Thomas G. Keith v. Her Majesty the Queen, [1996] 3 CTC 2657 (Informal Procedure)

Rip J.T.C.C.: — On August 21, 1993 Thomas Keith, the appellant, and his family were in an automobile accident near Kingston, Ontario and he was severely injured. The appellant has claimed a disability tax credit pursuant to subsection 118.3(1) of the Income Tax Act (“Act”) on the basis he had a severe and prolonged physical impairment, the inability to walk, arising out of the accident that, in 1993, was reasonably expected to last for a period of at least 12 months. He appeals (Informal Procedure) from the assessment of tax for 1993 that disallowed the claim.

Mr. Keith’s injuries included a fracture of the lower third of the right femur, deep laceration of the right knee with fractured medial condyle, fractured right fibular, fractured dislocation right talocalcaneal and calcaneal cuboid joints and fractured toes, among others. He also developed reflex sympathetic dystrophy for which, he said, there is no cure, but may sometimes be treated with nerve blocks and pain medication. Mr. Keith explained that reflex sympathetic dystrophy causes increased body pain.

The appellant testified he was confined to bed until December 1993 when he started a physiotherapy program three days a week, for at least six months, at Henderson General Hospital in Hamilton. He had physiotherapy before December, but not as intensive as at the hospital. At first, his wife drove him to the hospital but, by July 1994, he was able to drive himself. The distance from the parking spot to the physiotherapy unit is about 100 feet, he said. There is a bench at the entrance of the unit to sit on, if necessary. Sometimes he used a wheelchair at the unit.

Mr. Keith described his problems with walking. Until December 1993, when he was confined to bed, he was unable to even go to the bathroom which was “off the bedroom”. His bedroom was upstairs and male friends would help him down the stairs to enable him to visit the hospital. His mother-in-law served him meals in bed. By January or February 1994 he started to “get around” to go to the bathroom. He would use crutches or a walker or “go on the floor and slide on my backside”. The Victoria Order of Nurses visited him every day at the beginning of his ordeal to clean his injuries and to make him more comfortable. Later the visits were every second day. Each visit was for about an “hour or two”.

He first tried to use a walker in December 1993 to go from his car to the physiotherapy unit, but was not overly successful. During 1994 he began to sit up in bed and near the end of the year, he also started to make infrequent visits to the downstairs kitchen. He declared there was “lots of pain ... unbelievable...”.

By September 1994, Mr. Keith started to walk regularly with the aid of a cane although, even today, he cannot put his full weight on his right leg. He had tried to walk with a cane earlier in July, but he broke the canes when he put his full weight on them.

Upon returning home from physiotherapy sessions in 1994 he would be tired and would require rest. A television set and video cassette recorder were set up in the bedroom for his convenience to pass time.

When the appellant was discharged from the hospital in Kingston, he was seen by “four to five” different doctors in Hamilton, as well as his family doctor. The latter doctor had suspected he was suffering from reflex sympathetic dystrophy and this was confirmed by specialists in May 1994.

Mr. Keith is still being treated for his injuries. His latest surgery was in July 1996.

Dr. Theresa Clinton, a general practitioner, completed the disability tax credit certificate on Mr. Keith’s behalf. She signed the certificate on February 1, 1994. On the certificate she wrote that Mr. Keith’s marked restriction was temporary and was likely to cease in 1995.

The respondent’s position is that in 1994 Mr. Keith was able to walk with mechanical aids, such as the walker and cane, and is therefore ineligible for the disability tax credit. The respondent conceded the appellant was immobile at the end of 1993 but added his impairment did not last for a period of at least 12 months, as required by paragraph 118.4(l)(a).

Respondent’s counsel relied on the reasons for judgment in Champagne v. Canada, [1995] T.C.J. 1122. In that appeal the trial judge considered the concept of an “inordinate” amount of time used by the legislature to describe a “marked” restriction of an inability to perform a basic activity of daily living resulting from a “severe and prolonged” impairment. The trial judge held that the legislative test “requires a pronounced departure from the bare minimum”.

Each appeal from a disallowance of a disability tax credit is to be decided on its own peculiar and particular set of facts. In the appeal at bar it is obvious, to me at least, that from the time of his accident on August 21, 1993 to some time in the summer or fall of 1994, at the earliest, Mr. Keith required way in excess of a bare minimum of time to walk a nominal distance, even with a walker or cane.

Paragraph 118.4(1 )(a) of the Act states that:

an impairment is prolonged when it has lasted, or can reasonably be expected to last, for a continuous period of at least 12 months;

When Dr. Clinton signed the disability tax credit certificate on February 1, 1994, she was of the view that Mr. Keith’s ability to walk was markedly restricted and the marked restriction was likely to cease in 1995. Mr. Keith testified as to the pain he endured and his restricted ability to walk during the period August 21, 1993 to mid- July 1994, and even up to the day of trial. Mr. Keith filed for 1993 with the Minister of National Revenue the disability tax credit certificate [described in paragraph 118.3(1)(a.2) of the Act] signed by Dr. Clinton.

The issue is whether Mr. Keith’s impairment was “prolonged” for the purposes of paragraph 118.3(1)(a). There is no suggestion that it was not severe. Whether of not Mr. Keith’s severe impairment in fact lasted for less than a continuous period of 12 months is not relevant. Paragraph 118.4(l)(a) provides for both prospective and retrospective situations. In the appeal at bar we are concerned with a set of facts that contemplates the future. The evidence discloses that in 1993 Mr. Keith’s impairment was reasonably expected to last for a continuous period of at least 12 months. Hence, his impairment was “prolonged” for purposes of paragraph 118.3(1)(a).

The appeal should be — and is — allowed, with costs.

Appeal allowed.