Froese v. R., [1998] 3 CTC 2237, 98 DTC 1657

Bowman T.C.J.:

This appeal is from an assessment for 1996 whereby the Minister of National Revenue denied to the appellant the disability tax credit under section 118.3 of the Income Tax Act.

Mr. Froese was involved in a motorcycle accident in 1982 and his left leg was amputated about two inches below the knee. He has received the disability tax credit since 1985 up to 1996, when it was denied him. He is at present 36 years old.

I need not set out the historical development of the provisions permitting the disability tax credit. This has been done in other cases, and in particular by Lamarre Proulx J. in Landry c. R. (1994), [1995] 1 C.T.C. 2030 (T.C.C.), and by Létourneau J.A. in Johnston v. R., Federal Court of Appeal file numbers A-347-97 and A-348-97, February 6, 1998 [reported [1997] 2 C.T.C. 3012 (T.C.C.)].

Under section 118.4 an individual’s ability to perform a basic activity of daily living (in this case, walking) 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.

On the evidence it is clear that Mr. Froese’s impairment is prolonged. It has lasted since 1982 and will last for the rest of his life. It is getting neither better nor worse. Also, on the evidence, and on the basis of the material submitted, my observation of him and his own testimony his ability to walk is markedly restricted. He walks with a cane and wears an artificial leg (a prosthesis). He walks slowly and painfully. He cannot run. It takes him an inordinate length of time to walk anywhere. Climbing stairs is a particular ordeal for him. He is frequently in pain. When he comes home at night he takes off his artificial leg and moves about the house on crutches.

In the morning it takes him about one-half hour to put on his leg. He uses a dressing called SPENCO 2nd SKIN which prevents the prosthesis from moving. After that he puts several layers of socks over the stump, which is then inserted in the artificial leg.

The case is an obvious one and indeed the Department of National Revenue must have thought so as well up until 1996. In that year there arose a problem.

Under subsection 118.3(1) a taxpayer is entitled to a credit for mental or physical impairment where:

(a) an individual has a severe and prolonged mental or physical impairment, [Mr. Froese obviously has]

(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, [clearly they are]

(a.2) a medical doctor, ... 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),

Dr. Kusch signed the certificate for 1996 on 30 March 1997 and in answer to question 9:

Is the impairment severe enough to restrict the basic activity of daily living identified above, all or almost all the time, even with therapy and the use of appropriate aids and medication?

He ticked the box “NO”. He also wrote “Can’t lift 20 #’s & walk at the same time”.

On page 1 of the certificate Dr. Kusch ticked the word “Permanently” after the words:

The patient will be markedly restricted.

After the words “Indicate how your patient is markedly restricted” he ticked the word “Walking”.

In Part B of the certificate Dr. Kusch described the diagnosis as follows:

L above knee amputation 1982 - MVA Pt [patient, I assume] uses his cane full time - The pt has chronic unrelenting pain (stump and phantom limb).

As it happens, the amputation was below the knee.

The Department, on July 18, 1997, wrote to Dr. Kusch and sent him a questionnaire. Among the questions and answers were the following:

Does you patient take an inordinate! [1] amount of time to walk, even with the use of assistance, special devices, medication or therapy?

The answer given was “Yes”.

What percentage of the time was your patient unable to walk, even with the use of assistance, special devices, medication or therapy?

The answer given was “16 hrs per day”.

The material from Dr. Kusch was clearly contradictory.

In Narsing v. R., Federal Court of Appeal, file numbers A-939-96 and A-942-96, January 26, 1998 [reported (1998), 98 D.T.C. 6176 (Fed. C.A.)], it was stated orally from the bench:

[4] It is clear to us that, on the sole basis of the ambiguous medical certificates on file, not otherwise clarified by appropriate medical evidence, the Tax Court judge could not disapprove and reject the conclusions of the Minister.

In this case, however, I have ample evidence.

The question of the conclusive effect of a tick mark on a medical certificate under section 118.3 will have to be left for another day. It does seem rather strange that the Department of National Revenue routinely ignores certificates by doctors that a patient has a severe and prolonged impairment, but where the doctor, in the face of all of the evidence, ticks a box that does not favour the impaired person, this is treated as a conclusive bar to his or her claim. Such an approach is an unacceptable use of technicalities to deny worthy claims. As Létourneau J.A. said in Johnston (supra):

[10] The purpose of sections 118.3 and 118.4 is not to indemnify a person who suffers from a severe and prolonged mental or physical impairment, but to financially assist him or her in bearing the additional costs of living and working generated by the impairment. As Bowman T.C.J. wrote in Radage v. J?. [2] at p. 2528:

The legislative intent appears to be to provide a modest relief to persons who fall within a relatively restricted category of markedly physically or mentally impaired persons. The intent is neither to give the credit to every one who suffers from a disability nor to erect a hurdle that is impossible for virtually every disabled person to surmount. It obviously recognizes that disabled persons need such tax relief and it is intended to be of benefit to such persons.

The learned Judge went on to add, at p. 2529, and I agree with him:

If the object of Parliament, which is to give to disabled persons a measure of relief that will to some degree alleviate the increased difficulties under which their impairment forces them to live, is to be achieved the provisions must be given a humane and compassionate construction.

[11] Indeed, although the scope of these provisions is limited in their application to severely impaired persons, they must not be interpreted so restrictively as to negate or compromise the legislative intent.

It may be that Roger Casement was hanged because of a comma. I am not, however, prepared to deny this obviously meritorious claim because of a misplaced tick mark.

The appeal is allowed.

Appeal allowed.