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
taxation
year.
The
issue
in
this
appeal
is
whether
the
Appellant
is
entitled
to
an
amount
for
mental
or
physical
impairment
pursuant
to
subsection
118.3(1)
of
the
Income
Tax
Act
(the
“Act”),
in
the
computation
of
his
non-
refundable
tax
credits
and
tax
payable
for
the
1994
taxation
year.
In
assessing
the
Appellant,
the
Minister
of
National
Revenue
(the
“Minister”)
made
the
following
assumptions
of
fact
which
the
Appellant
admitted
or
denied:
(a)
the
facts
hereinbefore
stated
and
admitted;
(b)
the
Appellant
allegedly
suffers
from
vision
and
mobility
impairments
due
to
the
accidental
loss
of
his
right
eye
in
1966
and
a
lower
back
injury
in
1981;
(c)
during
the
1994
taxation
year,
the
Appellant
could
still
properly
see
with
his
left
eye;
(d)
during
the
1994
taxation
year,
the
Appellant
could
drive
his
own
vehicle;
(e)
during
the
1994
taxation
year,
the
Appellant
could
walk
50
metres
on
level
ground;
(f)
from
1992
to
1995
inclusively,
the
Appellant
earned
employment
income
with
his
employer,
Tri-Town
&
District
Association
for
Community,
and
reported
the
following
amounts:
Year/Employment
Income
1992:
$29,351
1993:
22,257
1994:
29,439
1995:
33,401
(g)
the
Appellant
was
not
suffering
from
a
severe
and
prolonged
mental
or
physical
impairment,
which
markedly
restricted
his
ability
to
perform
a
basic
activity
of
daily
living
during
the
1994
taxation
year;
and
(h)
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
sections
118.3
and
118.4(1)
of
the
Act
which
read
as
follows:
118.3
Credit
for
mental
or
physical
impairment
(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
(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
be
deducted
an
amount
determined
by
the
formula
A
x
$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
&
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.
The
Appellant,
a
social
service
worker,
injured
his
right
eye
in
March
1966,
at
the
age
of
16.
The
following
year,
he
entered
the
work
force
as
a
labourer
or
driver
for
about
one
year,
returned
to
school
in
1970
to
1971
and
graduated
as
an
appliance
repair
technician.
He
worked
as
a
technician
from
1970
to
1980,
graduated
as
an
office
machinery
technician
in
1981
and
injured
his
lower
back
the
same
year,
which
allowed
him
to
work
sporadically
until
1985.
From
1985
to
1987,
he
received
workmen’s
compensation.
He
returned
to
college
in
1987,
to
graduate
in
April
of
1989
as
a
social
worker.
In
1989,
he
accepted
a
permanent
job
as
a
counsellor
in
a
group
home
until
January
1990.
As
a
counsellor,
he
taught
mentally
and
handicapped
people
to
live
on
their
own.
The
group
home,
his
place
of
employment,
is
a
large
two
storey
structure.
There
were
six
clients
on
the
upper
and
lower
floors.
His
work
was
discontinued
in
January
1996
on
his
doctor’s
advice.
He
did
not
claim
workmen’s
compensation
because
his
pain
was
sporadic,
however,
he
was
unable
to
work.
From
the
impression
he
received
from
his
doctor,
he
contemplates
that
he
will
be
able
to
go
back
to
work,
by
following
physiotherapy.
In
answer
to
subparagraph
12(e)
of
the
Reply
to
the
Notice
of
Appeal,
he
says
he
cannot
walk
20
feet
on
a
wood
or
cement
floor
without
getting
a
pain
in
the
lower
back
and
both
legs.
Pertaining
to
his
employment
from
1992
to
1995,
as
reported
in
subparagraph
12(f),
he
said
he
earned
less
money
due
to
pain
in
the
lower
back,
although
in
1995
he
obtained
a
raise
in
pay
but
was
off
20
days
on
sick
leave.
In
reply
to
subparagraph
12(g),
he
says
he
has
had
a
difficult
time
getting
in
and
out
of
the
bath
tub
over
a
number
of
years.
He
has
had
to
take
six
different
prescribed
pills
daily
to
relieve
the
pain.
He
also
uses
an
electrical
stimulator
at
his
doctor’s
advice.
Two
disability
tax
credit
certificates
were
produced
as
evidence.
These
certificates
were
signed
by
two
physicians
respectively
on
February
24,
1995
and
June
26,
1995.
