Bowman T.C.J.:
This appeal is an appeal from an assessment for 1995 whereby the Minister of National Revenue denied the appellant’s claim for a disability tax credit under section 118.3 of the Income Tax Act on the ground that the appellant was not markedly restricted in her ability to perform a basic activity of daily living.
The basic activity of daily living, as defined in section 118.4, in which the appellant claims she is markedly restricted is walking.
In 1986, she suffered a slipped disc in her back. This was apparently caused by her lifting a bundle of bags at work. In 1987, she again injured herself when moving objects on a conveyor belt.
She has had three surgical operations. The first was a discectomy in 1986 and a further operation in December of that year. In 1989 she had a further operation (a two level spinal fusion).
She has not returned to work in over 10 years and is apparently receiving a disability pension. The fact that she qualified for a disability pension or other benefit is of course not determinative of her entitlement to a disability tax credit under section 118.3 of the Act.
Dr. Pillai, her current family doctor signed a certificate in which, in answer to the 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 the use of appropriate aids, devices, medication, or therapy?
he ticked “No”. On the same page he completed the statement “The patient will be restricted in a basic activity of daily living:” by ticking the box “Permanently”.
As discussed at some length in Morrison v. R. (September 23, 1998), Doc. 97-2334(IT)I (T.C.C.), I do not consider that these certificates are conclusive either in favour of or against the taxpayer or the Department of National Revenue.
I observed the appellant and heard her testimony. She was unrepresented and called no other witnesses. Her testimony was open and frank.
She is in constant pain from her back except when she goes to Halifax from Inverness, Nova Scotia for periodic nerve blocks, a form of medical procedure that alleviates the pain temporarily.
She visibly has difficulty walking, and does so slowly, painfully and with a limp.
The following is a passage from her somewhat poignant notice of objection:
I wish to appeal your decision to disallow my disability deduction. I walk with a limp just about all the time. The only time I don’t (limp) is right after I get a nerve block and even then I limp when I first get up. I am in pain at all times and am unable to do any kind of work. I have a hard time doing my housework. A “disability” in my mind is when a person is unable to live their life without constant hardship or pain. A person can have a leg missing but still be pain free and able to do a job. They may need physical assistance like a wheelchair or a prosthesis to enable them to do their work. My family doctor knows that I limp but I very rarely see him about my back - I deal with the pain clinic in Halifax whenever I have problems. They have told me there is nothing much else they can do for me except these nerve blocks. So all I can expect is to get worse as time goes on. I have pain in my leg at all times and often have to use a cane. I try to follow my doctor’s orders and walk as much as I can, but a lot of times it’s just not possible. I am after going through three back surgeries to help give me some relief. I tried to go back to work in 1987, but the pain was too severe and I probably damaged myself further by trying. I am unable to do any work outside the home and can do very little in it without hurting myself. I limp almost constantly and am in pain at all times. I think this qualifies me for a disability deduction.
I do not think she was exaggerating her condition, and my observation of her confirms what she said. She takes 2-3 Tylenol 3 tablets per day, as well as anti-inflammatory medications.
Her case is close to the line, but on balance I believe she has made it out. Many of these cases are close to the line. The obvious ones do not as rule make it this far. Therefore I think it is important that we apply a measure of common sense and compassion in our determinations under sections 118.3 and 118.4.
After I heard Ms. Maclsaac’s case I re-read what I had said in Radage v. R. (1996), 96 D.T.C. 1615 (T.C.C.). At page 1625 I said:
Each case depends on its own facts and to a degree upon the court’s perception of the severity of the problem. If asked, “Where do you draw the line?” I can only answer that I draw the line in any given case where my own common sense, based on the evidence and on a compassionate view of what I think Parliament was trying to achieve in section 118.3, tells me to draw it.
(5) I do not mean by the foregoing to imply by any means that the determination be based on an arbitrary and subjective knee-jerk reaction. It must be based not only on the facts of the particular case but upon appropriate legal principles. I shall try to state briefly those principles upon which this decision is based:
(a) The legislative intent appears to be to provide a modest amount of tax 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 everyone 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.
(b) The court must, while recognizing the narrowness of the tests enumerated in sections 118.3 and 118.4, construe the provisions liberally, humanely and compassionately and not narrowly and technically.
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 provision must be given a humane and compassionate construction. Section 12 of the Interpretation Act reads as follows:
Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
(c) If there is doubt on which side of the line a claimant falls, that doubt should be resolved in favour of the claimant.
This approach is, I believe, that adopted by the Federal Court of Appeal in Johnston v. R. (1998), 98 D.T.C. 6169 (Fed. C.A.), Thomas v. R. (1996), 97 D.T.C. 5024 (Fed. C.A.) and Friis v. R. (1998), 98 D.T.C. 6419 (Fed. C.A.).
In my view Ms. Maclsaac falls within those principles and meets the criteria in sections 118.3 and 118.4.
The appeal is therefore allowed.
Appeal allowed.
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