Thompson v. The Queen, docket 1999-3559-IT-I (Informal Procedure)

Date: 20000414

Docket: 1999-3559-IT-I

BETWEEN:

MERNA THOMPSON,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Rowe, D.J.T.C.C.

[1] The appellant appealed from an assessment of income tax for her 1997 taxation year. In filing her income tax return, the appellant claimed the credit for mental or physical impairment in the amount of $4,233.00, 17% of which represents the actual non-refundable tax credit for the year. In assessing the appellant for the 1997 taxation year, the Minister of National Revenue (the "Minister") disallowed the claim on the basis the appellant did not have a severe and prolonged mental or physical impairment and the effects of any impairment did not markedly restrict the appellant's ability to perform a basic activity of daily living, under paragraph 118.4(1)(b) of the Income Tax Act (the "Act"). As a result, the Minister decided the appellant was not entitled to the relevant credit pursuant to subsection 118.3(1) of the Act.

[2] With agreement of counsel for the respondent, counsel for the appellant filed a Book of Documents - tabbed 1-7, inclusive, as Exhibit A-1. Reference to a tab number will indicate it pertains to a document found in Exhibit A-1.

[3] Merna Thompson testified she was born in Edmonton and raised in a small village in a rural area. She is now 51. She completed Grade 9 and was married in 1974. There was a marriage breakdown in October, 1996 leading to a divorce on June 12, 1997. Prior to her husband leaving the matrimonial home, she had been diagnosed with Multiple Sclerosis (MS) on September 26, 1992 - a date that is firmly implanted in her memory. As the appellant stated, "you don't forget the date of something like that". Between 1989 and 1991, she had been working for a law firm in Ft. McMurray, Alberta and had worked for another firm earlier. Her prior work experience also included clerking in a video store and working at a company providing janitorial services. January 7, 1991 was her last day at work. She had enjoyed her job but her back problems became so severe that she could not even take off her boots. Later, she was diagnosed as having arachnoiditis. As a consequence of being unable to work, she qualified for a disability pension pursuant to the Canada Pension Plan and a monthly payment from a private disability insurance policy. In addition, her former husband pays her monthly maintenance in accordance with the judgment dissolving their marriage.

