Taylor
T.CJ.:
This
is
an
appeal
heard
in
Toronto,
Ontario,
on
February
21,
1997,
against
an
assessment
for
the
year
1994,
in
which
the
Respondent
denied
the
claim
for
a
non-refundable
tax
credit
in
respect
of
a
disability
amount.
The
Notice
of
Appeal
read:
Subject:
Hearing
Disability
I
am
appealing
your
former
decision
concerning
my
hearing
disability,
which
was
based
on
a
Medical
Report
from
Dr.
Finnie
in
Hamilton.
This
physician
must
have
had
me
confused
with
someone
else,
since
/
can
not
“hear
and
understand
a
spoken
conversation
in
a
quiet
setting”
as
the
form
indicates.
Dr.
Finnie
erroneously
indicated
I
could.
I
have
enclosed
a
disability
certificate
from
Dr.
Yeh
and
the
hearing
evaluation
from
Chedoke.
In
addition
my
tinnitus
is
becoming
more
troublesome.
The
Reply
to
Notice
of
Appeal
put
forward
the
Respondent’s
position:
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
testimony
indicated
that
the
Appellant
taught
school
sometimes
at
Mohawk
College
-
Physics
was
his
speciality.
He
had
been
quite
unsuccessful
in
trying
to
use
a
hearing
aid.
His
best
estimate
was
that
he
could
hear
about
30%
of
a
conversation.
The
first
medical
evaluation
-
that
of
Dr.
Finnie
-
was
referenced,
and
it
was
clear
that
the
Appellant
disagreed
with
the
conclusion.
The
second
evaluation,
done
by
Dr.
Yeh,
was
also
submitted,
and
while
it
was
more
sympathetic
to
the
opinion
of
the
Appellant,
it
still
indicated
that
the
impairment
was
not
“severe
enough
to
restrict
the
basic
activity
of
daily
living”
-
in
this
case
from
hearing
loss.
A
second
witness
for
the
Appellant
who
had
some
considerable
opportunity
to
observe
him
and
deal
with
him
corroborated
the
difficulty
he
encountered.
Counsel
for
the
Respondent
summarised
the
position
of
the
Minister
by
saying:
-the
section
(of
the
Act)
is
very
specific
in
what
sort
of
impairment
it
anticipates.
Conclusion
In
my
view
the
documentary
evidence
does
not
support
the
claim.
I
would
note
that
from
his
income
tax
return
filed
as
Exhibit
R-1,
it
can
be
seen
that
in
addition
to
his
teaching,
Mr.
Dixon
conducts
some
farming
operation,
as
well
as
an
antique
restoration
business
and
a
General
Repair
Service
-
while
these
showed
losses
which
he
claimed,
there
was
no
indica-
tion
from
him
that
these
ventures
were
in
any
way
inhibited
by
his
disability,
or
the
results
therefrom
affected
because
of
it.
Further,
by
my
own
observations,
particularly
the
verbal
interaction
between
the
Appellant
and
Counsel,
I
am
of
the
opinion
that
Mr.
Dixon’s
disability,
while
genuinely
troublesome,
does
not
serve
to
place
him
in
the
small
category
of
“hearing
losses”
that
should
qualify
under
the
Act.
A
recent
decision
of
this
Court
-
Delaney
v.
R.(April
4,
1997),
Doc.
96-1715(IT)I
(T.C.C.)
(not
published)
dealt
with
the
point
and
dismissed
that
appeal
in
this
way:
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
concentration
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.
The
Queen
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.
The
Queen
T.C.C.
95-3116(IT)I
…
This
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.