Ellis v. R., [1998] 1 CTC 3030

Mogan T.C.J.:

This is an appeal in respect of the 1994 taxation year in which the Appellant has elected the informal procedure. The issue before the Court is whether the Appellant is entitled to the disability tax credit allowed under section 118.3 of the Income Tax Act. When filing his income tax return for 1994, the Appellant claimed a disability tax credit but, when he received his Notice of Assessment from Revenue Canada, he was denied the tax credit. It is from that assessment the Appellant has appealed to this Court.

In 1994, the Appellant was not in good health. He had a history of chronic back pain. On July 22, 1994, the Appellant suffered a traumatic heart attack. He was taken to the Peterborough Hospital and kept there until the latter part of August when he was flown by air ambulance to a Toronto hospital. Apparently, his heart actually stopped on at least one occasion and it was re-started by the medical staff at one of those hospitals. In Toronto, he received a treatment which he called “angioplast”. Apparently, a device was inserted in one of the arteries or veins in his thigh. This device was then worked through the artery or vein up to the heart and blown up like a balloon. It had the effect of expanding the artery and vein around the heart to permit an easier flow of blood. This treatment was performed rather than open heart surgery. It was successful. The Appellant was discharged from the hospital and went home on or about August 26, 1994. At that time, he was taking a drug to stop his heart from racing and to slow down its pace. It had a detrimental effect on his thyroid, however, and so the doctors took him off the drug and put him on what they call a defibrillation process. More recently, he has had implanted in his chest a heart pacer with an attached defibrillator which is a great aid in monitoring and regulating his heart.

With respect to the 1994 taxation year, the Appellant had chronic back pain, and then in July and August, the heart attacks from which he almost died. At that time, he was a regular employee at the General Motors plant in Oshawa but, from the summer of 1994 when this heart problem developed, he was on short-term disability and then extended-disability until he finally retired in the summer of 1995. There is no question that from an industrial point of view, that is to say working at a plant like General Motors, he is disabled in the sense that he cannot work. That is clear from some of the medical evidence which I shall refer to briefly.

The fact that the Appellant is disabled from an employment point of view does not necessarily mean he has a disability which would entitle him to the disability tax credit under section 118.3 of the Income Tax Act, the relevant parts of which state:

118.3(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,

for the purposes of computing the tax payable under this Part by the individual for the year, there may be deducted an amount determined by the formula...

That subsection provides for two other conditions which I have omitted with respect to a medical doctor having to certify that there is this kind of impairment and the individual has to file that doctor’s certificate with the Minister. Those conditions were met in this case and the appropriate medical certificates were filed. Therefore, the only question is whether the Appellant satisfies the requirements.

Section 118.4 of the Act contains certain definitions which have a bearing on the terms used in section 118.3 granting the tax credit. Specifically section 118.4 provides as follows:

118.4(1) For the purposes of ... section 118.3 and this subsection,

(a) an impairment is prolonged where it has lasted, or can reasonably be expected to last, for a continuous period of at least 12 months;

There is no question in this case that the Appellant’s disability from his heart problem could reasonably be expected to last 12 months from the time the heart attack occurred in July 1994. His impairment is prolonged.

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 ... 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

(i) perceiving, thinking and remembering,

(ii) feeding and dressing oneself,

(iii) speaking so as to be understood, in a quiet setting...,

(iv) hearing so as to understand, in a quiet setting...,

(v) eliminating (bowel or bladder functions), or

(vi) walking;...

The Appellant testified that he does not have any of the above disabilities. He stated that his cognitive functions still work well; he has the ability to perceive, to think and to remember. He feeds and dresses himself. In giving evidence, he clearly could speak so as to be understood and hear so as to understand in a Court setting. He has no problem with eliminating, bowel or bladder functions. He said that he has some difficulty walking, but it is not significant. For example, he drove his car from Peterborough to Belleville and he was able to walk from where he had parked to the Court.

