The
appellant
was
not
represented
by
a
lawyer
and
she
elected
the
informal
procedure.
She
was
the
only
witness
on
her
own
behalf
and
had
prepared
her
testimony
and
argument
in
writing.
A
copy
of
it
was
given
to
the
counsel
for
the
respondent
and
to
the
court,
which
reads
as
follows:
Points:
—
the
requirements
of
the
Income
Tax
Act,
R.S.C.
1985,
c.
1
(5th
Supp.)
(the
“Act”)
(section
118.4)
for
eligibility
for
the
disability
credit
include:
—
a
severe
and
prolonged
physical
or
mental
impairment
which
has
lasted
for
a
continuous
period
of
at
least
12
months
—
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,
or
requires
an
inordinate
amount
of
time
to
perform
a
basic
activity
of
daily
living
—
a
basic
activity
of
daily
living
in
relation
to
an
individual
means(in
my
estimation):
-
eliminating(bowel
and
bladder
function)
The
Medical
Advisory
Group
(p9-case
summary)
states
that
they
recognize
the
severity
and
prolonged
nature
of
such
illness’
as*
Crohn’s
disease
with
ileostomies*
However,
there
is
no
medical
evidence
on
file
to
indicate
that
my
condition
markedly
restricts
my
elimination
function,
with
the
use
of
appropriate
aids.
I
disagree
with
this
claim
and
feel
my
Crohn’s
disease
and
ileostomy
does
markedly
restrict
my
ADL’s
because
it
takes
an
inordinate
amount
of
time
to
carry
out
function
related
to
elimination
of
bowel
wastes
Revenue
Canada
consulted
Health
and
Welfare
Canada
to
do
a
medical
assessment
in
order
to
determine
if
I
qualify
for
the
disability
credit.
However,
I
feel
that
the
questionnaire
which
was
used
by
Health
and
Welfare
Canada
to
assess
my
eligibility
was
vague,
confusing,
and
inconsistent
with
the
requirement
in
subsection
118.3(c)
of
the
Income
Tax
Act
from
Revenue
Canada.
Yet
this
is
the
only
information
which
was
used
to
conclude
my
non-eligibility
for
this
requirement.
-
the
questionnaire
states
at
the
top
that
it
is
designed
to
deal
with
all
types
of
disability
and
that
the
respondent
should
complete
only
those
section
that
apply
to
your
disability.
The
sections
for
activities
of
daily
living
continued
in
this
form
includes:
ability
to
see,
ability
to
get
around,
ability
to
do
personal
care,
ability
to
feed
oneself,
ability
to
communicate,
and
ability
to
manage
personal
affairs,
—
all
of
these
activities
of
daily
living
coincide
with
the
basic
activities
of
daily
living
indicated
in
section
118.3(c)
of
the
Income
Tax
Act.
However,
there
is
no
section
to
describe
disabilities
associated
with
the
ADL
of
elimination
(bowel
and
bladder
function).
Therefore,
I
had
to
describe
my
disability
under
the
section
of
the
questionnaire
which
asks
“do
you
have
any
other
restriction
in
your
activities”
—
I
gave
a
brief
description
of
my
disability
because
there
is
no
indication
of
the
detail
which
is
required.
If
I
had
known
that
the
information
given
in
this
questionnaire
would
be
used
as
the
sole
basis
for
rejecting
my
claim
I
would
definitely
have
elaborated
further
on
how
my
disability
requires
me
to
take
an
inordinate
amount
of
time
to
carry
out
my
elimination
functions
—
A.H.(an
associate
of
mine
through
the
Ostomy
Association)
submitted
approximately
2
pages
of
details
describing
how
her
ileostomy
markedly
restricted
her
ADL’s
and
qualified
for
here
disability
credit-
here
situation
is
virtually
identical
to
mine.
Vagueness
of
this
questionnaire
is
misleading
and
should
not
be
used
to
draw
conclusions.
There
is
no
question
related
to
the
activity
of
elimination,
and
therefore,
it
is
up
to
the
individual
to
interpret
where
and
how
much
information
is
required.
-
Dr.
Sutherland
provided
a
number
of
facts
of
how
individuals
with
ileostomy
poses
few
restriction
on
lifestyle,
etc.
—
These
cases
cannot
be
generalized
to
every
person
with
an
ileostomy
-
I
live
with
my
ileostomy
from
day
to
day
and
these
studies
mean
nothing
to
me
because
they
are
different
from
my
specific
situation.
