Bowman T.C.J.:
This appeal is from an assessment for 1995 whereby the Minister of National Revenue denied the appellant’s claim for a disability tax credit under section 118.3 of the Income Tax Act.
The appellant at the time of hearing in 1998 was 56 years of age. He has not worked since 1990, and has been receiving a disability pension.
His history of medical problems goes back to 1974, when he was diagnosed with a stroke and a heart attack. In 1977, a heart specialist discovered heart damage which evidently resulted from the heart attack in 1974.
In July 1984, he was hospitalized for a heart attack, and was diagnosed with ischemic heart disease. He was hospitalized in 1985 and again in May 1988, the last time as the result of an adverse reaction to some medication. He stopped work in 1990. In 1993, a Dr. D'Intino wrote a letter stating “This patient is totally and permanently disabled. He will never be returning to work in any capacity.”
In December 1994, he had quadruple by-pass heart surgery. In November of 1995, he was diagnosed with diabetes. At present he takes 12 different medications for hypertension and heart disease. He carries nitro-glycerine with him.
The year under appeal is 1995. He testified that his condition at present is better than it was in 1995.
It is not necessary to set out the somewhat narrow tests in sections 118.3 and 118.4. It is necessary that his physical impairment be severe and prolonged. It is obviously prolonged. It has lasted for years and will probably last all his life. It must also be such that his ability to perform a basic activity of daily living is markedly restricted. The only basic activity of daily living listed in paragraph 118.4( 1 )(c) which he says is markedly restricted is walking.
There were also put in evidence a number of certificates signed by a medical doctor, together with a letter from him endeavouring to correct some of the mistakes made in the certificates. In one, dated May 3, 1995, in answer to the question:
9, ls the impairment severe enough to restrict the basic activity of daily
living identified above, all or almost all the time, even with the use of appropriate aids, devices, medication, or therapy?
he ticked “yes”. In two others, he ticked “no”.
In one, dated November 8, 1995, there is a virtually illegible scribble which reads somewhat as follows, to the extent that I am able to decipher this medical person’s scrawl:
Ischemic Heart Dis. - severe - unable to walk 50 feet, but since CABG Dec. 94, able to walk 50 m. alone but now gets tired.
The same comment appears in a certificate dated December 21, 1995, but the doctor says this certificate is incorrect and should be ignored. Also, he ticked “no” to the question set out above.
This raises a question that I should deal with briefly. Section 118.3 provides that to be entitled to a disability tax credit a taxpayer must, among other things, file a certificate in prescribed form by a medical doctor certifying 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.
A superficial and mechanical reading of this provision, ignoring its obvious purpose, would appear to make the taxpayer’s entitlement to the disability tax credit completely dependent upon the whim of a medical practitioner and deprive the taxpayer of any remedy on appeal if his or her doctor, however capriciously, answers “no” to the question set out above.
Conversely it would follow that if the medical practitioner answers the question in the affirmative, that is conclusive and the officials of the Department of National Revenue could not go beyond the certificate and examine the claim on its merits.
The only analysis that is even more absurd is that a doctor’s “no” answer is conclusive, but “yes” is not. That analysis defies all standards of fundamental fairness.
It should be noted that the Department of National Revenue routinely ignores “yes” answers by doctors. Indeed in the vast majority of cases that I have heard where the Department has denied the tax credit, the doctor’s answer in the certificate has been affirmative.
It was obviously not Parliament’s intention to limit the powers of the Department to consider these claims under section 118.3, or the powers of this court to review the Minister’s determination. The purpose of the medical certificate, which contains many more questions beyond that set out above, is not to usurp the powers of the Department of National Revenue and of the court and confer them upon a medical practitioner, but to provide some additional medical information upon which the officials of the Department can make an informed evaluation of the claim. It also ensures that a claimant has at least seen a doctor and this of course helps to prevent a proliferation of frivolous claims. I do not, therefore, regard Dr. Myatt’s “no” answer to question 9 in the form to be conclusive. I had the benefit of seeing the appellant and hearing his sworn testimony and hearing that evidence tested in a thorough and skilful cross-examination by Crown counsel. After all, a doctor’s opinion in these matters is based in large measure on what the patient tells him or her and I should think the court is in at least as good a position to evaluate the patient’s testimony. Moreover, in most cases the doctor is not called as a witness and his or her opinion are not subjected to any type of cross-examination.
Additionally, whether the effects of a person’s impairment are such that the person’s ability to perform a basic activity of daily living is a matter that a lay person with reasonable powers of observation and understanding can determine. The words in sections 118.3 and 118.4 are not technical medical terms. One does not need a person with a degree in medicine to determine whether a claimant can walk or get dressed, or requires an inordinate amount of time to do so. These are matters within ordinary human experience.
I have therefore concluded that the requirement in paragraph 1 18.3(1)(a.2) is directory only, and not mandatory. The reasoning in support of this view, in addition to that set out above, is very similar to that followed in Senger-Hammond v. R. (1996), [1997] 1 C.T.C. 2728 (T.C.C.) and Letarte c. Québec (Sous-ministre du Revenu) (1997), 97 D.T.C. 5515 (Que. C.A.), both of which were cited and followed by my colleague Mogan J. in Dominguez v. R. (June 12, 1998), Doc. 97-2310(IT)I (T.C.C.).
My observation of the appellant and my assessment of the evidence convince me that he clearly qualifies for the credit under section 118.3. He can walk short distances very slowly. His mobility is severely restricted and has been for many years, in particular 1995.
If I am to follow the principles that I set out in Radage v. R., [1996] 3 C.T.C. 2510 (T.C.C.), as approved by the Federal Court of Appeal in Johnston v. R. (1998), 98 D.T.C. 6169 (Fed. C.A.) it is obvious that I should allow the appeal. Mr. Morrison clearly falls within those guidelines and is in my view precisely the type of severely disabled person at whom the legislation is aimed.
Most of these cases depend upon the court’s observation of the appellant, in which the court must make a determination whether the witness is exaggerating his or her disability. Mr. Morrison exemplifies a phenomenon that I have frequently observed in these cases. Far from exaggerating his problem, he, like many other appellants, tended to downplay it, almost as if he were reluctant to reveal the full extent of the problem. This tendency of claimants, which perhaps stems from an unjustified feeling of shame at their disability, is something to which a court, in assessing the evidence, must be sensitive.
The appeal is allowed.
Appeal allowed.
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