Malcolm v. R., [1999] 2 CTC 2615

Lamarre Proulx T.C.J.:

This is an appeal under the informal procedure concerning the tax credit for mental or physical impairment provided for by section 118.3 of the Income Tax Act (the “Act’). The Appellant, pursuant to section 118.8 of the Act, claims the unused credit of his spouse, Maureen Fay Malcolm.

The facts upon which the Minister of National Revenue (the “Minister”) relied in disallowing the Appellant’s tax credit claim for the unused credit for mental or physical impairment of his spouse, are described at paragraph 10 of the Reply to the Notice of Appeal (the “Reply”) as follows:

(a) the Appellant’s spouse has fractured her left hip, left ankle and right patella causing post-traumatic arthritis;

(b) the Disability Tax Credit Questionnaire, as prepared and signed by the Appellant’s spouse physician and dated September 28, 1995 stipulates that the Appellant’s spouse is able to walk, using an aid if necessary;

(C) the Appellant’s spouse was not suffering from a severe and prolonged mental or physical impairment, which markedly restricted her ability to perform a basic activity of daily living during the 1994 taxation year;

and

(d) the Appellant’s spouse was not entitled to the credit for a mental or physical impairment during the 1994 taxation year and hence no unused credit was available to be transferred to the Appellant from his spouse for the purposes of computing his non-refundable tax credits and tax payable for 1994 taxation year.

The Appellant and his spouse testified.

Paragraphs 10(a) and (b) of the Reply were admitted. The questionnaire referred to at paragraph 10(b) of the Reply was produced as Exhibit A-l. At Box 2, concerning the activity of walking, the question is: “Is your patient able to walk, using an aid if necessary? (For example, at least 50 metres on level ground)”. The answer was “Yes”. In Box 9: “Is the impairment severe enough to restrict the basic activity of daily living identified above, all or almost all the time, even with the use of appropriate aids, devices, medication, or therapy?” The answer was “Yes”. The questionnaire is dated September 28, 1995.

To the questionnaire (Exhibit A-l) was attached a letter signed by the same physician and addressed to the Appellant’s spouse. It is dated November 15, 1995 and the second paragraph reads as follows:

In reply to your concern regarding question number 2, the appropriate answer to that question as it is worded is yes. I agree you are impaired and it is permanent and those concerns are answered in boxes number 8 and 9 in which it is stated that the impairment is severe enough to restrict the basic activities of daily living all or most of the time even with the use of appropriate aids which in your case is a cane and medication. 1 would therefore draw their attention to boxes 8 and 9 rather than having them ask the physician to “doctor” the form to suit their criteria. In my opinion answering yes to box number 2 does not mutually exclude boxes 8 and 9 which quite clearly identify your level of impairment.

The witnesses explained that Mrs. Malcolm was in a car accident in 1988. In that accident, her left leg was pushed through her pelvic bone, shattering it. She was put in traction for three months. The articulations never really healed, it rather scarred. A hip replacement would appear useful but a doctor would have advised her to wait until she is older.

Mrs. Malcolm used to be a part-time teacher. The trimester just before the accident, she had a term position as a Physical Education professor. Now, in the evenings, she tutors children.

The spouses are farmers. They have a two-story house and it is difficult for the Appellant’s spouse to climb the stairs. Some days, she will do it on her own, other times, she will require the assistance of a person. The spouses bedroom is located on the second floor. Sometimes, the pain can be so persistent that Mrs. Malcolm will have to rest for a day. She is the mother of four children. She prepares the dinner and the Appellant would prepare the supper.

Before the accident, Mrs. Malcolm used to drive. After the accident, she has stopped driving on public roads. She does drive once in a while in the fields. The spouses do the grocery shopping and other shopping together. She can walk in the aisles leaning on the cart that she pushes. She cannot lift and carry anything heavy.

