Johnston v. R., [1997] 2 CTC 3012

Mogan T.CJ.:

The only issue in these appeals for the 1992 and 1993 taxation years is whether the Appellant is entitled to the disability tax credit permitted by sections 118.3 and 118.4 of the Income Tax Act. The Appellant has elected the informal procedure.

The Appellant was born in July 1935 with a congenital condition identified as spinal epiphyseal dysplasia. The result of this condition is that the joints in many locations of the body do not form normally. The condition leads to a degenerative type of arthritis at different levels. The condition was not identified at birth or in early childhood. About the age of nine, the Appellant started having problems with his right hip. It would go numb and cause him to collapse if he was running or being active. The family doctor thought it was a bone chip in the right hip and put him on crutches for almost two years. When the Appellant was ready to come off the crutches, he had x-rays which located a problem in his back. He was told it was osteoarthritis.

Although he and his family lived in Edmonton, he was sent to the Children’s Red Cross Hospital in Calgary for close to two years. He was placed in a frame bed which arched his back and placed his head and feet at different levels. When he was released from the Red Cross Hospital about the age of 13, he had to learn to walk again. He returned to his family in Edmonton and completed high school but was not able to participate in team sports. When the Appellant finished high school in 1952 at age 17, he knew that he had to get a job where he could sit down because his back and hips would not permit him to work in a standing position. He got a job in the accounting department of Alberta Government Telephones (AGT); he progressed there and worked for 35 years until he retired in 1987 at age 52. He retired at that time because of health problems but deferred his pension until 1990 when he turned 55 in order to avoid a reduced pension.

The Appellant has had a number of serious medical problems which seem to be linked directly or indirectly to his condition of spinal epiphyseal dysplasia. In 1977, his right hip was replaced. In 1980, the cartilage was removed from his left knee. In 1982, his left knee was surgically broken and re-set in the hospital. In 1983, he had a heart attack, probably connected with his bone and joint condition because he was not able to get adequate exercise for his cardiovascular system. In 1990, he had triple by-pass heart surgery. And in March 1994, his left hip was replaced. The techniques for hip replacement have improved significantly over the past 20 years but he was told in 1977 that his artificial right hip would last about 15 - 20 years.

Notwithstanding the health problems summarized above, the Appellant has led an active life. He married in 1959 at age 24. He and his wife have three children who are now adults and married. He has maintained an interest in politics, community affairs and he likes to play bridge. His main health problems are his inability to walk in a normal manner and his difficulty in getting his arms and legs functioning in the morning after a night’s sleep. When he wakes up, his arms and hands are numb from lack of blood circulation during the night. He has to massage them to stimulate circula- tion and sometimes has to sit on the edge of the bed for 10 or 15 minutes before he has enough confidence to get up and walk into the bathroom.

Every morning, he spends about 15 minutes in the shower because the warm water helps to revive his joints and muscles after a night’s sleep. He has a seat which fits into his bath so that he can sit down while showering. He has trouble washing and drying his feet because he cannot reach down to his feet with his hands. Sometimes, the Appellant’s wife dries his feet and sometimes he simply rubs them on a towel. After the shower, he shaves and then gets dressed. Dressing could be a lengthy task because of the limited use of his arms. For example, he would have great difficulty pulling a long sleeved sweater over his head. As a result, his wardrobe is usually adapted to his arm mobility. For about 10 years, he has been using devices to assist in dressing like aids to pull on his socks. He wears shoes with elastic laces so that he can slip into them like a loafer. He avoids shirts with small buttons because they are too time consuming for his fingers. Even after adapting his wardrobe, it may still require about 20 minutes for him to dress.

The Appellant has what he calls “good days” and “bad days”. On his good days, he gets up and gets dressed as described above and goes downstairs for breakfast. He can navigate the stairs alone because he has a special railing which he can grip but, once he is downstairs, he does not go up again until bedtime in the evening. He uses the stairs only once each way on his good days. On his bad days, he does not go downstairs at all or goes down only at noon because he has so much pain and difficulty in moving his arms and legs. His wife will bring his food up to him if necessary. He gets out of bed only to use the toilet. His arthritis is very much affected by the weather. In winter, he may have as many as 10 bad days per month but in summer, his bad days are much less frequent.

