Risk of relapse meets legal test

The claimant in LeClaire v. The Queen suffered from uncontrolled epileptic seizures since 1990 requiring constant supervision at home and outside the home. However, she was essentially denied the DTC because she was in “full possession of her mental and physical faculties and consequently can perform the basic activities of daily life herself” when not experiencing a seizure.

Judge François Angers allowed the DTC noting the following:

“The possibility of an epileptic seizure giving rise to inability in all these regards is a type of time bomb that compromises the performing of the basic activities of daily life. Without another person present, her life is in danger… This constant presence is, however, essential for the Appellant's survival and that, in my opinion, makes her an individual who marginally meets the requirements of sections 118.3 and 118.4.”

In Peggy Doe v. The Queen, Judge Gerald. J. Rip also noted the special circumstances of an individual diagnosed with epilepsy as well as a number of psychiatric disorders including anorexia nervosa, obsessive compulsive disorder and post-traumatic stress disorder.

“When a person does not know from one moment to another when a seizure will occur - but knowing a seizure will occur, even with medication - that person's ability to perform any activity, including an activity of daily living, as defined, is markedly restricted.”