Tremblay T.C.J.:
1 This appeal was heard at Montréal, Quebec under the informal procedure on May 15, 1996 and the hearing was reopened on June 26, 1996. This reopening was initiated by the Court. It resulted in the filing of Exhibits A-2 to A-6.
1. Point at issue
2 According to the Notice of Appeal and Reply to the Notice of Appeal, the question is whether the appellant meets the requirements of sections 118.3 and 118.4 of the Income Tax Act (the “Act”) so as to be allowed the tax credit for a person suffering from a severe and prolonged mental or physical impairment for the 1992 and 1993 taxation years.
3 The appellant's physician diagnosed him as having a [TRANSLATION] “left lower limb shorter by two inches”. According to the physician, all the appellant's activities of daily living are restricted. The appellant argued that he was denied advancement at work as he was unable to perform the duties expected of him.
4 In the respondent's submission, the appellant did not have a severe or prolonged mental or physical impairment during the years at issue within the meaning of the Act, that is, one which markedly restricted his ability to perform a basic activity of daily living.
2. Burden of proof
5 2.01 The appellant has the burden of showing that the respondent's reassessments are incorrect. This burden of proof results from several judicial decisions, including the judgment of the Supreme Court of Canada in Johnston v. Minister of National Revenue, [1948] S.C.R. 486, 3 D.T.C. 1182, [1948] C.T.C. 195 (S.C.C.).
6 2.02 In the instant case the facts presumed by the respondent are set out in subparagraphs (a) to (d) of Paragraph 8 of the Reply to the Notice of Appeal. They read as follows:
[TRANSLATION]- 8. In making the reassessments for the 1992 and 1993 taxation years the Minister had regard to the following facts, inter alia:
(a) on August 7, 1995 the appellant submitted a disability tax credit certificate duly signed by a physician; [admitted]
(b) on April 1, 1993 the physician, Dr. Claude Pouliot, had diagnosed the appellant as having a [TRANSLATION] “left lower limb shorter by 2 inches”; [admitted]
(c) the appellant's file was referred to physicians at National Health and Welfare Canada, who concluded that on the basis of the information received the appellant did not have a severe and prolonged mental or physical impairment the effects of which were such that his ability to perform a basic activity of daily living was markedly restricted; [had no knowledge]
(d) the appellant did not have a severe or prolonged mental or physical impairment during the 1992 and 1993 taxation years the effects of which were such that his ability to perform a basic activity of daily living was markedly restricted. [denied]
3. Facts in evidence
7 3.01 The appellant was the only witness heard. He explained that the [TRANSLATION] “left lower limb shorter by two inches” was a consequence of the fact that he was hit by a car on March 17, 1966 while crossing the street. He was 17 years old at the time.
8 3.02 He was taken to the Hôpital Maisonneuve. The four-page report of learned medical descriptions (Exhibit A-6) from that hospital gives the scientific medical details of his injuries.
9 The final diagnosis in the report (Exhibit A-6) is as follows:
10 The appellant left that hospital on May 12, 1966. He was readmitted to the urology section on November 2, 1996 for urethrostenosis. He was treated there until March 1967.
11 3.03 The appellant said he spent two years in hospitals, including Marie-Clarac (9 months), and 13 months convalescing.
12 3.04 In 1970 or 1971 the appellant found employment in a psychiatric hospital. He was a patient attendant. He looked after physically and mentally handicapped persons for five years.
13 In February 1972 he married. He subsequently started delivering pizzas and so on for a restaurant.
14 3.05 With some $40,000 which he received in damages following the 1966 accident, he opened his own business recycling cardboard. He went bankrupt in 1984.
15 3.06 In 1986 he worked in a printing plant. He had to leave in March 1996 as he could no longer do the work as required. This was due to the fact that he lacked speed, strength and coordination, all as the result of his accident.
16 3.07 The appellant has to wear special boots to walk. When he takes off his boots he cannot walk. His boots cost him $845 (Exhibit A-2). He uses one pair a year.
17 3.08 Walking, he can go no more than 150 feet when he is on turf or rocks and between 200 and 300 feet on sidewalk or on asphalt. His ankle problem was also aggravated in a work-related accident. He does not ride a bicycle or do any other sport.
18 3.09 A further problem is that following the accident he was unable to hold his urine. As soon as he puts his hands in water, hears water running or any other circumstance of that kind he cannot keep from urinating. When he was at work this problem was always with him and he had to work near a toilet. The vibration of machinery also affects him.
19 He has twice been arrested by the police. Feeling a sudden urge to perform this natural function, he stopped his car and opened the door to relieve himself, but the police caught him.
20 Dr. Louis Duval of the Centre Hospitalier Fleury issued the following report in this regard on October 19, 1994 (Exhibit A-5):
[TRANSLATION]
Urge to incontinence in a patient whom we presume has an old rupture of the urethra which occurred at the age of 17.
Proposed operation: Cystoscopy + cystometry.
21 He was then treated with a half-tablet of Ditropan three times a day.
4. Act - Analysis
4.01 Act
22 Sections 118.2 and 118.3 of the Income Tax Act deal with the tax credits for medical expenses and mental or physical impairment.
23 However, in the instant case it is section 118.4 which describes the severe and prolonged impairment which is the basis for the application of sections 118.2 and 118.3.
24 Section 118.4 reads as follows:
118.4: Nature of impairment.
(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 may 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.
4.02 Analysis
25 4.02.1 The evidence was that the appellant had two disabilities: one relating to bowel or bladder elimination (118.4(c)(v)) and one relating to walking (118.4(c)(vi)).
26 4.02.2 With respect to the latter disability, the appellant is unable to walk without his orthopaedic boots (3.07). With his boots, he can walk no more than 150 feet on turf. He can walk between 200 and 300 feet on the sidewalk or on asphalt (3.08).
27 According to the respondent's publication T4045(E) Rev. 92:
A person is considered to have a severe mobility limitation if the person cannot walk on level ground, even with mechanical aids, for more than our established guideline of 100 metres without another person's help.
28 4.02.3 A sufficient description of the appellant's urinary disability is given in paragraph 3.09 above.
29 4.03 As to these two limitations, the Court considers that the appellant had severe and prolonged impairments during the 1992 and 1993 taxation years and that he is entitled to the tax credit provided in the Act.
5. Conclusion
30 For the foregoing reasons the appeal is allowed without costs.
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