Johnston v. Canada
A-347-97 / A-348-97
Létourneau and Marceau JJ.A.
6/2/98
19 pp.
Judicial review of Tax Court decision denying applicant disability tax credit found in Income Tax Act, ss. 118.3(1)(a.1), 118.4(1)(c)-Under s. 118.3(1)(a.1) taxpayer entitled to credit for mental or physical impairment where effects of impairment such that individual's ability to perform basic activity of daily living markedly restricted-S. 118.4 defining nature of impairment as ability to perform basic activity of daily living markedly restricted-Issue whether, through severe, prolonged physical impairment, applicant's ability to walk, feed, dress himself so markedly restricted as to require from him inordinate amount of time, to perform basic activity of daily living-Applicant born with spinal epiphyseal dysplasia, resulting in joints in various parts of body failing to form normally-Has had number of serious medical problems directly or indirectly linked to condition-Has had both hips replaced, cartilage removed from left knee, left knee broken, re-set-Equipped himself, house with aids, devices to assist him in performance of basic activities of daily living-Tax Court Judge concluding although disability prolonged, severe, ability to walk, feed and dress himself, not in 1992 and 1993 markedly restricted within s. 118.4(1)(b) and therefore applicant not entitled to disability credit for these years-Purpose of ss. 118.3, 118.4 not to indemnify person who suffers from severe, prolonged mental, physical impairment, but to financially assist him or her in bearing additional costs of living, working generated by impairment-"Markedly restricted" defined to refer to individual's inability at all or substantially all of time, even with therapy and use of appropriate device and medication to perform basic activity of daily living-Individual's ability also deemed to be markedly restricted if requiring inordinate amount of time to perform such activity-Inordinate amount of time referring to excessive amount of time i.e. much longer than what is usually required by normal people-S. 118. 4 clearly stating no other activity, including working, housekeeping, or social or recreational activity considered basic activity of daily living-While claimant not entitled to tax credit if impairment preventing him from having social life or enjoying recreational activities, cannot be penalized and disallowed credit if also able to organize for himself social life or recreational activities-Social or recreational activities may be of such nature as to evidence ability to walk, dress or feed which is not markedly restricted-Not lifestyle per se which is relevant to determination of inability, but nature, length, frequency of any other activity performs since performance of such other activity may contribute to establish that performance of basic activities of daily living not markedly restricted-Proper for Tax Court Judge to take into account applicant's other activities such as driving, visits to play bridge, attend therapy, but erred in concluding applicant not, on issue of walking, entitled to disability credit because did considerable amount of walking, disability not affecting him all or substantially all of time-Evidence establishing applicant having great difficulties walking, needs one or two canes or rails to cover short distances, uses wheelchair for longer distances, limits walking to essential, and bare minimum, on best days walks 50 feet, does not get out of bed on worst days-Evidence revealing applicant's ability to walk markedly restricted because of inordinate amount of time takes to walk any where-Tax Court taking much too limited view of "feeding", "dressing"-Notion of "feeding" including preparation of meal conforming to medically prescribed diet and medication which maintains one's state of health or prevents deterioration-Applicant unable to prepare food generally, let alone food medically required by state of health and medication-Requiring daily assistance with meals-10 to 12 days per month cannot even get out of bed-Applicant cannot feed himself within meaning of Act-Notion of dressing not limited to simple act of putting on, taking off clothes, but not extended to laundering, drying of clothes-Includes ability to perform basic, elementary personal hygiene associated with dressing, such as shaving, bathing-Evidence compelling applicant taking inordinate amount of time (two to two and one half hours) to dress self in morning to be ready for day-Time spent to overcome effects of disability (i.e. exercising) so as to acquire ability to perform such basic activity of daily living part of inordinate amount of time required by applicant to dress self-Marceau J.A. disagreeing with Létourneau J.A.'s interpretation of feeding, clothing oneself, but agreeing with analysis of marked restriction upon applicant's ability to walk-Income Tax Act, S.C. 1970-71-72, c. 63, ss. 118.3(1)(a.1) (as enacted by S.C. 1988, c. 55, s. 92; 1991, c. 49, s. 90), 118.4 (as enacted by S.C. 1988, c. 55, s. 92; 1991, c. 49, s. 91).