Marinus J Overdyk v. Minister of National Revenue, [1983] CTC 2361, 83 DTC 307

D E Taylor:—This is an appeal heard in Toronto, Ontario, on April 12, 1983, against income tax assessments for the years 1979 and 1980 in which the Minister of National Revenue disallowed deductions of $1,660 and $1,810 respectively, as provided for under paragraph 110(1 )(e) of the Income Tax Act, SC 1970-71-72, c 63, as amended.

The notice of appeal describes the contention of the taxpayer:

Section 110(1 )E provides that an individual, who is necessarily confined to a bed or wheelchair for a substantial part of each day and for a 12-month period, is entitled to claim a deduction known as the “disability deduction”.

I am a disabled individual, paralyzed from the waist down on the left side, who would unquestionably qualify for a deduction under the above-mentioned provision of the Tax Act by being confined to a wheelchair for a substantial period of time each day, were it not for the fact that I voluntarily chose to use a leg brace. Were I to use the wheelchair, even one step in front of a building would be an insurmountable barrier. Even my job at Rothmans of Pall Mall Canada Limited is carried on in an inaccessible building if I were using a wheelchair. Without this job I might not even be a taxpaying citizen. By using my brace, at some considerable hardship and pain to myself, I am able to work, pay taxes, and thereby contribute to the Canadian economy. Therefore, the present application of the Tax Act by the Department, in my particular case, penalizes me for being independent and assertive, and for my desire to work.

My physical condition restricts me totally to office work in which I am “confined to a chair’. Any other type of employment would be impossible, and when tried previously, resulted in hospitalization and necessary surgery. Leisure time and all time spent at home is also spent restricted to a chair. In order for me to walk from the chair to my bed or any other place, I must rely upon my brace or an attendant.

In summary, I am confined to a chair for a substantial part of each day, using my brace merely as a walking aid. In effect then, I am being penalized simply because my chair does not necessarily have wheels and because I choose to endure physical pain as the price I pay for a little independence.

The position of the Minister was stated as:

The Respondent admits that the Appellant is paralyzed from the waist down on his left hand side, and admits that the Appellant requires a leg brace in order to move from one place to another.. .

. . . the Appellant was not necessarily confined to a bed or wheelchair for a substantial period of time each day by reason of his paralysis (as described in Paragraph 1 herein) for a 12-month period ending in the 1979 or 1980 taxation years.

The appellant admitted that he did not own an “arm-propelled wheelchair” of the type normally seen in use. He borrowed or rented one occasionally for special purposes, including the day of this hearing. His residence was not designed or equipped for using such a vehicle. In addition, due to the particular disability he had, an arm-propelled wheelchair was very uncomfortable, and at home he spent most of his time on the livingroom sofa — television and reading being his only sources of entertainment. He depended on his wife and/or his leg brace to assist him in any absolutely necessary movement, while he was in his home, and in getting to and from the specifially equipped automobile which he drove to his place of employment. At work he used a posture chair which was mounted on five legs, each leg equipped with a caster-like wheel. He provided photographs of the office chair and his working area, and contrasted that chair with the regular four- wheel office chair in use by the majority of his colleagues at work who did not have a similar handicap. Due to the level of his desk and other working surfaces, he could not have used a regular arm-propelled wheelchair in any event in the area where he spent almost all his working day. Mr Overdyk submitted that his office chair was a wheelchair — it certainly fitted the dictionary descriptions as he read them — (a chair equipped with wheels). He also submitted that his leg brace as well as his wife were his “attendant”. On these two grounds he believed he fulfilled the prerequisite condition of the relevant section of the Act, which reads (as it deals with this matter):

. . . if the taxpayer was . . ., throughout any 12-month period ending in the year, necessarily confined for a substantial period of time each day, by reason of illness, injury or affliction, to a bed or a wheelchair ...

Mr Overdyk also requested that the Board direct its attention to Revenue Canada Interpretation Bulletin IT-225 which speaks of the relevant section in the following terms:

19. . . . The phrase “confined to bed or wheelchair” refers not only to situations where the individual in question actually was confined to bed or a wheelchair for a full twelve-month period but also to cases where the individual was so confined except when an attendant was available to help him out of his bed or wheelchair and assist him in moving around.

