Desbiens v. R., [1997] 1 CTC 2653 (Informal Procedure)

Somers D.J.T.C.C.: — This appeal was heard in Sudbury, Ontario, on October 29, 1996, pursuant to the Informal Procedure of this Court concerning the Appellant’s 1994 and 1995 taxation years.

The issue in this appeal is whether the Appellant is entitled to an amount for medical or physical impairment pursuant to section 118.3 of the Income Tax Act (the “Act”) in the computation of his non-refundable tax credits and tax payable for the 1994 taxation year.

The Court must consider if his appeal is valid with respect to the 1995 taxation year. I must decide at the outset that the appeal for the 1995 taxation year is not valid since no assessment exists. Therefore the appeal for the 1995 taxation year is quashed.

In assessing the Appellant the Minister of National Revenue (the “Minister”) made the following assumptions of facts which the Appellant admitted or denied:

(a) the facts hereinbefore stated and admitted;

(b) the Appellant allegedly suffers from arthritis to his left foot which limits his mobility, and from depression or anxiety,

(c) the Appellant was not suffering from a severe mental or physical impairment and the Appellant was not markedly restricted in his ability to perform a basic activity of daily living throughout the 1994 taxation year, and

(d) the Appellant is not entitled to claim the mental or physical impairment credit for the 1994 taxation year.

In assessing the Appellant, the Minister relied on section 118.3 and subsection 118.4(1) of the Act.

Section 118.3: Credit for mental or physical impairment

(1) Where

(a) an individual has a severe and prolonged mental or physical impairment,

(a.1) 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 prescrived 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 118.2(2)(b.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 bededucted an amount determined by the formula

AX $4,118

where

A is the appropriate percentage for the year.

Section 118.4: Nature of Impairment

(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

(i) perceiving, thinking and remembering,

(ii) feeding and dressing oneself,

(iii) speaking so as to be understood, in a quiet setting, by another person familiarwith the individual,

(iv) hearing so as to understand, in a quiet setting, another person familiar with theindividual,

(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.

The Appellant retired, in March 1992, as a letter carrier for Post Canada because of disabilities. Three months after his retirement, he noticed a serious ailment in his left foot which was diagnosed as arthritic problem. At the time of his retirement he had asthma which prevented him from taking any inside assignment.

The first medical report from his family physician dated November 30, 1992 (Exhibit A-2) reads in part as follows:

— neck, back, left shoulder and right knee pain

— left foot due to Plantar Fasciitis/first MTP subluxation, causes extreme pain to the heel and arch and to Bunion with “cramping” from prolonged walking or vigorous activity.

- he is unable to lift and carry heavy weight, without pain.

— (this condition makes him unable to do any gainful work as a Letter Carrier because he has to lift and carry heavy weight while he delivers mail by doing a lot of walking from door to door,

— in my opinion his condition is getting worse).

- he also suffers from Allergic Rhinitis and Asthmatic Bronchitis and Deviated Nasal Septum

— (he has been unable to work for several months at a time because of this condition; he has also been off work a few times in the past 2 or 3 years due to bronchitis and asthma; he has been unable to do any gainful employments at present.

— intolerance to any smoking or direct smoke & second hand smoke which would really make him sick with headaches, choking, very short of breath & wheezing.

— this is in turn makes him very anxious, depressed, angry and irritable.

— this condition is getting worse all the times physically & mentally for him.

The prognosis, according to the report, is as follows: “Very guarded; in my opinion, it is unlikely for him to resume any reasonable gainful employment.” A second medical report from a rheumatology and internal medicine physician dated January 12, 1993 (Exhibit A-1) reads in part as follows:

I evaluated Mr. Desbiens July 21 and November 24, 1992 regarding his exertional left foot pain which I feel is on the basis of a very prominent mechanical foot abnormality at the first toe MTP joint (plantar subluxation with associated callus formation). As a result weightbearing is painful and walking restricted.

I have recommended corrective semirigid orthotics and custom made orthopaedic shoes. While I am optimistic that this will provide some relief I am quite certain that any activity which involves prolonged standing or walking will aggravate the situation. Therefore I would characterize Mr. Desbiens as disabled with respect to this letter carrier job with Canada Post.

