Andrew Bradbury v. Her Majesty the Queen, [1997] 1 CTC 2051 (Informal Procedure)

Sarchuk J.T.C.C.: — These are appeals by Andrew Bradbury (the Appellant) from assessments of tax with respect to his 1991 and 1992 taxation years. He has elected to proceed by way of an expedited hearing pursuant to Section 18.(1) of the Tax Court of Canada Act.

In computing taxes payable for the 1991 and 1992 taxation years, the Appellant claimed non-refundable tax credits in the amounts of $700.06 and $719.61 in respect of disability amounts of $4,118.00 and $4,233.00 transferred from his spouse. The Minister of National Revenue (the Minister) disallowed the credits claimed by the Appellant on the basis that in the taxation years in issue the Appellant’s spouse, Linda, was not suffering from a severe and prolonged mental or physical impairment, the effects of which were such that her ability to perform a basic activity of daily living was markedly restricted.

The Appellant testified on his own behalf and evidence was also adduced by him from Dr. A. DeRubeis. Dr. Eleanor W. Sutherland testified on behalf of the Respondent.

Linda Bradbury is now 37 years old. In 1983 she was a passenger on a motorcycle which was involved in an accident. She was thrown from the motorcycle, landing on her right hip and experienced pain in her neck, aching and discomfort in the right arm, pain in muscles around the right elbow, pain and discomfort in the right knee and pain in the right ankle. She apparently did not lose consciousness at the time and could remember the impact. Some mental confusion was noted at the hospital and there were later indications of pre-traumatic and post-traumatic amnesia. Subsequently, she developed problems with memory failure which apparently remained unreported for several years. In 1987 she was examined by a psychologist, Ronald D. Kaplan, whose lengthy report forms part of material reviewed by Dr. Sutherland and by Dr. DeRubeis. It appears from this report and is also common ground between the parties that at that time, the Appellant’s wife suffered from a variety of physical and neuropsychological problems.

The Appellant stated that in the two taxation years in issue, his wife’s condition was no better and that she only had repetitive memory available to her. This would not improve and in his view, his wife functioned with little or no recollection of past events. As a result, his wife’s activities of any nature, and almost without exception at all times, had to be supervised by himself or by his mother-in-law. By way of example, he said that although Linda looked after their son following his birth in 1991, she had to be assisted on a continuous basis. He also said that Linda was able to groom, dress and feed herself, but on occasion she would forget to do so, or if left by herself, would forget to take medication prescribed to control seizures (which were first diagnosed in the latter part of 1991). The Appellant expressed concern that she would endanger herself and the child, although there was no evidence that ever occurred.

The Appellant also stated that in addition to her memory loss, Linda experienced neck aches and headaches, had discomfort and weakness in her right upper arm and side and less than full use of her right hand. As a result, she had difficulty in utilizing the bathtub and other bathroom facilities. As well these disabilities affected her ability to take the baby out of the crib or place him on a change table and to do many of the household chores which required lifting such as hanging clothes on a clothesline.

Reference was made by the Appellant to the 1987 Kaplan report which states in part that Linda had a “remote memory disorder” which in substance, meant that she remembers “poorly the great majority of events from her life both before and after the accident”. She also had episodic or event memory failure which meant that she did not readily remember day-to-day events, places and faces. According to Kaplan, such memory failure made her likely to repeat herself more than other people, affected her confidence about whether she has done things and reduced her normal sense of continuous personal existence. However, Kaplan also described her as having good procedural memory which meant that she could learn information with repetition, reminders and cues. As well, she was able to rely on old information, old skills and was able to learn new skills.

