Beaubier T.C.J. (orally):
1 THE REGISTRAR: This is De Francesco for judgment. The time is 9:17.
2 HIS HONOUR: All right. This appeal, pursuant to the Informal Procedure, was heard at Toronto, Ontario at April 9, 1997. The Appellant was the only witness.
3 The Appellant has appealed the disallowance of his claim for a disability tax credit for his 1993 taxation year.
4 In 1976 the Appellant had an operation to remove a cyst on his spine. At the beginning of the 1990's the symptoms recurred and the operation was repeated. After the operation, he suffered an atrophy of one leg which has required him to wear a leg brace and to use a cane when he walks long distances. He must also use a catheter to urinate as a result of the second operation.
5 The Appellant appealed in part because of the difference in the questions sent to the doctor by Revenue Canada in the second form respecting the inquiry into his disability. The settled law is that it is not the style of the form that is so important in these cases. Rather sections 118.3 and 118.4 of the Income Tax Act which were amended in 1994 retroactive to 1991 constitute the problem the Appellant faces. These amendments restricted the use of the disability tax credit markedly. Section 118.3 allows the credit:- (1) 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.
6 Subsection 118.4(1) describes the nature of the impairments that qualify. It reads:- (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 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.
7 The Appellant's impairments in 1993 relate to elimination and walking.
8 He wore a catheter. With the catheter, except for the occasional accident, he could control his eliminations. That is, he could control is eliminations substantially all of the time. He would also walk at least 100 yards all of the time with the aid of his brace.
9 Thus, under the Income Tax Act, he was not so impaired as to fall within the restrictions set out in sections 118.3 and 118.4.
10 The appeal is dismissed.
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