In
the
report
of
February
1995,
the
physician
concludes
that
the
Appellant
has
severe
prolonged
impairment
as
to
walking
he
observed
there
was
a
loss
of
perception
making
the
Appellant
slow
and
careful.
The
Appellant
can
drink
carefully
from
a
cup,
use
utensils
to
feed
himself
on
account
of
depth
perception.
The
Appellant
can
dress
the
upper
part
of
his
body
but
needs
assistance
to
dress
the
lower
part
of
his
body.
The
Appellant
is
able
to
perceive,
think,
remember
and
manage
his
own
affairs.
He
can
do
personal
care
(eating
and
dressing)
without
supervision,
but
it
must
be
done
carefully
and
slowly
due
to
depth
perception.
In
conclusion,
according
to
this
report,
there
is
a
loss
of
depth
perception
as
only
the
left
eye
survives,
also
disc
degenerative
disease,
neck
and
lumbar
spine,
osteoarthritis
throughout
thoracic
spine;
the
patient
is
very
careful
despite
knee
surgery
and
has
a
back
brace
to
prevent
from
falling
when
walking.
The
physician’s
report
of
June
26,
1995
is
similar
in
diagnosis
but
adds
that
the
Appellant
is
able
to
walk
at
least
50
meters
using
an
aid
if
necessary,
he
needs
a
railing
to
hold
onto,
while
using
the
stairs.
He
has
been
given
an
extension
arm
to
dress
himself
when
he
is
alone.
He
admits
he
can
dress
himself
on
good
days.
Catherine
Armstrong,
the
Appellant’s
common-law
wife
since
July
1995,
shaves
him
daily,
washes
his
lower
body
and
dresses
him.
Although
she
was
unable
to
describe
his
condition
in
1994,
she
admits
that
the
Appellant
was
able
to
walk
from
the
parking
lot
to
the
Court
Room,
after
having
driven
his
car
part
of
the
distance
in
the
city.
I
have
had
to
review
the
following
decisions
from
Deputy
Judge
D.W.
Rowe
of
this
Court
in
Armit
v.
R.,
[1996]
1
C.T.C.
2393(D)
(T.C.C.)
and
Campbell
v.
R.,
[1996]
3
C.T.C.
2022(D)
(T.C.C.).
These
two
decisions
referred
to
early
decisions
from
this
Court
in
interpreting
the
relevant
provisions
of
the
Act.
Walking
is
the
main
ailment
referred
to
by
the
Appellant
to
claim
a
disability
tax
credit
under
the
provisions
of
paragraph
118.4(1)
(b)
of
the
Act
which
states:
“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),
Judge
Sarchuk,
Tax
Court
of
Canada,
dealt
with
section
118.4
of
the
Act
and
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
causing
severe
impairment
on
a
sporadic
basis
is
sufficient
for
the
purposes
of
this
section.
In
the
Campbell
decision,
(supra),
Judge
Rowe
stated:
“There
is
no
doubt,
the
legislation
is
designed
to
bar
the
claim
for
all
but
the
most
severely
handicapped”.
In
the
case
at
bar,
the
Appellant
is
able
to
perform
certain
basic
activities.
The
Appellant
is
able
to
dress
himself
by
putting
on
his
pants
and
underwear
but
cannot
put
on
his
socks
or
shoes
without
help.
There
is
necessarily
a
restriction
in
performing
the
basic
activity
of
dressing
but
I
cannot
conclude
that
he
is
markedly
restricted.
The
Appellant
is
able
to
walk,
although
with
pain,
which
again
restricts
this
basic
activity
of
walking.
However,
the
Appellant
was
able
to
work
in
the
1994
taxation
year.
The
evidence
has
shown
that
he
cannot
walk
long
distance,
but
however
he
is
able
to
walk.
His
physician
concludes
that
he
is
able
to
walk
at
least
50
meters
using
an
aid
if
necessary.
He
needs
a
railing
to
hold
onto
while
using
the
stairs.
The
Appellant
was
not
able
to
discharge
the
burden
of
proof
demanded
by
the
strict
language
of
the
relevant
provisions.
I
cannot
conclude
that
the
Appellant
cannot
perform
some
basic
activities,
such
as
dressing
and
walking
in
an
inordinate
amount
of
time.
The
appeal
is
dismissed.
Appeal
dismissed.