[4] The appellant stated the disease of Multiple Sclerosis slowed her down and her joints are often extremely sore. Her movements are slower than normal and it is difficult to hold on to objects. In the course of the disease there are some days worse than others. She explained that 1997 was a stressful year due to the strain and turmoil arising from the divorce. During that year, there were times during which she could not hold a fork while trying to eat a meal. She did not want to have her children's friends come over to the house due to her sense of embarrassment arising from her condition. She could walk out to the car but could not take out the garbage. When walking, her hip would suddenly "give out" and her right leg would become numb and that lack of sensation would continue for two or three days. Some of these problems have become less severe since 1997 due to a lowering of her overall stress level and she is able to walk farther than before. She is encouraged by her physicians to walk but not to over-extend herself to the point of fatigue. She still becomes very tired and sometimes she is unable to go out of the house or do her housework. In 1997, her condition varied and there were times when she was unable to do much of anything for periods lasting two or three days and these events occurred two or three times a month. The appellant stated the effect of the Multiple Sclerosis has been to cause a slurring in her speech and, to compensate, she uses a simpler vocabulary, avoiding longer words. Prior to the diagnosis - in 1991 - of arachnoiditis, a condition marked by inflammation of the lining of the spine and a common complication of spine surgery of the type she had undergone in 1979 - and again in 1988 - to remove two discs. Before each of the two operations, she was unable to move. After surgery, she was able to walk but only with a lot of pain. She has attempted to find pain relief and has undergone a variety of further tests but the pain persists. On occasion, a disc will slip out and she has developed a technique to put it back in place by pushing her back against a wall in a certain manner but in order to do so the pain is so sharp and intense it causes her to scream. This situation occurred and continues to occur about three times a month. She has tried muscle relaxants but they do not relieve the pain. The appellant stated, "there is such a fine line between Multiple Sclerosis and arachnoiditis" to the point where even her physicians are unable to distinguish between the symptoms created by the two diseases alone or in combination. There have been such severe attacks with resultant pain that she has rested totally immobile in bed for as long as six hours. The arachnoiditis creates constant pain in her lumbar region and she cannot vacuum or bend over to pick up objects so she has learned to squat in order to retrieve items. The pain from arachnoiditis affects the length of time she can stand in one spot and she walks around her kitchen and living room in order to relieve the pressure. The situation - in 1997 - in that respect was nearly the same as it is today. Currently, there are some days she can walk a block - but no further. In 1997, she could not have walked the distance of one city block. During that year, her son helped her buy groceries and nearly every day was a "bad day". The problem in holding eating utensils lasted for two months and, in addition, she was sometimes totally bedridden and required assistance in order to visit the bathroom. In one sense, the situation as it pertains to the ability to walk has been complicated further because - about 8 months ago - she was diagnosed with an inner ear problem which causes her to feel faint and she has to lie in bed and perform certain exercises in order to alleviate the vertigo. She has been an epileptic since age 8 but - even without medication - has been fortunate not to have suffered a seizure during the past 21 years. During the past 10 years, the appellant stated she has suffered from a thyroid condition which is alleviated by taking a pill each morning in order to avoid depression and lack of energy. She also has fluid on her left knee requiring her to wear support hose while walking in order to prevent the knee from suddenly giving way. The Multiple Sclerosis affects her right leg and there is always numbness there to the point she can pinch it sufficiently hard to cause a bruise but will not actually feel it. A Disability Tax Credit Certificate – Tab 5 - was completed by Dr. Paul Toye, M.D., her family doctor, and in the space relating to the ability of his patient - the appellant - to walk, using an aid if necessary for at least 50 metres on level ground, he responded by writing: "At times, yes - with flare up of M.S. – no". Dr. Toye also provided a letter - Tab 6 - in which he stated that "If there are no flare ups of her MS she is fortunately able to walk at least a block". The appellant stated she is now able - on a good day - to walk further than one block. At Tab 7 - the appellant referred to a letter dated April 19, 1999 also written by Dr. Toye in which he was responding to correspondence from Pat St. Hilaire, Appeals Division, Revenue Canada in Winnipeg. In that letter, Dr. Toye re-iterated that the appellant suffered from Multiple Sclerosis and arachnoiditis, was still confined to her bed two or three days a month and that there is no regularity to these events or to the time of day. Dr. Toye explained the appellant was not taking any analgesics for her chronic back pain because she found them to be too sedating and chose to live with the pain.

[5] In cross-examination, the appellant stated - in 1997 - she drove her car "once in a while". She did not, however, use public transit or partake in any social activities. She did not use a cane or other device to assist her in walking. She lived in an area where the houses are located along a crescent and in response to a question from counsel for the respondent as to the length of time it would have taken her to walk a block, the appellant replied that she had timed herself and discovered it took her one hour to cover that distance.

[6] Counsel for the appellant submitted the evidence disclosed the criteria pertaining to the basic activity of walking had been met. Further, the appellant was affected by a combination of factors which caused severe limitations including her ability to feed herself properly over an extended period of time.

[7] Counsel for the respondent submitted that while the appellant suffered from debilitating diseases and conditions, the flare ups were followed by periods of remission during which the appellant was not consistently unable to walk a reasonable distance.

[8] The relevant portion of subsection 118.3(1) is as follows:

"Credit for mental or physical impairment

(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) in the case of

(i) a sight impairment, a medical doctor or an optometrist,

(ii) a hearing impairment, a medical doctor or an audiologist,

(iii) an impairment with respect to an individual's ability in feeding and dressing themself, or in walking, a medical doctor or an occupational therapist,

(iv) an impairment with respect to an individual's ability in perceiving, thinking and remembering, a medical doctor or a psychologist, and

(v) an impairment not referred to in any of subparagraphs (i) to (iv), a medical doctor

has certified in prescribed form that the impairment is 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,

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..."

