Halabura v. R., [1999] 4 CTC 2436 (Informal Procedure)

Rowe D.J.T.C.:

The appellant appeals with respect to his 1994, 1995, 1996 taxation years. The appellant is seeking, first of all, a disability tax credit on the basis that he has inordinate difficulty in walking a very limited distance. And, also seeks a deduction with respect to attendant care as a medical expense under the appropriate section of the Act.

The relevant impairment here being one of the basic activities of daily living set out in 118.4 of the Income Tax Act under paragraph (c)(vi) is walking.

It is apparent from the medical certificates filed here as Exhibits A-1, A- 2 and A-3, together with a rather lengthy report done by Dr. Dubo which was filed as Exhibit A-5 that this individual, the appellant suffers from an extreme difficulty relating to a chronic multiple muscle myofascial pain syndrome and chronic muscle pain dysfunction arising from a very severe accident he had in 1987.

The doctor certifies with respect to walking that he feels he is able to walk short distances with pain and fatigue.

And the appellant testifies that it causes an extreme amount of pain, muscle cramping, and that he is basically confined to his house at least 90 percent of the time and needs attendant care to help him dress and do other functional things. Also, that when he starts to walk it would take him a long time, he figures six or seven minutes to even walk a block, and then the pain would be so bad he would have grave difficulties in even finding his way back.

It is obvious seeing the appellant testify before me today that he is in constant pain arising out of his situation, and it is extremely clear that he meets the test as set out by the Federal Court of Appeal in Johnston v. R. (1998), 223 N.R. 101 (Fed. C.A.).

In that particular case docket A347-97, Mr. Justice Letourneau said at page 5,

The purposes 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 work generated by the impairment. As Bowman T.C.J. wrote in Raditch (ph) V.R. at page 2528. ‘The legislative intent appears to be to provide a modest relief to persons who fall within a relatively restricted category of markedly physical 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 is intended to be a benefit to such persons.’

1999-1 1-11

The learned Judge went on to add at page 2529, and I agree with him,

If the object of parliament, which is to give the 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.

And Justice Letourneau goes on to say,

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 a legislative intent.

Here, it is obviously the clear fact demonstrated by the appellant, he suffers from a severe and prolonged physical impairment, and that it affects the basic activity of daily living, - walking - on a markedly restricted basis.

And, the evidence is such, and looking at him before me today it is apparent this man suffers greatly from pain, and that it markedly restricts walking.

It is also very clear that he has complied with the provisions of 118.2(2) of the Income Tax Act with respect to proving the medical expenses with respect to the attendant care in each of the years of $2,400.00.

Therefore, the appeal is allowed and I am fixing costs in the sum of $200.00.

And the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment on the following basis, that in each of the 1994, 1995 and 1996 taxation years the appellant be permitted to deduct the sum of $2,400.00 paid as attendant care expenses and that he be free to deduct that as a medical expense.

Further, in each of the 1994, 1995 and 1996 taxation years the appellant is entitled to the disability tax credit as claimed.

Okay, Mr. Halabura, I have allowed your appeal for the attendant care expenses, and I have allowed your appeal in 1994, 1995 and 1996.

I would hope that unless there is some marked change that, you know, you should not have to go through this every time in every year.

I would say, Ms. Johnston, if the Appeals Officer wants to make these kinds of decisions, he should come into Court and see what we see. It is easy to sit in some office somewhere in Winnipeg and make these brilliant decisions.

Appeal allowed.