O’Connor
J.T.C.C.:
—
These
appeals
were
heard
on
common
evidence
at
Sydney,
Nova
Scotia,
June
24,
1996.
Testimony
was
given
by
Kimberly
Brushett
and
various
exhibits
were
filed
with
the
consent
of
the
parties.
Both
Kimberly
Brushett
and
David
Brushett
spoke
in
argument.
Issue
The
issue
in
these
appeals
is
whether
the
Brushetts’
daughter,
Candace,
born
in
1985,
was
so
disabled
in
the
1990,
1991
and
1992
taxation
years
as
to
enable
her
parents
to
claim
disability
tax
credits.
David
Brushett
claimed
for
the
1990
and
1991
taxation
years
and
Kimberly
Brushett
claimed
for
the
1992
taxation
year.
The
claims
are
made
under
section
118.3
of
the
Income
Tax
Act
(“Act”).
Subsection
118.3(2)
of
the
Act
permits
the
claims
to
be
made
by
a
parent.
In
1990
the
relevant
provisions
of
the
Act,
so
far
as
material,
read:
118.3(1)
Where
(a)
an
individual
has
a
severe
and
prolonged
mental
or
physical
impairment
that
has
been
certified
as
such
in
prescribed
form
by
a
medical
doctor
or,
where
the
impairment
is
an
impairment
of
sight,
by
a
medical
doctor
or
an
optometrist,
(b)
...
(C)
…
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
$3,236
where
A
is
the
appropriate
percentage
for
the
year.
118.4(1)
For
the
purposes
of
sections
...
and
118.3,
(a)
a
person
shall
be
considered
to
have
a
severe
and
prolonged
impairment
only
if
by
reason
thereof
he
is
markedly
restricted
in
his
activities
of
daily
living
and
the
impairment
has
lasted
or
can
reasonably
be
expected
to
last
for
a
continuous
period
of
at
least
12
months;
and
(b)
the
Minister
may
obtain
the
advice
of
the
Department
of
National
Health
and
Welfare
as
to
whether
a
person
has
a
severe
and
prolonged
impairment.
For
1991
and
1992
these
provisions
read:
118.3(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)
...
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
AX
$4,118
where
A
is
the
appropriate
percentage
for
the
year.
118.4(1)
For
the
purposes
of
...
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.
Does
Candace
meet
the
conditions
set
forth
in
these
provisions?
She
was
born
with
congenital
cyanotic
heart
disease
with
cyanosis.
She
was
operated
on
two
days
after
birth.
The
operation
is
described
as
a
Blalock
shunt
which
is
an
anastomosis
by
graft
of
the
right
subclavian
artery
to
the
right
pulmonary
artery.
She
was
operated
on
again
nine
months
after
birth.
This
operation
is
described
as
a
left
Blalock
shunt
which
involves
an
anastomosis
of
the
left
subclavian
to
the
left
pulmonary
artery
via
a
graft.
She
was
further
operated
on
at
the
age
of
three
and
a
half
and
it
is
expected
that
that
would
be
her
final
surgery.
That
open
heart
operation
was
designed
to
direct
the
systemic
venous
return
into
the
lungs
via
the
right
pulmonary
artery.
According
to
Kimberly
Brushett,
Candace
in
the
years
in
question
was
unable
to
walk
very
far
without
experiencing
shortness
of
breath
and
her
activities
were
limited.
She
attended
school
regularly
but
often
had
to
rest
in
bed
after
school.
She
was
prone
to
illness.
At
times
after
swimming
or
other
exercise
she
turned
blue.
According
to
the
report
of
Dr.
R.
Bird
filed
as
exhibit
AR-2,
Candace
had
seizures
and
congenital
heart
disease
and
the
latter
limited
her
activity
to
non-strenuous
endeavours.
He
states
further
that
Candace
will
have
limited
exercise
tolerance
for
the
rest
of
her
life.
She
is
at
risk
for
seizures
but
currently
her
seizure
disorder
is
under
good
control.
That
report
of
Dr.
Bird
is
undated
but
presumably
was
signed
some
time
after
1992.
Another
report
of
Dr.
Bird
dated
August
4,
1993,
filed
as
exhibit
AR-3
has
substantially
similar
statements.
Candace
could
not
keep
up
with
her
peers
in
gym
class
causing
some
classmates
to
ridicule
her.
She
could
not
play
fully
with
her
friends
during
non-school
hours
and
on
vacations.
But
she
could
walk
reasonable
distances
and
did
not
require
an
inordinate
amount
of
time.
Notwithstanding
all
her
difficulties,
Candace’s
bravery
and
spirit
have
proven
great
assets
to
overcoming
them.
The
Brushetts
were
considerably
upset
by
the
fact
that
the
disability
tax
credit
had
been
allowed
for
the
years
1987,
1988
and
1989
and
that
it
was
only
by
reassessment
in
1994
that
the
credit
was
disallowed
for
the
years
1990,
1991
and
1992.
The
disallowance
resulted
in
the
Minister
of
National
Revenue
(“Minister”)
increasing
the
taxes
of
the
Brushetts
in
the
years
in
question,
which
they
consider
unfair.