As a final point Mr Overdyk raised the matter of the “Charter of Human Rights”, not simply the issue of the reverse onus of proof resting on the shoulders of taxpayers in an income tax appeal, but rather in connection with perceived discrimination as he read certain sections of that Charter which he believed applied to his condition.

It was the position of the Minister’s counsel that the term “attendant” applied only to a personal attendant, and not to a mechanical or artificial aid such as the leg brace described by Mr Overdyk. Counsel noted the reference in subparagraph 110(1 )(e)(ii) of the Act to “remuneration for an attendant”, and that a separate section of the Act — 110(1 )(c)(ix) — made provision for certain deductions for a “brace for a limb”. With regard to the “wheelchair” point made by the taxpayer, counsel took the view that what was considered by the lay public as a wheelchair, was an arm-propelled wheelchair of the variety normally seen and used, not an office chair. In any event, Mr Overdyk was not “confined” to the wheelchair. Counsel also referred the Board to the cases of Balfour v MNR, 27 Tax ABC 291; 61 DTC 510, and Witthuhn v MNR, 17 Tax ABC 33; 57 DTC 174. In Balfour (supra) the presiding member made the following remark:

Hard as it may seem, because the appellant’s wife was not ill enough to warrant being confined to bed or to a wheel chair for a full twelve months, the appeal cannot succeed as was stated by the Board at the end of the hearing. The precise wording of the paragraph of the section applicable must be strictly observed.

Dealing first with the “Charter of Human Rights” point which was raised, it may be entirely too soon after the passage of that Charter for the Board to be fully aware of its implications, and indeed it will rest with higher authorities to expound on the legal impact of it. Nevertheless my own reading of the sections noted by Mr Overdyk does not lead me to the conclusion that the discrimination he suggests is, in itself, of the type which would warrant allowing his appeal. As I see it, before Mr Overdyk could call upon the Charter of Human Rights for support before the Board in this specific matter, it would be necessary for him to show that he did fit clearly within the parameters of paragraph 110(1 )(e) of the Act. Turning to that aspect of the issue, I did not find in either Balfour (supra) or Witthuhn (supra) jurisprudence which had a direct bearing on the precise point raised by Mr Overdyk. I am satisfied that the Minister’s counsel took the proper approach with respect to the term “attendant”. Mr Overdyk cannot be successful in proposing that his leg brace is an attendant as portrayed in the Act. However, it is clear that when he is at home, his wife is the type of attendant foreseen by the Act.

As I follow Mr Overdyk’s testimony I reach the conclusion that, without his leg brace, Mr Overdyk would require and have available the services of his wife — to help him get around the house, to drive him to and from work, and to help him into and out of his office location. There are apparently lengthy periods of time at home when Mr Overdyk does not wear his leg brace. It is always painful and uncomfortable to wear it, and he avoids wearing it if it is at all possible to do so. These are the times when he is “bed-ridden” if that expression can apply when he is on his sofa at home — incapacitated, unless his wife serves as his attendant. I can think of no good reason why his livingroom sofa, under these circumstances, should not be covered by the term “bed”. I do not understand the Minister’s position that, in order to qualify for the deduction sought, Mr Overdyk should go directly to his bedroom when coming home from work, and stay in his bed until it is time to return to work the next morning. The simple fact is that without his leg brace, which he takes off when he comes home, Mr Overdyk has no alternative but to be prostrate on some form of bed. I can presume that when he returns home each night, if Mr Overdyk took off his leg brace and stayed in a wheelchair (even admittedly the type described by the Minister) until it was time to go to his own bed, then the Minister would have great difficulty denying the deduction. I can accept that Mr Overdyk is totally dependent on his wife as his attendant, but that he has improved his mobility by wearing the leg brace for necessary locomotion and during working hours when his wife is not available. To that degree the leg brace may serve as a temporary substitute for his wife’s assistance.

On the basis of the foregoing analysis, it is my view that the appellant is “necessarily confined for a substantial period of time each day by reason of illness, injury or affliction to a bed . He does not remain prostrate at home by choice — it is his affliction that mandates this bodily positioning. As far as the term “substantial period of time” is concerned, I do not find it necessary to decide if the time he spends in bed (or on the sofa) is “substantial”. It is axiomatically all of the time, by virtue of the fact that he cannot even stand up without an attendant (leaving aside whether that is his wife, his leg brace, or perhaps even crutches). The term “substantial” in paragraph 110(1 )(e) of the Act to me implies a situation in which the taxpayer is not totally confined to bed or a wheelchair by virtue of his illness, but may be personally capable of relieving his own discomfort from spending lengthy periods of time in bed or wheelchair, through some mobility on his own volition and under his own locomotion. That is not the situation before the Board in this matter — this taxpayer has no such option — his illness is totally disabling unless he has external assistance of some kind.

