Tax Court of Canada Judgments

Date: 20021119

Docket: 1999-4876-IT-G,

2000-2842-IT-G

BETWEEN:

DORIS MAHONEY,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Hershfield, J.T.C.C.

[1]            These appeals under the General Procedure were heard on common evidence. Together they are appeals in respect of the Appellant's 1994, 1995, 1996, 1997 and 1998 taxation years.

[2]            In each of the subject years the Appellant claimed the so-called "equivalent to spouse" tax credit in respect of her daughter Maureen. Maureen was over 18 years of age, lived with and was supported by her mother, the Appellant, throughout the years in question.

[3]            The claim to the credit is based on paragraph 118(1)(b) of the Income Tax Act (the "Act"). There are several requirements set out in paragraph 118(1)(b) that must be satisfied in order to claim the subject credit. Most are not in issue in this case. The Respondent denied the credit on the basis that Maureen was not "wholly dependent for support" on the Appellant at any time in any of the subject years "by reason of mental or physical infirmity". The dependency is not questioned. The only issue to be decided in this case is whether there is sufficient evidence to warrant a finding of dependency by reason of mental or physical infirmity. The parties disagree as to what constitutes an "infirmity" under this provision of the Act.

[4]            The Appellant brought three witnesses, namely, herself, Maureen and a second daughter Lisa. No independent, disinterested witnesses were called and there was no supporting evidence of any particular medical condition suffered by Maureen or of any disability that would result in or corroborate an "infirmity". The Appellant argued that there is nothing in the express language of the subject provision that requires her to establish a medical cause for the alleged infirmity or that requires it to be a medical condition or diagnosable medical condition. The Appellant further argued that it is open for this Court to accept the testimony of the witnesses as to the nature and extent of Maureen's state of health or well-being in the subject years in order to determine that she was wholly dependent on the Appellant for support in each of the subject years, or at times in each of the subject years, by reason of mental or physical infirmity.

[5]            Both parties rely on the ordinary meaning of the word "infirmity" although the Respondent takes a narrower view than the Appellant as to such meaning when read in the context of the subject provision and the intention of Parliament.

FACTS

[6]            Maureen was born on September 29, 1967 and was in her late twenties in the first few of the subject years. She lived with her mother, the Appellant, throughout the subject years. Indeed, it appears from the evidence that she has always lived at home and continues to do so. She never finished high school having dropped out of school in the tenth grade. She has never worked. She has been supported by her mother who has been the wage earner in the family. I have no difficulty in accepting the testimony of the witnesses on these points and in concluding that Maureen was wholly dependent on the Appellant for support throughout the subject years. Maureen relies entirely on her mother to provide the roof over her head, food to eat and clothes to wear. She has never had any other means of financial support. The question is "why?".

[7]            The Appellant testified that Maureen suffered from breathing problems and chronic fatigue that prevented her from supporting herself. Her sister, Lisa, testified that Maureen was prone to stomach cramps, allergies, skin rashes and colds and flues in addition to breathing problems. Attending school, helping in the yard around their family home and more recently even playing with Lisa's daughter proved exhausting and were more than Maureen could handle. Indeed, the testimony was that she dropped out of school as she was absent on a regular basis and unable to participate in school activities due to fatigue and sickliness.

[8]            Maureen herself testified it was chronic fatigue and illness that caused her to leave school at age 16. She said that she had been diagnosed with heart valve problems, an arthritic jaw and Raymond's syndrome (a condition she said affected blood vessels) but corroborating evidence was lacking. Four documents were produced as corroborating her testimony but their admission was objected to on the basis that they could not be properly attested to or cross-examined on.

