraph 118.3(1 )(a). Those particular words are given a statutory meaning in paragraph 118.4(1)(a). Multiple sclerosis is an ongoing disease and, at any time in 1989 or 1990, it had lasted or could reasonably be expected to last for continuous periods of at least 12 months. There is no doubt that the appellant suffers genuine fatigue from having MS; and the fatigue prevents her from obtaining or keeping fuIltime employment. The question in paragraph 118.4(1)(a), however, is whether she was in 1989 and 1990 "markedly restricted in her activities of daily living".

In Dr. O'Brien's report (Exhibit R-4), he refers to Taber's Cyclopedic Medical Dictionary (Edition 16) which defines “activities of daily living" as follows:

Activities of daily living: The self-care, communication, and mobility skills required for independence in everyday living. The distinction is made between basic activities of daily living and ancillary but very important activities; such as, telephone use, preparing meals, laundry, housecleaning, taking medicines, and handling finances.

Dr. O'Brien also referred to Krusen's Handbook of Physical Medicine and Rehabilitation (Third Edition) which stated at page 501:

. . .levels of independence of physical function. The latter are referred to as self-care activities or activities of daily living, ADLs. . . .

The activities that must be performed to achieve functional independence may be classified as mobility activities, hygiene, eating, dressing, and bowel and bladder control. Mobility activities include bed position, transfers, wheelchair mobility, and ambulation.

In his oral testimony, Dr. O'Brien stated:

The activities of daily living are the basic survival skills required for an individual to maintain some sense of independence. They are the skills that are required to protect oneself against the environment, keep oneself nourished, keep oneself clean, to do basic food preparation and self hygiene. And they are the basis for whether an individual can be determined to require full-time assistance because they [sic: he or she] can not perform one of these basic survival skills.

[Transcript page 64.]

This is a difficult case because the appellant was first diagnosed as having MS in 1978 and the disease has been with her ever since. It is ongoing and progressive. She suffers from continuing fatigue which, in 1989, forced her to give up permanent employment that had permitted her to work a four-day week. She is therefore partly disabled in the sense that she is not able to hold full-time employment. To the extent that she is partly disabled, it was prolonged in 1989 and 1990. Unfortunately for the appellant, the test for the tax credit in subsection 118,3(1) is not disability with respect to employment but whether a person is "markedly restricted in her activities of daily living".

Dr. O'Brien, a specialist in occupational medicine, referred to a medical dictionary and a handbook on physical medicine and rehabilitation which defined and commented on the phrase "activities of daily living". In my opinion, those words in paragraph 118.4(1 )(a) of the Act were not chosen at random. The definition and commentary referred to by Dr. O'Brien indicate that there is a distinction between (i) basic activities for independence in everyday living: communication (hearing, speaking and seeing), mobility, dressing, eating, bladder and bowel control, self-care and personal hygiene; and (ii) ancillary activities: telephone use, preparing meals, doing laundry, housecleaning and taking medicine. Relying on the answers in Dr. Fenske's report (Exhibit A-1) set out above and the oral testimony given by the appellant herself, I find that the appellant in 1989 and 1990 was able to perform the basic activities for independence in everyday living although the performance of those activities caused the appellant significant fatigue. Her fatigue made it difficult for her to perform her ‘‘activities of daily living" but she was not "markedly restricted" in those activities. I am obliged to give some weight to the adverb "markedly" which means “having an emphasized character". Although the appellant's continuing fatigue causes her some restriction in the performance of many tasks, she was not in 1989 and 1990 markedly restricted in her activities of daily living within the meaning of paragraph 118.4(1 )(a) of the Act. For the above reasons, the appeals are dismissed.

Appeals dismissed.