Bowie
J.T.C.C.:
—
Section
118.3
of
the
Income
Tax
Act
provides
a
deduction
from
income
tax
payable
for
individuals
who
suffer
from
a
severe
and
prolonged
mental
or
physical
impairment.
The
amount
of
the
deduction
is
not
great.
When
first
introduced
in
1988
it
was
$550;
it
has
since
been
increased
to
about
$700.
The
requirements
to
qualify
for
it,
however,
are
rigorous.
To
secure
the
deduction,
the
taxpayer,
or
in
the
present
case
his
dependent
son,
must
have
a
severe
and
prolonged
mental
or
physical
impairment
which
has
the
effect
of
markedly
restricting
his
ability
to
perform
a
basic
activity
of
daily
living.
He
must
also
file
with
the
Minister
of
National
Revenue
a
medical
certificate,
in
prescribed
form,
attesting
to
the
impairment.
Section
118.4
places
further
restrictions
on
the
availability
of
this
modest
tax
credit.
Since
its
amendment
in
1994,
applicable
to
the
1991
and
subsequent
taxation
years,
subsection
118.4(1)
has
read
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;
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.
It
is
clear
from
the
1994
amendment,
which
introduced
all
of
that
part
of
subsection
118.4(1)
which
follows
paragraph
(a),
that
Parliament
intended
the
deduction
to
be
available
only
to
individuals
who
suffer
from
the
most
extreme
disabling
conditions.
Keith
Dippel
is
a
young
man
who
was
21
years
of
age
in
1992,
the
year
that
is
under
appeal.
In
1986
he
suffered
a
severe
head
injury
in
a
motor
vehicle
accident,
with
resulting
frontal
lobe
damage.
It
is
clear
from
the
reports
of
the
doctors
who
have
attended
him,
and
from
the
evidence
of
his
father,
Elmer
Dippel,
that
he
has
suffered
very
serious
deterioration
of
his
capacity
to
function.
Following
the
accident,
he
was
hospitalized
from
April
to
June
of
1986,
and
again
from
April
to
June
of
1987.
He
was
readmitted
to
Chedoke-
McMaster
Hospital
in
October
1995,
and
would
be
there
still
if
it
were
not
for
a
labour
dispute
which
has
caused
the
hospital
to
discharge
many
of
its
patients
temporarily.
The
period
of
time
that
is
relevant
for
the
purposes
of
this
appeal
is
the
year
1992.
At
that
time
Keith
was
attending
high
school
in
a
specialeduction
program.
He
was
unable
to
use
the
public
transportation
system,
but
instead
had
to
be
delivered
and
picked
up
on
a
daily
basis.
It
is
clear
that
Keith
is
physically
able
to
speak
so
as
to
be
understood,
and
to
hear
so
as
to
understand,
and
to
walk,
albeit
with
what
his
father
described
as
a
robotic
gait.
What
is
in
issue
is
whether
or
not
he
is
unable,
or
requires
an
inordinate
amount
of
time,
to
perform
the
functions
described
in
subparagraphs
118.4(1
)(c)(i),(ii)
or
(v):
(i)
perceiving,
thinking
and
remembering,
(ii)
feeding
and
dressing
oneself,
(v)
eliminating
(bowel
or
bladder
functions)
The
evidence
of
Keith’s
father
that
is
specific
to
these
issues
is
that
Keith
could
not
remember
to
take
his
medication
four
times
daily,
could
not
venture
alone
into
the
community
because
he
was
unable
to
perceive
the
means
or
the
difficulties
of
transportation
in
the
city,
that
he
could
not
perceive
for
himself
when
he
required
to
evacuate
his
bowels
and
bladder,
and,
when
prompted,
required
an
inordinate
amount
of
time
to
do
so.
He
was
also
incapable
of
understanding
and
filling
out
the
forms
required
to
be
completed
to
consent
to
the
disclosure
of
medical
information,
or
the
questionnaire
required
by
Revenue
Canada
relating
to
his
disability.
