Laffrenier v. R., [1997] 1 CTC 2696 (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 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.