Jeanlouis (K.) v. Canada, [1995] 2 CTC 2200

Bowman J.T.C.C.:-These appeals are from reassessments for the appellant’s 1992 and 1993 taxation years whereby the Minister of National Revenue denied to the appellant a disability tax credit under sections 118.3 and 118.4 of the Income Tax Act.

On June 3, 1990 the appellant at the age of 40 suffered a heart attack while driving a tour bus. He was taken to Granby Hospital where he spent several days. In July 1991 he underwent angioplasty, an operation whereby a balloon-like device is inserted in an artery and expanded to increase the size of the passage.

He has not worked since the date of his heart attack in 1990. His Symptoms are constant fatigue, shortness of breath, angina (chest pains) which can radiate to the jaw and the arms and, on occasion, dizziness and lightheadedness. He suffers shortness of breath (dyspnea) sometimes even when asleep and is forced to awaken and sit up. Even taking a shower causes him fatigue and shortness of breath and he is obliged to lie down and rest for up to two hours. He is incapable of any physical exertion without becoming extremely fatigued. He can drive a car, but not for long distances. When he takes his wife to shop for groceries he stays in the car, as he would not be able to walk around the aisles or push a shopping cart. When he walks even less than a block he experiences shortness of breath and chest pains and has to stop.

Formerly he took a medication, Adalat XL, as well as an aspirin per day and nitroglycerin when needed, but more recently he has been taking, instead of Adalat XL, Amiodarone, also known under its brand name of Cordarone. Both Adalat and Amiodarone are described as anti-arrhythmic and are used for abnormal heart rhythms. According to one text submitted by the appellant Amiodarone ’’should be prescribed only in situations where the abnormal rhythm is so severe as to be life-threatening, and it does not respond to other drug treatments.” Evidently Amiodarone is a powerful drug with potentially adverse side effects and is to be used only in extreme cases.

Mr. Jeanlouis’ case has been the subject of some considerable medical discussion and, it seems, difference of opinion. The cardiologist whom he has been consulting, Dr. Carling stated in a letter dated May 18, 1993.

More likely, small vessel disease could present as he does although I have not been able to show any objective evidence for this. I am treating him as if he has small vessel disease. Patients with small vessel disease generally have a good prognosis but are remarkably incapacitated by symptoms. It is my opinion based on Mr. Jean-Louis’ total picture that he would not be able, nor would it be safe to drive a town bus. I do not feel that he could be rehabilitated to perform any other work in his condition.

Notwithstanding her view expressed in that letter that patients with small vessel disease "generally have a good prognosis", on April 22, 1994 Dr. Carling wrote the following letter:

I am writing on behalf of Mr. Jean-Louis’ claim for disability tax credit.

I have been seeing him in consultation as cardiologist since March 20th, 1992. I would like to point out to you that he has been disabled from performing activities of daily living since that time on an intermittent basis. He experiences shortness of breath after taking a shower which slows him down, doing the dishes, even getting into bed. He will experience dyspnea at rest.

These symptoms have become worse in the last 6 months. However, ever since his circumflex angioplasty in July 1991 he has been incapacitated by dyspnea and chest pains which have occurred at rest as well as with effort. His symptoms occur in cycles and he can go for a period of time, such as a couple of weeks, being pain-free and with no limitation and then will experience severe limitation so that he experiences the symptoms all the time at rest.

His diagnosis is coronary artery disease, basically single vessel disease, with prior MI in June 1990, followed by PTCA of the circumflex or culprit vessel in July 1991 successfully. He has experienced chest pain syndrome since then which I feel is cardiac based although it is hard to prove. His diagnosis is most likely one of small vessel disease.

He is currently undergoing further evaluation of his cardiac status with exercise RNA scanning and echocardiography. He has left ventricular function at rest of 49 per cent in June 1992. He has had perfusion defects on exercise thallium scintigraphy in November 1991. There was a severe defect in the proximal septum and severe defect in the inferior wall. The septal defect was completely reversible and the inferior defect was partially reversible implying scar in this area.

In summary then, it is my position that Mr. Jean-Louis does qualify for disability tax credit based on his symptom limitation which goes back to his MI in June 1990.

Mr. Jeanlouis’ own family physician, Dr. Mussani, certified that in his opinion Mr. Jeanlouis "has met the eligibility criteria of a prolonged impairment that markedly restricts all or substantially all of the time his or her ability to perform basic activities of daily living". The "Eligibility Criteria Guidelines" attached to the certificate essentially summarize the criteria set forth in section 118.4.

Dr. Sutherland, the expert called by the respondent, was of the view that Mr. Jeanlouis’ disability did not restrict him in the manner required by section 118.4. Although she had not examined him, she read the material submitted to the Department of Health and Welfare in support of his application and she was present in court during his testimony. She based this opinion in some degree upon certain tests performed on Mr. Jeanlouis on a stationary exercise bicycle and on a treadmill.

Section 118.3 requires as a condition of entitlement to the disability tax credit that the individual have a severe and prolonged mental or physical impairment and that the effects of the impairment be such that all individual’s ability to perform a basic activity of daily living is markedly affected.

If no definition of "basic activity of daily living" were provided in the Income Tax Act it would be clear that in accordance with the plain and ordinary meaning of that expression the appellant would meet the statutory condition. His disablement is severe and prolonged, and it affects his life in a most debilitating manner. Since 1991, however, the Income Tax Act has contained a restrictive definition that leaves the Court very little flexibility to apply a compassionate and common sense interpretation. Since the decision of the Federal Court of Appeal in Taylor v. Canada, [1995] 1 C.T.C. 284, 95 D.T.C. 5051, dealt with the Act as it read prior to 1991 it is of no assistance.

Nonetheless the appellant in my view meets even the narrow criteria contained in paragraph 118.4( 1 )(b) and subparagraph 118.4(1 )(c)(vi) in that all or substantially all of the time it requires an inordinate amount of time to perform the basic activity of daily living, i.e. walking. I do not think that the tests on the treadmill or the stationary bicycle, and their effects on his heartbeat, breathing or blood pressure contradict his testimony that he requires an inordinate length of time to walk, even a short distance. This conclusion is consistent with the views expressed by Dr. Mussani and Dr. Carling. Mr. Jeanlouis testified that when he came to the hearing at this Court he took the GO train from Oakville to Union Station in Toronto and walked from Union Station to the Court which is located at the corner of University Avenue and King Street. It takes between seven to eight minutes to cover that distance, walking at a normal and unhurried pace. It took the appellant one half hour, and he had to stop at frequent intervals. His ability to walk has not deteriorated since 1992 or 1993. I find that it takes him an inordinate length of time to perform the basic activity of daily living, i.e. walking.

The appeals are allowed and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment to allow the appellant the disability tax credit under section 118.3 for the 1992 and 1993 taxation years.

Appeals allowed.