Bowman
J.T.C.C.:
-
The
appellant
claims
a
disability
tax
credit
in
respect
of
her
husband,
Hung
Nguyen,
under
section
118.3
of
the
Income
Tax
Act
for
1993
on
the
basis
that
he
had
a
severe
and
prolonged
physical
impairment,
the
effects
of
which
were
such
that
his
ability
to
perform
an
activity
of
daily
living
was
markedly
restricted.
The
daily
activity
in
this
case
is
walking.
Mr.
Nguyen
was
born
in
1954
in
Vietnam.
In
1971,
he
was
involved
in
an
automobile
accident
and
his
left
leg
was
broken.
It
was
repaired
in
Vietnam
by
means
of
pins
inserted
in
the
knee.
When
he
came
to
Canada
in
1984,
he
worked
as
a
machinist.
Since
1991,
he
has
been
off
work.
His
wife
testified
that
he
could
walk
100
metres
with
a
crutch
which
he
uses.
He
testified
that
he
could
walk
only
30
metres,
but
very
slowly
and
with
great
difficulty.
This
was
obvious
from
observing
him
in
the
courtroom.
He
moves
awkwardly,
slowly
and
painfully.
His
situation
has
not
improved
since
1993.
I
find,
as
a
fact,
that
in
1993
the
appellant
had
a
severe
and
prolonged
physical
impairment
that
markedly
restricted
his
ability
to
walk.
Although
he
was
not
completely
immobile,
it
clearly
required
an
inordinate
amount
of
time
for
him
to
do
so.
As
I
have
said
in
other
cases,
sections
118.3
and
118.4
must
be
interpreted
compassionately
and
humanely
and
not
narrowly
and
technically.
Notwithstanding
Mr.
Bernstein’s
very
able
argument
I
am
of
the
view
that
Mr.
Nguyen’s
impairment
is
of
the
type
that
falls
within
the
spirit
and
intent
of
section
118.3.
Mrs.
Nguyen
asked
for
the
credit
in
respect
of
her
husband
in
1991,
1992,
1993
and
1994.
The
credit
was
allowed
for
1991,
1992
and
1994
but
was
denied
for
1993.
Mr.
Bornstein
argued
that
the
Minister
is
not
bound
to
assess
in
the
same
way
in
each
year
and
I
completely
agree
with
him.
Each
year
stands
on
its
own.
Mr.
Bornstein
raised
as
well
a
formal
objection
to
the
appeal.
The
certificate
signed
by
Dr.
TalangBayan
omitted
to
check
“Yes”
or
“No”
to
the
question:
12.
Having
read
the
information
on
this
form,
in
your
opinion,
has
your
patient
a
prolonged
impairment
that
is
severe
enough
to
markedly
restrict
all
or
almost
all
of
the
time,
his
or
her
ability
to
perform
one
or
more
basic
activities
of
daily
living,
even
with
the
use
of
appropriate
aids,
medication,
or
therapy,
for
the
years
claimed?
However,
he
did
check
“Yes”
to
questions
1,
2
and
3
as
follows:
1.
Does
your
patient
have
a
prolonged
impairment?
YES
2.
Does
your
patient
have
a
severe
impairment?
YES
3.
Do
the
effects
of
this
impairment
markedly
restrict
your
patient’s
ability
to
perform
one
or
more
basic
activities
of
daily
living,
even
with
the
use
of
appropriate
aids,
assistance,
medication,
or
therapy?
YES
He
argued
that
the
failure
to
complete
the
answer
to
question
12
is
fatal
to
the
appeal.
With
respect,
I
do
not
agree.
The
answers
to
questions
1,
2
and
3
appear
to
me
to
be
an
adequate
compliance
with
the
condition
in
paragraph
118.3(1
)(a.2).
Moreover,
I
assume
that
similar
certificates
were
completed
for
the
year
1991,
1992
and
1994
in
which
the
credit
was
allowed.
Also,
I
note
that
the
point
was
not
raised
in
the
reply
to
the
notice
of
appeal.
The
appeal
is
allowed
and
the
assessment
for
1993
is
referred
back
to
the
Minister
of
National
Revenue
for
reconsideration
and
reassessment
to
allow
the
disability
tax
credit
under
section
118.3.
Appeal
allowed.
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