Dussault T.C.J.:
1 These appeals were heard under the informal procedure. They are appeals from assessments for the appellant's 1994 and 1995 taxation years.
2 In assessing the appellant, the Minister of National Revenue (“the Minister”) disallowed the credit for mental or physical impairment provided for in ss. 118.3 and 118.4 of the Income Tax Act (“the Act”).
3 In spring 1994 the appellant began feeling such severe pain in her right arm that she was virtually unable to use either her arm or her hand. After an initial incorrect diagnosis and ineffective treatment, she was diagnosed in August 1994 as having a cancerous tumour of the humerus. The appellant was then referred to an orthopaedic specialist. This specialist estimated the appellant's life expectancy as five years and prescribed chemotherapy treatments. After these treatments, which were also useless, it was necessary in December 1994 to amputate and to instal a metal prosthesis to support the shoulder.
4 In form T2201A(F) (Exhibit I-1) submitted by the appellant in support of her credit application dated March 22, 1995, the surgery is described by Dr. H.L. Bouchard as follows:
[TRANSLATION]
Resection1/3right proximal humerus for metastasis of cancer...
5 In the same form, answering the question whether the appellant could dress herself, using equipment if necessary, the physician answered no, adding the notation [TRANSLATION] “partly”. He further noted that the disability was permanent and answered that the impairment had lasted or could be expected to last for a continuous period of at least 12 months. He also answered yes to the question whether “the impairment [was] severe enough to restrict the basic activity of daily living ... all or almost all the time, even with the use of appropriate aids, devices, medication, or therapy”. There was no answer to the questions regarding other activities, in particular regarding the ability to feed herself, using a device if necessary.
6 Following a Revenue Canada request for more detailed information, a new form was made up on May 5, 1995. In it Dr. Bouchard only answered the same questions he had in the previous form. Accordingly, he answered no to the question whether the appellant could dress herself, using a device if necessary. However, he added the following comment:
[TRANSLATION]
Lost 80% of use of right shoulder - Repercussion on action of upper limb: overall loss 60%.
7 It should be noted that the appellant is right-handed and that from spring 1994 until her operation in December of that year she said she had almost completely lost the use of her right arm because of the pain, which continued to get worse and spread into the shoulder and head. In the resection operation the arm muscles were also cut and a metal prosthesis installed to support the shoulder. Although the pain had gone, the appellant said her right arm can no longer function and she can only use her hand, the motion of which is limited. During the period preceding the operation and thereafter the appellant said she had great difficulty dressing herself, taking 25 to 30 minutes to do what she had been accustomed to do in 5 or 6 minutes, and only if she had prepared all her clothes the night before. Loss of use of her right arm also meant greater use of the left arm, and this had the effect of causing repeated bursitis and tendonitis. She mentioned it still takes her about 20 minutes to dress and feeding herself also requires much more time than before.
8 Counsel for the respondent acknowledged that the appellant could not dress herself without spending an inordinate amount of time doing it. However, as Dr. Bouchard had not answered the question of whether she could feed herself, he maintained that the conditions set out in ss. 118.3(1)(a.1) and 118.4(1)(b) had not been met, in that the appellant's ability to perform a basic activity of daily living was not markedly restricted. The argument was based, first, on the premise that these relieving provisions should be given a strict, if not limiting, interpretation since the essential purpose of the Act is to levy taxes. Second, counsel for the respondent argued that Parliament had deliberately limited access to the credit for mental or physical impairment by specifically listing the only activities which an individual should be unable to perform, to the exclusion of all others. Finally, he maintained that in the list of these activities the mention in s. 118.4(1)(c)(ii) of “feeding and dressing oneself” is a requirement that the individual must be unable to perform both things, and they should be treated as a single activity. In his submission, the word “and” is thus of necessity conjunctive, not disjunctive. Counsel for the respondent accordingly disputed the validity of certain decisions of this Court, including those by Judge Bowman in Radage and Lawlor,both as regards the proper interpretation in the circumstances and the disjunctive nature of the items in the list of basic activities of daily living contained in s. 118.4(1)(c) of the Act.
9 In Lawlor, supra, Judge Bowman briefly summarized certain points of interpretation which he had suggested in his judgment in Radage, supra. He said inter alia:
I should also like to say something about [the] approach that this Court should take in these disability cases. They are small cases. To the taxpayer they mean a fair bit, and I've seen many of them and I can say that it breaks my heart to see the state some people are in and sometimes they just don't make out their case. But I think that [it] is important that this Court bear in mind the very restrictive nature of Section 118.4, and to the extent that we can, that we alleviate against that strictness and that we approach the matter with a degree of compassion and understanding that achieves the objectives of this section.
10 As to the question whether the word “and” used in s. 118.4(1)(c)(ii) is conjunctive or disjunctive, this is what Judge Bowman said in this regard:
Feeding and dressing oneself - counsel for the Minister, Mr. Bundy, in a very able argument, suggested that feeding and dressing both had to be activities that were restricted. In this I take it he means, or he is suggesting that, “and” is conjunctive rather than disjunctive. This is a matter of interpretation. I think that, and I don't have authorities in front of me, but I think that in some cases “and” can be conjunctive. In some cases I think it can be disjunctive. Here I am adopting a purposive, or what is called in one case a “teleological” approach, to the interpretation of the statute, that is, an interpretation that appears to be consonant with the scheme of the Act and the objective that the statute is endeavouring to achieve. I think it is more consonant with the scheme of the Act and with the object of this section that “and” be construed as disjunctive and therefore either feeding or dressing is sufficient. It need not be the two together.