—
Although
I
have
tried
to
normalize
my
life
as
much
as
possible,
despite
my
disability,
the
time
required
to
take
care
of
my
ileostomy
is
and
always
will
be
an
issue.
—
I
empty
my
appliance
an
average
12-15
times
per
day
and
it
takes
me
approximately
7-10
minutes
each
time.
-
I
change
my
ostomy
appliance
at
least
2
times
per
week
and
it
takes
me
about
half
an
hour
to
do
so
each
time
-
I
wake
up
at
least
once
every
night
to
empty
my
bag;
if
I
fail
to
do
so,
my
bag
overflows
and
I
wake
up
incontinent
of
stool
—
there
have
been
numerous
times,
in
public
when
my
appliance
has
leaked
and
stool
has
seeped
through
my
clothing.
I
do
my
best
to
avoid
these
mishaps,
but
it
is
not
always
possible
—
there
has
also
been
situation
at
work
in
which
my
bag
leaks
and
I
have
to
coat
the
area
with
paper
towels
until
I
get
my
next
break
so
that
I
can
go
to
a
bathroom
to
change
it
—
my
ileostomy
sometimes
causes
irritation
of
the
surrounding
skin
due
to
the
acidity
of
the
stool.
When
this
happens,
the
ostomy
appliance
does
not
stick
to
the
skin
as
well
and
requires
changing
more
frequently
—
if
I
get
a
partial
bowel
obstruction
which
I
seem
to
get
every
2-3-
months),
I
am
debilitated
from
school
and
work
for
4-5
days
due
to
the
abdominal
cramping,
and
because
of
the
water-like
consistency
of
the
stool
during
this
time,
I
am
required
to
empty
my
bag
more
frequently
—
I
need
to
take
extra
time
in
chewing
my
food
and
care
in
selecting
foods
which
I
am
able
to
eat.
—
the
odor
from
my
appliance
after
I
have
used
the
bathroom
in
public,
or
if
there
is
a
leakage
from
my
appliance,
is
embarrassing.
In
addition,
the
excessive
noise
cause
from
gas
is
very
embarrassing
—
PIO
of
the
case
summary
indicates
that
“there
is
no
medical
evidence
on
file
to
indicated
that
I
was
markedly
restricted
all
or
substantially
all
of
the
time,
in
her
basic
activity
of
daily
living
throughout
the
taxation
year
involved.”
My
nursing
background
gives
me
the
knowledge
and
ability
to
deal
with
any
of
the
difficulties
which
I
encounter
as
a
result
of
my
ileostomy.
-
for
example
I
do
not
seek
medical
advice
every
time
I
get
obstructed
or
when
I
got
a
yeast
infection
(or
any
other
skin
irritation)
around
my
stomal
site.
I
consult
my
enterstomal
therapist
approximately
once
every
3-4
months
for
concerns
I
cannot
resolve
on
my
own,
but
very
rarely
will
I
consult
an
MD
—
I
have
increased
coping
skills
because
of
the
profession
I
am
in,
but
just
because
I
am
coping
with
my
disability
does
not
mean
that
caring
for
my
ileostomy
does
not
impose
restriction
on
my
time
and
my
lifestyle.
There,
I
don’t
feel
that
it
is
valid
to
conclude
on
the
basis
of
the
current
medical
information
that
I
do
not
meet
the
criteria
for
the
Disability
Tax
Credit
—
case
of
Brookshaw
v.
R.
(sub
nom.
Brookshaw
v.
The
Queen)
was
very
similar
to
mine;
-
she
also
had
Crohn’s
disease
and
had
an
ileostomy
resulting
in
control
of
here
bowel
functions
—
the
analysis
of
the
case
revealed
that
“the
appellant
has
no
control
over
her
bowel
function
and
is
required
on
a
continuous
and
constant
basis,
around
the
clock
to
attend
to
her
elimination
needs
by
attending
at
washrooms
and
emptying
her
bag.
Moreover
she
indicated
that
from
time
to
time
the
bag
overflows
resulting
in
unpleasant
consequences.
In
the
words
of
the
medical
doctor
presented
on
the
behalf
of
the
respondent,
the
affliction
of
the
appellant
is
a
“hard
and
rough
disease”.
