Shaw v. R., [1997] 3 C.T.C. 2623

Christie A.C.J.T.C.:

1 This appeal was heard under the informal procedure prescribed under section 18 and following sections of the Tax Court of Canada Act. The year under appeal is 1993.

2 In computing her tax payable for 1993 the appellant deducted an amount determined under subsection 118.3(1) of the Income Tax Act (“the Act”). It provides:

Where

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

  • (a.1) 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

• A × $4,118

where

A is the appropriate percentage for the year.

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.

3 In reassessing the appellant's liability to tax for 1993 the Minister of National Revenue disallowed the claimed deduction.

4 The only witness at trial was the appellant. Before considering her evidence I observe that these appeals involving disability tax credits are very often difficult to resolve especially when, as in the case at hand, the Court does not have the benefit of any medical testimony. Nevertheless, I expect that detailed medical examinations and expert testimony pertaining thereto in all this litigation relating to disability tax credits would be prohibitively expensive. There is in evidence a disability tax certificate dated March 3, 1994 and signed by Dr. Gerald A. Ross. It was placed there by counsel for the respondent in the course of cross-examination. Even accepting this document as reporting correct statements of fact I do not believe that, of itself, it establishes whether the appellant or the respondent is entitled to succeed.

5 I think that the best manner in which to highlight the appellant's evidence is to quote extracts from it. I am satisfied that she testified honestly and endeavoured to relate her medical condition as it existed several years ago to the best of her ability. In March of 1989 she was employed as an accounting clerk in a division of a medical complex in Halifax now known as the Queen Elizabeth II Health Sciences Centre. By May of that year she, together with a considerable number of other employees, were ill. In response to questions asked by her agent, Mr. David Peters, the appellant said:

Q. Would you describe how your problems started out?

A. They just started out at work. I would get, like, this skin rash and headaches, fatigue. That usually cleared when I went home. And as time went on they got progressively worse. It didn't clear when I went home. I just had symptoms all the time.

Q. When did you first have to go off work?

A. In October of 1991.

Q. And from when you first noticed problems did you seek medical assistance for that?

A. Yes. Um-hmm.

Q. Could you just describe that as best you can?

A. I went to -- first I went to my family doctor complaining of the fatigue and headaches and different symptoms. And she did some blood work and it was all normal. And she referred me to different specialists, like a dermatologist. I went to a urologist, an allergy specialist, an E.N.T. specialist, and they really didn't find anything. And there was probably more too that I just can't remember.

Q. When did you return to work after going off in October of '91?A. January of '94.[FN2: <p>The appellant was not at work in 1993. Nevertheless, she and others were paid their full salaries for that year andthe appellant reported this to Revenue Canada as employment income for 1993. It is in relation to that income that thetax credit is claimed.</p>] Oh -- or --

Q. Yes. Did you return after October of '91? Did you return for any period?

A. Yeah. In December of '91 or November of '91 -- I'm not sure which it was -- I returned for a short period of time. I don't think it was even a week. When I went off in October they told me just to go home for a few weeks and things will get a lot better, you know, to sleep it off. But when I went back - I didn't feel any better when I went back, but when I did I -- you know, all the symptoms just came back again and that's when I went off permanently.

Q. Okay.

A. That was in December.

Q. The medical personnel that you saw, how were they describing the type of illness that you had? You know, was it environmental or was it something in your personal life or --

A. No. They -- most of them did say that it was just the same illness that the other workers had from Camp Hill.

Q. And they couldn't give you any medical treatment that all of a sudden could make it go away?

A. No.

Q. Would you describe for us some of the things in your personal life that were affected, you know, in your home life that were affected because of your medical condition?

A. I think everything was affected to some extent. I couldn't, like, cook for myself or clean or -- I had no social life of course. I --

Q. Could I just stop you there for a moment?

A. Sure.

Q. When you say you couldn't cook for yourself and clean, not so much because of your physical ability, would it be, or was it other conditions?

A. At times it was physical with the fatigue and the muscle soreness and shortness of breath, but it was more -- it was just too dangerous. I would leave things on the stove and forget that they were there. Some days I just couldn't get out of bed to do it.