[9] Section 118.4 defines the nature of the impairment in the following terms:

"Nature of impairment

(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."

[10] In the case of Johnston v. The Queen, 98 DTC 6169, the Federal Court of Appeal considered the appeal of a taxpayer who had been born with a congenital condition diagnosed as spinal epiphyseal dysplasia which affected the taxpayer's ability to walk and to feed and dress himself. At pages 6171-6172 of his judgment Létourneau, J.A. reviewed the purpose and history of the relevant legislation and considered earlier jurisprudence, as follows:

"The purpose of sections 118.3 and 118.4 is not to indemnify a person who suffers from a severe and prolonged mental or physical impairment, but to financially assist him or her in bearing the additional costs of living and working generated by the impairment. As Bowman, T.C.J. wrote in Radage v. R. at p. 2528:

The legislative intent appears to be to provide a modest 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 every one 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 it is intended to be of benefit to such persons.

The learned Judge went on to add, at p. 2529, and I agree with him:

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 provisions must be given a humane and compassionate construction.

Indeed, although the scope of these provisions is limited in their application to severely impaired persons, they must not be interpreted so restrictively as to negate or compromise the legislative intent.

In Landry v. Her Majesty the Queen, Judge Lamarre Proulx reviewed the historical development of the legislation. Before 1986, as she mentions, the deduction was allowed to persons who were totally blind or confined to a bed or a wheelchair for long periods every day as the result of an illness, injury or infirmity. The taxpayers were entitled to the tax credit if he [sic] had not applied for any deduction in respect of remuneration for an attendant or care in a nursing home by reason of their disability.

In 1986, the scope of the deduction was extended to many severely disabling conditions which did not result in confinement to a bed or wheelchair.

A new definition, applicable for the 1986 and subsequent taxation years, to be administered by medical experts in the Department of National Health and Welfare, has been developed which will include all severely disabled Canadians. It will cover persons with disabling conditions such as blindness, severe cardio-respiratory failure, mental retardation or mental illness, profound bilateral deafness, and functional impairment of the neuro-or musculo-skeletal systems, who also deserve tax assistance. Those administering the general medical definition wil assess eligibility by evaluating information provided by the disabled person (or by his or her representative). If the effect of the disability is to markedly restrict the person in activities of daily living and if the disability has lasted or can be expected to last for a continuous period of at least 12 months, the person will be issued a disability certificate and will be eligible for the tax deduction. The new definition is compatible with the goal of independent living for disabled persons set out in the Report of the Special Parliamentary Committee on the Disabled and Handicapped.

The words "activities of daily living" found in the 1986 statute were left undefined. However, the administrative guidelines published by Revenue Canada interpreted the words as referring to basic functions such as seeing, hearing, speaking and walking. They excluded working as well as social, recreational and housekeeping activities.

In 1991, Parliament amended the Act to introduce a definition of "activities of daily living". Such definition merely incorporated in the legislation the administrative guidelines followed up to that time by Revenue Canada. As Lamarre-Proulx, T.C.J. properly noted, this "new definition" was said to be in keeping with the objective of an independent life for handicapped persons. Severely handicapped persons were entitled to tax relief without having to remain confined to a bed most of their lives. The Department of Health gave the words "activities of daily living" the meaning of the fundamental "activities of daily life". In fact, the 1991 legislative amendment did not change the existing eligibility criteria which then prevailed and were applied pursuant to the administrative guidelines issued by Revenue Canada.

Test to be met by a claimant

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.

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 device 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.

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." (footnotes omitted)

[11] Turning to an analysis of the evidence as it pertained to the specific activity of walking, Létourneau - at pages 6172-6173 continued:

"The learned Tax Court Judge found that the Applicant's ability to walk was not markedly restricted because he is able to walk slowly, his walking did not require an inordinate amount of time and his disability did not affect him all or substantially all of the time.

