Bowman
J.T.C.C.:
—
These
appeals
are
from
assessments
for
1991
and
1992
and
involve
the
denial
of
a
disability
tax
credit
claimed
by
the
appellant
under
section
118.3
of
the
Income
Tax
Act.
The
basis
of
the
appeals
is
that
the
appellant
suffered
from
a
severe
and
prolonged
physical
disability.
The
effects
of
which
were
that
his
ability
to
perform
a
basic
activity
of
daily
living
was
markedly
restricted
in
the
years
under
appeal.
The
basic
activity
of
daily
living
in
this
case
is
walking.
In
order
to
qualify
for
the
credit
he
must
all
or
substantially
all
of
the
time
either
be
unable
to
walk
or
must
require
an
inordinate
amount
of
time
to
do
so,
even
with
therapy
and
the
use
of
appropriate
devices
and
medication.
The
appropriate
medical
certificate
was
filed.
The
appellant
suffers
from
severe
fibromyalgia.
It
flared
up
in
March
of
1991.
It
is
unclear
whether
it
resulted
from
a
severe
domestic
problem
involving
his
daughter,
problems
at
work
or
the
stress
resulting
from
his
second
wife
being
diagnosed
with
cancer,
a
combination
of
the
above
or
other
causes
that
have
not
been
identified.
He
works
for
a
Canadian
customs
broker.
His
employer
permits
him
to
work
at
home
where
he
has
a
computer,
telephone,
fax
machine
so
that
he
need
not
go
to
his
place
of
employment.
Fibromyalgia
was
formerly
considered
to
be
fibrositis,
but
recently
it
has
been
recognized
as
chronic
pain
that
is
not
the
result
of
inflammation.
So
far
no
cure
has
been
found
for
it.
It
is
a
severe
disability,
and
results
in
excruciating
pain
in
18
pressure
points
of
the
body.
It
has
numerous
symptoms,
including
extreme
pain
in
various
parts
of
the
body.
This
pain
may
move
without
warning
from
one
point
to
another.
The
medical
literature
which
I
permitted
the
appellant
to
put
in
evidence
indicates
that
it
is
a
complex
malady
as
yet
not
fully
understood
by
the
medical
profession.
What
is
clear
is
that
it
is
a
serious
and
debilitating
illness.
I
need
not
go
into
the
other
symptoms
and
aspects
of
it.
What
is
abundantly
clear
is
that
the
appellant,
who
walks
with
a
cane
slowly,
painfully,
awkwardly
and
with
great
difficulty
has
a
serious
problem
walking.
Counsel
for
the
respondent,
Ms.
Tataryn,
in
her
very
thorough
and
fair
cross-examination
brought
out
that
he
could
walk
—
indeed
he
sometimes
walks
the
dog,
but
often
can
go
only
half
a
block
and
then
has
to
come
back.
I
agree
that
he
can
walk,
but
slowly
and
painfully.
He
parked
his
car
on
the
morning
of
trial
at
the
Galleria
in
London
and
walked
to
the
court.
He
testified
that
it
took
him
25
minutes.
I
walk
about
the
same
distance
from
my
hotel
and
it
takes
4-5
minutes.
I
regard
25
minutes
to
cover
the
distance
from
the
Galleria
as
inordinate.
Mr.
Marshall
takes
therapy
and
this
appears
to
have
brought
about
some
improvement
in
his
condition,
although
even
today
it
is
serious
and
debilitating.
Counsel
suggested
that
since
he
testified
that
he
had
4-5
“bad”
days
per
week,
this
is
not
substantially
all
of
the
time.
With
respect,
I
do
not
agree.
Moreover,
I
do
not
think
that
it
is
quite
accurate
to
say
that
he
had
“good”
and
“bad”
days.
From
his
description
of
his
condition
it
seems
more
accurate
to
say
that
all
days
are
bad
and
four
out
of
seven
are
worse.
It
should
also
be
observed
that
his
condition
was
significantly
worse
in
the
latter
part
of
1991
and
throughout
1992
than
it
is
today.
I
think
Mr.
Marshall’s
ability
to
walk
in
1991
and
1992
was
markedly
restricted
within
the
meaning
of
section
118.3
of
the
Income
Tax
Act.
Accordingly,
the
appeals
are
allowed.
Appeal
allowed.
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