Teskey J.T.C.C.: — The appellant elected to proceed under the informal procedure in her Notice of Appeal wherein she appealed her assessment of income tax for the years 1988 through to 1993.
The appellant withdrew her appeals for the 1988, 1989, 1990 and 1991 years.
The only issue before me is the appellant’s disability to walk without a cane sufficient to place her within the wording of subsection 118.3(1) of the Income Tax Act (the “Act”) and to entitle her to the non-refundable disability tax credit.
The evidence given by the appellant is not in dispute. She lives by herself in her own home. Her only disability is that of walking. She cannot walk unaided. She must lean on furniture in her home or use a cane or a shopping cart while out of the house. Although the appellant appears to take a slightly longer time to move around the house and dress herself, it certainly is not an inordinately long time. From observing her move around the courtroom, she manages quite well using her cane or touching furniture. Her capacity to travel around the courtroom was virtually the same as a normal person.
There is no doubt she is a very determined person and her perseverance is to be admired.
The appellant drives her own car, does her own shopping, but requires help to get her parcels into the house. She also uses Handi-Transit and taxi. She attends the symphony on a monthly basis.
At the conclusion of the hearing on Monday, October 23rd, I adjourned the hearing to Wednesday, October 25 at 2:30 p.m. to give the appellant the opportunity to call her chiropractor as a witness. When the case was called at 2:30 p.m., Ronald Schnalcel, a solicitor, appeared to represent her. No medical evidence was called and both parties submitted their closing arguments.
The respondent referred me to a decision of my colleague Bowman in Craven v. R. (sub nom. Craven v. Canada), [1995] 1 C.T.C. 2883 (T.C.C.). I concur in the conclusion he came to therein.
Section 118.4 reads as follows:
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) 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.
Under this very strict inflexible test, I cannot say that the appellant’s ability to perform her basic activity of daily living as defined is markedly restricted.
The appeals are dismissed.