O’shea v. R., [1997] 2 CTC 2268

Mogan T.C.J.:

This is an appeal in respect of the 1993 taxation year in which the Appellant has elected the Informal Procedure. The only issue to be decided is whether the Appellant is entitled to a disability tax credit under the provisions of sections 118.3 and 118.4 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) with respect to a serious illness affecting his infant son, Andrew.

Andrew was born on March 5, 1991. In the middle of May 1992, when Andrew was 14 months old, he demonstrated some extraordinary symptoms indicating that there was something wrong with the way his small body was functioning. His mother is a registered nurse and was astute enough to observe these symptoms and attach significance to them. She discussed them with some of her colleagues at the hospital where she worked and, as a result of that discussion, performed a simple blood sugar test on her son Andrew. His blood sugar level on that simple test was shown to be around 44 on the scale that is used to measure blood sugar. The level of 44 might mean very little to a lay person, but its significance can be measured by the fact that a blood sugar level between 6 and 12 is normal and to have it as high as 44 for a 14-month old child put him in an acute and serious position of illness. The results could be a seizure on his part, becoming unconscious or comatose. He was taken to the hospital immediately. A paediatrician, Dr. Noonan, who had not seen the child previously, attended him immediately and started insulin and other treatment to bring his blood sugar level down and to try and get it in the normal range. Dr. Noonan indicated that ideally the blood sugar for Andrew should be between 6 and 12, but on a practical level the child was actually able to function so long as the blood sugar level was above 4 and under about 16 or 17. In other words, it was difficult for this child to stay within what I would call — and it is my phrase, not the doctor’s — the ideal range of 6 to 12. For practical purposes, that range had t be extended down as low as 4 and up as high as 16 or 17.

Notwithstanding the expansion of the range, the child showed very erratic blood sugar levels. It was described by his mother, who testified in this appeal, as being “out of control.” It seems he was given a tremendous amount of parental monitoring and care and he was given injections of insulin at least once and sometimes twice every day of his life from and after May 22, 1992. He was fed three, if you can call them, “regular” meals for a 14-month old and three little snacks, making a kind of six-meal-a-day plan for a child that size in which his intake of food was closely monitored as to the content of the food. Notwithstanding that, his blood sugar level was erratic and there were times when it would drop low and his mother could see him out in the yard staggering as opposed to walking in the way a normal child of 2 or 2 1/2 years might walk.

Because he was born in March of 1991, he was one year and nine months old when the 1993 taxation year commenced. There was extensive evidence as to the kind of monitoring that was needed to provide stability to this child. The “blood sugar testing” was done with a needle because it had to extract blood from his system. Because he was such a tiny child, it was done mainly from his toes, at least three or four times a day in an attempt to measure his blood sugar level which seemed to be erratic.

As a result of the monitoring and care, the child has developed normally and at the time of this hearing in 1996, he is a couple of months older than 5 years of age; he is able to be in a day care centre for two days a week; and he runs and plays in the yard with other children. He has learned to say that he is diabetic and has started to understand some of the consequences of that. From the evidence of his mother, I infer that his development as a child has been normal from an intellectual and physical way, subject to this significant burden he has of being diabetic and of having a blood sugar level that seems to be and is in fact difficult to control because it is so erratic.

I suppose there are diabetics who by taking a fixed amount of insulin each day, may be able to maintain a very constant blood sugar level and it would be constantly under control. This little boy seems to have a blood sugar level that is, if not out of control, very difficult to control, and, to say the least, unpredictable. That is a summary of his disease as provided by his mother, in very clinical language because of her profession as a nurse.

The question is whether he was disabled within the meaning of the Income Tax Act in the taxation year in issue. Andrew’s father, who is the Appellant, claimed a disability tax credit for Andrew, as permitted under the Income Tax Act where the disabled person is a dependent child. That brings me to the application of the provisions of the Act, which can be summarized, excluding what I regard as redundant language. The disability tax credit itself is permitted under section 118.3 in the following words. I will omit clauses which contain conditions that have been clearly met by the Appellant, like the provision of a medical certificate:

118.3(1) 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,

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

The formula is not relevant for this appeal. That is what I call the “permissive clause” which allows the disability tax credit. Section 118.4 defines some of the terms I have just used.

118.4(1) For the purposes of ... section 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)

Counsel for the Respondent admitted in her argument that the Minister of National Revenue acknowledges that the impairment, being the diabetic condition of Andrew, is prolonged. Therefore, there is no question that par- agraph 118.4(1)(a) is satisfied. It is paragraphs b) and (c) which the Minister challenges.

