Beaubier
J.T.C.C.:
—
This
appeal
was
heard
at
Regina,
Saskatchewan
on
November
20,
1996
pursuant
to
the
Informal
Procedure.
The
Appellant
was
the
only
witness.
The
Appellant
applied
for
the
disability
tax
credit
for
1993.
Her
claim
was
denied.
She
appealed.
The
Appellant
suffers
from
ileitis.
She
was
born
in
1943.
She
was
operated
on
in
1964
and
her
large
bowel
and
rectum
were
removed.
She
has
an
ileostomy.
The
Appellant
stands
5’
10"
and
is
not
of
an
emaciated
appearance.
She
owns
and
operates
a
ladies
wear
store
in
Assiniboia,
Saskatchewan.
Since
1964,
the
Appellant
has
worn
a
pouch
attached
to
a
stoma.
She
changes
it
every
two
days
which
is
unusual,
since
the
average
person
with
such
a
pouch
changes
it
every
five
days
or
so.
She
states
that
she
loses
more
liquid
and
corrosive
enzymes
than
is
common
in
an
ileostomy.
Her
daily
record
of
checking
and
emptying
the
pouch,
on
average,
is
as
follows:
6:30
-
7:00
a.m.:
one
time
before
work:
one
time
10:00
a.m.:
one
time
12:30
p.m.
(noon/lunch):
two
times
3:00
p.m.:
one
time
5:00
p.m.:
one
time
6:30
p.m.:
one
time
7:00
-
11:00
p.m.:
three
or
four
times
overnight:
high
number
is
two
times
TOTAL:
13
times
These
take
10
to
15
minutes
each
for
a
total
of
two
and
one-half
to
three
hours
per
day.
The
changing
procedure
every
two
days
takes
45
minutes
to
one
hour.
The
parties
agree
that
the
only
question
before
the
Court
is
whether
this
checking
and
changing
constitutes
an
inordinate
amount
of
time
under
subsection
118.4(1)
of
the
Income
Tax
Act,
which
reads:
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.
Hamlyn
J.T.C.C.,
in
Brookshaw
v.
R.,
(sub
nom.
Brookshaw
v.
Canada)
[1994]
2
C.T.C.
2360
(T.C.C.)
said,
at
page
2361:
The
question
is
whether
having
to
constantly
manage
her
condition
and
relieve
her
bowel
10
to
20
times
a
day
would
constitute
an
“inordinate
amount
of
time”
to
perform
this
basic
activity
of
daily
living.
From
The
Oxford
English
Dictionary,
Second
Edition,
Volume
VII
(Oxford
University
Press,
1989)
at
page
1003,
“inordinate”
means:
1.
Not
“ordered”;
devoid
of
order
or
regularity;
deviating
from
right
or
rule;
irregular,
disorderly
...
2.
Not
kept
within
orderly
limits,
immoderate,
intemperate,
excessive....
and
from
The
Oxford
English
Dictionary,
Second
Edition,
Volume
I
(Oxford
University
Press,
1989)
at
page
411
“amount”
means
1.
The
sum
total
to
which
anything
mounts
up
or
reaches:
a.
in
quantity....
b.
in
number....
2.
The
full
value,
effect,
significance,
or
import...
3.
The
quantity
or
sum
viewed
as
a
total
...
It
should
be
noted
that
this
case
refers
to
an
ileostomy,
not
a
colostomy.
The
evidence
is
that
an
ileostomy
pouch
deals
with
corrosive
liquids
from
the
small
bowel;
a
colostomy
pouch
deals
with
solids
from
the
large
bowel.
Brookshaw
deals
with
an
ileostomy.
In
the
present
case,
the
evidence
is
similar
to
that
in
Brookshaw
as
to
frequency,
irregularity
and
time
consumed.
In
these
circumstances,
the
conclusion
in
Brookshaw
is
adopted.
It
reads,
at
page
2361:
Conclusion
The
conclusion
is
therefore
the
total
amount
of
time
she
spends
performing
her
bowel
functions
(i.e.,
the
number
of
times
she
has
to
perform
the
function
multiplied
by
the
duration
that
it
takes
her
to
perform
this
function
each
time
as
well
as
the
constant
necessary
monitoring)
is
irregular
and
requires
an
excessive
amount
of
time
to
manage.
All
of
the
appellant’s
life’s
decisions
and
actions
evolve
around
her
disability.
Thus,
the
effects
of
the
impairment
are
such
that
the
appellant’s
ability
to
perform
this
basic
activity
of
daily
living
is
markedly
restricted.
Therefore
the
appellant
falls
within
the
provisions
of
paragraph
118.4(b).
Decision
The
appeal
is
therefore
allowed
and
the
assessment
is
referred
to
the
Minister
of
National
Revenue
for
reconsideration
and
reassessment
on
the
basis
that
the
appellant
is
entitled
to
a
credit
for
physical
impairment
under
section
118.3
of
the
Act.
The
Appellant
is
awarded
her
party
and
party
costs.
Appeal
allowed.
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