Linden
J.A.:
In
my
view,
this
section
28
application
should
be
allowed
in
the
light
of
this
Court’s
decision
in
Johnston
v.
R.
(1998),
98
D.T.C.
6169
(Fed.
C.A.)
which
was
released
following
the
Tax
Court
Judge’s
decision
in
this
case.
In
that
case,
Justice
Létourneau,
quoting
Judge
Bowman
in
another
case
(Radage
v.
R.,
[1996]
3
C.T.C.
2510
(T.C.C.)),
indicated
that
these
“provisions
must
be
given
a
humane
and
compassionate
construction”
and
should
not
be
interpreted
“so
restrictively
as
to
negate
or
comprise
the
legislative
intent”,
which
is
to
“provide
modest
relief
to
persons
who
fall
within
a
relatively
restricted
category
of
markedly
physically
or
mentally
impaired
persons.
The
intent
is
neither
to
give
the
credit
to
every
one
who
suffers
from
a
disability
nor
to
erect
a
hurdle
that
is
impossible
for
virtually
every
disabled
person
to
surmount.
It
obviously
recognizes
that
disabled
persons
need
such
tax
relief
and
it
is
intended
to
be
of
benefit
to
such
persons.”.
I
am,
therefore,
of
the
view
that
the
matter
should
be
referred
back
to
the
Tax
Court
of
Canada
for
rehearing
on
the
basis
of
the
principles
articulated
in
Johnston
v.
Canada
and
the
interpretation
of
the
Act
contained
in
that
case.
The
section
28
application
will
be
allowed,
the
decision
of
the
Tax
Court
of
Canada
set
aside,
and
the
matter
remitted
to
that
court
for
rehearing
in
the
light
of
the
decision
of
this
Court
in
Johnston
v.
Canada.
Denault,
J.A.:
Even
though
the
Tax
Court
Judge
did
not
have
the
benefit
of
the
judgement
of
this
Court
in
Johnston
v.
R.
[(1998),
98
D.T.C.
6169
(Fed.
C.A.)]
when
he
rendered
this
decision,
I
am
of
the
view
that
he
properly
assessed
the
evidence
that
was
before
the
Court
and
made
no
error
of
law
in
so
doing.
I
would
therefore
dismiss
the
application
for
judicial
review.
Application
granted.
[1998]
3
C.T.C.
Tax
Court
Decisions
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