Karamjeet Prasher v. Her Majesty the Queen, [1996] 3 CTC 2677 (Informal Procedure)

Taylor J.T.C.C.: — These are appeals heard in Toronto, Ontario, on July 31, 1996, under the Informal Procedure, against assessments in which the Minister of National Revenue disallowed claims for the Disability Tax Credit in the years 1992, 1993 and 1994, as provided under Section 118.3 and 118.4 of the Income Tax Act (the “Act”).

Some of the documentation filed with the Court reflected the situation, and is informative regarding the basis of Mr. Prasher’s condition:

Humber College

205 Humber College Blvd.,

Etobicoke, Ontario,

M9W 5L7.

November 7, 1995.

TO WHOM IT MAY CONCERN:

This is to certify that Mr. Karamjeet Prasher, Stu. #820-446-748 was a Humber College student from 1983 to 1986. He graduated as a Electronic Technologist. During his course of study he had a hard time because of his speaking problems.

Because of stuttering, he can not express his feelings, and can not demonstrate. Also he was exempted from such courses that needed presentation. He is speaking with many silent blocks. His speaking problem makes him markedly restricted in his daily living.

Yours truly,

signed Robert Nash,

Robert Nash,

Chair,

School of Information Technology,

Electronics and Accounting.

Dr. Arnold Lurie

Family Physician

Skyrise Medical Centre

7330 Yonge Street, Suite 214

Thornhill, Ontario L4J 1V8

(905)771-7771

8th November, 1995

TO WHOM IT MAY CONCERN

Re: Karam Prasher

This is to certify that Mr. Prasher suffers from a severe speech impediment. He has a significant stutter which interferes with his ability to communicate. It is significantly worse when he is under pressure/stress. It interferes with his ability to carry out business dealings on a daily basis.

The disability is of long standing and it is unlikely to ever improve.

Yours truly,

signed Dr. A. Lurie

Dr. A. Lurie

Mr. Prasher gave testimony and answered questions as well as he could, and in light of his speech impediment, I would say with great difficulty. He is employed as an Electrical Technician - at the same place for nine years, where his fellow employees are now fully aware of his speech difficulty, and make allowance for it, as do his wife and his two children. He can be questioned and gives short direct answers often by way of nodding or shaking his head indicating affirmative or negative responses. He is unable to engage in anything but the simplest conversation with another party, since it takes too long for him to complete an answer and provide any continuity to the discourse. He stated that he avoids conversation, and only speaks when it is absolutely necessary. Mr. Prasher admitted that under stressful conditions there was heightened nervousness and tension, which might increase by ten percent his normal every day speech impediment difficulty, and that would include his appearance here today. His own doctor had brought the possibility of qualifying for this Disability Tax Credit to his attention. However it was a constant condition, which he had endured since early childhood.

Counsel for the Minister, who conducted the case with particular consideration and respect pointed out to the Court that in order to qualify for the deduction, Mr. Prasher must demonstrate that he could not meet the level of basic activity of daily living under Section 118.4(1 )(iii) of the Act which reads:

(iii) speaking so as to be understood, in a quiet setting, by another person familiar with the individual,

Mr. O’Donnell did not provide the Court with any case law directly relevant to this physical condition, and I am unaware of any which might be specifically helpful to the Court.

Analysis

In my opinion, and based to some degree on my own observation, this is a serious speech impediment, under which Mr. Prasher labours daily. I am very reluctant to expand the library of case law dealing with the sensitive matters falling under Sections 118.3 and 118.4 of the Act, particularly in this situation in which there could be some area of subjectivity for all parties concerned, including the Court. However, I do commend the Respondent for realizing that there are indeed certain circumstances under which the appearance in Court may be the only way in which such determinations can be made - and in my view this is one of them.

Mr. Prasher, can barely speak so as to be understood, and that is “all or substantially all of the time”. It is to his credit that he does as well as he does, and with little or no indication of complaint or self-pity. In my view he is “markedly restricted” in at least one of the major fields of the basic activity of daily living, and to whatever degree the provisions of Section 118.4 of the Act can serve to moderate the effects of that condition, he is entitled to its benefit.

I am all too aware that this result for Mr. Prasher might be subject to wide interpretation and that I have not attempted to define or refine the term “serious”, in “serious speech impediment”. I can only leave that up to the good judgment of those responsible in Revenue Canada, and perhaps the Courts under differing circumstances. But I do state that in this situation Mr. Prasher’s physical impairment meets the provisions of the Act, as I understand them.

This situation might be looked at as the “mirror image” of the circumstances recounted in Shepley v. R. (sub nom. Shepley v. Canada), [1995] 2 C.T.C. 2448(D) (T.C.C.) in which the condition involved was loss of hearing. In this instant matter, the parties did not emphasize the term “communicate”, but the relevant comments from Shepley (supra) might be useful to repeat:

I noted with some interest, that in argument, both Counsel concentrated largely on the term “communication” as opposed to that which I consider critical in the above line from section 118.4 “understanding”. It would appear to me from the conduct of this Appellant in Court, and the explanations and information she provided that there is a great difference between just “hearing” and “understanding”. In my opinion “understanding” requires a clear appreciation of the words spoken by another party - even in a quiet setting, and even by someone familiar. There can be, or at least there should be complete auditory comprehension of each word or phrase, as well as the voice inflection, modulation and pitch. The lack of one word, or the error in appreciation of one word can lead to a complete misunderstanding of the sentence or the context of the conversation. Someone coping with a hearing loss, and the attendant uncertainty of the discussion taking place, must encounter a major obstacle in understanding and thereby replying in the proper context of that discussion in order to maintain communication. This Appellant in a quiet setting, with voices and people she knows is quite capable of carrying on communication adequately - but it is clearly only possible with the utmost concentration on her part, with the full use of her hearing aids, and in particular with her eyes fixed on the speaker intently.

The appeals are allowed, and the entire matter is referred back to the Minister of National Revenue for reconsideration and reassessment.

Appeal allowed.