[9]            The first document tendered was a sickness certificate said to have been signed on May 5, 1998 by a Dr. Suciu. It states that Maureen has "chronic medical problems". The second document appears to be a clinical record sheet of a Dr. Mann who, it seems, saw Maureen in 1998. This clinical record does make reference to a dental and oral pathologist, swallowing problems, upset stomach, allergies and a number of illegible notations including the notation "Raymond" that Maureen said confirmed the blood vessel syndrome referred to above.[1]

[10]          The third document purports to be a physician's report completed by a Dr. O'Shea. This report was done in 1992 and refers to allergies, dry skin and a number of other notations, which are largely illegible.

[11]          The fourth document is a handwritten note the source of which was not explained. It appears to refer to skin and food problems for which Maureen was seen by a medical doctor over the summer of 1992.

[12]          Clearly, it is difficult to accept these documents as corroborating anything. While I did not rule them inadmissible I can afford them no weight. Without the opportunity to examine the doctors named in these documents, they have no probative value even though their origin and authenticity are not suspect.[2]

[13]          When asked to explain why she was not in a better position to provide evidence on Maureen's medical condition over the years, particularly in the subject years, the Appellant and Maureen both asserted that Maureen's chronic fatigue has never been properly diagnosed or treated. Maureen did not have a family doctor in the subject years (and it seems still does not). She relied on drop-in clinics. Doctors mentioned in testimony were not available to testify. One or more had retired or moved away. Regardless, I conclude that the Appellant simply did not have a doctor able or willing to testify as to Maureen's chronic fatigue, breathing problems and sickliness. I should note at this point that this matter first came up for hearing before me on September 4, 2001. I adjourned that hearing to afford the Appellant an opportunity to call independent witnesses to corroborate the family's evidence of Maureen's health. She failed to do so. The Respondent's counsel suggested that a negative inference be drawn given that medical evidence was not called to attest to the cause of Maureen's alleged infirmity. If the subject provision of the Act required the Appellant to establish a medical cause for the infirmity, I would draw such negative inference. However, as I note later in these Reasons, the Act does not require the cause of the infirmity to be identified. On the other hand, aside from any negative inference, there is always an onus issue in respect of establishing an infirmity. Such onus is often best met by disinterested testimony. However, what constitutes the best evidence is a question of fact that can only be determined on a case-by-case basis. The credible testimony of persons most familiar with the facts can be the best evidence regardless that such persons have an interest in the outcome of an issue on which their evidence bares. In the circumstances of this case, Maureen's family might well be the persons most familiar with her general state of health.

[14]          That leads me to describe, as best I can, based on the testimony of the witnesses, my impression of the state of well-being of Maureen during the subject years. I have, as well, observed Maureen throughout these proceedings. My general impression is consistent with the tenor of the testimony. I accept the likelihood that Maureen was a frail and somewhat sickly child. I too would describe her as frail, indeed somewhat anaemic, in appearance as she stood before me. This was not a staged presence by any means. On the other hand, she was clearly very intelligent and capable. Indeed, I had the impression that she quarterbacked these appeals. She did not drop out of school for want of intellectual ability. Her dependency then might have any number of explanations. The physical fatigue is genuine and the sickliness she experienced as a child continued into her adult life to the point that she could not support herself. Or, possibly, an over-protective mother wrapped her in an emotional blanket of safety and care-giving at home, so as to foster dependency. While I believe the latter may be a contributing factor, I accept Maureen's testimony as to her chronic fatigue and low resistance to health problems. Even accepting this, however, I am left with the impression that Maureen can do more. One day, on her own, she will likely have to find a way to apply her intellect, as many others do, to support herself inspite of her health issues. The question that arises then is whether my impression that Maureen is capable of more is determinative. The reality is that given her frailty, fatigue and low resistance to health problems and given that she had a family ready, willing and able to support her, she was wholly dependent on the Appellant for support throughout the years in question.

RESPONDENT'S POSITION[3]

[15]          The Respondent cites the following dictionary meanings of the word "infirm" and "infirmity":

The Concise Oxford English Dictionary defines "infirm" as "1. not physically strong, especially through age; 2. ... irresolute; weak". "Infirmity" is defined as "physical or mental weakness". (The Concise Oxford English Dictionary, 10th ed., Oxford University Press, 2002.)

