Date: 20000717
Docket: 1999-5029-IT-I
BETWEEN:
JOHN R. LEROUX,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Bonner, J.T.C.C.
[1] This is an appeal from an assessment of income tax for the Appellant's 1997 taxation year. By the assessment the Minister of National Revenue (the "Minister") disallowed the Appellant's claim to a tax credit under s. 118.3 of the Income Tax Act.
[2] The Appellant made his claim on the basis that he had a severe and prolonged physical impairment in the form of heart disease. The effect of the disease was to markedly restrict his ability to perform a basic activity of daily living, that is to say his ability to walk.
[3] The Minister's assessment rested on the following finding:
"a) the Appellant was not markedly restricted in any basic activities of daily living, including walking, all or almost all of the time, even with the use of aids, devices, medication or therapy;
..."
[4] The following provisions of the Income Tax Act are of immediate relevance:
"118.3: (1) Where
(a) an individual has a severe and prolonged mental or physical impairment,
(a.1) the effects of the impairment are such that the individual's ability to perform a basic activity of daily living is markedly restricted,
(a.2) in the case of
(i) a sight impairment, a medical doctor or an optometrist,
(ii) a hearing impairment, a medical doctor or an audiologist,
(iii) an impairment with respect to an individual's ability in feeding and dressing themself, or in walking, a medical doctor or an occupational therapist,
(iv) an impairment with respect to an individual's ability in perceiving, thinking and remembering, a medical doctor or a psychologist, and
(v) an impairment not referred to in any of subparagraphs (i) to (iv), a medical doctor
has certified in prescribed form that the impairment is 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,
(b) the individual has filed for a taxation year with the Minister the certificate described in paragraph (a.2), and
(c) no amount in respect of remuneration for an attendant or care in a nursing home, in respect of the individual, is included in calculating a deduction under section 118.2 (otherwise than because of paragraph 118.2(2)(b.1)) for the year by the individual or by any other person,
for the purposes of computing the tax payable under this Part by the individual for the year, there may be deducted an amount determined by the formula
A x $4,118
where
A is the appropriate percentage for the year.
...
118.4: (1) For the purposes of subsection 6(16), sections 118.2 and 118.3 and this subsection,
(a) an impairment is prolonged where is has lasted, or can reasonably be expected to last, for a continuous period of at least 12 months;
(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;
(c) a basic activity of daily living in relation to an individual means
(i) perceiving, thinking and remembering,
(ii) feeding and dressing oneself,
(iii) speaking so as to be understood, in a quiet setting, by another person familiar with the individual,
(iv) hearing so as to understand, in a quiet setting, another person familiar with the individual,
(v) eliminating (bowel or bladder functions), or
(vi) walking; and
(d) for greater certainty, no other activity, including working, housekeeping or a social or recreational activity, shall be considered as a basic activity of daily living."
S. 118.3(1)(a.2) was amended in 1998. The change is not material for present purposes.
[5] The sole issue in the appeal is whether the factual finding on which the assessment rested has been shown on the balance of probabilities to be wrong. In my view it has.
[6] The Appellant was the only witness at the hearing of the appeal. He testified that in 1996 he had two heart attacks. He produced a diagram of the human heart on which his physician had indicated the extent of the damage to the heart. That damage took the form of partially and totally plugged arteries and diseased tissue. The Appellant testified that his cardiologist had told him that he was totally disabled[1] and unable to work again. The Appellant has been taking drugs as prescribed by his medical advisors to alleviate breathing and blood pressure problems. The Appellant states that in 1997 he was able to walk only very slowly and for short distances. He found and still finds that climbing only six to eight stairs requires him to rest. If he exercises more vigorously he suffers from angina and requires nitro-glycerine. The Appellant was cross-examined on the distance which he was able to walk during the year in issue. His estimate is that he is and was unable to walk much more than seventy-five feet without resting.
[7] He has submitted to a cardiac stress test. He stated that he didn't last long on the treadmill, a minute and a half possibly, at a slow pace.
[8] Two disability tax credit certificates were entered in evidence; one dated April 29, 1997 signed by the Appellant's family physician, Dr. Mahaney, and a second dated March 26, 1998 signed by a Dr. MacDonald, the Appellant's cardiologist.
[9] In the earlier form the physician indicates that the Appellant suffers from severe coronary artery disease, that he easily develops angina and can easily go into CHE[2]. The physician's comment continues by indicating that this restricts the Appellant from doing daily activities generally. He then proceeds to answer yes to question 2 "Is your patient able to walk, using an aid if necessary?" Later in the form he gives a "no" answer to question 9, "Is the impairment severe enough to restrict the basic activity of daily living identified above, all or almost all of the time, even with therapy and the use of appropriate aids and medication?"
[10] The second of the disability tax credit certificates indicates that the Appellant suffers from an "inoperable three vessel coronary artery disease with LV[3] dysfunction. In answer to question 2, related to the ability of the patient to walk, the doctor has ticked the "yes" box but notes that the Appellant may experience angina. In answer to question 9, whether the impairment is severe enough to restrict the basic activity of daily living identified above, the physician has placed an arrow through both the yes and the no boxes and added "at times severely limited by angina". It will be noted that this form was completed shortly after the close of the 1997 taxation year and I am satisfied that it reflects Dr. MacDonald's view of the situation as it existed during that year. The answer to question 9 therefore meets the s. 118.3(1)(a.2) requirement for a certificate[4].
[11] The Appellant bases his claim on subparagraph 118.4(1)(c)(vi), inability to walk. The disability tax credit provisions of the Act must be interpreted in a way that is humane and compassionate.[5] In my view the Appellant's heart condition is the basis for his subjective but sincere belief that any exertion, even slight, may bring on an angina attack or, worse still, a full-blown and possibly fatal heart attack. That belief or apprehension continuously governs and limits the Appellant's ability to bring himself to walk any meaningful distance. That is how I interpret the evidence and Dr. MacDonald's attempt to grapple with the rather inflexible form of the disability tax credit certificate. The finding on which the assessment is based is therefore wrong. My conclusion is supported by my observation of the Appellant as he moved about the courtroom at the time of the hearing of this appeal.
[12] The appeal will be allowed and the assessment referred back to the Minister for reassessment on the basis that the Appellant is entitled to the credit in issue.
Signed at Ottawa, Canada, this 17th day of July 2000.
"Michael J. Bonner"
J.T.C.C.
[1] See s. 118.4(1)(d). Although working is not a basic activity of daily living the physician's viewpoint is some indication of the severity of the medical problem and its effects.
[2] The abbreviation was not explained.
[3] This abbreviation was not explained.
[4] I take the arrow to express an intention to tick both boxes. With respect to a surplus of tick marks compare Kenneth G. Morrison v. H.M.Q. (97-2334(IT)I) judgment dated May 19, 2000.
[5] Johnston v. The Queen 98 DTC 6169