Bowman
J.T.C.C.:
—
These
appeals
are
from
assessments
for
1991,
1992
and
1993.
The
1993
taxation
year
is
not
properly
before
the
court
since
no
notice
of
objection
was
filed
for
that
year.
By
the
assessments
for
1991
and
1992,
the
Minister
of
National
Revenue,
although
he
had
originally
allowed
the
appellant’s
claim
for
a
disability
tax
credit
under
section
118.3
of
the
Income
Tax
Act,
subsequently
disallowed
it.
For
1993,
the
Minister
allowed
the
claim
and
to
date
has
not
reassessed
to
disallow
it.
The
question
is
whether
the
appellant
in
1991
and
1992
was
suffering
from
a
severe
and
prolonged
mental
or
physical
impairment,
the
effects
of
which
were
such
that
the
appellant’s
ability
to
perform
a
basic
activity
of
daily
living,
as
defined
in
section
118.4,
specifically
walking
and
dressing
himself.
Mr.
Gardner
is
35
years
of
age.
He
is
a
welder
by
trade.
He
started
having
severe
neck
pains
in
1990
and
since
1991
has
been
unable
to
work.
He
is
in
constant
pain
and
suffers
from
constant
headaches.
He
has
numbness
in
both
arms.
In
1994,
he
had
an
operation
and
a
bone
was
removed
from
his
hip
and
put
in
his
neck.
Also,
a
titanium
plate
was
put
in
the
base
of
his
neck.
He
takes
therapy
and
counselling.
This
appears
to
have
improved
matters
somewhat,
but
his
disability
is
severe
even
today.
In
1991
and
1992,
he
was
collapsing
every
day,
and
every
time
he
rotated,
his
legs
would
give
out.
He
was
diagnosed
as
well
as
having
fibromyalgia,
a
chronic
condition
which
appears
to
have
no
known
cure.
In
1991
and
1992,
he
frequently
could
not
walk
at
all
and,
if
he
did,
only
short
distances
with
a
cane.
He
could
not
use
a
walker
because
of
the
pain
caused
to
his
neck
from
the
pressure
of
leaning
on
it.
He
frequently
would
collapse
in
the
shower.
I
find
as
a
fact
that
his
condition
in
1991,
1992
and
1993
was
worse
than
it
is
today.
His
operation
in
1994
and
the
therapy
he
is
taking
may
have
improved
matters
but
whether
the
improvement
will
continue
is
problematic.
This
is
a
clear
case.
His
ability
to
walk
with
a
cane
is
extremely
limited
and
it
takes
him
an
inordinate
amount
of
time
to
move
from
one
point
to
another.
I
observed
him
walking
in
the
courtroom
and
it
is
obvious
that
any
movement
is
painful.
Even
today,
he
meets
the
criteria
in
section
118.4.
One
needs
only
to
see
him
to
realize
the
extent
of
his
impairment
and
it
was
worse
in
the
years
under
appeal.
In
light
of
this
conclusion,
I
need
not
deal
with
the
difficulties
that
he
has
in
dressing
himself.
Counsel
suggested
that
I
should
not
consider
this
point
because
it
was
not
mentioned
in
the
certificate
signed
by
the
medical
practitioner.
I
do
not
read
paragraph
118.3(l)(a.2)
as
requiring
that
each
impairment
upon
which
a
claimant
relies
be
mentioned
in
the
medical
certificate.
The
filing
of
a
medical
certificate
described
in
paragraph
118(l)(a.2)
is
one
of
conditions
to
the
claimant’s
entitlement
to
the
credit
but
once
it
is
filed,
the
claimant
in
this
court
is
entitled
to
rely
upon
other
types
of
impairment
not
mentioned
in
the
certificate.
The
appeals
are
allowed
and
the
assessments
for
1991
and
1992
are
referred
back
to
the
Minister
of
National
Revenue
for
reconsideration
and
reassessment
on
the
basis
that
the
appellant
is
entitled
to
the
disability
tax
credit
provided
by
section
118.3.
The
appellant
is
entitled
to
his
costs,
if
any.
Appeal
was
allowed.
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