McArthur
J.T.C.C.:-This
appeal
was
heard
in
Sudbury
under
the
informal
procedures
of
this
Court
with
respect
to
the
appellant’s
1991
taxation
year.
The
respondent
disallowed
the
appellant’s
claim
for
non-
refundable
disability
tax
credit
in
the
amount
of
$4,118.
The
issue
is
whether
the
appellant
was
entitled
to
a
disability
tax
credit
under
subsections
118.3(1)
and
118.4(1)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act”)
or,
more
specifically,
that
the
appellant
in
1991
suffered
from
a
prolonged
physical
impairment
to
the
effect
that
he
was
not
able
to
perform
regular
daily
living
activities.
The
facts
include
the
following:
The
appellant
is
a
24-year
old
construction
worker
who
seriously
injured
his
back
while
on
a
job
in
March
1991.
He
submitted
the
following
in
his
notice
of
appeal:
I
have
radiation
numbness
in
my
left
leg.
I
am
unable
to
sit
or
stand
for
a
long
period
of
time.
I
am
unable
to
walk
a
long
distance
and
I
am
unable
to
get
dressed
in
the
morning.
He
testified
that
following
his
accident
he
suffered
from
severe
back
pain
and
was
unable
to
work
or
function
normally.
He
had
to
receive
assistance
in
dressing
because
he
could
not
bend
to
put
on
his
socks
or
pants.
He
experienced
severe
back
pain
descending
into
his
left
leg.
In
January
1992,
he
was
operated
upon
but
continues
to
have
back
problems,
wear
a
brace
and
walks
with
the
aid
of
a
cane.
He
presently
is
a
student
at
Cambrian
College,
Sudbury.
Susan
Gilbert,
his
partner,
corroborated
his
evidence,
indicating
that
in
1991
after
his
accident
she
had
to
assist
him
getting
dressed,
cutting
his
toenails,
carrying
anything
of
significance,
doing
the
housework,
preparing
meals,
etc.
He
took
care
of
his
own
personal
hygiene
and
could
manoeuvre
with
difficulty.
His
attending
general
practitioner,
Dr.
Deslauriers,
indicated
in
a
disability
tax
credit
medical
report
for
1991
that
the
appellant
had
a
prolonged
impairment
continuously
for
a
period
of
12
months;
that
he
had
a
severe
impairment,
and
in
answer
to
the
question,
"Do
the
effects
of
this
severe
impairment
markedly
restrict
his
ability
to
perform
a
basic
activity
of
daily
living
all
or
substantially
all
of
the
time?",
the
doctor
indicated
"No".
And
in
answer
to
the
question,
"Do
the
effects
of
this
severe
impairment
render
your
patient
unable
to
perform
a
basic
activity
of
daily
living
even
with
the
use
of
appropriate
aids,
assistance,
medication
or
therapy?",
again
the
doctor
answered
"No".
Dr.
Agarwala,
who
also
examined
the
appellant,
wrote,
amongst
other
things,
in
a
report
dated
February
26,
1992:
Mr.
Viel
was
admitted
to
the
Riverside
Hospital
in
Ottawa
and
he
had
a
lumbar
diskoadectomy
in
the
early
part
of
January
1992.
He
feels
that
his
symptoms
improved
after
surgery
but
he
is
not
completely
recovered.
And
he
concluded:
I
feel
that
this
man
will
be
left
with
a
permanent
disability
as
a
result
of
his
back
problem.
I
do
not
think
that
he
can
engage
in
any
construction
or
other
jobs
which
require
constant
bending
and
lifting.
He
should
train
for
some
light
job
for
the
future.
In
a
further
report
dated
September
1993,
Dr.
Agarwala
stated,
inter
alia'.
I
first
saw
Mr.
Viel
in
my
office
in
the
year
1991
at
the
request
of
his
family
physician,
Dr.
Deslauriers.
During
this
visit
the
patient
complained
of
a
low
back
pain
which
related
to
his
left
hip,
his
left
thigh
and
left
leg.
He
also
complained
of
numbness
in
the
foot.
He
had
difficulty
walking
any
distance
and
difficulty
standing.
This
apparently
started
in
March
1991
when
he
fell
at
work.
And
he
concluded
in
the
same
report:
On
the
basis
of
his
symptoms,
a
diagnosis
of
lumbar
disk
disease
was
made
and
it
was
felt
that
the
patient
still
has
symptoms
from
his
back
surgery.
I
personally
feel
this
man
is
not
fit
nor
capable
of
doing
his
original
job.
He
should
avoid
constant
sitting,
repeated
bending
and
lifting
heavy
objects.
Dr.
Deslauriers
signed
a
disability
tax
credit
certificate
dated
February
19,
1992
stating
that
the
appellant’s
impairment
began
in
March
1991
and
the
duration
of
the
impairment,
he
indicated,
was
temporary.
Dr.
Sutherland
gave
evidence
on
behalf
of
the
respondent
and
confirmed
her
conclusion
in
her
report
dated
July
20,
1994,
stating
in
part
at
pages
4
and
5
of
that
report:
Conclusion
Yves
Viel
is
a
24-year
old
construction
worker
who
has
chronic
back
pain.
He
has
had
surgery
and
been
advised
to
retrain
to
do
light
work
and
not
to
do
heavy
construction
work.
He
takes
Fiorinal,
one-quarter,
twice
a
day
for
pain
control.
He
wears
a
back
brace
at
times.
He
is
able
to
walk
and
there
is
no
medical
evidence
on
file
to
indicate
that
he
was
continuously
markedly
restricted
in
his
basic
activities
of
daily
living
throughout
the
1991
taxation
year.
Therefore,
on
the
basis
of
current
medical
information,
it
would
appear
to
the
Advisory
Group
that
Yves
Viel
did
not
meet
the
legislative
criteria
for
the
disability
tax
credit
in
1991.
As
mentioned,
Dr.
Sutherland
appeared
in
Court,
gave
direct
evidence
and
was
cross-examined.
The
Act
in
subsection
118.3(1)
provides
that
a
taxpayer
may
deduct
a
certain
amount
determined
by
a
formula
and
specifically
the
Act,
for
the
purposes
of
this
decision,
reads
in
part:
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...
there
may
be
deducted
an
amount
determined
by
the
formula.
Subsection
118.4(1)
of
the
Act
includes:
(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…
And
then
there
is
a
definition:
"basic
activity
of
daily
living
in
relation
to
an
individual
means...”
and
the
Legislature
includes
feeding
and
dressing
oneself.
On
the
analysis,
the
appellant
has
the
very
onerous
burden
of
proof
to
satisfy
the
Court
that
his
ability
to
perform
a
basic
activity
of
daily
living
is
markedly
restricted.
Considering
all
of
the
evidence
and
applying
that
evidence
to
the
criteria
set
out
in
the
Act,
as
quoted,
and
in
particular
with
reference
to
the
disability
tax
credit
medical
report
from
Dr.
Deslauriers,
I
conclude
that
the
appellant
fails
to
meet
the
rigorous
criteria
set
out
in
the
Act.
While
he
did
suffer
severe
impairment
which
is
prolonged,
which
restricts
his
daily
activities,
I
conclude
that
the
restriction
is
moderate
and
not
"markedly".
For
these
reasons,
the
appeal
is
dismissed.
Appeal
dismissed.
Email this Content