11 In Dippel, supra, Judge Bowie adopted the same approach on both points, recognizing that it was clear from the amendments made to s. 118.4(1) in 1994 that Parliament intended “the deduction to be available only to individuals who suffer from the most extreme disabling conditions”.
12 So far the various items identified in s. 118.4(1)(c) of the Act as basic activities of daily living have been disjunctively analysed although some are combined in various subparagraphs. This interpretation seems to me to be consistent with the purpose of the provision seen in its context, without trying to unduly limit its effect. I have to say here that I disagree with the opinion put forward by counsel for the respondent that the interpretation should be arrived at solely in terms of the principal purpose of the Act, the levying of taxes. Moreover this opinion, it hardly need be said, is contrary to that adopted by current tax decisions. This can be seen simply by looking at the comments of Gonthier J. of the Supreme Court of Canada in Corporation Notre-Dame de Bon-Secours when he said the following:
In light of the foregoing, I should like to stress that it is no longer possible to apply automatically the rule that any tax exemption should be strictly construed. It is not incorrect to say that when the legislature makes a general rule and lists certain exceptions, the latter must be regarded as exhaustive and so strictly construed. That does not mean, however, that this rule should be transposed to tax matters so as to make an absolute parallel between the concepts of exemption and exception. With respect, adhering to the principle that taxation is clearly the rule and exemption the exception no longer corresponds to the reality of present-day tax law. Such a way of looking at things was undoubtedly tenable at a time when the purpose of tax legislation was limited to raising funds to cover government expenses. In our time it has been recognized that such legislation serves other purposes and functions as a tool of economic and social policy. By submitting tax legislation to a teleological interpretation it can be seen that there is nothing to prevent a general policy of raising funds from being subject to a secondary policy of exempting social works. Both are legitimate purposes which equally embody the legislative intent and it is thus hard to see why one should take precedence over the other.
13 Above all, it must be borne in mind that the Supreme Court of Canada, in particular in Stubart,regarded the modern rule of interpretation as being that stated by the writer E.A. Dreidgeras follows:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.
14 The basic conditions laid down in s. 118.3(1) for an individual to be entitled to the credit for mental or physical impairment are first that the impairment be severe and prolonged and then that the effects be such that the individual's ability to perform a basic activity of daily living is markedly restricted.
15 Section 118.4(1)(a) provides that an impairment is prolonged where it has lasted, or can reasonably be expected to last, for a continuous period of at least 12 months.
16 This point is not at issue in the instant case and I think it is reasonable to conclude that this condition was met over a period of at least 12 consecutive months extending over the two taxation years at issue.
17 Section 118.4(1)(b) states the additional requirement as follows:
(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 unable (or requires an inordinate amount of time) to perform a basic activity of daily living...
18 Section 118.4(1)(c) states what the basic activities of daily living are and s. 118.4(1)(d) provides that the para. (c) list is exhaustive and no other activity shall be considered as a basic activity of daily living.
19 Section 118.4(1)(c)(ii) mentions “feeding and dressing oneself”. The ordinary meaning would be that these are two separate activities. The inability to perform either one would suffice, as was held in Lawlor, supra, and Dippel, supra, giving the word “and” a disjunctive meaning. In my view, however, even if we gave it a conjunctive meaning the result is the same since the impairment is naturally defined negatively, that is, it is expressed as being an inability to perform an activity. In this sense, the inability to perform one of two things implies that one is unable to perform both together or that the inability to perform only a part of what is to be regarded as a single activity obviously prevents performance of the activity as a whole.
20 Having made that point, I return to the appellant's testimony when she said that, though her physician did not answer the specific question on this point in the two forms submitted, it took her much more time to feed herself than before her illness. It is readily understandable that an injury to an upper limb might have negative consequences for both the ability to eat and to dress oneself.
21 The appellant also admitted that she could now dress herself a little less slowly. However, the analysis of the evidence before the Court leads me to conclude, though the point is not in dispute, that her ability to dress herself in the years at issue without spending an inordinate amount of time for doing so really constitutes a borderline case. Though one would naturally say that spending an hour or two or even more simply dressing oneself would be inordinate, devoting a half-hour to this really seems to me to be on the borderline. However, in the circumstances, I think it can reasonably be concluded that spending 25 to 30 minutes on an activity which the appellant said she could previously perform in 5 or 6 minutes, and doing this only if she had prepared all her clothing the night before, may be regarded as an inordinate amount of time. Accordingly, though not without hesitation, I have come to the conclusion that the conditions stated in ss. 118.3 and 118.4 of the Act have been met for 1994 and 1995.
22 I should make one final observation regarding the content of form T2201A(F). First, I note that it was counsel for the respondent who himself filed in evidence the two forms completed and signed by Dr. Bouchard without attempting to dispute the validity of the answers given. In Part B of the form, to be completed by the physician by ticking yes or no on specific questions as to the ability to perform each of the basic activities of daily living, it is not mentioned anywhere that the disability must be assessed in terms of the important qualification contained at the end of s. 118.4(1)(b) of the Act, that is, that the individual must be “unable (or [must require] an inordinate amount of time) to perform a basic activity”. This condition is the only one of those contained in s. 118.4(1)(a) and (b) that is not directly mentioned in the questionnaire. It is true that in the instructions given to the physician, which precede Part B, it is mentioned that this qualification must be kept in mind while completing the questionnaire and one should assume that this was the case. However, I feel that if the objective is to obtain unambiguous replies it would be better to ask complete questions covering all the points mentioned in ss. 118.4(1)(a) and (b) of the Act.
23 The appeals are allowed and the assessments for 1994 and 1995 referred back to the Minister for reconsideration and reassessment in accordance with this decision.
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