Bérubé v. R., [1999] 3 CTC 2032 (Informal Procedure)

Tardif T.C.J.:

The appellant is appealing the assessment made in respect of him by the Minister of National Revenue (“the Minister”) for the 1993 taxation year; the Minister disallowed the disability tax credit claimed by the appellant under ss. 118.3(1) and 118.4(1) of the Income Tax Act (“the Act’).

Violaine Bérubé and her spouse testified. The appellant’s testimony was especially moving; the description of the many hardships and the suffering and difficulties was painful and arduous for the appellant.

The partial permanent disability resulting from the amputation of her left leg has led to severe pain caused by wearing a prosthesis. This pain becomes so unbearable that the appellant has to stop using her prosthesis because of the lesions and injuries caused by its use. At such times she has to remove the prosthesis to ensure and permit healing; during the periods when the prosthesis is not in use and at night, the appellant’s ability to move about is significantly reduced.

During the appellant’s testimony, the Court observed that her pride and dignity had been severely wounded. However, it was apparent that she was able to move about with relative ease. Since the amputation took place several years ago, the appellant has undoubtedly learned to move about with the aid of her prosthesis so that only a slight limp differentiates her from other people.

These cases are generally difficult because the people involved are most often courageous, determined and victims of the injustices of life; they are so deserving of sympathy that most of the time one wishes to help lighten their burdens by giving a decision in their favour.

On the other hand, the Act governing such cases is clear and leaves little or no scope for interpretation. Section 118.3 of the Act provides:

(1) Where

(a) an individual has a severe and prolonged mental or physical impairment,

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

(a.2) a medical doctor, or where the impairment is an impairment of sight, a medical doctor or an optometrist, has certified in prescribed form that the individual has a severe and prolonged mental or physical impairment the effects of which are such that the individual’s ability to perform a basic activity of daily living is markedly restricted,

(b) the individual has filed for a taxation year with the Minister the certificate described in paragraph (a.2), and

(c) no amount in respect of remuneration for an attendant or care in a nursing home, in respect of the individual, is included in calculating a deduction under section 118.2 (otherwise than by reason of paragraph (2)(b.1) thereof) for the year by the individual or by any other person,

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

A x $4,118 where

A is the appropriate percentage for the year.

Section 118.4(1) defines the procedure for applying s. 118.3 as follows: (1) For the purposes of subsection 6(16), sections 118.2 and 118.3 and this subsection,

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

(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;

(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, 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; and

(d) for greater certainty, no other activity, including working, housekeeping or a social or recreational activity, shall be considered as a basic activity of daily living.

Accordingly, in order to be entitled to the credit, a taxpayer must meet several tests.

The first test involves determining whether the impairment from which the appellant was suffering was severe and prolonged in the taxation year giving rise to the instant appeal.

On the question of seriousness, the Court is of course of the opinion that the appellant’s disability was severe; because it was permanent, it was also prolonged. The appellant therefore met this first requirement.

The effects of the impairment must be such that the appellant’s ability to perform a basic activity of daily living is markedly restricted.

This impairment had to be such that, even using her prosthesis, the appellant was unable, or required an inordinate amount of time, to perform the activity of walking all or substantially all of the time. Unfortunately, the Court does not believe that the appellant met this condition, given that Parliament has considerably narrowed the scope by adding the words “ALL or SUBSTANTIALLY ALL OF THE TIME”.

In this connection, the appellant’s and her husband’s testimony clearly showed that she had to stop using her prosthesis because of infections caused by wearing the prosthesis; however, it does not believe that it is possible to conclude that the impairment limited her ability to walk all or substantially all of the time, or meant that she required an inordinate amount of time to do so.

If there were no definition of a basic activity of daily living in the Act, the appellant could qualify based on the ordinary meaning of that phrase, as her impairment is severe and prolonged and has extremely debilitating effects on her life.

Since 1991, the Act has contained a very narrow definition which limits the Court’s ability to interpret the phrase with compassion, especially since any assessment must take into account improvement in the condition resulting from the use of devices.

The appellant’s ability to perform a basic activity of daily living was markedly restricted, but the use of the prosthesis meant that she was not unable, and did not require an inordinate amount of time, to walk all or substantially all of the time. The Act is very clear and no interpretation - or very little - is possible.

Regretfully, I must dismiss the instant appeal.

Appeal dismissed.