{Indexed As: Fillion v. R.], [1999] 3 CTC 2543

Lamarre Proulx T.C.J.:

This appeal concerns the credit for a severe and prolonged physical impairment provided for in section 118.3 of the Income Tax Act (“the Act”).

The impairment is caused by cystic fibrosis, which both of the appellant’s children have. The credit is being claimed by the children’s father under subsection 118.3(2) of the Act.

The taxation year involved is 1994.

Dr. Georges B. Rivard, Dr. André M. Cantin, Denise Harvey and the appellant testified at the request of counsel for the appellant. No witnesses testified for the respondent.

The children of the appellant and his spouse, Denise Harvey, are named Marc-André and Patricia. They were born in 1981 and 1984, respectively. Ms. Harvey explained that Patricia was nine months old when it was discovered that both children had cystic fibrosis. Until then, Marc-André was thought to have chronic asthma. Since the tests done on Patricia showed that she had cystic fibrosis, the same tests were done on Marc-André, who had the same symptoms.

Ms. Harvey explained that the treatment requires respiratory therapy and percussion sessions twice a day. The respiratory therapy takes 30 minutes. In addition to the treatment itself, the aerosol must be prepared and the compressor must be cleaned at the end of the session. Thirty minutes are also needed for the percussion. That comes to a total of four hours for the two children. In addition to the treatment, the children must be negotiated with every day to get them to undergo the treatment and take their medication.

When the family plans an activity, the compressors and other devices needed for the respiratory therapy and percussion must be brought along. Family outings require a great deal of baggage. The parents have never gone on holiday alone in the 18 years they have been married.

The children are prone to lung infections, and the parents often have to go and pick them up at school because they are coughing too much. Ms. Harvey estimated that this happens on anywhere from 25 to 40 days per school year. The children take part in physical activities at the school in moderation. Initially, the family went to the Centre Hospitalier de l’Université Lavai (“CHUL”) in Québec once a month. This later became once every two months and is now once every three months. The family lives in the Charlevoix area.

The children’s mother explained that cystic fibrosis affects not only the respiratory system but also the digestion of food. The pancreas does not produce the enzymes needed for digestion, which means that a person who has the disease cannot digest without taking medication. Bowel functions are therefore different from those of other people. Using the school washrooms is a major problem for the children, since their stools are foulsmelling. Moreover, the inability to digest causes stomachaches. Taking enzymes relieves the non-assimilation of food, but not fully, since the enzymes must be taken in the proper doses so as not to cause further problems. The children have to eat more because of their problem with assimilation of food. In spite of this, they remain smaller and frailer than other children. As regards bowel functions, while a normal person eliminates about once a day, they do so two or three times a day.

Dr. Rivard is one of the appellant’s children’s attending physicians. He is a pediatrician who has been working at the CHUL since 1976 and the codirector of the cystic fibrosis clinic. The clinic consists of four pediatricians and other professionals, including a social worker, who make up a team. The children may be seen by any of the pediatricians, but each child’s case is discussed at weekly meetings attended by the professionals. Dr. Rivard filed a medical report on each of the two children as Exhibit A-5.

The Pillion children began going to the clinic in May 1985. Dr. Rivard explained that pancreatic supplements, vitamins and sometimes antibiotics must be taken every day. Antibiotics have to be taken daily if there are respiratory infections; otherwise, they are taken periodically. The Pillion children take antibiotics every day for medical reasons. The antibiotics are mixed with the aerosol. Respiratory therapy and physiotherapy are required twice daily. The latter treatment involves clapping the children on the thorax and back. In the case of young children, the treatment is usually administered by their parents. When they get older, they can give themselves the treatment using a device for that purpose or ask a friend to do it for them.

Marc-André was hospitalized in June 1994 because his respiratory capacity had fallen to 39 percent. It subsequently went back up to 65 percent. Patricia has also been hospitalized, just once, for nasal polyps that were not really related to her cystic fibrosis. However, since 1991, she has had chronic bronchitis and her respiratory capacity has been at 60 percent.

Dr. Rivard explained that cystic fibrosis is a severe disease that used to cause early death. Today, life expectancy has been extended, but at the cost of higher morbidity. It is essential that parents and children adhere to the daily treatment program. Pancreatic enzymes must be taken with each meal and snack. The same applies to the extra vitamins. Bowel movements are heavy and foul-smelling, and they occur two or three times a day. The use of public washrooms is upsetting and distressing. This digestive problem has an effect on growth and the number of stools and causes stomachaches.