—
the
conclusion
was
“therefore,
the
total
amount
of
time
she
spends
performing
here
bowel
function
(i.e.
the
number
of
times
she
has
to
perform
the
function
multiplied
by
the
duration
it
takes
her
to
perform
this
function
each
time,
as
well
as
the
constant
and
necessary
monitoring)
is
irregular
and
requires
an
excessive
amount
of
time
to
manage.
All
of
the
appellant’s
life
decisions
and
actions
evolve
around
her
disability.
This
the
effect
of
the
impairment
are
such
that
the
appellant’s
ability
to
perform
the
basic
activity
of
daily
living
is
markedly
restricted.”
Appeal
allowed.
Upon
cross-examination
she
admits
that
she
works
full
time
as
a
registered
nurse;
that
in
her
free
time
she
does
some
reading
and
some
exercises
such
as
walking
and
biking,
but
her
training
is
a
great
advantage
to
her
and
that
she
had
managed
herself
Ileostomies
bag
during
13
years.
As
to
the
amount
of
time
she
takes
to
perform
the
basic
activity
related
to
elimination
of
bowel
waste
she
repeats
what
she
had
already
written
and
communicated
to
the
counsel
for
the
respondent
and
the
court.
Dr.
Sutherland
was
heard
on
behalf
of
the
respondent.
She
explained
that
her
mandate
was
to
look
if
ileostomates
have
control
of
the
ileostomy
bag.
Her
opinion
in
the
case
at
bar
was
that
she
could
manage
her
ileostomy
bag;
that,
being
a
nurse
she
does
better
than
most
people.
As
to
one
hour
to
one
hour
and
a
half
to
take
care
the
bag
she
explains
that
the
readings
mention
one
hour
a
day
but
she
does
not
doubt
that
if
she
said
an
hour
and
a
half
it
could
be
so
because
it
take
varies
with
people
and
the
writings
were
done
in
1950.
Counsel
for
the
respondent
argued
that
the
appellant’s
basic
activity
of
eliminating
did
not
require
an
inordinate
amount
of
time
and
that
she
could
do
all
the
other
basic
activity.
He
referred
the
court
to
three
cases
in
the
matter
in
which
the
appeals
were
dismissed,
Lowe
v.
Minister
of
National
Revenue
(1994),
Court
File
No.
884
(IT)
1,
Wrathlath
v.
Minister
of
National
Revenue
(1994),
Court
File
No.
2968
IT
(unreported),
Markle
v.
R.
(1995),
Court
File
No.
787
(unreported).
He
terminates
his
argument
by
saying
that
for
13
years
she
had
managed
her
ileostomy
bag.
The
only
question
at
issue
is
whether
the
appellant
takes
an
inordinate
amount
of
time
to
carry
out
functions
related
to
elimination
of
bowel
waste.
The
court
must
rely
on
the
testimony
of
the
appellant
which
was
not
contradicted.
On
the
contrary,
the
expert
witness
of
the
respondent
testified
that
she
does
not
doubt
the
testimony
of
the
appellant
when
she
says
that
it
takes
her
an
hour
to
an
hour
and
a
half
a
day
to
take
care
of
the
bag,
and
she
explain
why.
An
inordinate
amount
of
time
means
what?
In
the
judgment
in
favour
of
the
appellant
referred
to
the
court
by
the
appellant,
Denault,
Brookshaw
v.
Canada,
[1994]
C.T.C.
2360
(T.C.C.)
my
colleague
judge,
Judge
Hamblyn,
says:
According
to
the
description
by
the
appellant
of
what
she
had
to
do
with
respect
to
the
basic
activity
related
to
elimination
of
bowel
the
court
is
convinced
that
it
is
not
kept
within
orderly
limits
especially
when
one
compares
this
situation
to
the
freedom
of
a
person
who
does
not
have
that
problem.
With
respect
to
the
amount
of
$343
of
interest
income
not
reported
by
the
appellant
in
filing
his
income
tax
return
for
1992
she
did
admit
not
having
reported
the
said
amount
which
should
be
added
in
that
year.
The
appeals
are
therefore
allowed
and
the
assessments
are
referred
to
the
Minister
for
reconsideration
and
reassessment
on
the
basis
that
the
appellant
is
entitled
to
a
credit
for
physical
impairment
under
Section
118.4(b)
of
the
Act.
As
to
the
amount
of
$343
of
interest
income
it
should
be
added
as
income
in
her
1992
taxation
year.
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