Counsel for the Respondent supported this finding of the Judge and also argued before us that a judge is entitled to look at the lifestyle of a claimant to determine whether his performance of a basic activity of daily living is markedly restricted. This submission of counsel for the Respondent begs for qualification.

Section 118.4 clearly states for greater certainty that no other activity, including working, housekeeping or a social or recreational activity, shall be considered as a basic activity of daily living. This, on the one hand, means that a claimant is not entitled to the tax credit if his impairment prevents him from having a social life or enjoying recreational activities. However, this also means, on the other hand, that a claimant cannot be penalized and disallowed the credit if he has been able to organize for himself a social life or recreational activities.

However, the social or recreational activities of a claimant may be of such a nature as to evidence an ability to walk, dress or feed which is not markedly restricted. In my view, it is not the lifestyle per se of a claimant which is relevant to a determination of his inability, but the nature, length and frequency of any other activity that he performs since the performance of such other activity may contribute to establish that the performance of the basic activities of his daily living is not markedly restricted.

I am satisfied that it was proper for the learned Tax Court Judge to take into account other activities of the Applicant such as his driving and his frequent visits to play bridge or attend therapy for the purpose of determining his ability to walk and the amount of walking done by him.

However, I believe that he misapprehended the requirements of the Act and the evidence as a whole when he concluded that the Applicant was not, on the issue of walking, entitled to the disability credit because he did a considerable amount of walking and his disability did not affect him all or substantially all of the time.

The evidence shows that the Applicant has great difficulties walking, needs one or two canes or rails to cover short distances, uses a wheelchair for longer distances, limits his walking to the essential and bare minimum, walks only when it is necessary, walks on his best days relatively short distances of 50 feet, does not even get out of bed on his worst days, has 10 bad days a month, cannot walk the distance of a block because he would not be able to return and walks a maximum of 10 to 15 minutes per day.

Although the evidence on the amount of time required by the Applicant to walk a short distance could have been more accurate and strenuous, the fact remains that the Applicant's testimony on this issue is uncontradicted and there is no indication that the Judge disbelieved him. He testified that he would probably cover a distance of 50 feet while a normal person could probably walk six blocks. In cross-examination, he asserted that it probably takes him five minutes to walk 50 feet. The Applicant may have overstated the capacity of a normal person to walk six blocks in five minutes, but this does not detract from the fact that it takes him five minutes to cover a distance of merely 50 feet. This, in my view, is an inordinate amount of time. In addition, the time required by the applicant increases as he gets slower if the distance gets longer.

In Thomas v. R., this Court ordered a new hearing, one of the grounds being that the Tax Court Judge had failed to consider the fact that the claimant took 20 to 25 minutes to walk a distance which should normally take seven minutes. Although our Court did not rule that the time thus taken amounted to an inordinate amount of time, it felt that the departure from normality was sufficiently marked to require consideration by the Tax Court Judge.

In my view, the evidence before us reveals that all the time the Applicant's ability to walk, due to a severe and prolonged physical impairment, is markedly restricted because of the serious limitations that he suffers and the inordinate amount of time that he takes in the performance of that basic activity of daily living." (footnotes omitted)

[12] The judgment of Létourneau, J.A. continued and there was an analysis of the basic activity of feeding and dressing oneself. The conclusion arrived at by Létourneau, J.A. endorsed the finding of Bonner, T.C.C.J. in M.R. Hodgin v. The Queen [1995] E.T.C. 515 and agreed that the concept of feeding oneself involves more than merely transferring food from the plate to the mouth but includes the ability to cook, prepare and properly set out a reasonable meal other than merely fast foods or freezer fare. In the within appeal, the evidence revealed the appellant - in 1997 - had considerable difficulty eating due to her inability to control the use of utensils. However, the disability lasted only two months and would not satisfy the requirement in the legislation that this marked restriction on the ability to perform this particular basic activity of daily living be present "all or substantially all of the time" during 1997.

