Stewart v. R., [1999] 4 CTC 2091 (Informal Procedure)

Sarchuk T.C.J.:

These are appeals by Michael Stewart from assessments of tax with respect to his 1994 and 1995 taxation years. The issue is whether the Appellant is entitled to an unused credit for mental or physical impairment transferred from his spouse pursuant to section 118.8 of the Income Tax Act (the Act) in the computation of his non-refundable tax credits and tax payable for these years. The deduction was denied by the Minister of National Rev- enue (the Minister) on the basis that 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 within the meaning of subsection 118.4(1) of the Act thereby not entitling her to a credit pursuant to subsection 118.3(1) of the Act.

Subsection 118.3(1) of the Act provides in part:

118.3(1) Where

(a) an individual has a severe and prolonged mental or physical impairment,

(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,

(a.2) a medical doctor, or where the impairment is an impairment of sight, a medical doctor or an optometrist, 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), and

(c) no amount in respect of remuneration for an attendant or care in a nursing home, in respect of the individual, is included in calculating a deduction under section 118.2 (otherwise than because of paragraph 118.2(2)(b. 1 )) for the year by the individual or by any other person,

for the purposes of computing the tax payable under this Part by the individual for the year, there may be deducted an amount determined by the formula...

And a formula follows.

Subsection 118.4(1) defines the nature of an impairment in the following terms:

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,

(iii) 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 Appellant, his wife, Maryann Bernadette Stewart (Maryann), and her current family physician, Dr. Noor Mohammed Khan, gave evidence at the hearing of these appeals.

On March 13, 1987, Maryann was a passenger in a motor vehicle which was involved in an accident. She sustained a number of injuries, the most serious of which were a compound fracture of her right wrist and a temporal mandibular fracture. Surgery was performed to repair the fracture of the wrist and several days later, she had closed reduction jaw surgery and had her jaws wired. On May 5, 1988, she underwent what the Appellant described as “nerve releases in her arm for both the median nerve and the ulna nerve”. The fractured jaw continued to give her great difficulty and in August 1988, she underwent arthroscopic surgery to both temporo-mandibular joints (i.e. the jaw joints). The pain did not abate and, in the Appellant’s words, in August 1989, “a condylectomy was performed where the surgeon removed her right jaw joint that was protruding inwards in her head, and at the same time, plastic implants were implanted into both jaw joints to act as a spacer between the jaw and the glenoid facet”. Her condition did not improve and as a result, further surgery was performed in October 1992 which, the Appellant said, involved the removal of one of her ribs which was “shaved into a jaw joint and grafted onto her jaw” and “was attached with a titanium plate and screws that ran from the bottom of her right ear down towards her chin”. This procedure apparently did little, if anything, to reduce her discomfort and on November 28, 1996, a specialist removed the plate.

The Appellant testified that Maryann has a degenerative problem in her jaw and that as well, osteoarthritis has set in. He alleges her daily living is hampered by a number of medical complications including depression caused by a chemical imbalance, myofascial pain syndrome, chronic pain arising from a temporo-mandibular joint disorder, insomnia, post-traumatic stress disorder and fibromyalgia. According to the Appellant, the foregoing diagnoses were made at one time or another prior to or in the taxation years in issue or in some instances, subsequently by “a myriad of doctors”. He says her daily life includes sinus problems, swollen glands, difficulty swallowing, dizziness, body sweats, severe stiffness and back pain. She has a weak grip and drops things, unexplained toothaches, sensitivity to cold, heat, humidity, and atmospheric pressure changes as well as blurry, changing vision and tinnitus or ringing in the ears. She suffers from panic attacks, confusional states, as well as an irritable bladder and bowel and mood swings. She has difficulty expressing herself and has short-term memory impairment. She gets confused and has directional disorientation. With respect to the foregoing, the Appellant maintains that they all relate to the continuous pain that she suffers and that the symptoms are “basically ... a bi-product of pain and medication”.

It must be observed that the evidence regarding Maryann’s medical history comes almost exclusively from the Appellant. He has no background in the medical or any related field, but does appear to have a general understanding of Maryann’s medical problems and a facility with medical terminology. The Appellant apparently had written reports or other documents with respect to examinations by doctors other than Dr. Khan but none of these were produced to the Court. In fact, he appeared reluctant to subpoena any of the doctors involved and only did so in the case of Dr. Khan at the urging of the Court. While I am not prepared to reject his testimony out-ofhand, the weight to be given to it must reflect this fact.

