Date: 19990317
Docket: 97-3073(IT)I
BETWEEN:
JAMES W.B. MALCOLM,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Lamarre Proulx, J.T.C.C.
[1] This is an appeal under the
informal procedure concerning the tax credit for mental or
physical impairment provided for by section 118.3 of the
Income Tax Act (the "Act"). The
Appellant, pursuant to section 118.8 of the Act,
claims the unused credit of his spouse, Maureen Fay Malcolm.
[2] The facts upon which the Minister
of National Revenue (the "Minister") relied in
disallowing the Appellant's tax credit claim for the unused
credit for mental or physical impairment of his spouse, are
described at paragraph 10 of the Reply to the Notice of
Appeal (the "Reply") as follows:
(a) the
Appellant's spouse has fractured her left hip, left ankle and
right patella causing post-traumatic arthritis;
(b) the Disability
Tax Credit Questionnaire, as prepared and signed by the
Appellant's spouse physician and dated September 28,
1995, stipulates that the Appellant's spouse is able to walk,
using an aid if necessary;
(c) the
Appellant's spouse was not suffering from a severe and
prolonged mental or physical impairment, which markedly
restricted her ability to perform a basic activity of daily
living during the 1994 taxation year; and
(d) the
Appellant's spouse was not entitled to the credit for a
mental or physical impairment during the 1994 taxation year and
hence no unused credit was available to be transferred to the
Appellant from his spouse for the purposes of computing his
non-refundable tax credits and tax payable for 1994
taxation year.
[3] The Appellant and his spouse
testified.
[4] Paragraphs 10(a) and (b) of
the Reply were admitted. The questionnaire referred to at
paragraph 10(b) of the Reply was produced as
Exhibit A-1. At Box 2, concerning the activity of
walking, the question is: "Is your patient able to walk,
using an aid if necessary? (For example, at least 50 metres
on level ground)". The answer was "Yes". In
Box 9: "Is the impairment severe enough to restrict the
basic activity of daily living identified above, all or almost
all the time, even with the use of appropriate aids, devices,
medication, or therapy?" The answer was "Yes". The
questionnaire is dated September 28, 1995.
[5] To the questionnaire
(Exhibit A-1) was attached a letter signed by the same
physician and addressed to the Appellant's spouse. It is
dated November 15, 1995 and the second paragraph reads as
follows:
In reply to your concern regarding question number 2, the
appropriate answer to that question as it is worded is yes. I
agree you are impaired and it is permanent and those concerns are
answered in boxes number 8 and 9 in which it is stated that the
impairment is severe enough to restrict the basic activities of
daily living all or most of the time even with the use of
appropriate aids which in your case is a cane and medication. I
would therefore draw their attention to boxes 8 and 9 rather than
having them ask the physician to "doctor" the form to
suit their criteria. In my opinion answering yes to box number 2
does not mutually exclude boxes 8 and 9 which quite clearly
identify your level of impairment.
[6] The witnesses explained that
Mrs. Malcolm was in a car accident in 1988. In that
accident, her left leg was pushed through her pelvic bone,
shattering it. She was put in traction for three months. The
articulations never really healed, it rather scarred. A hip
replacement would appear useful but a doctor would have advised
her to wait until she is older.
[7] Mrs. Malcolm used to be a
part-time teacher. The trimester just before the accident,
she had a term position as a Physical Education professor. Now,
in the evenings, she tutors children.
[8] The spouses are farmers. They have
a two-story house and it is difficult for the
Appellant's spouse to climb the stairs. Some days, she will
do it on her own, other times, she will require the assistance of
a person. The spouses bedroom is located on the second floor.
Sometimes, the pain can be so persistent that Mrs. Malcolm
will have to rest for a day. She is the mother of four children.
She prepares the dinner and the Appellant would prepare the
supper.
[9] Before the accident,
Mrs. Malcolm used to drive. After the accident, she has
stopped driving on public roads. She does drive once in a while
in the fields. The spouses do the grocery shopping and other
shopping together. She can walk in the aisles leaning on the cart
that she pushes. She cannot lift and carry anything heavy.
