Cotterell v. R., [1997] 3 C.T.C. 2001

Bowman T.C.J.:

1 I will give brief Reasons. This is an appeal from assessments 1992 and 1993 under which the Appellant was denied the disability tax credit provided by Section 118.3 and 118.4.

2 This case in my view is a clear one. The Appellant has so much wrong with her that it would probably fill half a medical text. She has diabetes -- and this applied to the years in question -- iron deficiency, heart problems, high cholesterol, kidney problems. She cannot survive on her own. She needs help. Her son helps her.

3 I know we are dealing with a very restricted section of the Income Tax Act having to do with daily activities of ordinary living, or whatever that wording is, including walking, thinking and perceiving, dressing oneself, elimination, hearing.

4 I think the aspect of the medical problems that she has upon which I would concentrate are not thinking and perceiving. That happens from time to time when she has severe iron deficiency. I dealt with that question of thinking and perceiving in a recent decision. It has been reported. The name of the case is Radage v. R., [now reported[1996] 3 C.T.C. 2510 (T.C.C.)] if I can find it here, 95-1014(IT)I.

5 The evidence is quite clear that this lady can hardly walk for more than a very short distance without having to stop and rest. This may be in part attributable to her heart problem and partly to her iron deficiency. She is on any number of medications.

6 I have stated in other cases, and I will just cite the Radage case because it is fairly recent, the principles that I think should be applied in these disability tax credit cases. We are dealing with a very, very restrictive section of the Act, and frequently, in fact, invariably, the officials of the Department of National Revenue or the Department of Health and Welfare never get to see the person. All they have to go on is a certificate filed by the doctor. If they could see the circumstances of people like the Appellant here, I think they would be a little bit more flexible in what they give and a little bit more compassionate.

7 I will just cite a few of the passages from Radage. At page 20 of that case I said:

Each case depends upon its own facts and to a degree upon the court's perception of the severity of the problem. If asked “Where do you draw the line?” I can only answer that I draw the line in any given case where my own common sense, based on the evidence and on a compassionate view of what I think Parliament was trying to achieve in section 118.3, tells me to draw it.

The legislative intent appears to be to provide...

...a modest amount of tax 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 is intended to be a benefit to such persons.

8 I might add parenthetically here that certainly that is the case in Mrs. Cotterell's case. Her disability causes her financial and other difficulties that I think deserve to be recognized under the Income Tax Act. Then I go on to say:

The Court must, while recognizing the narrowness of the tests enumerated in sections 118.3 and 118.4, construe the provisions liberally, humanely and compassionately and not narrowly and technically. In Craven v. The Queen, 94-2619(IT)I, I stated:

The application of the inflexible test in section 118.4 leaves the court no room to apply either common sense or compassion in the interpretation of the disability tax credit provisions of the Income Tax Act-- provisions that require a compassionate commonsense application.

In my view I stated the test unduly narrowly in that case. I have heard many disability tax credit cases since that time and my thinking has evolved. My present view of the approach that should be taken is more accurately set out in such cases as Noseworthy v. The Queen, 95-1862(IT)I, Lawlor v. The Queen, 95-1585(IT)I, Hillier v. The Queen, 95-3097(IT)I, and Lamothe v. The Queen, 95-2868(IT)I and 95-3949(IT)I. 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 provision must be given a humane and compassionate construction. Section 12 of the Interpretation Act reads as follows:

Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

(c) If there is doubt upon which side of the line a claimant falls, that doubt [must] be resolved in favour of the claimant.

9 I think this is clearly a case in which the object of Parliament will best be served by giving to Mrs. Cotterell the disability tax credit she is claiming.

10 Then just citing the final passage from Radage:

If we are to adopt, as we must, in accordance with the judgment of the Supreme Court of Canada in Corporation Notre-Dame deBon-Secours v. Communauté Urbaine de Québec et al., 95 D.T.C. 5017, a teleological approach to the construction of sections 118.3 and 118.4, it is evident that the telos [which means the goal] at which those provisions is aimed is a person with the type of...

11 In the circumstances, the appeals are allowed. The assessments are referred back to the Minister of National Revenue for reconsideration and reassessment, to allow to the Appellant, Mrs. Cotterell, the disability tax credit provided by Section 118.3 and 118.4.

12 The Appellant is entitled to her costs if any. I doubt you have any since you didn't hire a lawyer, but that's the rule.