Dawson v. R., [1998] 3 CTC 2734

Bell T.C.J.:

Issue:

The issue is whether the Appellant is entitled to a disability tax credit within the meaning of sections 118.3 and 118.4 of the Income Tax Act

(“Act").

Facts:

The Appellant suffers from multiple sclerosis (“MS”). She was not well enough to be in Court and was represented by her husband, Douglas Dawson (“Dawson”), who lived with and took care of her during the 1994 and 1995 taxation years in respect of which appeal documents were: filed.

Dawson testified that his wife, the Appellant, was diagnosed in March, 1989 with multiple sclerosis after suffering numbness in her legs, loss of feeling in her hands, vision problems and lumbar puncture. He said that her type is remitting and relapsing and that the bouts of severity range in degrees. He stated that the disease affects different parts of the body. He said during an “exacerbation” she had more than normal problems including optic difficulties, no hand feeling, leg numbness and continuous fatigue. He said that in 1994 she had five major exacerbations and did not regain all toe feeling and feeling in her finger ends. He described a number of different treatments that had been tried and stated that MS is an incurable disease.

He said that in 1992 her doctor convinced her to quit work because of the progression of the disease.

DISABILITY TAX CREDIT CERTIFICATE dated February 27, 1996 signed by her medical doctor stated that her impairment lasted or was expected to last for a continuous period of at least 12 months. It also stated that her impairment was severe enough to restrict “the basic activity of daily living identified above” all or almost all the time.

Her husband stated that she did not file an income tax return for 1994 but that he and his wife had filed “joint returns”. He seemed uncertain as to exactly what was filed but stated that they took their documents to H&R Block.

Dawson said that his wife was hospitalized in March, 1995 and given pulse therapy. He stated that she had problems remembering when fatigued and when experiencing exacerbations. He stated that walking was impossible for the Appellant during an exacerbation, it being difficult at the best of times. He stated that elimination was a constant problem for the Appellant and that she had to take precautions every day. Her bowel and bladder functions were, to some appreciable degree, uncontrollable. He said that his wife could only do up large buttons and had no feeling or ability to deal with smaller ones. He stated that over 90 percent of the time the Appellant had difficulties with one or more of the activities described in section 118.4. These included ability to walk, ability to remember, elimination difficulties, et cetera. Section 118.3 of the Act provides that where an individual has a severe and prolonged mental or physical impairment resulting in a marked restriction in the ability to perform a basic activity of daily living, a tax credit is available. Section 118.4 states, for the purposes of section 118.3, an impairment is prolonged where it has lasted at least 12 months. It also provides that an individual’s ability to perform a basic activity of daily liv- ing is markedly restricted only where all or substantially all of the time the individual is unable

... to perform a basic activity of daily living.

It further provides that a basic activity of daily living means

(i) perceiving, thinking and remembering,

(ii) feeding and dressing oneself,

(iii) speaking so as to be understood, in a quiet setting, by another person familiar with the individual,

(iv) hearing so as to understand, in a quiet setting, another person familiar with the individual,

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

(vi) walking;

Analysis and Conclusion:

The evidence, which I wholly accept, given by the Appellant’s husband, persuades me that the Appellant was, during the 1995 taxation year, unable to perform “a basic activity of daily living”. The Appellant was and is a very sick person. Her caring husband testified that she had difficulties remembering, difficulties dressing herself, constant difficulties with eliminating functions and difficulties with walking. He stated that these conditions were present more than 90 percent of the time.

Section 118.4 does not require that an individual be unable to perform one of the basic activities of daily living. It uses the term,

unable ... to perform a basic activity of daily living.

(emphasis added)

As required by section 118.3 a medical doctor certified in prescribed form that the Appellant had a severe and prolonged mental or physical impairment the effects of which markedly restricted her ability to perform

the basic activity of daily living identified above.

The Appellant’s appeal for 1995 is allowed. With respect to 1994, no return was filed by the Appellant and no notice of assessment was issued. Accordingly, the Appellant’s purported appeal for that year is quashed.

Appeal allowed.