Rezba v. R., [1997] 2 CTC 2029

Somers DJ.T.C.:

This appeal was heard at Toronto, Ontario, on November 26, 1996.

The Appellant appeals from assessments of income tax for his 1993 and 1994 taxation years. In each taxation year, the Minister of National Revenue (the “Minister”) disallowed the Appellant’s claim for a disability tax credit.

The Appellant, while living in Alberta, in 1993, contacted asthma as a result of chlorine poisoning and in October 1993 was affected by food poisoning and was unable to work from that time until approximately four weeks ago. He was hospitalized six times from July to September 1993, each stay in hospital lasted two or three days. As a result of the medication, which comprised seven different medications, his bones became brittle, ending with a broken wrist.

According to the Appellant, in 1993 and 1994 he had to take half-hour naps every day due to exhaustion. He obtained a compressor in August of 1993 to help his breathing which prevented him from going into the hospital. In June of 1994, he bought a meter to monitor his breathing. He used the compressor four to five times a day during eight months in the years 1993 and 1994.

Since he takes medication he has had less asthmatic attacks, the worse period being in 1993 and 1994 when he suffered the worse attacks. However, the Appellant was able to function and perform his basic activities of daily living. With his 1993 and 1994 income tax returns, he supplied, for each year, a disability tax credit certificate signed respectively by Dr. Geers and Dr. W. Mueller.

Dr. Geers in his certificate dated April 11, 1994, states that the Appellant has a prolonged and severe impairment. He mentions that the Appellant can walk 100 meters on level ground (one block) without an aid or another person’s help. The Appellant had control on his bowel and bladder. As to the heading “feeding and dressing”, the Appellant can drink from a cup, use utensils to feed himself and dress the upper and lower parts of his body. There was no impairment as to his mental functions. The physician’s summary and prognosis is as follows: “occupational exposure to chlorine gas seems to have precipitated severe asthma which is easily aggravated by an environmental pollutant. This seems to be severely compromising his ability to seek gainful employment due to his restricted tolerance and his chronic shortness of breath.” In the marked restriction box, the physician says it is temporary and hopefully treatable.

Dr. W. Mueller, in his certificate dated July 4, 1995, states that the Appellant’s impairment lasted or is expected to last a continuous period of at

least 12 months. The physician answered “no” to the question: “Is the impairment severe enough to restrict the basic activity of daily living identified above, all or almost all of the time, even with the use of appropriate aids, devices, medication or therapy?”

The Appellant still suffers from his asthmatic attacks which curtail his activities in his daily living. However, he is now working as superintendent in an apartment building, earning $1,000 per month plus accommodation. He does paper work and some maintenance work and occasionally performs some janitorial chores.

In the years at issue, namely 1993 and 1994, subsection 118.3 (1) of the Income Tax Act read as follows:

118.3(1) Credit for mental or physical impairment. - 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 by reason of paragraph (2)(b.1) thereof) 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.

Subsection 118.4(1) of the Income Tax Act reads as follows:

(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.

In the Budget, a document dated February 26, 1991, at page 144, explains the expression “markedly restricted” as follows:

The expression “markedly restricted” will continue to mean that, despite the use of medication, therapy or devices, the effect of the impairment is to greatly restrict the performance of activities of daily living. In addition, the expression ’activities of daily living’ will continue to refer to basic functions such as seeing, hearing, speaking and walking, but not working or social, recreational and housekeeping activities...

After having reviewed the legislation and case law, the evidence does not permit me to conclude that the Minister erred in denying the Appellant’s claim for a disability tax credit for his 1993 and 1994 taxation years. The Appellant has an impairment creating physical difficulties, but the physicians who signed the certificates for the disability tax credit, did not conclude that there was an impairment severe enough to restrict the basic activity of daily living as defined in subsection 118.4(1) of the Income Tax Act. I have great sympathy for the Appellant for his ailment but there is no doubt that the legislation is designed to bar the claim for all but the most severely handicapped.

The appeal is hereby dismissed.

Appeal dismissed.