[13] In the case of Friis v. The Queen, 98 DTC 6419, the Federal Court of Appeal heard an application for judicial review and I quote the entire judgment of Linden, J.A. (Stone, J.A. concurring) as follows:

"In my view, this section 28 application should be allowed in the light of this Court's decision in Johnston v. Canada, [1998] F.C.J. No. 169 which was released following the Tax Court Judge's decision in this case. In that case, Justice Létourneau, quoting Judge Bowman in another case (Radage v. R., [1996] 3 C.T.C. 2510), indicated that these "provisions must be given a humane and compassionate construction" and should not be interpreted "so restrictively as to negate or comprise the legislative intent", which is to "provide modest 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 every one 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 it is intended to be of benefit to such persons."

I am, therefore, of the view that the matter should be referred back to the Tax Court of Canada for rehearing on the basis of the principles articulated in Johnston v. Canada and the interpretation of the Act contained in that case.

The section 28 application will be allowed, the decision of the Tax Court of Canada set aside, and the matter remitted to that court for rehearing in the light of the decision of this Court in Johnston v. Canada."

[14] In the within appeal, the evidence disclosed the appellant is suffering from a variety of diseases and conditions. Unfortunately, each physical impairment offers up its own misery but in combination with the others - whether constantly or from time to time - the overall effect is devastating on her life. I appreciate it is difficult to segregate the physical difficulties of an appellant into neat time-frames conveniently comprising a particular taxation year. Further, one must exercise caution when invited to employ a method of merely arriving at a tally of exceptionally distressing days when examining the evidence in relation to the requirement that the marked restriction in the basic activity be present all or substantially all of the time. When a person is suffering on an ongoing basis from a variety of diseases, disorders and/or conditions, the good days and the bad days - especially if they occur at random - tend to blur along a hazy continuum. For this reason, there must also be a qualitative approach in examining the level of disability during the so-called good days. Otherwise, the truly awful times can become the measuring stick and periods of lesser pain and disability will be regarded as tolerable and normal when compared to the worst of times. Often, as in the within appeal, the appellant's good days were not marked by a quality one would associate with a normal life enjoyed by people with normal abilities who were not afflicted with serious debilitating diseases, disorders and conditions. In the within appeal, however, the evidence of the appellant was quite specific and she was able to distinguish between her condition before and after 1997 and to describe differences in her ability to walk and in her general mode of life. The appellant had been diagnosed on September 26, 1992 as being afflicted with Multiple Sclerosis. Prior to that, she had received a diagnosis that she was suffering from arachnoiditis. In 1979 - and again in 1988 - she had surgery to remove discs in her spine. She has a condition in which fluid collects on her left knee making it difficult to walk even while wearing proper support hose and being ever-vigilant in the event the knee would suddenly react by no longer bearing her weight. I accept the evidence of the appellant that - in 1997 - she could not have walked one block and that this impairment prevailed substantially all of the time. That particular year was one of enormous stress as she and her husband of 22 years had separated in October, 1996 and the divorce was granted on June 12, 1997. In the interim, there was the usual stress associated with a marital break-up and the process which exacerbated her medical problems had a severe effect on the appellant's ability to live a normal life. In 1997, the appellant's evidence was that there were periods of time during which she was unable to walk any further than from her house to her car which I infer was either in the driveway or a garage attached to her house. Her hip would not support her weight and the right leg was numb due - primarily - to the effects of Multiple Sclerosis. The disability to this extreme level would persist for two or three days and would occur two or three times a month. She was also not able to do much more even during the less painful sequences and, even though she was a determined individual, her physicians advised her not to push herself to the point of fatigue. In addition, the problems associated with arachnoiditis were ever-present in 1997 and she was restricted in her movements and had to utilize her own technique for putting an errant disc back into place two or three times a month. When this occurred, the pain was incredibly intense and the after-effect was to immobilize her in bed for periods lasting as long as six hours. By way of comparison between 1997 and the present, the appellant stated she could now walk around the block on a good day but would not push it any farther. In 1997, she could not have walked even the distance of one block. When she attempted the walk, it occupied a period of one hour, as she stated in response to a question put to her during cross-examination. The appellant stated she had timed herself as she walked in the crescent in which her home is located. It is reasonable to conclude this is an inordinate amount of time. The Minister persists in using the distance of 50 metres on level ground as a significant measure of ability or inability to gauge the taxpayer's performance in the category of walking. The relationship between this arbitrary and wholly unrealistic distance and the requirement for personal mobility - by walking - even with the aid of devices and/or medications, where useful, is tenuous. A reasonable, considered decision by a person - having received medical advice - to refrain from taking certain types of medication or to forego using a cane or other walking aid on the basis these do not assist - overall - in carrying out the activity is one that should be given weight even though the Minister may point to the absence of such aids or devices as being indicative of a less-than-perfect attempt to cope with the disability. In the within appeal, the appellant was affected severely by the Multiple Sclerosis flare ups which would occupy nine days a month. In addition, the arachnoiditis and the tendency of the discs to slip out two or three times a month increased the number of days during which her mobility was severely limited even inside her own home. Taking the evidence as a whole, it is obvious that her ability to walk without requiring an excessive or abnormal length of time was present all or substantially all of the time, although, on occasion, the primary or dominant cause might vary.