Analysis
There
is
absolutely
no
doubt
that
Candace’s
condition
was
severe
and
prolonged,
even
apparently
for
the
rest
of
her
life.
However,
was
her
ability
to
perform
a
basic
activity
of
daily
living
markedly
restricted?
This
Court
has
had
to
decide
many
cases
dealing
with
the
disability
tax
credit
and
they
are
always
difficult,
given
the
rigorous
conditions
of
the
above
cited
provisions.
The
Appellants
have
the
burden
of
proof
to
establish
that
Candace’s
basic
activity
of
daily
living
was
markedly
restricted.
Referring
to
the
definition
in
section
118.4,
applicable
in
1991
and
1992,
the
activity
in
question
is
walking.
The
possibility
of
seizures
and
the
danger
of
diseases,
even
minor
diseases
are
not
taken
into
consideration
in
the
definition.
Moreover
paragraph
(d)
makes
it
clear
that
activities
such
as
social
or
recreational
activity
do
not
count.
In
my
opinion
with
respect
to
the
1991
and
1992
years
during
which
the
definition
of
“activity
of
daily
living”
was
in
effect,
the
Brushetts
have
not
succeeded
in
discharging
the
burden
of
proving
that
Candace’s
ability
to
walk
was
markedly
restricted.
Consequently
the
appeals
for
those
years
must
be
dismissed.
In
the
1990
year
the
definition
was
not
in
effect.
The
Minister’s
position
is
that
the
definition
added
nothing
but
merely
codified
the
previous
administrative
definition
and
practice
which
relied
on
the
medical
dictionary
meaning.
In
this
regard
I
have
noted
the
following
words
of
Kempo
J.,
formerly
of
this
Court,
in
Ettenberg
v.
R.,
[1992]
T.C.J.
No.
30:
As
I
analyze
the
whole
matter,
the
real
issue
for
determination
in
this
particular
case
is
whether
the
phrase
“daily
living
skills”
is
to
be
accorded
a
medical
interpretation
which
in
effect
purports
to
exclude
marked
impairments
impacting
on
independent
living
skills.
To
adopt
this
meaning
would
amount,
in
my
view,
to
a
restrictive
approach
not
clearly
supported
by
the
legislative
phrase
employed
by
Parliament.
Basic
principles
of
statutory
interpretation
applicable
to
fiscal
legislation
are
such
that
the
ordinary
and
plain
meaning
of
words
and
phrases
are
to
govern
unless
the
provision
expressly,
or
by
compelling
implication,
requires
otherwise.
In
other
words,
a
technical
and
restrictive
interpretative
approach
may
be
justified
where
the
words
are
ambiguous
and
call
for
explanation
employing
technical
meanings.
In
my
view
even
greater
vigilance
is
called
for
where
a
technical
meaning
would
effectively
restrict
and
narrow
otherwise
simple
and
broad-based
phraseology.
I
discern
no
real
complexity
in
the
subject
phrase,
and
particularly
discern
no
need
to
cut-
down
on
or
restrict
its
natural
and
ordinary
meaning.
The
Shorter
Oxford
English
Dictionary
and
Black’s
Law
Dictionary
respectively
recognize
the
word
“living”
imports
matters
of
“the
means
of
living”
and
“literally
signifies
the
pecuniary
resources
by
means
of
which
one
exists”.
Further,
section
12
of
the
Interpretation
Act
mandates
that
“[e]
very
enactment
is
deemed
remedial,
and
shall
be
given
such
fair,
large
and
liberal
construction
and
interpretation
as
best
ensures
the
attainment
of
its
objects.”
If
the
subject
phrase
and
provisions
were
meant
to
be
restrictive,
Parliament
could
have
easily
done
so.
It
is
presumed
to
have
known
in
1988
of
the
medical
meaning
assigned
to
the
phrase
“daily
living
skills”
and
chose
not
to
use
it.
Apparently
it
has
done
so
in
Bill
C-18
...
wherein
it
is
obvious
that
Parliament
now
has,
as
a
matter
of
policy,
decided
to
restrict
the
meaning
of
the
phrase.
While
such
a
decision
may
well
have
grown
out
of
an
administrative
need,
it
is
not
proper
for
the
Court
itself
to
apply
restrictive
interpretations
to
satisfy
administrative
convenience.
Such
policy
matters
are
the
prerogative
of
Parliament
alone.
Kempo
J.
was
dealing
with
the
1988
year
before
the
restrictive
definition
in
section
118.4
was
enacted.
She
stated
that
the
Court
was
not
to
apply
restrictive
interpretations
at
a
time
prior
to
the
enactment
of
the
restrictive
definition.
I
accept
her
analysis.
Therefore
since
the
definition
only
applies
to
the
1991
and
subsequent
years,
I
find
that
in
1990
Candace,
with
all
the
difficulties
described
above,
was
markedly
restricted
in
her
“activities
of
daily
living”.
Consequently
the
appeal
of
David
Brushett
for
1990
is
allowed,
without
costs.
Appeal
was
varied.
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