A third report dated May 10, 1993 from a psychologist indicates that the Appelant was initially presented to him on January 4, 1993. He was diagnosed as having a major depression but could benefit from antidepressant medication.

A disability tax credit certificate dated April 18, 1995 and signed by a physician was produced as evidence. In answer to the following item: “Walking: is your patient able to walk, using an aid if necessary ? (for example, at least 50 metres on level ground), the answer was “at times unable to due to left foot arthritis”. According to this report, he has proper vision, is able to speak so as to be understood. As to mental functions, the report indicates major depression, memory loss. The Appellant, according to the report, does not have any ailment as referred to into subsection 118.4(1) of the Act. The physician answered “yes” to the item: “Has the impairment lasted, or is it expected to last, for a continuous period at at least 12 months?”. He also answered “yes” to the item: “Is the impairment severe enough to restrict the basic activity of daily living identified above, all or almost all the time, even with the use of appropriate aids, devices, medication or therapy?”

In cross-examination, the Appellant stated that his claim is based on his walking disability and mental capacity, being unable to work due to these ailments and asthmatic problems. He said he was being able to sometimes walk 50 meters. According to the Appellant, he cannot walk with any momentum and has difficulty going upstairs and downstairs. He has been prescribed orthopaedic shoes which makes his walking more comfortable.

Since 1993, he has been selling Amway products on appointments and his purpose for this activity was to create friendship. However, this activity does not create any great activity since in 1993 and 1994 he declared losses of $3,665 and $2,430 respectively.

His final complaint is that these disabilities have had a major impact on his life; being only 43 years old, he would like to work but is unable to do so.

An explanation is given of the interpretation of subsection 118.4(1) in a decision from this Court in Brookshaw v. R., (sub nom. Brookshaw v. Canada) [1994] 2 C.T.C. 2360 (T.C.C.) which reads in part as follows, at pages 2360-61:

In order to claim a credit for physical impairment under subsection 118.3(1) of the Act, an individual must have an impairment such that the effect of it would markedly restrict the individual’s ability to perform a basic activity of daily living. Section 118.4 confines “markedly restricted” to situations 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.

In the case of Sarkar v. R., (sub nom. Sarkar v. Canada) [1995] 2 C.T.C. 2750(D) (T.C.C.) Judge Sarchuk of this Court dealt with section 118.4 of the Act. Judge Sarchuk stated:

“All or substantially all” is not defined. However, “all” means everything. And when you say “all”, without modification, it simply means everything. In terms of time, “all of the time” means exactly that. Reference to “all of the time” between twelve and four means every minute of that period of time. “Substantially”, which is used in that phrase as a modifier means, in substance, or substantially, or in the main. There is no mathematical formula by which one can determine what “substantially all” might be, but in my view it means almost all or essentially all of the time.

This, to my way of thinking, precludes a finding that intermittent bouts of illness, even causing a severe impairment on a sporadic basis, is sufficient for the purposes of this section.

In the case of Campbell v. R., [1996] 3 C.T.C. 2022(D) (T.C.C.) Judge Rowe stated: “There is no doubt the legislation is designed to bar the claim for all but the most severely handicapped.”

Paragraph 118.4(l)(d) of the Act states that working, housekeeping or social or recreational activities shall be considered as a basic activity of daily living.

In one medical report the following is mentioned: “Very guarded; in my opinion, it is unlikely for him to resume any reasonable gainful employment”. The inference from this report means that there could be some employment. However paragraph 118.4(l)(d) of the Act says that work is not a basic activity of life.

Therefore the physical ailment, as reported in this case, does not entitle the Appellant to an amount pursuant to subsection 118.3(1) of the Act.

In another report, with respect to his mental impairment, the following appears: “He was diagnosed as having a major depression but could benefit from antidepressant medication.” Paragraph 118.4(l)(b) states: “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 medication.”

This paragraph implies that the Appellant cannot claim a disability tax credit if his mental health can be improved by medication. The medical report says that the Appellant can benefit from antidepressant medication.

The evidence has shown that the Appellant’s daily living is restricted, but the Court cannot conclude that the Appellant is markedly restricted, all or substantially all of the time.

The purported appeal for the 1995 taxation year is not valid, being premature, and is therefore quashed.

The appeal for the 1994 taxation year is hereby dismissed.

Appeal dismissed.