The 3rd edition of Words and Phrases Legally Defined describes "infirmity" as follows:

                As regards "infirmity" [under the rules of a Friendly Society], that means some permanent disease, accident or anything of that kind, rendering the member an object deserving of the assistance of the society. Re Buck, Bruty v. Mackey, [1896] 2 Ch 727 at 734, per Kekawich J. (Words and Phrases Legally Defined, 3rd ed., Butterworths, London, 1989.)

Black's Law Dictionary defines "infirmity" as:

Disability; feebleness. In an application for insurance is an ailment or disease of a substantial character, which apparently in some material degree impairs the physical condition and health of the applicant and increases the chance of his death or sickness and which if known, would have been likely to deter the insurance company from issuing the policy. See also incapacity. (Black's Law Dictionary, 6th ed., West Publishing Co., St. Paul, Minn., 1990.)

[16]          The Respondent accepts that "infirmity" denotes a spectrum of conditions, from weakness to disability, but argues that the rules of statutory construction encourage ascribing a meaning akin to disability.[4] The Respondent asserts that the scheme of the Act is that, in the normal course, a child attaining the age of 18 is to be regarded as self-sufficient and not a person in respect of whom relief is to be given under paragraph 118(1)(b) of the Act. "Infirmity" is meant to describe an exceptional state of health akin to a disability. A general malaise or frailty would not be sufficient to constitute an "infirmity" in this context.

[17]          The Respondent referred to the following passage to support the contention that Parliament considers "infirmity" to be aligned with "disability":

Oct. 2000 Economic Statement Speech: Mr. Speaker, this Government has always understood that there are certain priorities that cannot be deferred. Assisting Canadians with disabilities is one of these. Indeed, even when we were in deficit, we took action. We have enriched the tax credit for infirm dependents, enhanced the medical expense credit, increased the childcare expense deduction for children with disabilities and expanded eligibility for the disability tax credit. Today we will do more. We will further enrich the amount for the infirm dependent tax credit from $2,386 to $3,500; we will similarly increase the supplement amount for the disability tax credit for children with severe disabilities from $2,941 to $3,500; and we will increase the amount for the disability tax credit from $4,293 to $6,000.

                                                      Income Tax Act - Technical Notes

                                                      13th ed., David Sherman, Carswell,

                                                      Toronto, 2001

[18]          The above passage refers to a different credit afforded under paragraph 118(1)(d) for an infirm dependent. That credit is not in question here as subsection 118(4) denies the infirm dependent credit where the credit is claimed in respect of the same person under 118(1)(b). Still, the speech implies that an infirm person falls within the group of disabled persons being assisted even though under the Act disabilities are exactingly defined and would not include "infirmity".

[19]          The Respondent admits that "infirmity" cannot be taken to be analogous to "disability". It must be taken, however, to mean an identifiable and severe disabling condition that results in complete dependency for support on something other than a temporary basis. Temporary illness could not constitute an infirmity.

[20]          The Respondent argues that infirmity must mean more than "weakness" in the context of the subject provision as it must be a condition that gives rise to complete dependence. "Weakness", in its common usage, does not give rise to complete dependence. The Respondent asserts that there is not sufficient evidence of the severity of Maureen's health issues (weakness or frailty or even fatigue) to warrant a finding of complete dependency by reason of mental or physical infirmity.

[21]          Lastly, I note that the Respondent referred to R. v. Aldo Diaz[5] and acknowledged the definition of "infirmity" provided in that case by Justice Marceau. He found, at paragraph 6, that the word "infirmity" must be taken in its general sense as "the state of being of poor or deteriorated vitality". In Diaz, Justice Marceau found the Appellant's mother's high blood pressure and general poor condition sufficient to find her infirm, i.e., being in a state of poor or deteriorated vitality. Ascribing such meaning to the work "infirmity" affords no assistance to the Respondent's argument that the infirmity needs to be so severe and prolonged as to disable a person from being self-sufficient. However, the Diaz case was decided in the context of paragraph 109(1)(f) as it read in 1976. That paragraph allowed deductions for expenses incurred for the support of a person who was dependent for support by reason of mental or physical infirmity. There was no requirement that the dependent be "wholly" dependent for support. The question then is whether the addition of the word "wholly" changes anything in the proper construction of paragraph 118(1)(b).

