Lamarre T.C.J.:
1 This is an appeal under the informal procedure from an assessment issued by the Minister of National Revenue (“Minister”) against the appellant for the 1994 taxation year denying her the non-refundable tax credit for a dependant having an impairment under subsection 118.3(2) of the Income Tax Act (“Act”).
Facts
2 In making his assessment, the Minister relied on the facts set out in subparagraphs (a) to (1) of paragraph 3 of the Reply to the Notice of Appeal. Those subparagraphs read as follows:
[TRANSLATION]
(a) on or about March 20, 1995, the appellant submitted a Disability Tax Credit Certificate (T2201) signed by an authorized doctor (hereinafter “the doctor”), Dr. Yvan Samson;
(b) the doctor had diagnosed the appellant's dependant, Mélanie Creffard (hereinafter “the dependant”) with a Wilms' tumour (nephroblastoma), which had to be treated using chemotherapy and which required surgery and follow-up by a pediatric oncologist;
(c) after reviewing the Disability Tax Credit Certificate (T2201), the Minister determined that the appellant's dependant did not have a severe and prolonged mental or physical impairment the effects of which were such that her ability to perform a basic activity of daily living was markedly restricted;
(d) accordingly, the Minister denied the appellant the non-refundable credit for a dependant having an impairment.
3 The appellant and Dr. Yvan Samson, Mélanie's attending physician, who signed the medical certificate filed in evidence as Exhibit A-2, testified at the hearing.
4 After hearing the evidence, it is my opinion that the appeal should be allowed.
5 The evidence showed today that young Mélanie met all the criteria set out in sections 118.3 and 118.4 of the Act for being entitled to the non-refundable tax credit for a dependant having an impairment. First, the impairment must be severe and prolonged, and second, the effects of the impairment must be such that the individual's ability to perform a basic activity of daily living is markedly restricted.
6 An impairment is prolonged where it has lasted for a continuous period of at least 12 months (paragraph 118.4(1)(a) of the Act). This was proved, since the cancer was detected in July 1993, the chemotherapy treatments did not end until July 1994 and, according to Dr. Samson's testimony, the side effects went on a few months longer.
7 Next, under paragraph 118.4(1)(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.
8 It seems to me that the illness was the first cause that affected Mélanie's basic activities of daily living and that the medication was the second, since it affected her ability to walk.
9 The evidence is clear that in 1993 and 1994, Mélanie underwent treatment every week and could not attend school. She did not start school until April 1994 and the appellant, her mother, had to be present at all times during that period. She had to request an exemption so that the child could take the school bus even though she lived a very short distance from the school, a distance that a child should normally be able to walk.
10 Moreover, Dr. Samson confirmed in the medical certificate (A-2) that Mélanie was unable or required an inordinate amount of time to walk. I understood from his testimony that one of the side effects of the chemotherapy was a muscular impairment that directly affected the child's ability to walk. Ms. Bédard testified that because of the side effects, the child was unable or required an inordinate amount of time to walk or perform the activity of walking.
11 For all these reasons, it is my view that the appellant has shown on a balance of probabilities that Mélanie met all the requirements that had to be met for the appellant to be entitled, in the 1994 taxation year, to the non-refundable tax credit for a dependant having an impairment under sections 118.3 and 118.4 of the Act.
12 The appeal is allowed with costs to the appellant.
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