In order to quality for the disability tax credit, there are a number of conditions in subsection 118.3(1) which must be satisfied. The Respondent admits that all but one of those conditions have been satisfied. In particular, the Respondent admits that the Appellant has “a severe and prolonged physical impairment” and that the required certificate by a medical doctor was filed for 1992 and 1993. The only condition in subsection 118.3(1) which the Respondent disputes is the following:

118.3(1)(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,

The dispute over this condition requires a careful review of subsection 118.4(1) which is primarily a code of definitions relating to this condition: 118.4(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 can 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,

ii) 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.

The Respondent admits that the Appellant’s impairment is prolonged within the meaning of paragraph 118.4(1)(a). The parties disagree on whether the Appellant’s ability to perform a basic activity of daily living is markedly restricted within the meaning of paragraph 118.4(1)(&). Having regard to paragraph 118.4(1)(c), it was perfectly apparent from the Appellant’s testimony that he has the cognitive function of perceiving, thinking and remembering. Also, he is able to speak and hear in any setting. Therefore, the only basic activities of daily living which remain in question are (ii) feeding and dressing oneself; (v) eliminating (bowel or bladder functions); and (vi) walking.

There was extensive evidence on walking, dressing and feeding. There was limited evidence of eliminating. The Appellant has the same control of his bowel and bladder functions as any other healthy adult. His only problem is one of hygiene. On many days when the use of his arms is restricted by arthritis, he cannot wash certain parts of his body to clean himself. This may be demeaning and cause him to seek other means of cleaning but it has no effect on his bowel and bladder functions. His control of eliminating is the same as that of any other healthy adult. I shall therefore concentrate on the three activities which are the focus of the evidence: walking, dressing and feeding.

For the reasons set out below, I have concluded that the Appellant’s ability to walk, to feed himself and to dress himself were not in 1992 and 1993 markedly restricted within the meaning of paragraph 118.4(l)(h).

Most of the evidence related to walking. There is no doubt that on his bad days, the Appellant can hardly walk at all. His bad days, however, are at most 10 per month in the winter and much less frequent in the summer; certainly less than 33% of the days in the year. On his good days, he goes downstairs and is able to drive the car. His wife does not drive at all and so, because the adult children have all married and moved away from the family home, any driving for the Appellant and his wife must be done by the Appellant. He drives his wife to the supermarket and other stores to do the family shopping. Also, he sometimes drives her to certain agencies where she volunteers her services. In the 13 months preceding the hearing (February 1995 to March 1996), the Appellant had been driving himself each week to a heated pool at St. Michael’s Seniors Residence near his home in north Edmonton where he did exercises for his cardiovascular system. He tries to play bridge once a week and drives to the centre where he plays. The Appellant’s mother is about 85 years of age and he picks her up every Friday to take her shopping. He cannot go through the stores with her but will wait in the car or go inside the mall and sit on a bench until she finishes her shopping. He does the same when he takes his wife shopping.

I mention all this driving because, in my opinion, it has a direct bearing on his ability to walk. His car is stored in a garage near, but not adjoining, his home. In order to drive, he must walk 50 or 60 feet from the house to the garage; and retrace his steps when he comes home. If he is driving for a purpose of his own like playing bridge or exercising in the heated pool, he must at his destination get out of the car and walk to the site of his activity whether it is playing bridge, exercising in the pool, visiting his doctor, etc. Upon completing the activity, he must walk back to his car. He acknowledged in evidence that he is the family chauffeur. When he drives for his wife or his mother, he admitted that he sometimes waits in the car but other times will walk into the store or shopping mall and find a place to sit and wait.

All of this driving entails a considerable amount of walking. The Appellant stated that he frequently uses one or two canes; but that is to be expected having regard to the serious troubles he has had with his hips and knees. Canes would definitely be of assistance when his legs and hips have difficulty supporting the weight of his body. The Appellant states that he would never walk an average city block for fear that he would not be able to walk back. He did concede that, on his good days, he could probably walk half a block and return. This brings me to the words in paragraph 118.4(l)(b). With respect to the activity of walking, I will substitute a few words and restate paragraph 118.4(1)(Z>) as follows:

The Appellant’s ability to walk is markedly restricted only where all or substantially all of the time, even with therapy and the use of canes, he is unable (or requires an inordinate amount of time) to walk.

Having regard to all of the evidence, the Appellant’s ability to walk is not markedly restricted. Firstly, with the use of therapy and canes, he is able to walk. Secondly, his walking did not require an “inordinate amount of time” but it did cause pain and he walked slowly. And thirdly, any disability he had with respect to walking did not affect him “all or substantially all of the time”. It affected him only on his bad days which were significantly less than 33% of the days in the year. In Sarkar v. R., [1995] 2 C.T.C. 2750 (T.C.C.), Sarchuk J. stated:

“All or substantially all” is not defined. However, “all” means everything. And when you say “all”, without modification, it simply means everything.