APPELLANT'S POSITION

[22]          The Appellant referred to several dictionary meanings of "infirmity":

-                physical or mental weakness - The New Oxford Dictionary of English;

-               physical weakness or ailment - Random House Webster's College Dictionary;

-                the state of being infirm; weakness; feebleness - Compact Dictionary of Canadian English;

-                state of being weak or sick - Dictionary of American English;

                                physically weak esp. through age; weak, irresolute (of person, mind, judgment, etc.) - The Canadian Oxford Dictionary;

-                physical weakness or defect, frailty or ailment as from old age; moral weakness - Webster's New World Collegiate Dictionary, 4th ed., 1999.

[23]          The Appellant cites and relies on the Diaz case and referred me in particular to the following passage from Justice Marceau's judgment:[6]

                In my view, the word "infirmity" implies more than mere retirement age, but it must be taken in its general sense, i.e. the state of being of poor or deteriorated vitality (see Webster's New Collegiate Dictionary). As to the manner in which such "infirmity" may be proven, I do not see why a clear unequivocal, detailed and uncontradicted statement or testimony of the taxpayer should not be accepted as sufficient if it is convincing.

[24]          The Appellant distinguishes the definition of "infirmity" in Words and Phrases Legally Defined referred to at paragraph 15 of these Reasons on the basis that it was a definition prescribed in the rules of a "Friendly Society". No such prescribed definition exists in the Act and the definition prescribed for another purpose at another time and place cannot be of assistance in understanding the ordinary meaning of the word "infirmity".

[25]          As to the Black's Law Dictionary definition of "infirmity" cited by the Respondent, the Appellant argues "feebleness" means "weak, not strong" and that "disability" cannot be a meaning ascribed to "infirmity" in the context of the subject provisions given the clear and distinguishing definition of disabling impairments prescribed in subsection 118.4(1) of the Act.

[26]          The Appellant argues that the use in paragraph 118(1)(b) of the word "infirmity" must be taken to denote a less debilitating condition than that expressly described in and required by the Act in respect of persons with disabilities. The disability tax credit both requires a certification of the disability and that the disability be prolonged and severe. The requirement is that the disability must be such as to disable the person, all or substantially all of the time, from performing a basic activity of living. The absence of a comparable requirement in paragraph 118(1)(b) demonstrates that the Act cannot be taken to intend to impose a similar restrictive regime in the determination of dependency by reason of infirmity.

[27]          As to statutory construction, the Appellant cites Friesen v. Canada.[7] It appears that the reason for citing this case is to provide authority for the proposition that the courts should not read in extra requirements in the construction of a statutory provision where there is an acceptable interpretation which does not require such insertions. I take it from her submission that the additional wording that the Appellant does not want ascribed to the provision is wording that effects a requirement of medical evidence. Indeed, the Appellant has gone so far as to argue that the C.C.R.A.'s insistence on having corroborating medical evidence is a breach of its obligation to enforce the terms of the Act.

[28]          Lastly, the Appellant argues that the intention of Parliament should be taken to allow the personal credits claimed by a supporting person, such as the Appellant, where that dependent's degree of physical dependence or incapacity does not qualify for assistance under such sections as sections 118.2 or 118.3.

ANALYSIS

[29]          Clearly, medical evidence of infirmity or its effects is not a requirement of the subject provision. Paragraph 118(1)(b) provides as follows:

118. (1) For the purpose of computing the tax payable under this Part by an individual for a taxation year, there may be deducted an amount determined by the formula

                                                A x B

where

A is the appropriate percentage for the year, and

B is the total of

. . .