[10] Exhibit A-2 is a Disability
Credit Certificate given in 1991 by Mrs. Malcolm's
physician. It says the following:
Post-traumatic arthritis left hip joint due to ventral
fracture dislocation left hip with permanent painful restriction
all left hip joint movements. Patient has a permanent leg length
discrepancy and it is necessary for her to ambulate with a
crutch.
[11] Attached to this certificate, is a
hand-written description of her symptoms, made by
Mrs. Malcolm:
I am able to sustain a body position (i.e. sitting or
standing) for only a short period of time before severe
discomfort necessitates a change in position.
Walking requires the assistance of a cane or crutches. I am
limited in distance as well as experience increased discomfort
with any activity.
I have extremely limited ability to lift due to the fact I
cannot position correctly to pick items up (ie. bend with
appropriate body mechanics).
Carrying becomes difficult as I require assistive devices in
order to walk.
Since the accident has occurred, I experience frequent severe
and incapacitating headaches lasting 1-2 days. Such headaches can
occur 3/4 week to at most one week apart.
[12] The Appellant produced, as
Exhibit A-3, a letter written by an agent in the
Appeals Division, and referred to two paragraphs on
page two:
You have requested clarification with respect to several
different sets of circumstances, such as a person who is unable
to stand, is incapacitated after walking fifty metres, or is
unable to walk on unlevelled ground.
While each case would have to be decided on its own merit, a
person who was able to walk fifty metres on level ground, even
though he or she used a device such as a cane, crutches or a
walker, would not normally meet the requirements of the Income
Tax Act. A person who needed some degree of assistance to
stand, would also not necessarily qualify. One who collapsed, or
was incapacitated would presumably have taken an inordinate
amount of time to walk fifty metres and would, therefore,
normally be eligible for this credit. Similarly, it could also be
argued that a person who was in great pain after walking was, for
all practical purposes, unable to walk.
[13] Subsection 118.4(1) of the Act
reads as follows:
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. (Emphasis
added.)
[14] Under paragraph 118.4(1)(d)
of the Act, working and housekeeping are not considered
basic activities of daily living for the purposes of the said tax
credit. A person may for example be in receipt of a disability
pension regarding her work and not be entitled to the disability
tax credit provided for in subsection 118.3(1) of the
Act.
[15] It must be understood that the tax
credit under subsection 118.3(1) of the Act is not
granted to every person who suffers from a physical impairment.
The Act prescribes that the impairment must be of such a
severity that it prevents or markedly restricts a person's
ability to perform a basic activity of daily living, even where
this person is assisted with the appropriate medication, therapy
or devices.
[16] In Johnston v. The Queen, [1998]
F.C.J. No. 169 (Q.L.) (F.C.A.), the Federal Court of Appeal
has considered what may constitute an inordinate amount of time
regarding a basic activity of daily living. I will quote
paragraphs 16 to 18:
[16] In order to benefit from
the tax credit under s. 118.3, a taxpayer suffering from a severe
and prolonged physical impairment has to establish that his
ability to perform a basic activity of daily living is markedly
restricted.
[17] The expression "markedly
restricted" has been defined to refer to an individual's
inability, at all or substantially all of the time, even with
therapy and the use of appropriate devices and medication, to
perform a basic activity of daily living. An individual's ability
is also deemed to be markedly restricted if he requires an
inordinate amount of time to perform such activity.
[18] No definition has been
given of what constitutes an inordinate amount of time in the
performance of the basic activities of daily living. In my view,
the expression "inordinate amount of time" refers to an excessive
amount of time, that is to say one much longer than what is
usually required by normal people. It requires a marked departure
from normality.
[17] By referring to the Federal Court of
Appeal's decision in Johnston v. The Queen, I can see that
the objective test that must be used to decide such cases is
whether the problem the individual has is such that he or she
normally requires assistance from another person to perform the
basic activity or requires an inordinate amount of time to
perform the activity in comparison with someone who does not have
the same disability.
[18] On the basis of the evidence, I am of
the view that although Mrs. Malcolm is hampered by her
disability, and this is to be regretted, she has kept a high
degree of autonomy and a good degree of physical ability in the
performance of the basic activities of daily living.
[19] In consequence, the appeal must be
dismissed.
Signed at Ottawa, Canada, this 17th day of March, 1999.
J.T.C.C.
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