Date: 20010209
Docket: 2000-659-IT-I
BETWEEN:
PAOLINA FERRARI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Sarchuk J.T.C.C.
[1] In computing taxes payable for the 1996, 1997 and 1998 taxation years, the Appellant, Paolina Ferrari, claimed a non-refundable tax credit in respect of a disability amount. The Minister of National Revenue disallowed the Appellant's claim for the tax credit in any of those taxation years on the basis that she was not markedly restricted in her ability to perform a basic activity of daily living under paragraph 118.4(1)(b) of the Income Tax Act (the Act). This appeal followed.
[2] At the commencement of the trial, the Minister moved to quash the purported appeal for the 1996 taxation year on the basis that the provisions of section 169 of the Act had not been complied with since no notice of objection had been served with respect to the assessment of tax for that year within the time limit provided by paragraph 165(1)(a) of the Act. Upon reading the affidavit of Dennis Jenkinson and hearing the submissions made on behalf of the Appellant, it was evident that the notice of objection had not been made within the time limit prescribed. Accordingly, this Court is unable to grant the relief sought with respect to the 1996 taxation year.
[3] With respect to the 1997 and 1998 taxation years, evidence was adduced from the Appellant and from her son, Frank Ferrari. The essential facts are as follows. The Appellant is now 65 years of age and is retired. In or about 1991, while still employed, she commenced to have sporadic bouts of dizziness accompanied by nausea which, as time progressed, increased in severity. Ultimately, she was diagnosed as having Menieres disease, the primary symptoms of which are hearing loss, vertigo and tinnitus. At some point of time, surgery was performed in an effort to rectify the problem. It was not successful. During the taxation years in issue, she continued to have periodic bouts of dizziness, nausea, and loss of balance. As a result, she said, it was virtually impossible for her to walk unaided or to feed and dress herself. She described the discomfort during the attacks as so severe that she was forced to lie down and remain absolutely still. She also stated that on occasion it was necessary for her to be taken to the hospital for an anti-nausea injection. Although reference was made to a loss of hearing for the purpose of these appeals the impairment primarily relied upon by the Appellant was her inability to walk.
[4] Disability tax credit certificates completed by the Appellant's family doctor, Hanna M. Hinnawi, for taxation years 1996, 1997 and 1998 were filed.[1] However, the doctor's comments in these certificates are equivocal and do not adequately support the Appellant's position.
[5] The disability tax credit sought by the Appellant is available to individuals who fall within the requirements of the provisions of sections 118.3 and 118.4 of the Act. The relevant portions of these sections read:
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
...
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 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) ...
(ii) feeding and dressing oneself,
(iii)
hearing so as to be understood, in a quiet setting, by another person familiar with the individual,
...
(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.
[6] In Marilyn Friis v. The Queen,[2] Linden J.A. made the following observation with respect to the legislation in issue in the present appeal:
In my view, this section 28 application should be allowed in the light of this Court's decision in Johnston v. Canada, [1998] F.C.J. No. 169 which was released following the Tax Court Judge's decision in this case. In that case, Justice Létourneau, quoting Judge Bowman in another case (Radage v. R., [1996] 3 C.T.C. 2510), indicated that these "provisions must be given a humane and compassionate construction" and should not be interpreted "so restrictively as to negate or comprise (sic) the legislative intent", which is to "provide modest 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 every one 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".
[7] On the evidence before me, I am unable to conclude that the Appellant falls within the meaning of the words in paragraph 118.4(1)(b) of the Act. I accept that the quality of her life has been affected and that to some extent her lifestyle has been limited. However, the evidence of the Appellant and that of her son fails to establish that she was markedly restricted in her activities of daily living all or substantially all of the time.
[8] As previously noted, Dr. Hinnawi did state that the Appellant's impairment was severe enough to restrict the basic activity of daily living, i.e. walking, all of the time. However, these answers are not consistent with other responses made by the doctor in the certificates. In three of the four, she responded yes to the question "Is you patient able to walk...?". In the fourth (Exhibit R-1), she responded no with the added comment "with dizzy attacks cannot walk (loss of balance". Furthermore, both the Appellant and her son stated that the incapacitating attacks during the taxation years in issue were sporadic in nature occurring on average three or four times per month. There is no evidence before me to support that at all other times her ability to perform a basic activity of daily living was impaired within the meaning of subsection 118.4(1).
[9] The phrase "all or substantially all of the time" is not defined in the Act. By reference to standard dictionaries, one finds that "all" means, inter alia: the whole amount, extent, substance, or compass of; the whole; all that is possible; the entire number of, without exception; every. "Substantially" which is used in the phrase as a modifier means: "in substance, or in the main". I accept that the section should not be interpreted "so restrictively as to negate or compromise the legislative intent". However, on the evidence the most favourable conclusion that I can reach is that the Appellant suffers from intermittent or sporadic bouts of dizziness and nausea which are severe enough to be incapacitating. There is no mathematical formula by which one can determine what "substantially all" means in any particular case. In my view, however, three or four such episodes per month cannot be what the legislators intended to be the meaning of the requirement "all or substantially all" found in paragraph 118.4(1)(b) of the Act.
[10] The appeals are dismissed.
Signed at Ottawa, Canada, this 9th day of February, 2001.
"A.A. Sarchuk"
J.T.C.C.