                (a) . . .

(b)            wholly dependent person - in the case of an individual who does not claim a deduction for the year because of paragraph (a) and who, at any time in the year,

(i)             is an unmarried person or a married person who neither supported nor lived with the married person's spouse and is not supported by the spouse, and

(ii)            whether alone or jointly with one or more other persons, maintains a self-contained domestic establishment (in which the individual lives) and actually supports in that establishment a person who, at that time is

(A)           except in the case of a child of the individual, resident in Canada,

(B)            wholly dependent for support on the individual, or the individual and the other person or persons, as the case may be, (emphasis added)

(C)            related to the individual, and

(D)           except in the case of a parent or grandparent of the individual, either under 18 years of age or so dependent by reason of mental or physical infirmity, (emphasis added)

an amount equal to the total of

                (iii)           $6,000, and

                (iv)           an amount determined by the formula

                                $5,000 - (D - $500)

                where

D is the greater of $500 and the income for the year of the dependent person,

[30]          By way of contrast, one might only look to paragraph 118.2(2)(c) which expressly provides for medical evidence as to the effects of infirmity.

118.2 (2) Medical expenses - For the purposes of subsection (1), a medical expense of an individual is an amount paid

. . .

(c)            as remuneration for one full-time attendant upon the patient in a self-contained domestic establishment in which the patient lives, if

                (i)             the patient is, and has been certified by a medical practitioner to be, a person who, by reason of mental or physical infirmity, is and is likely to be for a long-continued period of indefinite duration dependent on others for the patient's personal needs and care and who, as a result thereof, requires a full-time attendant, (emphasis added)

                (ii)            at the time the remuneration is paid, the attendant is neither the individual's spouse nor under 18 years of age, and

                (iii)           each receipt filed with the Minister to prove payment of the remuneration was issued by the payee and contains, where the payee is an individual, that individual's Social Insurance Number,

[31]          Paragraph 118.2(2)(c), unlike paragraph 118(1)(b), requires medical evidence. However, the evidence required is not of a medical condition that caused the infirmity, but of the extent of the effects of an "infirmity" that need only be given its ordinary meaning.

[32]          In paragraph 118.2(2)(c) the credit is available where there is a physical dependency supported by medical evidence. There is no similar evidentiary requirement in paragraph 118(1)(b) where the effect of the infirmity affording the credit is dependency for support. Other contrasting provisions are found elsewhere in the Act. Clause 60(1)(v)(B); subsection 146.3(6.11); and clause (a)(ii)(A) of the definition of "preferred beneficiary" in subsection 108(1) each refer to "infirmity" without reference to medical evidence while the amount described in subsection 63(2) as "C", which also refers to "infirmity", includes a medical certificate requirement. Clearly, the services of medical practitioners are not being called upon for every question that arises under the Act relating to health issues. Where medical evidence is not required it must be assumed that Parliament has considered the balance between drawing further on the limited resources of our medical system and setting the threshold for a given tax expenditure. As well, as noted, the provisions requiring medical evidence of the effects of infirmity are concerned with effects other than dependency for economic support. The Respondent does not take issue that in the context of paragraph 118(1)(b), the support referred to is economic support or financial support for the provision of the necessaries of life: food, shelter and clothing.

[33]          Still, the infirmity must be established. That paragraphs such as 118.2(2)(c) prescribe an evidentiary burden (as to the effect of infirmity) not prescribed in paragraph 118(1)(b), does not mean that a taxpayer can ignore the onus of establishing the infirmity. It is open for an officer of the C.C.R.A. and for a judge not to be convinced by the simple statements of interested family members. An Appellant takes the risk of not being convincing if too much reliance is placed on the absence of a prescription in the Act that a medical opinion is required to confirm the effects of infirmity. The Act does not say that it would be unreasonable to request or provide medical evidence as to a dependant's general state of health. Nor does it suggest that medical evidence would not assist the taxpayer in establishing the state of health or vitality of the alleged dependent. On the other hand, that the "required" evidentiary bar of the subject provision is relatively low, when contrasted to other health related provisions in the Act, might be kept in mind in giving a contextual meaning to the word "infirmity".