I turn next to the testimony of Dr. DeRubeis. He was the family doctor and attended to Linda regularly. In 1990, 1991 and 1992, her visits were on an almost monthly basis. In 1990 she usually saw him with respect to her pregnancy and later primarily with respect to her physical problems. He recalled specific complaints in 1991 when her son was approximately six months and, because of weakness and numbness in her right arm, she found it difficult to perform activities relating to his care and associated household tasks. She also complained that her right leg was dragging as she walked. According to Dr. DeRubeis, the Appellant and his wife were referred to an occupational therapist for the purpose of obtaining assistance “in helping her through her activities of daily living”. With regard to her lapses of memory, Dr. DeRubeis said that based on information provided by the Appellant (Kaplan’s 1987 report) and from his personal observations he felt that Linda did “have a serious memory, neurological problem that existed in 1991 and has persisted since and which began soon after the motor vehicle accident”. He concluded that her ability to recollect past events was seriously impaired and that her neurological and cognitive problems were unlikely to improve.

A disability tax credit certificate completed by Dr. DeRubeis dated April 25, 1994 was filed as an exhibit. In this certificate, Dr. DeRubeis noted that Linda was not able to remember and commented that she “had to be reminded to eat;” that “her husband is required to make the meals” and “do groceries” and that she was “not capable of managing her own personal affairs.” The latter item reflected information provided by the Appellant to the effect that Linda had problems balancing her cheque book. Dr. DeRubeis also testified that Linda “does have to be frequently reminded of numerous things, could rarely be self-motivated in some of the items of her daily living, has to be frequently supervised from all of life. That has caused serious impairment in her ability as a person to function from day-to-day or her ability to perform outside of the home in any way”. He conceded that he had no personal knowledge of most of these facts and indeed, expressed surprise when asked whether he knew that she was driving a motor vehicle. These statements are also inconsistent with information provided by him in a previous disability tax credit medical report dated February 5, 1993 in which he noted that Linda did not have a severe impairment, and that her cognitive functions were not impaired. When cross-examined with respect to the obvious contradiction, Dr. DeRubeis indicated that her situation was fairly complex and involved making it difficult to respond on a yes or no basis. However, he agreed that the answers in the 1993 certificate were based on his overall observations and impressions of her as a patient at the time it was prepared. Having heard the testimony of Dr. DeRubeis, it is fair to say that the opinion expressed by him in the 1994 certificate was the result of a degree of importuning by the Appellant and reflected to a large extent anecdotal information provided by him.

It should be noted that Dr. DeRubeis’ comments in the 1994 certificate to the effect that Linda’s ability to carry out activities of daily living were severely impaired reflected his perception that such activities included “the normal sort of work one would do through the home, vacuuming, washing clothes, etc. ...”, as well as such items as personal hygiene, looking after her son and doing household chores.

Conclusions:

By virtue of section 118.3 of the Income Tax Act (the Act), a tax credit may be claimed where an individual has a severe and prolonged physical impairment, the effects of which markedly restrict her ability to perform a basic activity of daily living. The nature of the impairment for the purposes of sections 118.2 and 118.3 is defined in section 118.4 of the Act. This section provides that:

118.4(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 may 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 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 must adduce evidence which, on a balance of probabilities, permits this Court to conclude that Linda was not able to perform a basic activity of daily living within the meaning of these sections. The onus in this context is squarely on the Appellant.

This appeal had been set down for hearing on two previous occasions. The Appellant’s problems in securing the voluntary attendance of witnesses resulted in requests for adjournments, which were granted. Since he appeared reluctant to take a firm position with some witnesses, he was advised to ensure their attendance by way of subpoena. It was also suggested that serious consideration be given to calling all relevant witnesses to enable him to provide cogent evidence of his wife’s condition and that he consider retaining counsel since the issue appeared to be somewhat involved. At trial, the Appellant informed the Court that Kaplan, although served with a subpoena, would not appear. He was advised that the Court was prepared to issue a warrant to compel the witness to attend but he rejected that course of action. Furthermore, he chose not to adduce any evidence from the mother-in-law or from his wife. With respect to the latter, he said she refused to attend because of an antipathy towards lawyers, judges and the Court system stemming from her personal injury law suit, which was heard in 1988 and 1989. [1]