The Appellant’s position is that Maryann’s disabilities: “then and now are so severe that all basic criteria, or criteria, sorry, of basic activities of daily living are affected.” More specifically she is unable to walk any distance without pain and much of the time uses a cane. He says the only time she leaves the house is for medical appointments and then does so only with his help. She is unable to do any of the household cleaning, shopping or cooking most of which is done by the Appellant as are all other household functions including looking after their daughter. He testified that she has difficulty speaking “due to the problem with her jaw which causes her severe pain, which causes anxiety, and the circle continues” and he maintains that she is unable to fully grasp or understand what goes on with respect to ‘family matters’ and he is required to take care of that as well.

The evidence of Maryann encompassed, without distinction, a period of time commencing prior to the taxation years in issue up to the present time. As she observed:

“And this thing has always interfered in my life and the pain is just all body pain now and it surrounds from part to part” and “I don’t know how I am going to feel like everyday of my life, and I don’t know how I can work because how will I know if I am sick, or when I am going to be sick, when I am going to — not going to be able to walk, when my head swells up.

And all I know is that it started a number of years, in 1993, and it’s getting a lot worse since 1993”.

She described her pain as at times, impossible to bear and indicated that at one point of time it was so bad that the doctor from the Pain Clinic prescribed morphine. She testified that the pain prevents her from doing many things such as playing with her child, attending to normal household functions, etc. She detests having to stay in the house all winter because the cold causes her extreme discomfort. She feels that she is imposing on others and complains of a loss of independence. She says she is unable to shop by herself because she is afraid she might fall and she speaks of being confused because she has no idea whether it will ever end.

Maryann’s testimony was not particularly informative with respect to her condition in the taxation years in issue. This was not, in my view, deliberate, rather it was indicative of the very obvious difficulty she was having in organizing her thoughts. She spoke of the pain getting worse in each and every year but in terms of requiring assistance, “walking around the house” in those years she responded: “I don’t think so. I don’t know”. She said she could not “put herself back in 1994 and 1995” other than “my FM had supposedly started in 1993 and all I remember is it getting worse from then on in. I can’t seem to focus on 1994 and 1995, but all I remember is that it got worse from 1993. But I can’t remember any specifics about it.”

Dr. Khan is a general practitioner and has been Maryann’s family physician since 1994, seeing her first on March 25th and then again on March 30th. He described her as being in severe pain and walking very slowly. In the course of the examination, she appeared tearful, anxious, crying, and complained that she was in too much pain and nobody was helping her. She indicated it was difficult for her to walk or to sit and that she believed her problems were mostly related the 1987 accident. As well in the course of his examination, Dr. Khan learned that Maryann had been prescribed an anti-depressant by a psychiatrist some two or three years previously. The dosage prescribed at that time indicated to Dr. Khan that Maryann was “quite depressed”. Based on the history he obtained, Dr. Khan referred her to Dr. J.G. Frain, a rheumatologist. Following his examination, Dr. Frain provided Dr. Khan with his report and prescribed anti-inflammatory drugs for Maryann. [1] When the anti-inflammatory drugs failed to provide her with any relief, Dr. Khan referred her to Dr. Cruickshank at the Pain Clinic, Health Sciences Centre. Dr. Cruickshank prescribed painkillers and submitted a brief report to Dr. Khan. [2]

Dr. Frain’s speciality is internal medicine and rheumatology. The report he forwarded to Dr. Khan contains the following comment:

She presents with an interesting combination of signs and symptoms and history suggesting a combination type diagnosis. Her old trauma no doubt has a lot to do with her jaw and face pain and the repeated operations may contribute to some of the secondary muscular fibromyalgie symptoms. Nonetheless, she has marginal signs of inflammatory problems and some lab tests which are not totally normal. Hopefully, her next surgical procedure will be the last for her jaw and head problems and then some of the other things can settle out. The evidence for inflammatory arthritis is not beyond treatment with non-steroidals. For the moment, I have suggested a switch to Tolectin DS t.i.d. though the previous Ketoprofen had been modestly successful. I thought she could return to your care.

Her recent changes have been pain and swelling in her hands and feet over the last few months. She had been given Arthrotec for some of her facial pain just before that and tended to blame that drug for the onset. Otherwise no particular adverse effects to the drug were noted and I would think this was coincidence. At any rate, it did not prevent the onset of the finger problem with some in her feet and some knee and ankle swelling. These were added to the distress she had had for some time. Seven years ago she had been in a motor vehicle accident with multiple injuries, most notably a jaw injury which had remained inadequately aligned and painful despite a series of operations and there was a plan for yet another surgical procedure, hopefully to get things more perfect. There had also been an injury to the right forearm which had now healed but left her with some pain and some limitation of pronation and supination. Now she had persistent aches worse at night involving her right 4th and 5th MCP and 2nd and 3rd PIP and lesser symptoms in the left fingers. Similarly her knees and ankles were painful and perhaps a bit swollen.