[34]          In considering the contextual meaning of "infirmity" in paragraph 118(1)(b), its place in the Act must be considered. Paragraph 118(1)(a) (not set out above) provides for a married persons tax credit in the case of a taxpayer supporting a spouse. Persons such as the Appellant who do not have a claim in respect of a spouse can receive the equivalent credit under paragraph 118(1)(b) in recognition of supporting certain other qualified related dependents including an adult child provided, in the case of an adult child, that child is wholly dependent for support by reason of mental or physical infirmity. These are personal credits afforded, generally speaking, to individual taxpayers who support another person in their home. They are reduced where the dependant person has income in the year over $500.00 although, regardless of the income of the dependent person, a minimum credit is still allowed under paragraph 118(1)(b) in the amount of $6,000.00 times the appropriate percentage for the year. The survival of the minimum credit has nothing to do with assisting the taxpayer supporting a dependent person. It survives because where a claim is made under 118(1)(b), no claim can be made under 118(1)(c) (not set out above). That is, but for the claim under 118(1)(b), the taxpayer would be entitled to the same minimum credit under 118(1)(c) as a so-called "single status" taxpayer. Accordingly, the dependency portion of the 118(1)(b) credit is self-monitoring. The first dollars earned over $500.00 reduce the credit available in respect of the dependent and it is phased out completely when the dependent's income for the year reaches $5,500.00. Effectively, the section deems persons with income in excess of $5,499.00 as not being, at any time in the year, dependent for support on the relative with whom they are living regardless of the support that the supporting relative actually provides. This confirms that the "support" referred to in this paragraph must be taken to mean economic or financial support. Conversely, the provision recognizes the reality that persons earning less than $5,500.00 per year will likely be "wholly dependent" on someone else at some time in the year unless they have access to capital (which has not been asserted in this case). The inference of the provision, drawn from its express language that the dependency be "at any time in the year", is that if the income earned in the year cannot be expected to provide self-sufficiency for the entire year, the person will be wholly dependent for support for some part of the year. Seen in this way, I suggest, as well, that the idea of being "wholly dependent" does not speak to the degree of dependency at all. The degree of dependency issue is, as stated, self-monitoring. The reason for the "wholly dependent" requirement is to prevent the credit where support is provided wholly or in part by a person or agency other than the person claiming to be the sole supporter. This view is supported by a number of older cases where outside support resulted in a finding that a dependent person was not "dependent" on the particular person claiming the credit (or the deduction as it then was) who also provided support.[8]

[35]          The amendment to the Act that added the word "wholly" should not be taken as raising the required degree of dependence to complete dependency or if it does, then, as noted above, the focus must be "at any time in the year". Only with such construction or focus can the dependency requirement be compatible with the allowance for income to be earned by the dependent person.[9]

[36]          Neither the frailty bar that must be reached nor the evidentiary bar to establish it have been set very high in terms of the personal credit provisions. This, in my view, does not create an intolerable problem destined to frustrate the intention of Parliament. Paragraph 118(1)(b) does not appear to be as readily labelled a social assistance provision as subsection 118.2(1). Where social assistance to the medically handicapped or to those who care for them is the object of the provision, the bar is clearly and expressly raised. Not so in paragraph 118(1)(b). Such credits are simply part of a progressive tax system recognizing that the ability to pay tax is affected by the number of people in the household. We do not count adult children in this progressive model unless they are at some time in the year wholly dependent, on the family member claiming the credit, by reason of diminished health (as opposed to sheer laziness or a lifestyle choice).

