Pullen v. R., [1998] 1 CTC 2857

Sarchuk T.C.J.:

These are appeals by Donald Pullen from assessments of tax with respect to his 1992 and 1993 taxation years. The Appellant has elected the Informal Procedure pursuant to the provisions of section 18.1 of the Tax Court of Canada Act. In computing taxes payable for each of those years, the Appellant claimed a non-refundable tax credit in the amount of $719.61. The claim was denied by the Minister of National Revenue (the Minister) on the basis that the effects of the impairment in question did not meet the test laid down in paragraph 118.4(1)(b) of the Income Tax Act (the Act).

The issue before this Court is whether in the taxation years in issue the Appellant was suffering from a severe and prolonged 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 essential facts are as follows. The Appellant is 61 years of age and is now retired. He was employed by Chrysler Canada until 1987 when his employment was terminated as a result of his physical disability. He has been in receipt of a pension from Chrysler since that time.

The Appellant suffers from osteoarthritis which currently affects his knees, hips, and in his words, has spread to his spine. He says this condition is extremely severe particularly in the mornings when it often incapacitates him to the point that he is unable to get out of bed to attend to matters of personal hygiene. The Appellant’s complaint focuses primarily on the degree of pain associated with his condition. He described the pain as “severe and then some days, it’s excruciating”. Various medications have been prescribed by his physician but these “just seem to take a little bit of the hurt, the edge off the severeness of it. They don’t dissipate it entirely”. Other medications either failed to provide the necessary relief or had side effects which were unacceptable to him.

It is clear from his testimony that the pain and discomfort resulting from his condition was most pronounced in the morning. This was the point of time at which the medication was most needed to permit him “to be able to function somewhat normally”. However, it is also clear from his testimony that as the day progressed, mobility improved, in that “the severeness, the sharpness, the edginess ... sort of lessens”. He testified that he did not see himself “as disabled ... per se" and that he operates “within the pain that I can stand or withstand”.

Conclusion

The deductions in issue may be claimed where an individual has a severe and prolonged physical impairment the effects of which markedly restrict his ability to perform a basic activity of daily living. [1] The nature of the impairment for this purpose is set out in section 118.4 of the Act. Of particular import to this appeal is paragraph 118.4(1)(b) which reads:

118.4(1 )(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;

The basic activity of daily living in issue in these appeals is walking. More specifically, the restrictive factor advanced by the Appellant is the pain and discomfort associated with walking.

The evidence adduced suggests very strongly that at all relevant times the Appellant had the necessary mobility skills required for independence in everyday living. He lives alone in what he described as a beach cottage at R.R. #5, Harrow, Ontario, some 50 kilometres from Windsor. There is no evidence that he was unable to, or required assistance in attending to all essential ancillary activities such as preparing meals, housekeeping, personal care, taking medication and attending to his pet dog. He testified that his doctors had recommended exercising in particular walking and that he attempted to do so subject to the degree of his discomfort. Although he did testify that on certain occasions the pain “was so bad that I said to hell with it and I went back home”, nothing was elicited by his solicitor vis à vis the frequency of this alleged inability to continue the walks. It is also a fact that he is able to travel from his residence to attend to his business affairs, to see his doctors, to consult his counsel with respect to this and other matters, and to shop for food, provisions and prescriptions. All this indicates a rather high level of independence of physical function.

In a disability tax credit certificate dated April 21, 1995 (Exhibit R-l), his doctor responded yes to the question “Is your patient able to walk, using an aid, if necessary? (for example, at least 50 meters on level ground)”, to which he added: “Patient able to walk, however, has daily pain and this limits his ability to walk”. In an earlier certificate dated January 21, 1993 (Exhibit A-1), the same doctor described the effects of the disabling condition as “pain limits mobility — permanent problem”.

The section pursuant to which the Appellant would be entitled to claim the deduction was intended by Parliament, as a matter of policy, to create a high threshold regarding the level of disability which must be met in order to qualify. On the evidence before me, I have concluded that this Appellant does not come within the meaning of the words in paragraph 118.4(1 )(/?) of the Act. There is little doubt that the quality of the Appellant’s life was greatly affected, that his lifestyle was limited, that he was inconvenienced and on many occasions found it difficult to cope. However, on the evidence elicited from the Appellant by his Counsel, I cannot conclude that he was markedly restricted in his activities of daily living all or substantially all of the time.

lam aware that the Appellant’s physician noted that he met the eligibility criteria of a prolonged impairment that markedly restricts all or substantially all of the time his ability to perform the basic activities of daily living. However, the testimony elicited from the Appellant leaves in substantial doubt whether this is an accurate assessment particularly with respect to the phrase “all or substantially all of the time”. The phrase is not defined. By reference to standard dictionaries, one sees that “all” means, inter alia: the whole amount, extent, substance, or compass of; the whole; all that is possible; the entire number of, without exception; every. “Substantially” which is used in the phrase as a modifier means “in substance, or in the main”. There is no mathematical formula by which one can determine what “substantially all” means in any particular case but it is reasonable to conclude that it means almost all or essentially all of the time. On the evidence, the most favourable conclusion that I can reach is that the Appellant suffers from intermittent or sporadic bouts of extreme and virtually incapacitating pain. However, that falls short of establishing the “all or substantially all” requirement found in paragraph 118.4(1)(b) of the Act. The appeals are dismissed.

Appeal dismissed.