Exhibit A-2 is a Disability Credit Certificate given in 1991 by Mrs. Malcolm’s physician. It says the following:

Post-traumatic arthritis left hip joint due to ventral fracture dislocation left hip with permanent painful restriction all left hip joint movements. Patient has a permanent leg length discrepancy and it is necessary for her to ambulate with a crutch.

Attached to this certificate, is a hand-written description of her symptoms, made by Mrs. Malcolm:

I am able to sustain a body position (i.e. sitting or standing) for only a short period of time before severe discomfort necessitates a change in position.

Walking requires the assistance of a cane or crutches. I am limited in distance as well as experience increased discomfort with any activity.

I have extremely limited ability to lift due to the fact I cannot position correctly to pick items up (ie. bend with appropriate body mechanics).

Carrying becomes difficult as I require assistive devices in order to walk.

Since the accident has occurred, I experience frequent severe and incapacitating headaches lasting 1-2 days. Such headaches can occur 3/4 week to al most one week apart.

The Appellant produced, as Exhibit A-3, a letter written by an agent in the Appeals Division, and referred to two paragraphs on page two:

You have requested clarification with respect to several different sets of circumstances, such as a person who is unable to stand, is incapacitated after walking fifty metres, or is unable to walk on unlevelled ground.

While each case would have to be decided on its own merit, a person who was able to walk fifty metres on level ground, even though he or she used a device such as a cane, crutches or a walker, would not normally meet the requirements of the Income Tax Act. A person who needed some degree of assistance to stand, would also not necessarily qualify. One who collapsed, or was incapacitated would presumably have taken an inordinate amount of time to walk fifty metres and would, therefore, normally be eligible for this credit. Similarly, it could also be argued that a person who was in great pain after walking was, for all practical purposes, unable to walk.

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

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,

(111) 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. (Emphasis added.)

Under paragraph 118.4( 1 )(d) of the Act, working and housekeeping are not considered basic activities of daily living for the purposes of the said tax credit. A person may for example be in receipt of a disability pension regarding her work and not be entitled to the disability tax credit provided for in subsection 118.3(1) of the Act.

It must be understood that the tax credit under subsection 118.3(1) of the Act is not granted to every person who suffers from a physical impairment. The Act prescribes that the impairment must be of such a severity that it prevents or markedly restricts a person’s ability to perform a basic activity of daily living, even where this person is assisted with the appropriate medication, therapy or devices.

In Johnston v. R. (1998), 98 D.T.C. 6169 (Fed. C.A.), the Federal Court of Appeal has considered what may constitute an inordinate amount of time regarding a basic activity of daily living. I will quote paragraphs 16 to 18:

[16] In order to benefit from the tax credit under s. 118.3, a taxpayer suffering from a severe and prolonged physical impairment has to establish that his ability to perform a basic activity of daily living is markedly restricted.

[17] The expression “markedly restricted” has been defined to refer to an individual’s inability, at all or substantially all of the time, even with therapy and the use of appropriate devices and medication, to perform a basic activity of daily living. An individual’s ability is also deemed to be markedly restricted if he requires an inordinate amount of time to perform such activity.

[18] No definition has been given of what constitutes an inordinate amount of time in the performance of the basic activities of daily living. In my view, the expression “inordinate amount of time” refers to an excessive amount of time, that is to say one much longer than what is usually required by normal people. It requires a marked departure from normality.

By referring to the Federal Court of Appeal’s decision in Johnston v. R., I can see that the objective test that must be used to decide such cases is whether the problem the individual has is such that he or she normally requires assistance from another person to perform the basic activity or requires an inordinate amount of time to perform the activity in comparison with someone who does not have the same disability.

On the basis of the evidence, I am of the view that although Mrs. Malcolm is hampered by her disability, and this is to be regretted, she has kept a high degree of autonomy and a good degree of physical ability in the performance of the basic activities of daily living.

In consequence, the appeal must be dismissed.

Appeal dismissed.