[37]          Before turning to the meaning of "infirmity", I return to my earlier comments that the Act in using the term does not require that we know the cause of the condition. While I appreciate that the Respondent wants to know what caused the infirmity in order to better distinguish valid claims from those that might be viewed with suspicion, the Act imposes no such requirement. While infirmity will normally result from a diagnosable medical condition or a readily identifiable state of being such as old age that explains why a person is frail or sickly or not physically strong (weak), the Act does not require us to know the explanation. The subject provision of the Act is more easily administered where a medical condition is evident or attested to by a physician but again the Act does not require knowledge or understanding of the cause of the infirmity. The issue is not the reason for the infirmity. The issue is only whether the dependency results from infirmity according to its common meaning.

[38]          This is the contextual background to giving meaning to the word "infirmity" as used in paragraph 118(1)(b). In this context, it seems the meaning ascribed in Diaz is totally acceptable and appropriate. "Infirmity" is a state of poor health or deteriorated vitality. To this I would add, as elaborated on below, the word "abnormally". The dependent person credit is available in respect of an adult child living at home and dependent for support by virtue of abnormally poor health or deteriorated vitality. This captures all but a small element of the various dictionary meanings of the word "infirmity" and is consistent with the scheme of the Act. A missing element relates to moral weakness which I take, in this context, to mean "lacking in will" or "irresolute". This can perhaps describe a despondency that may be grounded in mental or emotional problems. While the support afforded Maureen by her mother may have helped foster an irresolute state (in terms of trying to be self-sufficient) that contributed to Maureen's dependency, there is no basis in the case at bar to suggest her dependency was the result of mental or emotional problems. Accordingly, that aspect of the definition of "infirmity" need not be considered. However, whether the issue is physical or mental infirmity, the cause of the infirmity should not be seen as the issue although inevitably some explanation may be sought. This leads me to suggest another possible definition equally acceptable and appropriate in my view but it goes further in that it does look to the cause of the infirmity save in a very general way.

[39]          In Tomlinson v. Prudential Insurance Co.,[10] an insurance law case, Laidlaw J.A., of the Ontario Court of Appeal, held that:

... the word "infirmity" must be taken in its ordinary sense to mean physical weakness, debility, frailty or feebleness of body resulting from constitutional defect.

[40]          The reason that I am attracted to this definition is its reference to "constitutional defect". A person's "constitution", physical and mental, is lay parlance for the whole of a person's health and vitality. It is the indefinable source of strength the diminishment of which does not beg to be explained by a diagnosable medical condition. Where there is no medical condition or state that explains the infirmity, the infirmity might be generally attributed to a constitutional weakness. In lay terms a "sickly" person might described as suffering a weak constitution. Such a person can, in my view, be properly described as infirm in the context of the subject provision of the Act.

[41]          Having regard to such definitions, I find nothing in the Act to support the Respondent's contention that Parliament considers "infirmity", as used in paragraph 118(1)(b), to be akin to or aligned with "disability". The Economic Statement referred to above is meagre support at best for such an alignment. While I agree that infirmity is meant to describe an abnormal state of health or well-being, it is not, in the context of paragraph 118(1)(b), akin to a disability. On the other hand, in that I agree that "infirmity" describes an abnormal state of health, the Respondent is correct in its view that general malaise or simple frailty resulting in occasional, temporary illness would not normally constitute an infirmity. There must be a degree of severity or persistence of health problems or deteriorated vitality that can readily be said to be abnormal. Further, there must be a causal connection between the abnormal state of health or vitality and the dependence so that a general malaise or simple frailty that does not convincingly result in dependence, will not meet the requirements of the subject provision. It will always be a question of fact as to whether the severity or duration of a poor state of health or deteriorated vitality is such as to be reasonably considered to be the cause of the dependence. The question is whether there is actual dependence for economic support at any time in the year by reason of abnormally poor health or deteriorated vitality. In context, this is a more appropriate question than "is the infirmity so severe and prolonged as to disable a person from being self-sufficient?".

