Lamarre
Proulx
J.T.C.C.:—The
appellant
is
appealing
under
the
informal
procedure
for
the
1992
taxation
year.
The
issue
is
whether
the
appellant
is
entitled
to
a
tax
credit
for
a
severe
and
prolonged
physical
impairment
within
the
meaning
of
subsection
118.3(1)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act").
The
appellant
says
that,
due
to
a
colostomy,
he
suffers
from
an
impairment
which
restricts
markedly
his
ability
to
perform
a
basic
activity
of
daily
living.
Subsection
118.3(1)
of
the
Act
reads
as
follows:
118.3(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
(2)(b.
1)
thereof)
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
x
$4,118
where
A
is
the
appropriate
percentage
for
the
year.
Reference
must
be
made
to
section
118.4
of
the
Act
in
order
to
understand
the
meaning
of
a
severe
and
prolonged
impairment.
Subsection
118.4(1)
of
the
Act
reads
as
follows:
118.4(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.
In
the
instant
appeal,
the
appellant
submits
it
takes
him
an
inordinate
amount
of
time
to
perform
a
basic
activity
of
daily
living
relative
to
the
bowel
function.
The
appellant
testified
on
his
behalf.
Dr.
E.W.
Sutherland
testified
as
an
expert
on
palliative
and
hospital
care.
In
accordance
with
subsection
118.3(1)
of
the
Act,
the
appellant
filed
a
certificate
from
his
doctor
stating
that
the
appellant
has
had
an
abdominal
perineal
resection
in
1983
and
has
a
colostomy
since
that
time.
The
certificate
states
that
this
was
a
serious
and
permanent
physical
impairment
such
that
his
ability
to
perform
a
basic
activity
of
daily
living
was
markedly
restricted,
because
of
"prolonged
time
requirement
re:
daily
colostomy
care".
The
Minister
of
National
Revenue
("the
Minister")
is
entitled
to
obtain
the
advice
of
the
Department
of
National
Health
and
Welfare
regarding
the
certification
by
the
attending
physician,
pursuant
to
subsection
118.3(4)
of
the
Act:
The
Minister
may
obtain
the
advice
of
the
Department
of
National
Health
and
Welfare
as
to
whether
an
individual
in
respect
of
whom
an
amount
has
been
claimed
under
subsection
(1)
or
(2)
has
a
severe
and
prolonged
impairment,
the
effects
of
which
are
such
that
the
individual’s
ability
to
perform
a
basic
activity
of
daily
living
is
markedly
restricted,
and
any
person
referred
to
in
subsection
(1)
or
(2)
shall,
on
request
in
writing
by
that
Department
for
information
with
respect
to
an
individual’s
impairment
and
its
effect
on
the
individual,
provide
the
information
so
requested.
There
was
no
examination
of
the
appellant
made
by
or
under
the
direction
of
Dr.
Sutherland
and
there
was
no
consultation
made
with
the
medical
doctor
having
provided
the
certification.
Dr.
Sutherland
explained
to
the
Court
that
the
appellant
had
not
filled
the
questionnaire
sent
to
him
and
had
not
signed
a
letter
authorizing
her
to
obtain
medical
information
from
his
practitioner.
The
appellant
said
that
he
had
spoken
to
her
on
the
phone
and
had
asked
her
what
was
a
complicated
colostomy
which
apparently
is
a
medical
situation
accepted
by
the
Department
of
Health
and
Welfare
as
being
a
severe
and
prolonged
impairment.
He
said
that
he
never
received
an
answer
about
this.
Dr.
Sutherland
did
not
remember
having
spoken
to
him
on
the
phone.
I
was
of
the
view
at
the
hearing
and
still
am
that
it
would
have
been
proper
and
even
advisable
for
her
to
have
spoken
with
the
appellant.
Though
I
can
understand
that
she
wished
first
to
speak
to
the
appellant’s
practitioner
or
see
the
medical
files.
She
explained
that
a
complicated
colostomy
may
happen
in
cases
of
extreme
obesity,
severe
arthritis,
paralysis
or
prolapse
of
the
colostomy.
Mr.
Lowe
said
that
he
works
full
time
for
the
federal
department
of
Fisheries
and
Ocean,
as
a
ship
inspector.
He
goes
in
the
field.
He
testified
that
caring
for
his
colostomy
may
take
one
hour
to
one
hour
and
one-half
in
the
morning
and
ten
minutes,
eight
or
nine
times
a
day
and
three
to
four
times
during
the
night.
He
filed
a
letter,
of
a
person
having
a
colostomy,
published
in
January
in
a
publication
called
Vancouver
Ostomy
Highlife.
This
letter
was
to
the
effect
that
this
person
had
a
colostomy
and
had
successfully
claimed
for
many
years
the
tax
credit
for
physical
impairment.
The
writer
was
encouraging
other
colostomates
to
follow
in
her
steps.
About
this,
Dr.
Sutherland,
who
is
part
of
the
Disability
Tax
Credit
Medical
Advisory
Group
at
the
Human
Resources
Development
Department
says
that
the
disability
tax
credit
is
not
approved
for
every
colostomate,
only
to
the
persons
already
mentioned
who
have
serious
problems
with
their
colostomy.
Whatever
the
case
may
be,
I
have
seen
and
heard
the
appellant.
I
know
also
that
he
is
still
actively
employed.
I
also
have
read
the
articles
on
colostomy
care
and
on
the
quality
of
life
of
colostomates.
It
would
appear
that
colostomates
do
not
take
an
inordinate
amount
of
time
to
perform
the
activities
related
to
the
bowel
functions.
Dr.
Sutherland
asked
questions
to
the
appellant
and
answered
his
questions
and
she
did
not
find
that
he
was
in
a
different
medical
situation
than
other
colostomates.
The
appellant
did
not
authorize
a
disclosure
of
his
medical
files,
he
did
not
fill
the
questionnaire
and
he
did
not
produce
evidence
to
contradict
the
evidence
produced
by
the
expert
witness.
From
all
this,
I
must
conclude
that
the
appellant
is
not
suffering
from
a
severe
and
prolonged
physical
impairment
as
a
result
of
which
he
is
unable,
Or
requires
an
inordinate
amount
of
time,
to
perform
a
basic
activity
of
daily
living.
The
appeal
is
accordingly
dismissed.
Appeal
dismissed.
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