Warner v. The Queen, docket 97-2023(IT)I (Informal Procedure)

Date: 19980831

Docket: 97-2023(IT)I

BETWEEN:

JOAN L. WARNER,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

(Delivered orally from the Bench

at Castlegar, British Columbia, on

June 11, 1998

Beaubier, J.T.C.C.

[1]      This matter was heard in Castlegar, British Columbia on the 11th day of June, 1998.

[2]      The Appellant called Helen DeWeever, a professional physiotherapist, Darlene Espenhaim, CGA, and the Appellant herself.

[3]      At issue is the disallowance of a disability tax credit claimed by the Appellant for her 1994 taxation year. In the Reply, the Respondent submitted that since the impairment was not certified in prescribed form by a medical doctor and did not cause the Appellant to be markedly restricted in her activities of daily living, the Appellant was not entitled to the credit pursuant to s.118.3 and 118.4 of the Act.

[4]      The Appellant had filed with her 1992 Income Tax Return or possibly her 1993 Income Tax Return a proper medical certificate dated April 27, 1993, signed by Dr. G.R. Jenkins, which is a certificate that falls properly within the provisions of the Income Tax Act and that no other certificate was filed for 1994. Pursuant to s.118.3(1), paragraph (b), the Court finds that by that means the Appellant had filed for a taxation year with the Minister, the certificate described in paragraph a.2. Once the certificate was on file (and there was no other certificate on file) the certificate dated April 27, 1993 qualified for the 1994 taxation year within the provisions of paragraph (b) as quoted.

[5]      The Court finds that the Appellant was markedly restricted in the basic activities of daily living in 1994 by reason of the fact that she was restricted in walking, markedly all or substantially all of the time, even with therapy and the use of appropriate devices and medication. At that time she had the use of a cane or a walker, as the case may be, and used an electrical Biomed (ph.) neuro device to reduce the spasms in her back. These were used as aids along with the usual material such as support systems, railings, et cetera, and something that she referred to as a "shepherd's staff" attached to her bed to enable her to get in and out of bed.

[6]      The Appellant is 53 years old. When she was 18 she suffered severe burning to her body and in particular to her left leg to the degree that the mass of her lower left leg is markedly reduced from that of ordinary and she described her leg as being like a pool cue and the Court accepts that as true.

[7]      As a consequence of that fire, she has had approximately 300 operations. She suffers from migraine headaches. Her walking is very limited. If she walks or exerts herself physically in a very minor manner, she suffers acute migraines which may last from a day to longer periods, of up to six days. When she walks, if there is any movement around her, for example an escalator, a crowd moving, water or the possibility of someone on a skateboard or other types of wheels or moving, she loses her equilibrium. When she walks, she can walk restrictedly in very closed and private circumstances.

[8]      In the Court's view, she cannot walk 50 yards in what one would call a normal environment where there is motion around her, and there are not even surfaces, and there is not absolute privacy, and walls or other assistance that she could fall against. As a consequence, the Court finds that she is entitled to the credit and that the facts just described apply to the year 1994.

[9]      The appeal is allowed. The Appellant is awarded costs.

Signed at Ottawa, Canada this 31st day of August 1998

J.T.C.C.

COURT FILE NO.:                            

STYLE OF CAUSE:                           97-2023(IT)I

PLACE OF HEARING:                      Castlegar, British Columbia

DATE OF HEARING:                        June 11, 1998

REASONS FOR JUDGMENT BY:     The Honourable Judge D.W. Beaubier

DATE OF JUDGMENT:                     June 11, 1998

APPEARANCES:

Counsel for the Appellant:          John Carpenter

Counsel for the Respondent:      Brent Paris

COUNSEL OF RECORD:

For the Appellant:

Name:                 John Carpenter

Firm:                  Moran & Company

                                                          Castlegar, British Columbia

For the Respondent:                  Morris Rosenberg

                                                Deputy Attorney General of Canada

                                                          Ottawa, Canada