[42]          Bringing the facts of the case at bar into this analysis, I am satisfied that there is sufficient truth to the testimony of the three witnesses heard at trial that Maureen was suffering abnormal fatigue and was prone to a variety of ailments. I find that it is unlikely that her breathing problems or fatigue were imaginary or exaggerated. I accept that during the subject years she was wholly dependent for support on the Appellant by reason of poor health and deteriorated vitality. While I have personal reservations as to whether the sheltered existence afforded Maureen by her family is in her best interest, given my distinct impression that Maureen is capable of more, I do not think that the subject provision invites me to impose my impressions of her potential as being determinative of whether or not she meets the requirements of the Act. That she is intellectually capable is not determinative of her actual dependence resulting from her physical infirmity. Her dependency and the Appellant's support are real and the reason she has been economically dependent is clearly poor health and deteriorated vitality beyond any standard of normalcy that might reasonably be devised.

[43]          For these reasons the appeals are allowed, with costs.

Signed at Ottawa, Canada, this 19th day of November 2002.

"J.E. Hershfield"

J.T.C.C.

COURT FILE NO.:                                                 1999-4876(IT)G

STYLE OF CAUSE:                                               Doris Mahoney and

                                                                                                Her Majesty the Queen

PLACE OF HEARING:                                         Winnipeg, Manitoba

DATE OF HEARING:                                           March 26, 2002

REASONS FOR JUDGMENT BY:      The Honourable Judge J.E. Hershfield

DATE OF JUDGMENT:                                       November 19, 2002

APPEARANCES:

For the Appellant:                                                 The Appellant herself

Counsel for the Respondent:              Tracy Harwood-Jones

COUNSEL OF RECORD:

For the Appellant:                

Name:                               

Firm:                 

For the Respondent:                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                                Ottawa, Canada

COURT FILE NO.:                                                 2000-2842(IT)G

STYLE OF CAUSE:                                               Doris Mahoney and

                                                                                                Her Majesty the Queen

PLACE OF HEARING:                                         Winnipeg, Manitoba

DATE OF HEARING:                                           March 26, 2002

REASONS FOR JUDGMENT BY:      The Honourable Judge J.E. Hershfield

DATE OF JUDGMENT:                                       November 19, 2002

APPEARANCES:

For the Appellant:                                                 The Appellant herself

Counsel for the Respondent:              Tracy Harwood-Jones

COUNSEL OF RECORD:

For the Appellant:                

Name:                               

Firm:                 

For the Respondent:                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                                Ottawa, Canada

1999-4876(IT)G

BETWEEN:

DORIS MAHONEY,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeals heard on common evidence with the appeals of Doris Mahoney (2000-2842(IT)G) on March 26, 2002 at Winnipeg, Manitoba, by

the Honourable Judge J.E. Hershfield

Appearances

For the Appellant:                                                 The Appellant herself

Counsel for the Respondent:              Tracey Harwood-Jones

JUDGMENT

                The appeals from the assessments made under the Income Tax Act for the 1994, 1995 and 1996 taxation year are allowed, with costs, for the reasons set out in the attached Reasons for Judgment and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment.

Signed at Ottawa, Canada, this 19th day of November 2002.

"J.E. Hershfield"

J.T.C.C.

2000-2842(IT)G

BETWEEN:

DORIS MAHONEY,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeals heard on common evidence with the appeals of Doris Mahoney (1999-4876(IT)G) on March 26, 2002 at Winnipeg, Manitoba, by

the Honourable Judge J.E. Hershfield

Appearances

For the Appellant:                                                 The Appellant herself

Counsel for the Respondent:              Tracey Harwood-Jones

JUDGMENT

                The appeals from the assessments made under the Income Tax Act for the 1997 and 1998 taxation year are allowed, with costs, for the reasons set out in the attached Reasons for Judgment and the assessments are referred back to the Minister of National Revenue for reconsideration and reassessment.

Signed at Ottawa, Canada, this 19th day of November 2002.

"J.E. Hershfield"

J.T.C.C.