Date: 19990503
Docket: 98-2812-IT-I
BETWEEN:
ANDRÉ BOUCHARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for judgment
Tardif, J.T.C.C.
[1] This is an appeal for the 1997 taxation year. The point at issue is whether for that taxation year the appellant was entitled to a non-refundable tax credit in the amount of $719.61 for persons with a severe and prolonged physical impairment.
[2] The appellant, a mechanic-welder by training, explained that he had had a very serious accident on August 8, 1985, in which he injured his left knee and foot. The accident occurred when a metal beam weighing approximately 10,000 pounds struck him violently. The appellant indicated that as a consequence of the accident his attending physicians had considered amputating his leg above the knee.
[3] Following a consultation with other specialists, he was transferred to the Montreal General Hospital and Dr. Raymond Gagnon, an orthopedic specialist, went to work on repairing his knee. Following a two-week waiting period, a Syme amputation at the left ankle became necessary.
[4] The appellant explained that he subsequently made every effort to become as self-sufficient as possible again. His knee was spared amputation, but he was still suffering significant after-effects, to the point where his movements were now very limited. His condition also caused him violent pain.
[5] The permanent partial disability affecting his left knee also made it difficult to use his prosthesis. The appellant also explained that the injuries to his knee caused wounds requiring continuous care, even a number of years after the accident.
[6] He had to learn to live with this severe disability and even today must considerably limit his activities. He saves his energy so that he can hold gainful employment. Outside his periods of work—and even then he suffers and must cope with numerous unpleasant consequences and limitations—he tries to protect his injured leg to the greatest extent possible so that he can work.
[7] The evidence also showed that he must occasionally forego the use of his prosthesis so that his wounds can heal. He must remove the device every day, and he then becomes very vulnerable when moving about and when he goes to the bathroom.
[8] The appellant explained in a manner that did him credit that, despite the pain, inconvenience and numerous problems of all kinds, he had always devoted his energy and determination to fully discharging his family responsibilities, and particularly to showing his children that courage must overcome any inclination to feel miserable and to give up.
[9] In November 1986, the attending orthopedist was asked to assess the permanent after-effects with which the appellant would have to live for the rest of his life. Recalling that the appellant was a mechanic-welder, I believe it is appropriate to reproduce the [TRANSLATION] "Comments and Opinion" written by the attending orthopedist, Dr. Raymond Gagnon, and dated November 28, 1986:
[TRANSLATION]
This young man suffered a very serious accident in which he injured his lower left leg, losing his left foot and ankle as a result of vascular problems associated with those injuries. We note that he has been amputated at the astragalotibial joint. The stump is in satisfactory condition and well padded. Injuries to the knee involve the bone and ligamentous complex and there is still significant damage to the knee as witnessed by the fact that flexion does not exceed 80o to 85o and there is a persistent flexion deformity of approximately 5o. The knee is painful and cracks significantly in flexion.
You have asked me whether the worker's physical integrity will be permanently impaired. There can be no doubt that it will be. With respect to the amputation at his astragalotibial joint, we rate his APD at 30%, and I do not think it an exaggeration as regards the residual problems in his left knee to rate his APD at 15%. We have also determined ratings of 10% for the problems resulting from flexion restrictions, 3% for the 5o flexion deformity and 2% for the painful problems involving cracking in his knee. This therefore amounts to a total anatomicophysiological deficiency of 45% as a result of this accident.
This young man will clearly never be able to resume the work he previously performed as a mechanic-welder. In fact the only work suited to his condition would be work performed sitting down.
I therefore believe he should be redirected by the social rehabilitation service. The applicant has already taken steps with a view to taking helicopter piloting courses. The only thing he is waiting for now is authorization from Transport Canada. I believe this type of work could be very well suited to his condition.
This is an assessment of partial but permanent after-effects. Over the years, the appellant has learned to live with his disability and to develop a whole set of ways and habits that have provided him with a certain degree of rehabilitation, although forcing him to make choices and redetermine his priorities in life.
[10] At the hearing, the appellant produced a new certificate completed and signed by Dr. Simon Cantin, orthopedist. Dr. Cantin thought it appropriate to make an additional assessment, as he clearly considered the form provided by Revenue Canada to be incomplete or inadequate for the purpose of conveying certain subtle, yet very important and relevant points.
[11] I think it appropriate to reproduce here Dr. Cantin's additional comments:
[TRANSLATION]
To whom it may concern,
The subject presented with an amputation to the lower left leg. He has been disabled since the amputation and must wear a prosthetic device in order to walk. This device also causes other problems such as pain in the stump and irritation lesions on the leg. There is also chronic discharge from the back of the knee. The patient's various lesions require him to remove his prosthetic device at the end of the day in order to treat them.