There was filed as Exhibit A-l a series of medical certificates which are interesting in that, although they are signed by the Appellant’s doctors, they do not support his claim for a disability tax credit in the terms of disability as set out in the Income Tax Act referred to above. There is a certificate dated October 11, 1995 from Dr. Hoag which was signed by the Appellant on October 6, 1995. The second page of that certificate contains nine questions, the first seven of which are directed specifically to a basic activity of daily living. I will not read the questions since the headings speak for themselves, namely: Vision, Walking, Speaking, Mental Functions, Hearing, Feeding & Dressing and Elimination. Each of those questions (such as “Is your patient able to see?”, “Is your patient able to walk?” or “Is your patient able to speak?”) is for the doctor to answer with “Yes” or “No”. In every one of those questions, Dr. Hoag has answered “Yes”, indicating that the Appellant is able to perform all of these activities of daily living. The eighth question: “Has the impairment lasted or is it expected to last for a continuous period of at least twelve months?”. The doctor has hand-written the answer “Not employable”. The ninth question: “Is the impairment severe enough to restrict a basic activity of daily living identified above?”. The doctor has answered “No”. Therefore, based on this certificate of Dr. Hoag dated October 11, 1995, the doctor has certified that the Appellant does not suffer from an inability to perform a basic activity of daily living.

The second certificate is signed by Dr. Hoag on January 22, 1996 (about four months after the first one) and the same answers are given by him. He answers, “Yes” to all the questions concerning “basic activity of daily living”. On the ninth question, however, which asks, “Is the impairment severe enough to restrict the basic activity of daily living identified above, all or almost all of the time?” the doctor has answered, “Yes”. Although that answer is given in a doctor’s certificate of January 22, 1996, in the presentation of his appeal (19 months later), the Appellant gave every evidence of not being disabled on any one of those six items listed in section 118.4.

The third certificate is signed by a Dr. McMillan on May 23, 1996, about four months after the last certificate of Dr. Hoag. Here again Dr. McMillan answers “Yes” to the first seven questions concerning the disability functions. In other words, he states that the Appellant is able to do all these things in terms of vision, walking, speaking, etc. He certifies that the impairment will last at least 12 months but, for the ninth question he answers “No” which is inconsistent with the seven answers of “Yes” to the first questions.

Lastly, there are before the Court two letters from doctors. One is dated January 30, 1996 from a Dr. Johnston in Peterborough to Dr. Hoag in which there is a description of the Appellant’s physical condition and the closing paragraph states:

That having been said, if one is asked the question, “absent the heart attack would he be disabled?”, I think one would have to adopt the attitude that he does have a condition which would render him permanently partially disabled and intermittently totally disabled, certainly from a job involving repetitive right upper extremity activity particularly at and above shoulder level.

There is evidence that the Appellant has particular trouble with his right arm and right shoulder being unable to perform arm functions above the shoulder level. That is what Dr. Johnston is referring to. The second letter is dated December 4, 1995, from Dr. McMillan to Dr. Hoag wherein he reviews the medical history of the Appellant and states:

Mr. Ellis continues to feel generally well, although his exercise tolerance is not great.

He underwent exercise stress tests today, lasted almost six minutes on the treadmill and reached almost 70% of his maximum predicted heart rate. He did not have any chest pain or new ECG changes, his blood pressure response was reasonable. Test was actually stopped due to a sore back and legs, more so than shortness of breath or fatigue.

Also, under the heading “Assessment...” Dr. McMillan states:

Mr. Ellis is for the most part holding stable, but still has some liver enzyme abnormalities.

The Appellant testified that since the heart attack, he has trouble breathing, particularly on very hot days or very cold days. On a particularly cold day he has to actually put a cloth over his nose and mouth in order to screen the air to permit him to breath and function.

I come back to the basic activities of daily living which are crucial to the Appellant’s entitlement to the disability tax credit. In paragraph 118.3(1)(a) there is no question that the Appellant has a severe and prolonged physical impairment. Under paragraph 118.3(1 )(a.l), however, he must satisfy the following condition:

the effects of the impairment are such that the individual’s ability to perform a basic activity of daily living is markedly restricted,

The evidence and the three medical certificates indicate that, with respect to the six basic activities of daily living described in paragraph 118.4( 1 )(c) of the Income Tax Act, the Appellant is able to perform them all. He does not even need a cane to walk. He needs some help with breathing on hot or cold days but in terms of the six basic activities, the Appellant is not disabled.

It is significant to me that the Appellant could drive his car from Peterborough to Belleville for this hearing rather than have his wife drive. Also, he was able to walk from where he had parked the car to the Court building. These are the types of ordinary everyday living activities that people have to perform. Because the Appellant performs these activities without any therapy or help, there is no question that he is not disabled so as to entitle him to a disability tax credit. The Appellant is disabled with respect to employment but he does not have the severe level of disability required to obtain the income tax credit. For these reasons, the appeal is dismissed.

Appeal dismissed.