[15] In the case of Joan MacIsaac v. The Queen, unreported, 97-2738(IT)I, Judge Bowman, Tax Court of Canada, referred to the description of the difficulty - in walking - suffered by the taxpayer, described in her notice of objection and her concept of a disability as being "when a person is unable to live their life without constant hardship and pain". At page 3 - paragraphs 13 and 14 of his judgment, Judge Bowman stated:

"Her case is close to the line, but on balance I believe she has made it out. Many of these cases are close to the line. The obvious ones do not as rule make it this far. Therefore I think it is important that we apply a measure of common sense and compassion in our determinations under sections 118.3 and 118.4.

After I heard Ms. MacIsaac's case I re-read what I had said in Radage v. The Queen, 96 DTC 1615. At page 1625 I said:

Each case depends on 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.

I do not mean by the foregoing to imply by any means that the determination be based on an arbitrary and subjective knee-jerk reaction. It must be based not only on the facts of the particular case but upon appropriate legal principles..."

[16] The appellant fought this appeal in order to be able to receive a disability tax credit in the sum of $717.91 which is the product of multiplying $4,233.00 by 17% - a number equal to the lowest rate of federal tax applicable to all taxpayers seeking such a credit despite having a level of income subject to taxation at 29%. The relevant legislation has often been commented upon as being very strict, tough and often nearly impossible to meet in accordance with the language used, especially after Parliament took steps to narrow the focus even more by defining basic activities of daily living and then continuing to state - for greater certainty - that no other activity including working, housekeeping or a social or recreational activity was capable of being considered as a basic activity. Certainly, the Minister has a duty to apply the Act, as written, and in tune with the jurisprudence on the subject which - recently - has permitted a more liberal approach to be taken when warranted by the particular facts. Notwithstanding recent trends, taxpayers suffering from severe disabilities may be forgiven for wondering if some of the earlier tax preparation guides and other information disseminated have been less than accurate in describing the exceptional level of impairment required in order for there to be compliance with the section. The family practitioners in the front-line of medical care are often requested to prepare the particular certificates - a pre-requisite to any claim for the disability tax credit - knowing that the horrendous pain and suffering present each day in the lives of their patients will not qualify them for the modest tax relief afforded under the Act because they cannot surmount each hurdle imposed by the wording of the provisions.

[17] In the within appeal, I am satisfied on the evidence that the appellant has met all the criteria imposed by the legislation, as defined by the jurisprudence referred to in these reasons. As a result, the appeal is allowed - with costs - and the assessment is referred back to the Minister for reconsideration and reassessment on the basis the appellant is entitled to the disability tax credit, as claimed.

Signed at Sidney, British Columbia, this 14th day of April 2000.

"D.W. Rowe"

D.J.T.C.C.