He also has difficulty carrying on normal activities with the prosthesis given the limitations caused by the various lesions to his knee.
I believe that the subject's ability to perform basic activities of daily living is markedly and permanently restricted, even though he wears his prosthesis regularly.
[12] That is a coherent medical assessment of the appellant's physical disability.
[13] Are the facts revealed by the evidence sufficient to entitle the appellant to the non-refundable tax credit?
[14] These types of cases are generally very poignant and elicit considerable compassion for the appellants, who, in addition to suffering and living with their disabilities, are required to come and explain their situations to the Court in order to be entitled to a very small degree of tax relief.
[15] I consulted the case law submitted by the respondent with considerable interest and I think it relevant to recall the remarks made by the Honourable Judge Bowman of this Court respecting the objectives of sections 118.3 and 118.4, which I consider it appropriate to reproduce:
118.3 (1) Credit for mental or physical impairment. 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) a medical doctor, or where the impairment is an impairment of sight, a medical doctor or an optometrist, has certified in prescribed form that the individual has 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.
. . .
(4) Department of Human Resources Development. The Minister may obtain the advice of the Department of Human Resources Development as to whether an individual in respect of whom an amount has been claimed under subsection (1) or (2) has a severe and prolonged impairment, the effects of which are such that the individual's ability to perform a basic activity of daily living is markedly restricted, and any person referred to in subsection (1) or (2) shall, on request in writing by that Department for information with respect to an individual's impairment and its effects on the individual, provide the information so requested.
118.4 (1) Nature of impairment. For the purposes of subsection 6(16), sections 118.2 and 118.3 and this subsection,
(a) an impairment is prolonged where it 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.
[16] In Radage v. The Queen, [1996] 3 C.T.C. 2510, Judge Bowman writes as follows at pages 2828 and 2529:
The legislative intent appears to be to provide a modest amount of tax relief to persons who fall within a relatively restricted category of markedly physically or mentally impaired persons. The intent is neither to give the credit to everyone who suffers from a disability nor to erect a hurdle that is impossible for virtually every disabled person to surmount. It obviously recognizes that disabled persons need such tax relief and it is intended to be of benefit to such persons.
If the object of Parliament, which is to give to disabled persons a measure of relief that will to some degree alleviate the increased difficulties under which their impairment forces them to live, is to be achieved the provision must be given a humane and compassionate construction.
This assessment has been repeated by the Federal Court of Appeal, more specifically by Létourneau J.A. in Robert C. Johnston v. Her Majesty The Queen, A-347-97.
[17] There can be no doubt in the instant case that we are dealing with a severe impairment whose effects are prolonged to the point of being irremediable and permanent. Certainly the analysis and assessment of ability must also take into account the improvement or correction brought about by therapy or the use of a prosthetic device.
[18] However, the limitations and the effects of the use of such a device must also be considered. I do not believe final conclusions can be drawn from the immediate benefits and improvement or from the use of a prosthetic device. In other words, it would not be appropriate to assume that the improvement resulting from the use of a prosthesis is continuing and permanent. I think it is essential to consider all the inconveniences, risks and discomfort related to the use of a non-permanent prosthesis.
[19] Through his persuasive testimony, the appellant showed that his prosthesis definitely afforded him a fairly good quality of life, provided he is very disciplined and very careful and does not overdo his use of it. Some people may live virtually normal lives with such devices. The evidence showed that this is not the case for the appellant. Indeed, the appellant demonstrated the contrary and his testimony was corroborated by his medical specialists, even though they checked the "yes" box for the question respecting the "walking" activity on the questionnaire provided by Revenue Canada. Moreover, in my view, this questionnaire may be useful, but is definitely not sufficient in itself for determining whether a taxpayer is entitled to the tax credit.
[20] In the instant case, the appellant discharged the burden of proof that was on him by showing on the balance of evidence that he was afflicted with a severe and prolonged physical impairment preventing him from performing an activity of daily living, namely walking. He also indicated that he had to give very special attention to his leg every day in view of the condition of his knee and the permanent after-effects from which he suffered. The appellant has created an environment which enables him to take care of himself and his family, although with a number of constraints and difficulties. I do not believe one should consider solely those moments in his life when he appears to be like everyone else.
[21] For these reasons, I allow the appeal.
Signed at Ottawa, Canada, this 3rd day of May 1999.
"Alain Tardif"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
Translation certified true on this 24th day of February 2000.
Erich Klein, Revisor