Wayne Spence v. Her Majesty the Queen, [1996] 3 CTC 2921 (Informal Procedure)

Christie A.C.J.T.C. : — This appeal is governed by the informal procedure prescribed under section 18 and following sections of the Tax Court of Canada Act. The year under review is 1994.

In computing his tax payable for that year the Appellant deducted an amount determined under subsection 118.3(1) of the Income Tax Act (the “Act”). It provides:

Where

(a) an individual has a severe and prolonged mental or physical impairment,

(a.1) the effects of the impairment are such that the individual’s ability to perform a basic activity of daily living is markedly restricted,

(a.2) a medical doctor, or where the impairment is an impairment of sight, a medical doctor or an optometrist, has certified in prescribed form that the individual has a severe and prolonged mental or physical impairment the effects of which are such that the individual’s ability to perform a basic activity of daily living is markedly restricted,

(b) the individual has filed for a taxation year with the Minister the certificate described in paragraph (a.2), and

(c) no amount in respect of remuneration for an attendant or care in a nursing home, in respect of the individual, is included in calculating a deduction under section 118.2 (otherwise than because of paragraph 118.2(2)(b. 1)) for the year by the individual or by any other person,

for the purposes of computing the tax payable under this Part by the individual for the year, there may be deducted an amount determined by the formula

A x $4,118

where

A is the appropriate percentage for the year.

Subsection 118.4(1) provides:

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 can 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.

This appeal pertains to the basic activity of daily living described in subparagraph 118.4(1 )(c)(vi), namely walking. For the purposes of this litigation it must be noted that paragraph 118.4(1 )(b) states, inter alia, that an individual’s ability to perform a basic activity of daily living is markedly restricted where all or substantially all of the time, even with therapy and the use of appropriate devices and medication, the individual requires an inordinate amount of time to perform such a basic activity. The appellant placed in evidence a number of documents which include the following:

1. A letter to Revenue Canada dated May 1, 1995 signed by him and his wife Linda which reads:

We wish to appeal your denial of our claim for a Disability Tax Credit on the grounds that we feel Wayne Spence (426-022- 828) meets the necessary requirement. Although he can walk 50 metres he fails to complete the distance in an acceptable time limit. The Government of Ontario has issued a handicap permit under almost the same criteria of not being able to complete 200 ft in under eight minutes. Leg and knee pains are not the only problem but a deteriorating heart condition compounds matters with dizziness and shortness of breath. Recent downgrade from Class 3 to Class 4 has decreased pumping ability to under 10 per cent. We have agreed to allow each other permission to each other’s tax records for this appeal.

2. A Disability Tax Credit Certificate dated March 3, 1995 and signed by Dr. M. Gitterman. Part B of that certificate reads:

Part B - to be completed by a medical doctor or an optometrist

Complete the boxes that apply.

715. Date the basic activity of daily living became restricted:

09-1992! [1]

716. The patient will be restricted in a basic activity

Daily living: Permanently YES or Temporarily/Indefinitely Year

717. Indicate which basic activity of daily living is severely restricted:

1. * Vision

2. X Walking

3. * Speaking

4, * Mental

6. * Hearing Functions

7. * Feeding & Dressing

8. * Elimination

718 DO NOT USE THIS AREA (To be completed by a medical doctor or an optometrist) Indicate medical diagnosis relevant to the impairment and describe

aids used: [2]

Complete the boxes that apply.

1. Vision

Is your patient able to see, using corrective lenses if necessary. (Visual acuity of 20/200 or better in either eye, and 20 degrees or more visual field in best eye, after correction.) YES

2. Walking

Is your patient able to walk, using an aid if necessary? (For example, at least 50 metres on level ground.) YES

3. Speaking

Is your patient able to speak so as to be understood in a quiet setting, using an aid if necessary? (Exclude language differences.) YES

4. Mental functions

Is your patient able to think, perceive and remember, using medication or therapy if necessary? (For example, can manage personal affairs or do personal care without supervision.) YES

5. Hearing

Is your patient able to hear so as to understand a spoken conversation in a quiet setting, using an aid if necessary? (Exclude language differences.) YES

6. Feeding & dressing

(a) Is your patient able to feed himself/herself, using an aid if necessary? YES

(b) Is your patient able to dress himself/herself, using an aid if necessary? YES

7. Elimination

Is your patient able to control and personally manage bowel and bladder functions, using an aid if necessary? (For example, has uncomplicated ostomy or uses a Catheter.) YES

8. Has the impairment lasted, or is it expected to last, for a continuous period of at least 12 months? YES

9. Is the impairment severe enough to restrict the basic activity of daily living identified above, all or almost all of the time, even with the use of appropriate aids, devices, medication or therapy? YES

Having read this form, and the information sheet, I certify that to the best of my knowledge the foregoing information is true and complete.