The absence of key witnesses is of some import since the testimony of the Appellant himself was imprecise and inconsistent. A repeating theme in his testimony was that during the relevant taxation years, his wife was almost never left alone and was virtually incapable of performing fun- damental tasks without assistance or supervision. However on other occasions he testified that Linda wanted to work and in fact for a period of time was employed by a clothing manufacturer on a piece-work basis sewing uniforms for high school students. [2] As well, at some point of time in the years in issue, Linda also did volunteer work at Pioneer Village, acting as an assistant interpreter primarily for tours of school children. This involved amongst other things, demonstrations of pioneer cooking and talking to people, as the Appellant said, “about what she remembered of Ontario history”. She was licensed to drive a motor vehicle and did in fact drive the family car during the years in question although the Appellant said she never did so herself. There was also an assertion by the Appellant that Linda suffered from tinnitus and that the constant ringing in her ears made ordinary conversation extremely difficult. Dr. DeRubeis confirmed that such a problem existed but said she had adequate hearing for conversational purposes.

In this context, reference must be made to the report of the occupational therapist dated February 26, 1992. She was involved with the Hamilton- Wentworth home care program and her report covers a treatment period from October 15, 1991 to January 20, 1992. The therapist notes that Linda had no difficulty and was independent in “bed and chair transfers” but had difficulty with bathroom fixtures. Modifications to both fixtures, i.e. bathtub and toilet, were installed and on several subsequent visits, Linda stated “that she was bathing independently and was very pleased with the equipment”. With respect to Linda’s difficulty lifting her six-month old son out of the crib and changing him on a change table due to right arm weakness, modifications were suggested, were made and worked well. The therapist reports that as the baby became bigger, Linda found it easier to manage his care. Other modifications were made including the installation of a mechanism to enable Linda to lower the clothesline to a reachable level.

In her report, the therapist described Linda (as of February 26, 1992) to be

...presently fully ambulatory with no aids, is driving and managing her activities of daily living quite independently.

and noted that she had:

a tendency to over-extend herself at times with activities around the home. This tended to aggravate her physical condition ... . Principles of energy conservation were reviewed with her and her husband and the client has attempted to incorporate these strategies into her daily routine with satisfactory results.

The therapist’s conclusion was:

The client appears to be managing reasonably well at present in her activities of daily living, and her care of her son. Her physical condition does fluctuate considerably with episodes of fairly acute right arm pain. Her husband appears very supportive, and has been able to assume the role of principal care-provider for their son on these occasions when Mrs. Bradbury is unable to. The Bradburys have arranged with a neighbour, who operates a private day care, that she would be able to care for James on an emergency basis only.

This conclusion paints a different picture than that presented by the Appellant. When asked about the report, the Appellant suggested that it was inaccurate in its portrayal of the actual circumstances.

I note finally that in 1991, Linda and the Appellant attended pre- natal classes at Mohawk College. Nothing in the testimony of Dr. DeRubeis or that of the Appellant suggests that Linda was unable to be involved and understand these preparatory classes.

Nor is there anything in their testimony to suggest that there were concerns during the pregnancy or thereafter regarding her capability to care for and attend to her child’s needs.

There is no dispute that Linda Bradbury suffers from a prolonged and severe impairment, both neurological (memory) and physical. However, in my view, her ability to perform the basic activities of daily living were not circumscribed to the extent asserted by the Appellant. First her physical disabilities, while severe, permitted her with the use of appropriate aids and medication to perform not only the basic activities of daily living but also many of the excluded activities found in paragraph 118.4(1 )(d) of the Act. I turn next to the basic activities referred to in subparagraph 118.4(1 )(c)(i) i.e perceiving, thinking and remembering. It is not disputed that Linda’s memory of past events is impaired and that she has difficulty in remembering which in turn, has some effect on her ability to perceive and think. The question however is whether the evidence adduced has established that the degree of impairment in the taxation years in issue was such that it can be said to have markedly restricted her ability to perform a basic activity of daily living.

Given my reservations regarding the evidence adduced by the Appellant, I am unable to conclude that Linda’s condition in the taxation years in issue satisfies the specific provisions of subparagraph 118.4(1 )(c)(i) of the Act.

The appeals are dismissed.

Appeal dismissed.