Park v. R., [1998] 1 CTC 3028

Bowman T.C.J.:

This appeal is from an assessment for the 1994 taxation year. The appellant claims the disability tax credit provided by section 118.3 of the Income Tax Act under subsection 118.3(2) in respect of his wife, Daphne. The issue is whether Daphne Park in 1994 suffered from a severe and prolonged physical impairment, the effects of which were such that her ability to perform a basic activity of daily living was markedly restricted. The basic activity involved here is walking.

Mrs. Park testified that she suffered an accident at work in 1987 when she fell from a ladder. Since that time her ability to walk has been severely restricted. She has had physiotherapy but it has not improved matters particularly. I find as a fact that her condition today is not substantially different from what it was in 1994. She sometimes wears a brace on her right foot but it is of no assistance. She walks with a cane. She has had three operations, one of which involved the removal of bones from her hip and their insertion in her heel. This operation, instead of improving matters, made them worse. She now suffers pain not only in her leg but also in her hip. Moreover, the operation decreased the mobility in her hip.

At least a dozen times a month her right leg goes completely dead and she falls down, frequently injuring herself and requiring hospitalization. She testified that she is in constant pain. She has great difficulty in dressing herself in the morning.

I regard her condition as serious and debilitating. Although these cases all depend on their own facts, this one bears a substantial resemblance to such cases as Marshall v. R. [1996] 3 C.T.C. 2475 (T.C.C.), Lawlor v. R. [1996] 2 C.T.C. 2005 (T.C.C.) and Noseworthy v. R. [1996] 2 C.T.C. 2006 (T.C.C.).

I had the opportunity of observing Mrs. Park walking in the court room. She moved slowly, awkwardly and painfully.

Notwithstanding Mr. Edwards’ able and fair presentation of the Crown’s position, this is, in my view, a clear case. The appellant in 1994 suffered from a severe and prolonged physical impairment that markedly restricted her ability to perform a basic activity of daily living.

The appeal is allowed and the assessment for 1994 is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that the appellant is entitled to the disability tax credit provided by section 118.3 of the Income Tax Act.

Appeal allowed.