Richard v. R., [1997] 1 CTC 2191 (Informal Procedure)

Lamarre Proulx J.T.C.C.: - This appeal was instituted under the informal procedure for the 1992 taxation year. It concerns the mental or physical impairment tax credit provided for under sections 118.3 and 118.4 of the Income Tax Act (the “Act”).

The point at issue is whether the appellant’s spouse suffers from a severe and prolonged mental or physical impairment, the effects of that impairment being that the wife’s ability to perform a basic activity of daily living is markedly restricted within the meaning of subsection 118.4(1) of the Act.

According to subsection 118.4(1) of the Act, an individual’s ability to perform a basic activity of daily living is markedly restricted only where, even with therapy and the use of appropriate devices and medication, the individual is unable (or requires an inordinate amount of time) to perform a basic activity of daily living.

Subsection 118.4(1) of the Act describes the circumstances of marked restriction in performing a basic activity of daily living, as well as the nature of such activities, as follows:

118.4(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 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;

(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;

The description of basic activities is exhaustive in light of the statement of paragraph (d) of that provision:

(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.

The appellant was absent, but he was represented at the hearing by Diane Lefebvre, his spouse’s sister-in-law. His spouse, Carole Howe, and Ms. Lefebvre testified. The disability tax credit certificate was filed as Exhibit 1-1. It was signed by Dr. Georges Patry, a neurologist. The diagnosis of the impairment is “Uncontrolled partial epilepsy, probable left temporal complex. Surgery considered. Frequent seizures.”

Two medical reports completed at the request of the Department of Health were provided by Dr. Patry. He indicated therein that the seizures began at the age of 18 months following a car accident and that the seizures occurred daily. These involved loss of consciousness for a few minutes followed by confusion for 15 to 45 minutes. He also indicated that the appellant’s spouse had to be under virtually continuous supervision because of the frequency of the seizures.

Ms. Howe’s medical record was filed as Exhibit A-2. In particular, it contained the report on a medical consultation. The consulting physician stated that the patient displayed clearly drug- resistant partial epilepsy, which explained the expression “uncontrolled epilepsy” used by Dr. Patry.

Ms. Lefebvre lives near Ms. Howe’s home. She takes Ms. Howe with her to do her shopping. Ms. Howe never goes out alone. If Ms. Lefebvre does not take her somewhere, volunteers do it. She has taught her son to contact the neighbours if he finds her on the ground or in a disoriented State.

It was disclosed, during cross-examination led by counsel for the respondent, that the appellant worked outside the home all week and that his son went to school. However, the appellant’s spouse nevertheless had to live in a protected world. She counted on her sister-in-law and a few other neighbours.

As she has already had a seizure getting out of the bath, she never takes a bath if she is alone in the house. She has very little ability for sustained concentration. She can prepare breakfast, but no meal that requires concentration. She purchases dishes prepared in advance, which she reheats in the micro wave oven. The slightest effort exhausts her. She must often go to bed during the day and, in the evenings, she must go to bed around 7:00 or 8:00 p.m.

Exhibit A-3 is an assessment of Ms. Howe’s case prepared by the acting director of La Croisée. La Croisée is described in the document as follows:

“La Croisée” is an extension of the Canada Employment Centres which provides a job entry service for physically disabled persons wishing to enter or re-enter the job market.

[Translation.]

According to paragraph 118.4(1 )(d), work is not a basic activity of daily living. However, I cite the passages to which the appellant’s agent drew my attention because I find they clearly summarize the state of health of the appellant’s spouse according to the evidence adduced:

. . . I have examined the various medical reports issued by two neurologists specializing in epilepsy, Dr. Richard Desbiens and Dr. Georges Patry.

According to the medical reports, it seems clear that Ms. Howe displays a form of drug-resistant epilepsy. That is to say that the symptoms cannot be controlled despite medication taken.

Although her situation has improved through the prescription of Ativan, which prevents convulsive seizures, she nevertheless displays loss of consciousness almost daily and, at certain times, she can even have as many as three or four losses of consciousness per day. These losses of consciousness are always preceded by a period of fairly intense confusion and followed by a state of fatigue requiring a time of rest when she must lay down to sleep.

Furthermore, Ms. Howe says she tires very easily. She must rest frequently during the day and go to bed very early in the evening.

[Translation.]

I understand from the written reports by the attending physician that his patient suffers from a severe and prolonged impairment, resistant to medication, and that she is unable (or requires an inordinate amount of time) to perform a basic activity of daily living. There was no medical report to the contrary and the evidence adduced did not overturn the observation by the attending physician, who is a neurological specialist.

I am therefore convinced on the balance of evidence that the appellant’s spouse currently suffers from the impairment that is the subject of subsection 118.3(1) of the Act and the appeal is accordingly allowed, without costs.

Appeal allowed.