That brings me to a further critical point in the evidence — that Mr Overdyk did not own or use a regular arm-propelled wheelchair either at home or at his office, but used a special kind of office posture chair on five wheels when at the office. On this question of the “wheelchair”, it might be comforting to the Minister to regard that term as narrowly referring to an “arm- propelled wheelchair”. I doubt that such an interpretation has as yet been that specifically or judicially determined to apply to paragraph 110(1 )(e) of the Act. This taxpayer has no alternative at his work but to remain in that which he calls his “wheelchair”, once he has positioned himself there. It is less uncomfortable, yet more manoeuvrable than an arm-propelled wheelchair in his working space, according to him. But leaving that aside, he cannot leave it unless he has assistance or is wearing his leg brace. I presume that if the working conditions permitted him to do his work prostrate on a bed, this would be regarded as an acceptable continuation of the “bedridden” status at home, which was covered earlier in this decision.

It is possible that the Minister’s perspective on this matter and paragraph 110(1 )(e) of the Act is based on a concept that the individual involved must be virtually helpless 24 hours per day and 12 months a year. I do not read that view into the relevant section — it appears to me rather that the taxpayer must demonstrate that the confinement to “bed or wheelchair” is necessitated, in fact, dictated by the illness described. The term “substantial” must not be seen as diluted merely by virtue of the efforts of the individual to use his remaining physical abilities to the maximum limits. I have purposely italicized the word “or” in the above phrase “bed or wheelchair” since there does not appear to be any necessity for a taxpayer to ever use a wheelchair at all in order to qualify for the deduction as long as the illness is of such a nature that, without external aid or assistance, he would be confined to bed. While I have not heard a convincing argument from the Minister that a “chair on wheels” cannot fit the term “wheelchair”, I do not find it necessary to make any such final determination in this appeal on that point.

In summary, this taxpayer qualifies for the deduction, as I read the section, because his affliction leaves him no choice but to spend his time in bed, unless he has direct external aid or assistance of some kind. That he has developed certain mechanisms and processes to reduce this bed-ridden time and, in fact, to gainfully employ his time, does not alter the fact that it is his affliction which determines his physical constraints. That he can also, for a “substantial period of time each day”, rid himself of the bed and utilize a chair on wheels, has not resulted in any diminution in the basis incapacitating effects of his illness. And that he has done so should not have any negative effect on his entitlement to the deduction claimed. It is my view that on a simple interpretation of paragraph 110(1 )(e) of the Act, this appellant should be granted the deduction. If the section is viewed in the light of Interpretation Bulletin IT-225 which extends the deduction to situations in which an attendant is involved, this appellant is even more qualified. I make no comment on the legal value of the Interpretation Bulletin, but I do make reference to a recent judgment of the Supreme Court of Canada in Nowegij- ick v The Queen et al, [1983] CTC 20; 83 DTC 5041 in which the acceptability of such Revenue Canada interpretations was reviewed.

The Board is all too aware of the possible latitude for deduction that may be read into this decision by parties believing themselves to come within paragraph 110(1 )(e) of the Act. This decision does imply that neither total incapacitation, nor complete abandonment of residual effort at mobility, is required in order to qualify for the deduction under paragraph 110(1 )(e) of the Act, but the parameters of that section are not interpreted in this decision to go beyond that description. There may exist a range within which differing incapacitating effects of disabilities deserve consideration for such a deduction. However, in this matter, no possible minimum or maximum levels of incapacity need be considered since this appellant, left completely alone without external aid or assistance, would be in bed at all times and that situation can only be attributed to his affliction. That fulfills the requirements of the section to my satisfaction. Mr Overdyk has managed to reorder a painful and frustrating life experience into a satisfying and productive sphere of activity. That effort does not warrant attention and appropriate recognition, but it does not, of itself entitle him to any special benefit or privilege under the Income Tax Act. However, neither should it serve to deprive him of a deduction for which his basic and constant physical condition meets the requirements of the Act.

The appeal is allowed and the matter referred back to the respondent for reconsideration and reassessment.

Appeal allowed.