Counsel for the Respondent argues that the use of medication referred to in paragraph (b), which is extensive in the case of Andrew, is what permits him to perform basic activities of daily living and therefore he is not markedly restricted because he is not prevented from performing those activities, all or substantially all of the time.

In paragraph 118.4(1 )(c), there is an absolute definition of “basic activity of daily living”. The first item “perceiving, thinking and remembering” has limited application to any child under the age of three, and he was under the age of three at all times during 1993. He was running from the age of one year and nine months to two years and nine months in that calendar year. That is the very time period when a child is learning words, learning to remember things, such as where his toy box is at that age so that he can go and get his toys. It is a very formative time in terms of perceiving, thinking and remembering, and there is nothing about Andrew’s diabetes that affects that.

The second item is “feeding and dressing oneself’. Most children from 21 to 33 months need some help in feeding and dressing themselves, and the evidence is that Andrew did. What he ate in terms of feeding himself was crucial for his survival. Just to stay alive it was important that he not eat certain things at certain times and also that he eat other things at other times. He had to eat frequently and also he had to be prevented from eating certain things. But the fact is, in terms of feeding himself there was nothing in the evidence that I heard that indicates that the act of feeding himself was any different for him than any other child between 21 and 33 months of age.

The next two items, “speaking so as to be understood in a quiet setting” and “hearing so as to understand in a quiet setting” again are communicating skills, both transmitting and receiving messages, which are difficult to apply to a child of two years old. I think Andrew had them because his mother referred to him as having temper tantrums when he saw that his brother Mitchell could have something and he could not have it. However, he did not have enough rational powers at that age to understand why he could not have a type of candy that his brother was having. When he saw his brother enjoying Halloween treats and he could not have them, he might have a temper tantrum. There was nothing wrong with his ability to understand because the mother described another time when, on Halloween, Andrew had disappeared, he was found in the basement eating the forbidden fruit. Obviously, he was an astute child because he knew enough to run downstairs and get out of his mother’s and father’s sight in order to enjoy the forbidden fruit. His communicating skills, both in terms of perceiving and understanding and escaping the rules that parents impose, in my view were an indication of normal development as opposed to suffering from an affliction.

The fifth item is “eliminating (bowel and bladder functions).” The mother’s testimony was that he was potty-trained at two years, so that he could be trained to urinate and have a bowel function, the normal kind of toilet training that goes on with a child around the age of two. When he had to consume excessive liquids because of his body sugar going out of control, then he would have perhaps a bed-wetting at night. And although he was toilet-trained at one time, he regressed after he was two years old and developed this habit which has been difficult for him to overcome even up to the age of five. Again that is not unusual. Anyone that has raised a number of children knows that bed-wetting occurs sometimes for reasons that have nothing to do with physical illness. The fact is, though, that when he is awake, since the age of 2 or 21/2, he knows enough when he has to go to the toilet for either bowel or bladder functions.

The last item is “walking.” When his blood level is high, his mother said he can walk. In fact, that has become less of a problem because he runs and plays with other children and the exercise he gets works it off. If his blood sugar level is too low, he can be weak, he can stagger or even fall down. It happened in the year under appeal with a certain regularity because his blood sugar level went to an extreme position, either high or low, about once a day. If it went low, the child in 1993 might have fallen in the yard, which was a sign that his blood sugar level was low, but it was also a sign that he needed some kind of medication or some kind of food. There is nothing to indicate, though, that subject to that affliction when the blood sugar level was out of control, that he did not develop walking functions and a walking facility like any child who is two years old. He was running and playing, literally, in the words of his mother.

On the plain meaning of the statute, I find it very difficult to conclude that this child could not perform the basic activities of daily living with the assistance of medication. I might have more doubts on the outcome of this case if it were not for the fact that two other cases were brought to my attention which dealt specifically with children in a diabetic condition. I am grateful to counsel for the Appellant for bringing them to my attention even though they did not assist her cause. I will refer to them briefly.

In the decision of Sincock v. R., (sub nom. Sincock v. Canada) [1995] 2 C.T.C. 2749, 95 D.T.C. 535, a case decided by this Court in February of 1995 by McArthur J., it dealt with a child who was diabetic. McArthur J. stated in this case — the child’s name was Jon:

Jon required daily care, as a 5 and 6-year old diabetic, that included insulin injections, blood-testing and careful monitoring of his diet. While he did face restrictions in his daily activities, and was carefully guarded by parents, upon considering the expert reports and upon hearing the Appellant, I conclude that he does not meet the rigorous and onerous criteria set forth in the legislation.

During the taxation years 1991 and 1992 Jon was not suffering from a severe and prolonged physical impairment as a result of which he was unable to perform a basic activity of daily living. ...