His
father
described
him
as
having
no
cognitive
skills,
no
time
awareness,
and
as
being
completely
dependant
on
and
requiring
full-time
supervision
by
his
parents.
The
only
opinion
evidence
called
at
the
trial
was
that
of
Eleanor
W.
Sutherland,
M.D.
Dr.
Sutherland,
in
addition
to
carrying
on
a
general
medical
practice,
has
since
April
1993
been
employed
by
the
Government
of
Canada
as
a
medical
advisor
with
respect
to
the
eligibility
of
claimants
under
section
118.3.
The
agent
for
the
Appellant,
after
cross-examining
Dr.
Sutherland
vigorously
with
respect
to
her
qualifications,
took
the
position
that
she
was
not
adequately
qualified
to
give
opinion
evidence.
Dr.
Sutherland
qualified
as
a
medical
practitioner
in
1953,
after
obtaining
her
M.D.
from
the
University
of
Alberta,
and
interning
at
the
Royal
Alexandra
Hospital
in
Edmonton.
She
has
since
become
a
member
of
the
College
of
Physicians
and
Surgeons
of
Ontario,
and
is
at
present
on
the
staff
of
the
Grace
Hospital
in
Ottawa.
Her
professional
experience
includes
3
years
of
practice
in
rehabilitative
medicine
at
the
Wascana
Rehabilitation
Centre,
Regina,
and
a
further
14
years
in
the
Physical
Medicine
and
Rehabilitation
Department
of
the
Royal
Ottawa
Hospital.
I
found
Dr.
Sutherland
to
be
qualified
to
give
opinion
evidence
as
to
medical
matters,
and
in
particular
as
to
rehabilitative
medicine.
Under
cross-examination
Dr.
Sutherland
admitted
quite
candidly
that
she
has
not
examined,
or
even
met,
Keith
Dippel,
and
that
she
had
nothing
on
which
she
could
base
her
evidence,
other
than
the
opinions
of
other
doctors
which
were
submitted
by
the
Appellant
to
Revenue
Canada,
and
a
Revenue
Canada
Disability
Questionnaire
completed
by
the
Appellant
for
his
son.
All
of
these
were
made
appendices
to
her
report.
In
addition
to
the
questionnaire,
they
consist
of
a
Disability
Tax
Credit
Certificate
completed
by
Dr.
Garner
in
April
1992,
a
two-page
opinion
letter
prepared
by
Dr.
Garner
in
March
1993
at
the
request
of
Revenue
Canada,
a
Disability
Tax
Credit
Certificate
completed
in
March
1994
for
the
1992
year
by
Dr.
Waxman,
and
a
four-line
opinion
written
by
Dr.
Singh
in
March
1994,
which
does
not
say
to
what
point
in
time
it
speaks,
but
concludes
with
the
sentence:
The
impairment
is
of
a
prolonged,
progressive
nature
which
markedly
restricts
his
ability
to
perform
the
important
basic
activities
of
daily
living.
On
the
basis
of
these,
Dr.
Sutherland
gave
the
opinion
that,
although
Keith’s
I.Q.
was
lowered
as
a
result
of
the
accident,
he
could
perform
the
basic
activities
of
daily
living.
With
respect
to
perceiving
and
thinking,
her
opinion
was
based
upon
the
fact
that
he
had
signed
two
documents,
and
on
the
Certificate
of
Dr.
Waxman.
This
Certificate
is
equivocal,
at
best.
Dr.
Waxman
indicates
that
the
category
of
Keith’s
impairment
is
with
respect
to
his
mental
functions,
and
he
certifies
that,
for
the
year
1992
he
has
..
a
prolonged
impairment
that
is
severe
enough
to
markedly
restrict
all
or
almost
all
of
the
time,
his
...
ability
to
perform
one
or
more
basic
activities
of
daily
living,
even
with
the
use
of
appropriate
aids,
medication,
or
therapy
...
Immediately
above
this
certification,
however,
Dr.
Waxman
gave
the
following
answers
to
Question
10:
10.
