Taljit v. R, [1999] 4 CTC 2243 (Informal Procedure)

Teskey T.C.J. (orally):

The Appellant appeals reassessment of income tax for the year 1993.

I do not believe the facts are in dispute. Both the Appellant and his wife described his physical condition, which was not challenged in any way by the Respondent.

The issue is whether this physical condition as described and accepted by the Court fits the definition in the statute. The Appellant suffers from hypertension, depression, fainting spells, which were aggravated by work and was the result of stress and this is what occurred in 1987 when he had to leave his employment.

I am satisfied that the condition deteriorated, so that in 1993 he was suffering from fainting spells without the necessity of stress related activity. I am satisfied that he suffered these fainting spells two to three times a week, ten times a month. I am satisfied that when he has this fainting spell it is a severe disability to him and a constant concern for his wife. I am satisfied that after he has one of these spells that he is very tired and wants to sleep and goes to sleep for approximately six hours. And that as a result of this fainting spell he does not know what has happened.

On the days that the Appellant does not have these spells he can lead a relatively normal life as defined by the statute, and that is he can get up in the morning, he can dress himself, he can feed himself, he can go to the washroom himself, he can bathe himself, and as long as he does not take on too energetic a day, he leads a normal life. Up until late last year he did attempt to drive a car. I accept that the family did not want him driving tried to discourage and that he only drove maybe five times a year in the last several years and he would not drive into the city and would only be for a short distance. I am satisfied that the doctors told him that if he feels that a spell is coming on to pull the car over immediately. And that originally the Appellant could feel these fainting spells coming on, but by 1993 I believe when he was driving the car he was playing Russian roulette and that he might have passed out without any momentary warning. No one disputes this evidence.

The Respondent submits, very ably, that this does not fit the statute. In the case of Johnston v. R. (1998), 98 D.T.C. 6169 (Fed. C.A.), a decision of the Federal Court of Appeal, although the decision is unanimous. Létourneau, J.A. wrote reasons, concurred in by Desjardins, J.A. Marceau made some comments, but essentially agreed with Létourneau. Mr. Justice Létourneau at page 6171 under the heading “Purpose and History of the Legislation” writes:

The purpose of section 118.3 and 118.4 is not to indemnify a person who suffers from a severe and prolonged mental or physical impairment, but to financially assist him or her in bearing the additional costs of living and working generated by the impairment. As Bowman, T.C.J. wrote in Radage v. R. at page 2528,

The Legislative intent appears to provide a 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 everyone 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 is intended to be a benefit to such persons.

The learned Judge went on to add at page 2529 and I agree with him.

If the object of parliament, which is to give a disabled person a measure of relief that will to some degree alleviate the increased difficulties under which their impairment forces them to live, is to be achieved, the provisions must be given a humane and compassionate construction. Indeed, although the scope of these provisions is limited in their application to severely impaired persons, they must not be interpreted so restrictively as to negate or compromise the legislative intent.

Mr. Justice Linden in the decision of Frits v. R. (1998), 98 D.T.C. 6419 (Fed. C.A.), decision concurred in by Stone, J.A., repeats Létourneau’s description of the Act and what Judge Bowman said in Radage v. R. [(1996), 96 D.T.C. 1615 (T.C.C.)], that the provisions must be given a humane and compassionate construction, and should not be interpretted so restrictively as to negate or compromise the legislative intent, which is to provide modest relief to persons that fall within a relatively restricted category of markedly physically or mentally impaired persons.

The Appellant herein suffers from a disability. I am satisfied that his disability restricts his daily living in relationship to perceiving, thinking and remembering, and the days that he has the fainting spells his ability to perceive, think and remember is impaired and his ability to function that day is impaired. The problem that I find is when I have to interpret s. 118.4(1 )(b), which reads,

An individual’s ability to perform a basic activity of daily living is markedly restricted only where all, or substantially all of the time ... is unable to perform a basic activity of daily living.

“All” I would interpret would mean that this man would have to suffer this every day. The question 1s, is “substantially all the time” two or three days a week. I am aware of a decision of my colleague Sarchuk, where he indicates in his opinion “substantially” is somewhere in the 90 per cent area. With all due respect to my colleague. I think that is very restrictive, particularly in light of the words of the Federal Court of Appeal. But I’m not satisfied that two or three days a week can be said to be substantial on looking at a week as a whole, or ten times a month with the average month being 30 days.

I have a great deal of sympathy for the Appellant, my heart cries out to allow the appeal, but I think I would be making a Judicial error. I Just do not feel that two or three times a week or ten times a month can fit the word “substantially”. And it is with regret that I dismiss the 1993 appeal.

This does not mean that maybe today he does fit the statute. This is not binding on him for any other year than ’93, and when the Appellant believes that his condition fits the word “substantially”. I believe he should be back in this Court for that year. And I want him to understand that my decision only applies to his condition in 1993. Thank you very much.

Appeal dismissed.