Hamlyn T.C.J.:
These appeals are in respect of the Appellant’s 1994 and 1995 taxation years,
Facts (L-18/R5184/T0/BT0) test_linespace (270>255.00) 1.044 0934_8627_8737
The Appellant wears a prosthetic leg due to an amputation of the left leg below the knee. Mr. Ellwood was allowed a disability tax credit in the 1988, 1989, 1990, 1991, 1992 and 1993 taxation years.
With respect to the 1994 taxation year, by Notices of Reassessment dated November 27, 1995, and August 13, 1996, the Minister of National Revenue (the “Minister”) did not allow the non-refundable tax credit in respect of a disability.
For the 1995 taxation year, by Notice of Assessment dated July 2, 1996, the Minister did not allow the disability tax credit.
The Appellant’s Position (L4/R3618/T0/BT0) test_marked_paragraph_end (1848) 1.035 0935_2697_2863
The Appellant states that he qualifies for the disability tax credit due to the fact that he can only wear his prosthetic leg for 10 to 12 hours per day. If he wears the prosthesis longer than the 10 to 12 hours, sores will develop and he can not use the prosthesis until the sores heal.
The Respondent’s Position (L4/R3468/T0/BT0) test_marked_paragraph_end (1926) 1.023 0935_4039_4207
The Minister relies on the assumption of fact that in the 1994 and 1995 taxation years, the Appellant was not suffering from a severe or prolonged mental or physical impairment the effects of which were such that the Appellant’s ability to perform a basic activity of daily living, within the meaning provided by section 118.4 of the Income Tax Act (the ^Acf ’) was markedly restricted.
Issue (L6/R5186/T0/BT0) test_marked_paragraph_end (700) 1.032 0935_5815_5945
The issue is whether the Appellant is entitled to the disability tax credit.
Analysis (L6/R4920/T0/BT0) test_linespace (272>256.00) 1.024 0935_6505_6669
The statutory requirements for the disability tax credit are set out in section 118.3 of the Act. The individual must have a “severe and prolonged mental or physical impairment”. The individual will have a “severe and prolonged mental or physical impairment”, if he or she is markedly restricted in the ability to perform a daily activity. Daily activity is set out in section 118.4 of the Act. The impairment must last or reasonably be expected to last for a continuing period of at least 12 months. The disability tax credit claim must be supported by a doctor’s certificate in the prescribed form. Revenue Canada form T2201 is the Disability Tax Credit Certificate.
Jurisprudence (L-92/R4480/T0/BT0) test_marked_paragraph_end (4470) 1.092 0936_1141_1273
The approach to the disability tax credit has recently been considered by the Federal Court of Appeal in Johnston v. R. (1998), 98 D.T.C. 6169 (Fed. C.A.). As stated by Létourneau J.A., at page 6171:
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. R.I 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 ts 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.
Létourneau J.A. also addressed the test to be met by the claimant with respect to the disability tax credit and stated at pages 6171 and 6172:
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.
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 device 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.
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.
111996] 3 C.T.C. 2510.
Létourneau J.A. continued at page 6172:
In my view, it is not the lifestyle per se of a claimant which is relevant to a determination of his inability, but the nature, length and frequency of any other activity that he performs since the performance of such other activity may contribute to establish that the performance of the basic activities of his daily living is not markedly restricted.
Analysis (L2/R4932/T0/BT0) test_marked_paragraph_end (1436) 1.023 0937_2517_2683
The Appellant’s evidence indicated he was severely restricted in his use of the prosthesis because of his amputation of the left leg and a steel plate reinforcing his left femur as such because of pain and recurrent stump ulcerations he can only wear his prosthesis 10 to 12 hours a day.
He also stated he has continuing pain and suffers injuries, from time to time, to the left leg stump. The result is he loses, for periods of time, what mobility he has.
The basic activity of daily living that overwhelmingly affects this Appellant is walking. He also alluded to problems with the basic activity of daily living of dressing. The Appellant outlined to the Court how he copes with all activities by the use of assistance from his family and the co-operation of his employer. His graphic description of crawling on the floor to use bathing facilities is a monument to his ingenuity and his perseverance.
This case is very similar to Froese v. R. (1998), 98 D.T.C. 1657 (T.C.C.).
The Appellant’s impairment before the Court is prolonged, continuing and permanent. His ability to move is severely and markedly restricted as was found in the Froese (supra) case.
Decision (L6/R4932/T0/BT0) test_marked_paragraph_end (2198) 1.017 0937_7101_7231
The appeals are allowed and the assessments are referred back to the Minister for reconsideration and reassessment on the basis that the Appellant is entitled to a physical impairment tax credit pursuant to section 118.3 of the Act.
Appeal allowed.
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