Delaney v. R., [1997] 2 CTC 2930

Taylor T.CJ.:

This is an appeal heard in Toronto, Ontario, on February 18, 1997, against an assessment in which the Minister of National Revenue had disallowed a claim for the non-refundable tax credit under section 118 of the Income Tax Act (the “Act”) in respect of a medical disability. I quote from the Notice of Appeal:

(v) the taxpayer has a congenital high tone nerve hearing loss which renders him with a loss of hearing in his right ear of thirty per cent (30%), and in his left ear a hearing loss of seventy per cent (70%). This hearing loss creates many difficulties, including difficulty in hearing soft sounding letters;

(vi) the taxpayer has suffered from this disability since birth, as can be noted on the Disability Tax Credit Certificate;

(vii) the taxpayer is able to read lips to a limited extent, but conversations held with his back turned are not always heard or understood

For the Respondent the situation as portrayed in the Reply to Notice of Appeal was:

7.(a) in the 1994 taxation year, the Appellant was not 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 was markedly restricted.

The Disability Tax Credit Certificate filed with the 1994 tax return was signed by a Dr. Gary Magee who would tend to support the Appellant’s claim and testimony, with the exception that question No. 5 reads:

5. Is your patient able to hear so as to understand a spoken conversation in a quiet setting, using an aid if necessary?

It was marked by Dr. Magee with the answer “Yes”

A friend of Mr. Delaney, who had known and observed him for a long time, added his support and his personal views. The agent for the Appellant also described his own meetings with Mr. Delaney, and the difficulty of communication, and comprehension which the Appellant apparently underwent. The agent for the Appellant quoted from and relied extensively on a judgment of this Court Shepley v. R., [1995] 2 C.T.C. 2448 (T.C.C.) (head- note only) which was allowed, not published but listed as 94-1686(IT) dealing with a similar problem. Counsel for the Respondent referred to the specific circumstances of the Shepley case (supra) but also brought to the attention of the Court the case of Adams c. R. (1994), [1995] 1 C.T.C. 2801 (T.C.C.) (headnote only), (T.C.C.-93-3449(IT)) in which a related issue was dismissed.

Analysis

By any reasonable yardstick Mr. Delaney has a pronounced auditory disability with which he contends daily. That was evident at the hearing and the Court gives him credit for his efforts and the results obtained. The critical phrase from Shepley (supra) above noted specifically by the agent for the Appellant reads:

It would appear to me from the conduct of this Appellant in Court, and the explanations and information she provided that there is a great difference between just “hearing” and “understanding”. In my opinion “understanding” requires a clear appreciation of the words spoken by another party — even in a quiet setting, and even by someone familiar. There can be, or at least there should be complete auditory comprehension of each word or phrase, as well as the voice inflection, modulation and pitch. The lack of one word, or the error in appreciation of one word can lead to a complete misunderstanding of the sentence or the context of the conversation. Someone coping with a hearing loss, and the attendant uncertainty of the discussion taking place, must encounter a major obstacle in understanding and thereby replying in the proper context of that discussion in order to maintain communication. This Appellant in a quiet setting, with voices and people she knows is quite capable of carrying on communication adequately — but it is clearly only possible with the utmost concen- tration on her part, with the full use of her hearing aids, and in particular with her eyes fixed on the speaker intently. (underlining mine)

The point to be made in Shepley (supra) was that some distinction should be made between “communication” and “understanding”, and it was my conclusion in that situation that Mrs. Shepley even though she could communicate, had a substantial lack of understanding — even in a perfectly quiet setting using all her facilities and aids, due to her hearing difficulty. I am not persuaded that the same situation obtains for Mr. Delaney in a similar quiet setting. I readily admit to some degree that is subjective and a judgment call, a point accepted by both the learned Judge Bowman in Adams (supra) and myself in Shepley (supra):

I prefer to base my conclusion on the evidence that was presented in Court and my own observation of the witnesses.

The Court heard a great deal from the witnesses in this matter describing the difficulties encountered by Mr. Delaney working, housekeeping, or in social or recreational activity — all of which are specifically proscribed as qualifying for consideration of “basic activity of daily living” by subsection 118.4(d) of the Act. I am satisfied that within the strict limitation of subparagraph 118.4(c)(iv) of the Act Mr. Delaney’s condition is not such as to be termed “markedly restricted”. In simple terms it takes more than was visibly demonstrated by Mr. Delaney or recognised by the medical practitioner Dr. Magee to reach a level of hearing impairment fitting within the narrow confines of the relevant words of the Act. Clearly while all hearing loss or disability claims warrant proper consideration and attention by the Court, very few may be regarded as of sufficient detriment to the Appellant to qualify for this very special credit. I quote from two other cases dealing with claims under that provision, although they are not loss of hearing claims:

Peters v. R., [1995] 2 C.T.C. 2936 (T.C.C.) (headnote only), T.C.C. 94-2571(IT)I

...it is equally clear that the provisions of the Act should not be applied, even subverted in such a manner as to encompass virtually every real or perceived health restriction

and from Miller v. R., [1996] 3 C.T.C. 2107 (T.C.C.) (headnote only), T.C.C. 95-3116(IT)I

... his section of the Act, and the tax relief it affords can only be invoked under conditions more extreme than those regularly regarded as severe by normal standards....

The appeal is dismissed.

Appeal dismissed.