Mental
functions
Is
your
patient
able
to
perceive,
think,
and
remember?:
Yes
If
no,
can
your
patient:
(a)
do
personal
care
(eating/dressing)
without
supervision?:
Yes
(b)
manage
personal
affairs?:
No
if
the
answer
to
(a)
or
(b)
is
no,
what
degree
of
supervision
is
necessary?
A.
much
monitoring
structure
requ’d.
This
internal
inconsistency
arises
at
least
in
part
from
the
wording
on
the
form
supplied
by
Revenue
Canada,
but
the
result
is
that
the
Certificate
of
Dr.
Waxman
is
not
helpful
in
resolving
the
issue.
Dr.
Garner,
two
years
earlier,
on
a
different
form
which
asks
less
detailed
questions
of
the
physician
completing
it,
described
the
diagnosis
of
Keith’s
disability
as
-
closed
head
injury
-
difficulties
with
frontal
lobe
functions
-
Good
physical
recovery
He
then
goes
on
to
describe
the
disabling
condition
in
the
following
words:
He
has
difficulty
following
morning
routine
and
needs
help
with
prompts,
and
structure
and
is
highly
dependent
on
family
for
daily
routines.
This
description
is
less
than
precise.
So,
too,
is
the
two
page
letter
written
by
Dr.
Garner
in
March
1993.
The
most
cogent
part
of
it
follows:
Although
capable
of
performing
ADL
activities,
he
has
required
a
very
structured
environment
with
excessive
supervision.
In
a
typical
day
Keith,
through
the
years
mentioned
and
in
my
understanding
from
interviews
with
his
parents,
is
that
Keith
generally
had
to
be
aroused
out
of
his
sleep
by
his
mother
in
the
morning
and
that
he
required
several
prompts
and
structure
to
complete
his
ADL
routine.
He
was
not
capable
of
moving
in
the
community
independently
and
his
family
had
to
drive
him
either
to
school
and
after
school
he
had
to
be
driven
to
other
sites.
He
basically
was
totally
dependent
on
his
parents
for
supervising
his
after
school,
evening,
and
weekend
activities.
General
Examination:
This
did
not
reveal
significant
abnormalities.
Blood
pressure
was
120/85,
pulse
was
96
and
regular.
Musculoskeletal
examination
with(sic)
within
normal
limits.
His
marked
difficulties
were
in
the
area
of
“executive
ability”.
He
is
excessively
reliant
on
the
interviewer,
lacks
spontaneity,
and
showed
difficulty
learning
new
tasks.
Multiple
neuropsychological
tests
have
shown
the
marked
difficulty
he
has
with
learning
and
his
excessive
need
for
structure.
Analysis:
Mr.
Keith
Dippel
sustained
frontal
lobe
injury
as
a
result
of
an
accident.
He
is
motorically
capable
of
doing
the
basic
ADL
activities
and
requires
structure
and
supervision
which
has
required
the
input
and
time
of
his
parents
in
the
years
from
the
time
of
the
accident
to
1991.
His
disability
continues
to
be
an
issue
and
he
is
currently
involved
in
a
rehabilitation
program
at
Chedoke-McMaster
Hospitals
to
try
to
improve
his
independence
in
moving
in
the
community
and
in
his
household
routines.
There
is
some
evidence
that
he
is
making
some
gains
at
this
time,
but
the
degree
of
independence
ultimately
will
need
to
be
assessed
at
a
later
date.
I
find
myself
in
the
remarkable
position
that
two
Certificates
and
two
letters
of
opinion,
furnished
by
a
total
of
three
well
qualified
medical
practitioners,
all
of
whom
have
examined
Keith,
on
one
side,
and
a
seven
page
report
and
viva
voce
evidence
from
Dr.
Sutherland
on
the
other
side,
all
give
me
very
little
assistance
with
the
question
whether
or
not
Keith
Dippel
met
the
criteria
of
the
Act
in
1992.
There
remains
the
evidence
of
Keith’s
father.
