Tardif T.C.J.:
1 These are appeals from a decision denying the appellant entitlement to a tax credit for a person suffering from a severe and prolonged mental or physical impairment for the 1991 and 1992 taxation years. The appeals were heard at Québec, Quebec.
2 Jocelyne Bisier, who was represented by Mr. L. Brousseau, testified in support of her appeal. Her spouse, Serge Dumas, also testified. Ms. Bisier, a “checker” by trade, explained that she had had to be absent from her work on a number of occasions in 1991 and 1992 because diabetes had left her virtually blind.
3 In examination-in-chief, she was unable to say precisely when and for how long she had been absent from work. She mainly emphasized her disability and the difficulties involved in giving herself the injections required for her health.
4 She filed two medical certificates. One was signed by Dr. Jacques Samson and the other was issued by the medical clinic of Drs. André Springale and Micheline Tremblay.
5 By way of a medical certificate, Dr. Samson completed the Revenue Canada forms entitled “Disability Tax Credit Certificate (T2201(E))”. Although the form is designed to follow the requirements of the Act, Dr. Samson merely stated the following diagnosis: [TRANSLATION] “Severe diabetic retinopathy with macular edema and hemorrhaging of vitreous body, Dec. 31/10/90 to 13/11/92 [ sic] — Patient's ability to perform a basic activity of daily living markedly restricted.” He did not see fit to answer questions 1 to 9 inclusive.
6 The second medical certificate issued on October 6, 1995 does not refer to the period in issue and is essentially a very brief description of the illness that has affected the appellant since she was three years old and of the potential dangers of that illness.
7 A number of details concerning the appellant's health and its consequences during 1991 and 1992 emerged on cross-examination.
8 The Court was thus able to learn that Ms. Bisier had given birth to a child in January 1991. During both 1991 and 1992, she worked as a “checker”; her work consisted of checking whether the clothing manufactured at the plant where she worked had defects such as pulled threads or stitches. The appellant stated that this work was extremely demanding on the eyes and that she had had to be absent because at times the situation became completely unbearable. She added that her employer had begun to question the quality of her work.
9 I have no doubt that the appellant was a determined, courageous and exemplary person. Her spouse even said that she often went to work not because her health permitted, but in order to earn the money she needed to purchase very expensive medication. The Act is clear, however, and grants this credit only to persons suffering from a prolonged impairment; impairments that last less than 12 months or that are temporary are not considered to be prolonged within the meaning of the Act.
10 To receive this credit, a person must be unable, or take an inordinate amount of time, to perform a basic activity of daily living; in making this assessment, regard must be had to the use of the prostheses available or of devices to facilitate the user's activities of daily living, and also to improvements in functioning as a result of the medication or prostheses available.
11 The basic activities of daily living are: seeing, walking, speaking, perceiving, thinking, remembering, hearing, eating, dressing and eliminating; seeing is obviously a basic activity of daily living.
12 According to the evidence adduced by the appellant, the medical basis of her appeal is diabetes; this serious illness has distressing consequences and effects on the appellant's ability to see.
13 However, the long letter signed by the appellant speaks volumes as to the consequences for the appellant in terms of daily living.
14 In her letter, Ms. Bisier described the numerous difficulties which she had to face, and particularly the prohibitive cost of medication as well as numerous troubles and worries. There is no reference in the letter to her having been blind or almost blind for a prolonged period.
15 Although I am very sympathetic to her case, I unfortunately cannot allow her appeal since she has not discharged the burden of proof that rested on her. Ms. Bisier clearly explained her illness and the numerous and highly distressing consequences thereof. Her agent also represented her remarkably well. His representations particularly emphasized the appellant's courage, bravery and strength of character.
16 Under the terms of section 118.3, to be eligible for the disability tax credit, a person must have a severe and prolonged mental or physical impairment, and the effects of the impairment must be such that the individual's ability to perform a basic activity of daily living is markedly restricted for a prolonged time.
17 If no definition of “basic activity of daily living” were provided by the Income Tax Act, the Court would then have discretion to consider subjective factors since the sequelae of the same disease can vary widely from one person to another. Since the amendments were made to the Act, which now provides a restrictive definition, there is little room in many cases for compassion, or indeed even common sense.
18 For these reasons, I must unfortunately dismiss the appeals.
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