Kowalchuk v. R., [1997] 1 CTC 2673 (Informal Procedure)

Rip J .T.C.C.: — Patricia Kowalchuk has appealed assessments for 1989, 1990, 1991 and 1992 claiming a disability tax credit in accordance with section 118.3 of the Income Tax Act (“Act”) due to her son’s physical impairment.

The trial in this matter was originally set down for the morning of June 18, 1995. Mrs. Kowalchuk acted on her own behalf. The Associate Chief Judge, bearing in mind the reasons in Caldwell v. R., 95 D.T.C. 5615 (F.C.A.), explained to Mrs. Kowalchuk that she should endeavour to subpoena the physician who signed the disability tax credit certificate or some other medical person in order for the appeal to be properly conducted by her. The appeals were then adjourned sine die and later were scheduled for June 18, 1996. On that day Mrs Kowalchuk informed me that she did not subpoena the physician who signed the disability tax credit or any other medical person and she stated she wished the appeals to proceed.

In the Reply to the Notice of Appeal, the respondent alleged that Mrs. Kowalchuk had not served on the Minister of National Revenue (“Minister”) valid Notices of Objection pursuant to subsection 165(1) of the Act in respect of the 1989 to 1991 taxation years.

The Minister stated that she initially assessed the appellant’s income tax returns for the 1989 to 1992 taxation years by Notices of Assessments dated as follows:

Taxation year / Notice of Assessment Date

1989: May 2, 1990

1990: February 6, 1992

1991: July 7, 1992

1992: December 20, 1993

Mrs. Kowalchuk acknowledged that she did not file any Notice of Objection with respect to her assessments for 1989, 1990 and 1991. She indicated that her accountant told her that an Objection had been filed but it may have been that the Objection filed for 1992 also made reference to earlier years as well. In any event it was clear from the evidence that no Notice of Objection was filed for the first three years. It also appears that Mrs. Kowalchuk is too late to file applications to this Court for extensions of time within which to file Notices of Objection for 1989, 1990 and 1991. Accordingly I quashed her appeals for 1988, 1989, 1990 and 1991.

The appeal before me relates to 1992. Mrs. Kowalchuk’s son, Duane was born on November 24, 1989. During most of 1992 he was two years old. Duane was born suffering from right hemiplegia which was not diagnosed until five or six months after his birth when his mother realized that he was not developing normally. In 1990, doctors told Mrs. Kowalchuk that Duane probably would not be able to walk. Mrs. Kowalchuk stated she stayed home to give him home therapy and after twenty months he was able to walk at a level of a nine month child. In 1992 he entered a nursery program at a local YMCA in Winnipeg but, according to Mrs. Kowalchuk, he could not participate with normal children. He needed aid and his mother hired a person to give him the necessary assistance. Because of his imbalance he could not walk safely. Mrs. Kowalchuk stated that he walked - and will continue to do so during his life - With his right hand close to his body; Mrs. Kowalchuk explained this is the only way he can balance himself. She said he has a gait on his right leg which causes the imbalance.

Before Mrs. Kowalchuk gave evidence I referred her to subsection 118.3(1) and subsection 118.4(1) of the Act. During her evidence Mrs. Kowalchuk set out the various basic activities of daily living as they related to Duane.

She stated that in 1992 Duane could utter words and was able to understand words. She complained that Duane could not communicate at the nursery at the same level as other two and three year olds. She said this was frustrating to him, herself and others. She stated his communication skills took a long time to develop. She added that even if she and Duane were at home alone it was sometimes very difficult for Duane to understand what was being expressed. In 1992 Duane undertook speech therapy and there was a gradual improvement, although the improvement was not “by leaps and down”. She stated that he was about one to one and a half years below the level of an average three year old.

Duane would frequently choke when eating food and had to be served in very small portions. Someone was required to supervise him in the event he choked while eating.

Mrs. Kowalchuk testified Duane’s ability to dress himself was restricted in that he took a very long time to dress because of his imbalance. He is unable to tie his shoes and, according to Mrs. Kowalchuk, will never be able to tie his shoes. This is due to a paralysis on one side of his body and spastic movements which affect any close work he undertakes.

Counsel for the respondent produced for Mrs. Kowalchuk’s review an occupational and physiotherapy report prepared by the Society for Manitobans with Disabilities Inc. The report is dated December 19, 1992 and was prepared by an occupational therapist and a physiotherapist. The report found that Duane was independent with respect of feeding. He could independently remove his shoes and boots. He was able to push down ski pants through his feet. However he required assistance to push his pants over his feet. He was able to unzip the zipper on a jacket and ski pants although he required assistance to remove his left arm out of his jacket’s sleeves. He had no difficulty removing his right upper extremities. As far as dressing is concerned, he was able to put on and pull up ski pants and zip up the zipper. He independently put on a ski jacket but required help to initiate the zipper; he was able to pull the zipper up independently. The makers of the report had concern with the general delay in Duane’s gross motor skills, his difficulties with some bilateral tasks (1.e. scissors) and difficulties with visual perceptual tasks.

Mrs. Kowalchuk acknowledged that Duane was able to walk upstairs and take five steps down from the main entrance of their house so long as he hung onto a rail. A person would have to be close by in event he fell. She acknowledges that he can walk but she was concerned with his safety in 1992. She said he was four years old before he was comfortable walking. Mrs. Kowalchuk referred to an other report prepared by the Society for Manitobans with Disabilities Inc. This report is also dated December 1992 and was prepared by Cathy Howes, an early child specialist. Ms. Howes stated that “taking into consideration that Duane is just three years of age, his attending skills were quite good”. She said that Duane’s general knowledge and comprehension skills appear to be age appropriate, “the only area that was slightly immature and requires more exposure to is naming object and playing matching/educational games.” She concluded that according to informal testing, observation and the Assessment Intervention Training Programmes Developmental Check List, Duane’s Self Help, Play and Social Skills, Attending, General Knowledge and Cognitive Skills are at or nearing his age level”. She recommended an “in house” language program for Duane to facilitate his speech and language development.

In her submissions, Mrs. Kowalchuk stated that Duane had a noticeable disability and “to me, he was behind in daily living activities”. She concluded she therefore should be entitled to the disability tax credit. Respondent’s agent conceded Duane’s physical impairment but argued that because of his age and with the help of appropriate devices, such as railings, his ability to perform any basic activity of daily living was not markedly restricted.

There is no doubt that in cases such as these the Court should rule with a degree of compassion. This appeal has the additional complexity that it is often difficult to verify whether the basic activity of daily living of a particular infant is normal or not. Children develop at different rates. There is evidence by the Society for Manitobans with Disabilities Inc. that Duane’s ailment does not markedly restrict his ability to perform basic activities of daily living. The report prepared by Ms. Howes stated that many of his skills are nearing his age level. However, his mother testified that in 1992 he required the presence of an individual at feeding time to ensure his safety in the event he choked. This is a borderline case and perhaps is one in which compassion tips the scale. Mrs. Kowalchuk has testified Duane has shown improvement in later years. On the facts of this appeal, I am inclined to allow the appeal. Duane’s ability to feed himself in 1992 was markedly restricted.

Mrs. Kowalchuk will be entitled to her costs, if any.

Appeal allowed.