In musculoskeletal areas her neck was fairly free in movement with some discomfort but no distortion. Her back was essentially normal. Shoulders and elbows were not remarkable. Her right forearm had perhaps one-half to two- thirds of normal pronation-supination range. Wrists and several finger joints were slightly tender and swollen. Range and power were fairly well preserved. Hips and knees were essentially normal. Feet and ankles showed minimal swelling and tenderness. She had some tender muscle points scattered throughout her back fairly characteristic of fibromyalgia in distribution.

Dr. Frain concluded that:

...she has minimal signs of an early polyarthritis and rather equivocal lab tests but a sed. Rate of 30 and low titre antinuclear antibodies and perhaps anti-DNA. There is no indication of any vital organ involvement and this aspect could be treated with non-steroidal agents. They have the advantage of being potentially helpful for her pain left over from old trauma and for the fibromyalgie overlay tricyclic agents, usually thought of as antidepressants, might also be helpful.

The report forwarded to Dr. Khan by Dr. Cruickshank of the Pain Clinic provides little assistance other than it indicates that Maryann has difficulty sleeping and a suggestion that she take a “little psychology test to see if this will help us locate anything else”.

In a disability tax credit certificate dated March 13, 1996, [3] Dr. Khan indicated that Maryann’s basic activities of daily living, specifically, walking and mental functions were markedly restricted. He further indicated that she would be able to walk using an aid if necessary and was able to think, perceive and remember using medication or therapy, if necessary. On December 18, 1996, Dr. Khan completed two disability tax certificate questionnaires, the first of which dealt with Maryann’s cognitive functions. He noted therein that she suffered from depression, was not able to live independently, but did not need constant supervision for her personal care activities. He also observed that she required medication for depression but that her condition was not controlled thereby in that there was “not much re- sponse”. [4] The second questionnaire related to her ability to walk. Dr. Khan noted that she was confined to a bed “most of the time” but was able to walk with rest periods, although in his view, it took an inordinate time to do so at times. [5]

Dr. Khan testified that she had attended at his office as often as every two weeks and on those occasions, she consistently complained of pain and he observed that it was difficult for her to walk into the room, that she needed help to reach the examining table and even to stand up from the chair. He also observed that she “will hold her jaw most of the time”. In October 1996, Dr. Khan referred Maryann to Dr. Hanson, a psychiatrist, with respect to her depressive symptoms. The brief report submitted to Dr. Khan provides little assistance in the context of the taxation years in issue or in enabling the Court to determine the extent of Maryann’s disability for purposes of the relevant sections.

From Dr. Khan’s evidence, it would appear that Maryann’s disability relates principally to the pain caused by her jaw problems and what Dr. Khan described as the “fibromyalgia pain”. The latter, he testified, is mostly caused by trauma but sometimes by tension and the treatment for it is generally anti-inflammatory drugs as well as antidepressants. In her case, the medication prescribed in the years in question at one stage included morphine, which indicated to Dr. Khan a substantial degree of discomfort on her part. He further observed that her condition appeared to be progressively deteriorating both with respect to the degree of pain she suffered and the fact that her depression appeared to be getting worse. Dr. Khan observed that when in pain, Maryann is unable to do anything and when in his office “she just cries and sits there”.

The issue before me is not whether the Appellant suffers from the various disorders described. Rather, it is a question of whether they incapacitate her to the point where she is unable to perform a basic activity of living as that term is defined subsection 118.4(1) of the Act. As was observed by Bowman T.C.J. in Radage v. /?., [6]

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 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.

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.

In this case, it is obvious that the primary concerns were depression and the pain flowing from her injuries and the related fibromyalgia problem. The Appellant’s recitation of her multiple symptoms and his inability, if not reluctance, to specifically deal with the taxation years in issue was if anything, detrimental to his case. It would have been of substantial assistance to the Court if he had subpoenaed the physicians who specifically dealt with these symptoms. That is particularly so with respect to depression which, as a matter of common knowledge, can be treated with various degrees of success. Although the Appellant’s failure to call all of the available evidence rendered the task of this Court difficult, the testimony of Dr. Khan and of Maryann supports the conclusion that she was all or substantially all of the time, even with therapy and the use of appropriate medication, unable to perform a basic activity of daily living, in her case, perceiving, thinking and remembering. On balance, and not with a good deal of concern, I have concluded that this appeal should be allowed.

Appeal allowed.