“M. Gitterman”

Signature of doctor or optometrist

Name (please print): Dr. M. Gitterman

Address: 1221 Bloor Street E. Mississauga, Ontario, L4Y 2N8

Telephone number: 905-625-1241

Date 1/3/95

3. A document addressed to no one in particular dated April 18, 1995 signed by Dr. Gitterman. This document was obtained to assist in clarifying the Disability Tax Credit Certificate. It reads:

The above patient has diabetes and severe coronary artery disease.

He is markedly disabled in the activities of daily living. Although he can walk 50 m. unaided -he can do so only very slowly and with difficulty and with significant dyspnea. In addition he has perpetual vascular disease that also limits he mobility as well as marked obesity.

I feel he should be allowed the disability tax credit.

4. There is also in evidence a number of documents that are personalized medication information that relate to the Appellant. They were prepared by Inter Pharmacy Inc. of Mississauga. They relate to these medications: Digoxin, Ranitidine, Amlodipine Besylate, Fluoxetine, Furosemide, Gemfibrozil, Nitroglycerin, Insulin, Lisinopril, Potassium Chloride. The information in these documents follows a pattern, for example, with respect to Digoxin it states that among the problems it is prescribed for is treatment of congestive heart failure. This is followed by special instructions; possible side effect; medication storage.

5. A form prepared by The Great West Life Assurance Company entitled “Attending Physician’s Supplementary Statement - Long Term Disability”. It relates to the appellant and reads in part:

1. Current Diagnosis (including any complications)

(a) Primary Diagnosis: Coronary artery disease. Diabetes.

(b) Secondary Diagnosis:

(c) Subjective Symptoms: Weakness, dyspnea with minimal exertion, chest pain.

(d) Objective signs (including results of current X- rays, ECG’s, blood pressure laboratory data and any relevant clinical findings): Obese 160/80.

(e) Which are the current physical and/or psychological limitations? Unable to do any physical activity requiring anything more than minimal activity.

6. Another form prepared by The Great West Life Assurance Company entitled “Claimant’s Supplementary Report - Long Term Disability”. It reads in part:

1. Name: Wayne Spence Policy No.: 20355 (JDD)

2. I.D. #: 5426022828

3. Address: 430 Hyacinthe Blvd., Mississauga, Ont. LSA 3L1

4, Since last report has your condition: REMAINED THE SAME

5. State your daily routine: SLEEP, BREAKFAST, REST, LUNCH, READ, REST, DINNER, T.V., SLEEP

6. Are you capable of driving: YES

7. Are you now: AMBULATORY

8. Name of attending doctor: Dr. Michael Gitterman

What is the date of your latest consultation? Nov. 14, 1995

How often have you consulted him in the last 6 months? 4 times

9. Have you worked in any capacity, whether or not you have received a wage or remuneration for work performed? NO

The appellant has suffered three heart attacks and in 1992 underwent quadruple by-pass surgery. Complications followed. He has been issued a handicap parking permit by the Province of Ontario. The evidence about driving is that most of this is done by his wife.

In Murphy v. R. (sub nom. Murphy v. Canada), [1995] 1 C.T.C. 2857, 95 D.T.C. 415 Hamlyn J.T.C.C. said at page 417:

Walking must be tested as a basic activity of daily living. And what can this Appellant do in relation to walking? In this case before the Court, the Appellant cannot walk in any respect to keep up normal pace. She must stop periodically and rest. She must monitor her fatigue level so that she does not injure herself physically and performs the activity with difficulty and in considerable pain and with fatigue. At best, when able to walk, she cannot go much further than a block.

The conclusion is therefore that the total amount of time she spends walking, when she is able to walk, is an inordinate amount of time, thus the effect of the impairment of the chronic fatigue syndrome and the myalgia on the Appellant’s ability to perform this basic activity of daily living of walking is markedly restricted. Therefore, the appeal does fall within the provisions of paragraph 118.4(l)(b).

The appeal is therefore allowed, and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis of the Appellant’s entitlement to a credit for physical impairment under section 118.3 of the Act.

On the whole of the evidence I have concluded that the appellant is entitled to the tax credit claimed. It is clear that he is very ill with heart disease and other medical problems. With particular reference to walking, while he can walk 50 metres without assistance, he can only manage this with very considerable discomfort and expenditure of excessive time. His evidence is, and I accept it, that he has to stop every 50 or 60 feet and take a deep breath. The time consumed in moving from the first to second floor of his home is also excessive.

The appeal is allowed.

Appeal allowed.