Lacroix v. R., [1998] 1 CTC 2213

McArthur T.C.J.:

The appellant is appealing assessments made in respect of her by the Minister of National Revenue (the “Minister”) for the 1985, 1986, 1987, 1988, 1989, 1990, 1991, 1992, 1993 and 1994 taxation years; the Minister denied the appellant the tax credit for disabled persons provided in subsections 118.3(1) and 118.4(1) of the Income Tax Act (“the Act”).

The Minister refused to allow the appellant the sum of $719.61 she claimed as a tax credit for a severe and prolonged physical impairment in calculating her total non-refundable tax credits.

The appellant filed a disability tax credit certificate duly signed by a physician.

The physician, Dr. Bernard Gélinas, diagnosed spastic hemiparesis of the left side. He signed a disability tax credit certificate which stated the following:

In my opinion the disabled person named above has a severe impairment which is prolonged and as a result of this impairment this person’s restrictions in the activities of daily living are marked.

The respondent referred the appellant’s case to the Health and Welfare Canada physicians, who found that based on the information received the appellant did not have a severe and prolonged mental or physical impairment in 1993 the effects of which were such that her ability to perform a basic activity of daily living was markedly restricted.

The appellant said the following:

e she was unable to take a dish from the oven;

e she was unable to cut a steak;

¢ she was unable to take a kettle off the burner, if it was too heavy;

¢ she was unable to button her blouse;

e she could not wear clothing which buttoned on the left side;

° she could not carry grocery bags.

The respondent argued that during the 1993 taxation year the appellant did not have a severe and prolonged mental or physical impairment the effects of which were such that her ability to perform a basic activity of daily living was markedly restricted.

The respondent argued that in the 1993 taxation year the appellant was not entitled to a non-refundable tax credit for a person suffering from a severe and prolonged mental or physical impairment within the meaning of subsection 118.3(1) of the Act.

The appellant was paralyzed on her left side. She could not use her left hand and limped when she walked because one leg was shorter than the other.

To be entitled to the credit the taxpayer must satisfy several criteria set out in section 118.3 and subsection 118.4(1) as follows:

SECTION 118.3: Credit for mental or physical impairment.

(1) Where

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

(a.l) 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,

for the purposes of computing the tax payable under this Part by an 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.

SECTION 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 may 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 ... 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

(ii) feeding and dressing oneself,

Ms. Lacroix’s impairment was severe and prolonged. It met the first test.

The effects of the impairment had to be such that all or substantially all of the time the appellant was unable (or required an inordinate amount of time) to perform a basic activity of daily living, namely the activity of feeding and dressing herself.

The physician Dr. Gélinas certified that in his opinion Ruth Lacroix had a prolonged impairment which markedly restricted her in the basic activities of daily living all or substantially all of the time.

The effects of the impairment must be such that the appellant’s ability to perform a basic activity of daily living is markedly restricted.

Lastly, I must determine whether the appellant’s ability to perform a basic activity of daily living (walking) was markedly restricted; this impairment had to be such that all or substantially all of the time Ms. Lacroix was unable to perform the activity of walking. I do not believe that the appellant met this condition as Parliament has significantly narrowed the scope of the legislation by adding the words “all or substantially all of the time”.

Dr. Gélinas signed the certificate supplied by Revenue Canada.

The respondent submitted no evidence.

It is clear that there was a permanent and significant partial disability. Describing the many hardships and difficulties was a strain for Ms. Lacroix.

In my opinion there is no doubt that she was unable to feed and dress herself or required an inordinate amount of time to do so. I base my findings on the evidence submitted to the Court and on my own observation.

I am satisfied that the facts established in Court by the testimony of the appellant and Ms. Turmel and the certificate of Dr. Gélinas are true.

For these reasons, the appeal is allowed.

Appeal allowed.