In terms of time, “all of the time” means exactly that. Reference to “all of the time” between twelve and four means every minute of that period of time. “Substantially”, which is used in that phrase as a modifier means, in substance, or substantially, or in the main. There is no mathematical formula by which one can determine what “substantially all” might be, but in my view it means almost all or essentially all of the time.

Exhibits A-8 and A-10 are the relevant medical certificates. In Exhibit A-10, question number 7 and Dr. Dlin’s answer are as follows:

7. Walking

Can your patient walk 100 metres on level ground (1 block) without an aid or another person’s help? If the answer is no, please explain.

NO — Severe osteoarthritis of hips requiring replacement.

Can your patient walk 100 metres on level ground (1 block) with an aid? If the answer is yes, describe the aids or assistance used.

NO — Uses canes but able to walk only sometime (sic).

This answer was given on August 28, 1994. Exhibit A-12 is a letter from Dr. O’Connor, an orthopaedic surgeon, dated October 31, 1994. Dr. O’Connor states in part:

Currently this gentleman is also showing a lot of arthritis in the neck, low back, right knee and left foot. These are all fairly predictable with his disease pattern. His examination shows restricted movement in a number of joints including his neck (As little as 20-30 degrees of motion gives him a fair amount of pain and is not all that useful motion for him), replaced hip joints, a stiff right knee with various deformity and effusion, a stiff left midtarsal joint of the foot and a bit of synovitis in the opposite knee. These joint problems have caused this man a great deal of disruption with activities of normal every day living. He currently is using a walking aid and finds his walking time is no more than about 10-15 minutes at most because of the discomfort he experiences in his joints....

The years under appeal are 1992 and 1993. Exhibits A-10 and A-12 are both dated in 1994, signed by two different doctors, and yet neither doctor states that the Appellant is unable to walk all or substantially all of the time. The absence of such statement is consistent with the amount of driving which the Appellant does and the amount of walking which is required in connection with his driving.

The two remaining basic activities of daily living are feeding and dressing. The Appellant’s claims with respect to these activities have little merit because he has relatively good use of his hands. This is proved by the amount of driving he does. Although he was not questioned in detail on his driving dexterity, the Appellant is an intelligent man, and I assume that he would not drive if he could not turn the steering wheel suddenly in case of emergency. Certainly, he would have to open and close the car door; turn the key; use the gear shift (whether manual or automatic transmission); operate night lights; and operate windshield wipers. All of these actions require the use of hands, sometimes on short notice.

In my opinion, “feeding oneself’ within the meaning of subparagraph 118.4(l)(c)(ii) is concerned only with the transfer of food from the plate to the mouth. There is no doubt that the Appellant is able to use a knife and fork and feed himself. There was some argument to the effect that “feeding oneself’ included meal preparation. I reject that argument because meal preparation could be regarded as part of “housekeeping” in paragraph 118.4(1)(d); and the activities listed in paragraph 118.4(1)(c) are truly “basic” in the sense that they relate to the necessities of rational life (food, clothing, mobility, elimination of body waste and intelligent communication). If “feeding” included meal preparation (and I am satisfied that it does not), then “dressing oneself” should include the laundering and drying of clothes.

In my view, “dressing oneself’ is concerned only with putting on the clothes required for normal daily activity. The Appellant does this slowly, but he does it alone and adapts his wardrobe to the limited use of his limbs. On the days when he uses the heated pool, he dresses and undresses himself more than once. I have described above the period of time (10 or 15 minutes) when the Appellant must sit on the edge of his bed to massage his arms and hands before he can get up and walk to the bathroom. I do not regard that period of time as part of the time required for the Appellant to dress himself because he would have to do the massage function whether he was going to get dressed or stay in bed.

The Appellant came to Court in a wheelchair but he acknowledged that he did not own it; he did not use it frequently; he had borrowed it from the Red Cross; and in particular, he used it on the day of hearing these appeals only to ensure that he could travel to the Courtroom from the location where he got out of his car.

The Appellant has demonstrated great courage in living such a full and complete life notwithstanding his condition of spinal epiphyseal dysplasia from birth. Many others with the same level of pain and discomfort would have been much less active. Having regard to the high level of disability which must be proved to satisfy the conditions in subsection 118.4(1), I hope the Appellant will regard it as a blessing that, for 1992 and 1993, he does not qualify for the disability tax credit. The appeals are dismissed.

Appeal dismissed.