Q. Your doctors would tell you that's normal for people who have environmental sensitivities and --

A. Yes.

Q. -- severe environmental sensitivities?

A. Um-hmm. I couldn't -- and, you know, there was days that very often I couldn't remember if I ate or -- you know, ‘Was that yesterday or was that today?’ You know, I just -- I couldn't go by how my stomach felt because it never felt right anyway, you know. And I just couldn't -- I just -- I didn't have the cognitive ability to remember if I ate or even what I did ten minutes ago.

Q. Um-hmm. And that's symptomatic of the environmental --

A. Yes.

Q. -- illnesses?

A. Um-hmm.

Q. Could you tell us some of the specialists that you saw during this time? I know there were numerous doctors that you saw during that period of time, but in the area of environmental medicine?

A. I saw Dr. Gerry Ross at the Environmental Medicine Clinic at the V.G. (Victoria General Hospital).

Q. Right. And he's from?

A. He's from Texas.

Q. And how did he come to be at the V.G.?

A. Well, he was operating a clinic there for -- I don't know how long -- like, a couple of years prior to my getting sick. But Camp Hill hired him to come up for a special clinic to see 20 of the sick workers and that's how I got in to see him.

Q. And you were selected -- from all of the sick employees up there, you were selected as one of the 20?

A. Yes.

Q. For him to deal with and try and find some solutions to the large number of employee illness problems.

A. Yes.

Q. How long a period did you see him for?

A. I saw him starting in the summer of '92 and I don't know when I last saw him. I was changed. He stopped coming up as frequently and I changed -- I was changed to another doctor in environmental medicine.

Q. And that other doctor would be?

A. Dr. Roy Fox.

Q. Right.

A. I don't know when I saw Dr. Ross last. I can't remember.

Q. All right. During the period '91 to '94, which the year in question falls right in the middle of, could you describe for us some of the conditions that they were treating you for? I know you had microscopic surgery and things of that nature, and --

A. Fatigue was one of the big ones. Migraine headaches almost daily. I had bladder dysfunction.

Q. How did they try to treat that?

A. I had surgery, just a scope, just more or less to see the bladder to see if it's all okay. And they stretched it at the same time. That was quite a problem for me because I would have to get up, like, numerous times through the night. Twenty times some nights. I'm lost.

Q. Yes. And during this period (1991 to 1994) would you describe some of the medications you were taking and, as you would understand, what they were supposed to do to help you?

A. I took medications for migraine headaches, like just painkillers when they would get too bad. I took a medication to relieve the bladder symptoms that I had. I took I.V. therapy. That was vitamins and minerals intravenously.[FN3: <p>This involved considerable expense which was paid for by the appellant.</p>]

Q. That was intravenous at home?

A. Yes.

6 On returning to work in 1994 she eased into it very slowly, starting with two hours per day and increasing from there. She also did work at home. The appellant still suffers with medical problems, but not to the extent that give rise to the kind of deduction claimed in respect of this appeal.

7 This is said in Luxton v. R., [1996] 3 C.T.C. 2449 (T.C.C.)and is repeated in Nayar v. R. (IT)I, 96-390(IT)I (T.C.C.):

In Parsons, [1996] T.C.J. No. 880, Bowie T.C.J. said with reference to subsections 118.3(1) and 118.4(1) that in order for a taxpayer to qualify for a disability tax credit he must meet rigorous requirements. ‘Parliament intended the deduction to be available only to individuals who suffer from the most extreme disabling conditions.’ He went on to add: ‘I also agree with Judge Bowman's opinion (in Lawlor, [1996] T.C.J. No. 58) that the legislation should be interpreted ‘with a degree of compassion and understanding that achieves the objective of this section.’ The section referred to is section 118.4 of the Act.

8 On the whole of the evidence I am satisfied that in computing the tax payable by her in respect of 1993 the appellant is entitled to the deduction sought under subsection 118.3(1) of the Act on the basis that she then was within the ambit of subparagraph 118.4(1)(c)(i). Judgment shall issue accordingly.