Peters v. R., [1997] 2 CTC 2071

Watson DJ.T.C.:

This appeal was heard in Toronto on December 9, 1996.

In computing taxes payable for the 1994 taxation year, the Appellant claimed a non-refundable tax credit in respect of a disability in the amount of $719.61. In assessing the Appellant for this year, the Minister of National Revenue (the “Minister”) in the Notice of Assessment dated April 13, 1995 did not allow this claim for the disability.

In so assessing the Appellant, the Minister made the assumption that he was not suffering from a severe and prolonged mental or physical impairment the effects of which were such that his ability to perform a basic activity of daily living was markedly restricted.

Subsections 118.3(1) and 118.4(1) of the Income Tax Act (the “Act") read as follows for the 1994 taxation year:

118.3: Credit for mental or physical impairment

(1) 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 1182(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.

118.4: Nature of impairment

(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 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.

The Appellant was the only witness at the hearing and testified in an open and honest fashion and I accept his evidence as worthy of belief.

The Appellant is claiming the disability credit on account of his ability to walk and general mobility were restricted in 1994. In December 1993, due to severe osteoarthritis of the right knee, he was operated for tibia osteotomy where the surgeon cut off part of the bone below the right knee; this was followed by deep vein thrombosis. He was in a cast until March 1994 and was totally dependent on others for the three months. His son who lived with him carried him to do his daily activities and the Appellant’s mother also came to the house to help out. When the cast was removed in March, he was able to get around with crutches, then a cane.

In August 1994, the Appellant found employment weighing trucks at a local gravel pit; he was able to do his work while sitting; he was able to get to his car at home, a 50-foot walk, drive to work and walk from his car to his work hut, approximately a 25-foot walk, using a cane; he needed help getting in and out of the bathtub to take a shower, but the limited mobility did not prevent him from working, driving or making his meals.

The Appellant’s job is seasonal, depending on the opening and closing of the gravel pit, so he worked until the end of November 1994. He has continued to work at the same place doing the same job in 1995 and 1996 during the months that the gravel pit was open. The Appellant’s son lived

with him in 1994 but was away from home from 6:00 a.m. to 6:00 p.m.; the Appellant had to wait for him to return home in order to obtain help to take a shower.

In answer to questions from Counsel for the Respondent, the Appellant confirmed that the category of impairment was his mobility and that he was able to walk short distances using his cane or leg brace. He lived on the main floor of his house which allowed him to manage on his own without professional home care, but was dependent on his son and mother for help in his daily routine.

The evidence disclosed that the Appellant was totally immobile until the end of March 1994 and after that, although he was able to walk very short distances with a cane or leg brace, he was unable to take a shower without help from others and it took him an inordinate amount of time to walk any distance that would allow him to operate independently in every day life.

Considering all of the circumstances in the light of the recent case law, I am satisfied that the Appellant has succeeded in his onus of establishing on a balance of probabilities that during the 1994 taxation year he was markedly restricted in his activities of daily living.

The appeal is accordingly allowed and the matter is referred back to the Minister for reconsideration and reassessment on the basis that the Appellant was entitled to the non-refundable tax credit in respect of his disability.

Appeal allowed.