In a closer case, Sanders v. R., (sub nom. Sanders v. Canada) [1996] 1 C.T.C. 2617, decided by Bonner J. of this Court in September of 1995, it also involved a child who was diabetic. I will quote a passage from Bonner J.’s decision — the child’s name was Catherine:

The disease has proven to be a burden on both Catherine and her family. Catherine is required to take three daily insulin injections and to eat a strict diabetic diet divided into six meals a day. In addition, she must take four daily blood tests in order to monitor her blood glucose levels because there is a danger of developing hyperglycaemia or hypoglycaemia. In 1992 Catherine did develop hypoglycaemia about five or six times a month. Each time the problem was detected and corrected.

The child’s lifestyle is somewhat restricted. She is not able to play for long periods of time because she must avoid excessive fatigue. Her behaviour, food intake and activities must constantly be monitored by her parents. It was necessary to remove her from a school when the teacher was found to be unable to provide supervision.

Bonner J. went on to make the following finding:

... Despite the sympathy which I feel for this family, I cannot offer relief because based on considerations which are not relevant under the statute. It is the ability of the individual to perform a basic activity which is relevant. Paragraph 118.4(1)(b) requires that the inability exist even when appropriate medication is taken.

The inability to perform must exist even with medication is an important consideration. He goes on to say:

Catherine’s condition does not prevent her from leading what is, for a child of her age, a reasonably normal life, provided she takes her insulin and controls the level of sugar in her blood.

I am persuaded by Bonner J.’s reasoning. The Appellant drew to our attention another decision of this Court in Mantle v. R., (sub nom. Mantle v. Canada) [1995] 1 C.T.C. 2918, which was a judgment rendered by Kempo J. in March of 1995, which would have come after the Sincock case and before the Sanders case. In that case a child, a boy 9 years old, was also diabetic. Kempo J. allowed the appeal on the basis that that boy’s diabetic condition had rendered him unable to perform activities of daily living. It seems to me that in that case the boy had other limitations. Because at two places in her Judgment, Kempo J. refers to “mood swings, including depression and weeping.” She also refers to Mark — the boy’s name — as:

... he became guarded and fearful, and suffered loss of self-esteem arising out of some fainting spells outside the school, sporting restrictions, and because of negative feelings associated with extensive needle marks on his arms and legs.

Those are psychological effects that a child might feel, but they are feelings, they are not physical disabilities. When Kempo J. dealt with the activities of daily living, which are enumerated in paragraph (c) of section 118.4, she says:

... I am satisfied the evidence in total establishes performance impairments respecting basic daily living activities did exist on Mark’s part during 1992 when his blood sugar level was abnormal. ...

That case decided by Kempo J. was cited to Bonner J. in the Sanders decision. Bonner J. declined to follow Kempo J. in Mantle with the following words:

... I cannot follow the decision of this Court in Geoffrey S. Mantle v. The Queen. In that case the Court does not appear to have given effect to the words “even with ... the use of ... medication” ...

I accept Bonner J.’s distinction of the Mantle case. My inclination is — and I have read these two paragraphs of Kempo J.’s very carefully — I think Bonner J. has expressed it correctly that Kempo J. did not give effect to the fact that in order to be “markedly restricted,” to use the magic words of the legislation, the person has to be unable to perform a basic activity of daily living even with the use of medication.

The evidence in this case indicates to me that with the use of medication and diet control Andrew is able to perform the activities of daily living, even as those are performed by a person in the range of 21 to 33 months. These cases are difficult because persons claiming the disability tax credit come to this Court with what is almost inevitably, a real medical burden visited on them by ill fortune, and that is certainly the case today with a child like Andrew. Unfortunately, however, this Court is not a Court of equity. I do not have the jurisdiction and Parliament does not give me the authority to do what I think is fair or what some citizens and taxpayers may think is fair in a given set of circumstances.

I have to apply the law as it is written and as it has been construed by my colleagues in this Court and in higher courts where our decisions are appealed, like the Federal Court of Appeal and the Supreme Court of Canada. On the basis of what I consider to be the plain language of section 118.4 and the decisions of my colleagues McArthur J. and Bonner J., which I find more persuasive than the decision of Kempo J. in Mantle, I do not see any way but to reach the conclusion that this appeal has to be dismissed.

The child has a prolonged illness which, as the parents know better than I, is not going to end in the foreseeable future. As to Andrew’s ability to perform a basic activity of daily living, on the positive side, his good fortune is that with medication he can perform those activities. For the above reasons, the appeal is dismissed.

Appeal dismissed.