He
impressed
me
as
both
a
loving
parent
and
a
reliable
witness.
I
do
not
believe
that
his
evidence
was
at
all
affected
by
the
fact
that
he
is
the
Appellant
who
seeks
the
deduction.
On
these
two
points
his
evidence
was
clear.
First,
while
physically
able
to
control
the
functions
of
his
bowel
and
bladder,
Keith
lacks
the
ability
to
know
when
he
has
to
relieve
himself,
and,
once
reminded,
he
takes
an
inordinately
long
time
to
do
so.
Second,
he
is
able
to
consume
a
meal
which
is
placed
in
front
of
him,
but
he
is
quite
unable
to
prepare
a
meal
for
himself.
In
my
opinion
these
facts
bring
him
within
the
requirements
of
sections
118.3
and
118.4.
An
impairment
qualifies
as
prolonged
for
the
purpose
of
section
118.3
if
it
has
lasted
for
a
period
of
at
least
12
months.
Keith’s
accident
took
place
in
1986,
and
the
symptoms
of
his
impairment
have
been
continuous
since
that
time.
The
requirement
of
“markedly
restricted”
is
satisfied
if
performing
a
basic
activity
of
daily
living
“requires
an
inordinate
amount
of
time”.
Those
basic
activities
include
bowel
or
bladder
functions.
It
follows
that
Keith
Dippel
meets
the
requirements
of
the
Act
in
respect
of
“elimination”.
I
am
of
the
view
that
he
also
qualifies
for
the
deduction
under
subparagraph
118.4(l)(c)(ii),
“feeding
and
dressing
oneself’.
I
agree
with
Bowman
J.
that
this
provision
is
to
be
read
disjunctively
rather
than
conjunctively:
see
Lawlor
v.
R.
(January
10,
1996),
Doc.
95-1585(IT)I
(T.C.C.).
I
also
agree
with
his
observation
in
the
same
case
that
section
118.4
should
be
interpreted
“...
with
a
degree
of
compassion
and
understanding
that
achieves
the
objects
of
this
section.”
The
evidence
establishes
that
Keith,
at
the
relevant
time,
was
capable
of
eating
a
meal
which
was
prepared
for
him
and
placed
in
front
of
him,
but
was
not
capable
either
of
shopping
for
food,
or
of
preparing
a
meal
from
food
provided
by
his
parents.
I
agree
with
the
conclusion
of
Bonner
J.
in
Hodgin
v.
R.
(September
7,
1995),
Doc.
94-3151(IT)I
(T.C.C.)
that
feeding
oneself
involves
more
than
eating
a
meal
prepared
by
another
person.
If
the
intention
of
Parliament
were
to
so
restrict
the
availability
of
the
deduction
it
would
surely
have
used
the
verb
to
eat,
rather
than
the
verb
to
feed
oneself.
I
am
supported
in
this
view,
too,
by
the
words
of
paragraph
118.4(l)(d),
which
specifically
excludes
from
the
scope
of
basic
activities
of
daily
living
“...
working,
housekeeping
or
a
social
or
recreational
activity
...”.
The
absence
of
any
direct
reference
there
to
the
preparation
of
meals
suggests
to
me
that
Parliament
intended
the
expression
“feeding
oneself’
to
include
meal
preparation.
It
is
true
that
“housekeeping”
includes
the
preparation
of
meals,
but
it
includes
much
more
as
well.
To
exclude
“housekeeping”
is
not
to
exclude
every
element
of
it
which
may
be
encompassed
within
one
of
the
basic
activities
of
daily
living
particularized
in
paragraph
118.4(1)(c).
I
therefore
conclude
that
in
1992
Keith
Dippel
had
a
severe
and
prolonged
impairment
which
had
the
effect
of
markedly
restricting
his
ability
to
perform
at
least
two
of
the
basic
activities
of
daily
living
described
in
paragraph
118.4(l)(c)
of
the
Act,
namely
feeding
himself,
and
eliminating.
The
appeal
is
allowed.
Appeal
allowed.
Email this Content