Emmons v. R., [1997] 1 CTC 2403 (Informal Procedure)

McArthur J.T.C.C.: — This appeal is from the 1993 taxation year. Mrs. Emmons claims a disability tax credit under section 118.3 of the Income Tax Act (the “Act”). No claim for a credit was made for 1991 or 1992 nor was an objection filed. Therefore, 1991 and 1992 are not validly before this Court.

Upon the conclusion of trial I advised that the appeal was granted and that a more comprehensive judgment would follow. While a notice of objection was not filed for the 1994 taxation year, the Appellant is within the time limits to apply for an extension of time to file an objection. I anticipate that, in view of the appeal being granted for 1993, the disability tax credit will be extended to the Appellant for 1994.

For the 1993 taxation year the issue was whether Wilma Doreen Emmons suffered from a severe and prolonged mental or physical impairment within the meaning of sections 118.3 and 118.4 of the Act. Subsection 118.3(1) reads in part:

Where

(a) an individual has a severe and prolonged mental or physical impairment,

(a.l) 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) a medical doctor, ... has certified in prescribed form that the individual has 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),

there may be deducted an amount determined by the formula

Subsection 118.4(1) reads:

(a) an impairment is prolonged where it has lasted, ... 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,

In the Minister’s prescribed form the Appellant’s medical Doctor indicated that the Appellant had a severe and prolonged impairment the effects of which markedly restrict the Appellant’s ability to perform one or more basic activities of daily living even with the use of appropriate aids, assistance medication or therapy.

In a letter dated March 11, 1994, Dr. C.L. Voll stated the following:

This very pleasant 57-year-old lady presented with a history of narcolepsy first diagnosed at age 42 years, probably dating back to her early teens. She described fairly typical narcoleptic symptoms, including full tetrad. She remained excessively sleepy on medication. She ranked 18/24 on the Epworth Sleepiness Scale, indicating severe sleepiness. She noted that she generally fell asleep whilst watching television, whilst sitting after lunch, in a movie theatre, in a waiting room. She tended to fall asleep in conversation. She fell asleep whilst riding as a passenger in a car. She felt that her symptoms had not changed significantly during the past several years, but she felt there had been a gradual deterioration in her degree or sleepiness over the past 10 to 15 years.

In addition, she described definite cataplexy (head dropping, knee buckling) with laughter and emotional upset, auditory hypnagogic hallucinosis and frequent sleep paralysis. She also experienced frequent automatisms which she felt had become a problem recently. She noted that her nocturnal sleep was disrupted by frequent awakenings. She noted that she snored sometimes, but there was no history of reported apnea.

MEDICATION: She was on Ritalin 20 mg, b.i.d. in conjunction with Tofranil 25 mg. t.1.d.

My impression at that time was that she was suffering from narcolepsy syndrome. I discussed the condition with her and suggested that she schedule two regular naps into her normal working routine. I asked her to withhold the Ritalin on one day per week. I also suggested that she increases her Ritalin consumption by a further 20 mg. a day, 10mg. around 10 a.m. and a further 10 mg. around 2 to 3 p.m. I substituted the third dose of Tofranil with Elavil 25 mg., increasing to 50 mg. after one week. I advised her to reduce carbohydrate consumption.

Narcolepsy is a lifelong condition, producing significant functional disability, particularly in terms of ability to obtain and maintain employment.

The evidence presented by the Appellant which I accept includes the following:

She suffers from narcolepsy which causes her sleepiness, cataplectic fits and hallucinations. The most severe symptom of narcolepsy is cataplexy. It is triggered by emotions. She can be laughing and suddenly go limp. During this period she can hear but cannot speak or move. Startling sounds, such as a car horn can cause her to collapse on the street. She feels narcolepsy has almost ruined her life.

She lost her job as a librarian because she could not concentrate and last year her 36 year marriage ended in divorce. She thinks narcolepsy has definitely affected her family. Her five children had problems understanding why their mother acted so oddly. She has fallen asleep in the middle of weddings and family events.

Mrs. Emmons says she has been in the care of a doctor since she was first diagnosed at 42. Now, almost 60, Emmons lives her life to the fullest every day. She is the treasurer of the Regina sleep/wake disorder group, a member of Amnesty International and the Council of Canadians. She enjoys doing crafts with her eight grand-children. Living with narcolepsy has not been easy and is still extremely frustrating for her. Mrs. Emmons stated she suffered from a number of other ailments including a dryness of her skin and mouth and incontinency.

The basis of the Appellant’s case is that she is markedly restricted in her ability to think, perceive and remember all or substantially all of the time. Observing her in the witness stand I found that it took her an inordinate amount of time to think, perceive and remember. I find that a combination of narcolepsy and her other ailments render this otherwise very intelligent person incapable of rational thought during frequent and unpredictable attacks. This qualifies her for the credit applied for.

In the case of Radage v. R., [1996] 3 C.T.C. 2510 (T.C.C.) Bowman J. stated, at page 2528:

4) ... Each case depends on its own fact 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.

5) 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. I shall try to state briefly those principles upon which this decision is based:

(a) The legislative intent appears to be to provide a modest amount of tax 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 everyone who suffers from a disability nor to erect a hurdle that is impossible for virtually every disabled person to surmount. It obviously recognize that disabled persons need such tax relief and it is intended to be of benefit to such persons.

(c) If there is doubt on which side of the line a claimant falls, that doubt should be resolved in favour of the claimant.

I agree with this reasoning. In the present case, I am sensitive to the hardships the Appellant faces for the remainder of her life. The limitations to her thought process justify the tax credit. While she retains the capacity to think, perceive and remember, I find that her once formidable intellection capacity has been sufficiently limited to fall within the criteria of the legislation.

The appeal from the assessment for 1993 is allowed and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment to allow the Appellant the disability tax credit under section 118.3.

Appeal allowed.