The certificates completed by Dr. Pierre Bigonesse and filed as Exhibits A-2 and A-3 indicated that the children could perform each of the activities described in the questionnaire (Form T2201A(E)). Those activities are as follows: vision, walking, speaking, mental functions, hearing, feeding and dressing, and elimination. As well, the doctor answered no to the question asking whether the impairment was severe enough to restrict the basic activities of daily living all or almost all the time, even with the use of appropriate aids, medication or therapy. Dr. Rivard said that he would probably have answered the questionnaire the same way since, in his opinion, it did not ask all the relevant questions. He said that, on the former questionnaire, the description of the impairment included an Other box that the doctor could use to specify the nature of the impairment. The former questionnaire, which was completed in 1990 by Dr. Rivard, was filed as Exhibit I-1. The document referred to an appended letter, which was filed as Exhibit A-4 and which clearly sets out the problems that individuals with this disease have and the inordinate amount of time they require to maintain their respiratory capacity.

Dr. Rivard added that the current questionnaire does not provide for the function of breathing, which is what is affected by cystic fibrosis. An individual with the disease must spend more than two hours a day in order to maintain that function at a level that is well below normal. The parents’ time must also be added, since a parent must participate in the treatment along with the individual undergoing it. Parents must pay constant attention to their child.

Dr. Cantin testified as an expert witness. He is a lung specialist for adults, and he treats adults who have cystic fibrosis. He is also a researcher at the faculty of medicine of the Université de Sherbrooke. Although all of Dr. Cantin’s five-page report is of great interest and worth quoting, I will reproduce two passages from the report for the purposes of these reasons:

[TRANSLATION]

What is cystic fibrosis?

Cystic fibrosis is the most common fatal hereditary disease in Canada. It is caused by a defect in the cystic fibrosis gene on chromosome 7. About one person in twenty in Canada carries an abnormal cystic fibrosis gene. When both members of a couple carry a defective gene, there is one chance in four of having a child with cystic fibrosis. For each 2,000 births, there will be one child with this disease.

Cystic fibrosis affects all tissues whose function involves the production of secretions. The lungs, the pancreas, the intestines and the reproductive system are among the organs most affected by cystic fibrosis. The symptoms of the disease are caused by a significant increase in the viscosity of secretions, which leads to an obstruction of these various organs and eventually tissue destruction and functional insufficiency in these same organs.

Time spent treating cystic fibrosis

The usual treatment for a cystic fibrosis patient includes respiratory therapy and physiotherapy sessions, the taking of many medications and the aerosolization of antibiotics, bronchodilators and mucolytics through respiratory therapy. All of this takes the following time:

° aerosolization of antibiotics: 20 minutes two or three times a day;

• aerosolization of Pulmosyme (mucolytic): 20 minutes once a day;

° session of respiratory physiotherapy through postural drainage: 30 minutes twice a day;

° taking of many medications in tablet form and sometimes insulin injections: 5 minutes four times a day;

• taking of food supplements and high-calorie diet: 5-10 minutes per meal.

il time spent on daily treatment of cystic fibrosis: 2-3 hours.

This estimate of the time required to treat cystic fibrosis does not include the many antibiotic treatments, which are increasingly being administered intravenously at home. It is therefore a realistic and relatively conservative estimate.

Subsection 118.4(1) of the Act reads as follows:

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 can 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

(1) 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.

[Emphasis added.]

Counsel for the appellant argued that, even though breathing is not referred to in paragraph 118.4(l)(c) of the Act, it should be considered in the same way as the activities described in that paragraph, for otherwise section 15 of the Canadian Charter of Rights and Freedoms would be violated. She therefore argued that the children here required an inordinate amount of time each day to maintain their respiratory capacity.

Counsel for the respondent told the Court that it has never been the respondent’s view that respiratory capacity is not a basic activity, since it is the basis for all the activities referred to in paragraph 118.4(1)(c) of the Act. However, she referred to decisions by this Court in cases involving juvenile diabetes in which it was found that the child could perform the basic activities of daily living with the use of medication.

I refer here to the most recent decision on this matter by the Federal Court of Appeal, Johnston v. R., [1998] 2 C.T.C. 262 (Fed. C.A.). That court directed its attention to the question of what constitutes an inordinate amount of time in performing the basic activities of daily living. I quote paragraphs 16 to 18:

[16] In order to benefit from the tax credit under s. 118.3, a taxpayer suffering from a severe and prolonged physical impairment has to establish that his ability to perform a basic activity of daily living is markedly restricted.

[17] The expression “markedly restricted” has been defined to refer to an individual’s inability, at all or substantially all of the time, even with therapy and the use of appropriate device [sic] and medication, to perform a basic activity of daily living. An individual’s s ability is also deemed to be marked] restricted 1 he requires an inordinate amount of time to perform such activity.

[18] No definition has been given of what constitutes an inordinate amount of time in the performance of the basic activities of daily living. In my view, the expression “inordinate amount of time” refers to an excessive amount of time, that is to say one much longer than what is usually required by normal people. It [Emphasis added. I

requires, a. marked

r

from normality.

It is my view that the evidence has clearly shown beyond a shadow of a doubt that the appellant’s children require an excessive amount of time, that is to say, much more time than is usually required by normal people, to maintain their respiratory capacity.

Accordingly, the appeal is allowed with costs.

Appeal allowed.