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Citation: 2003TCC658
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Date: 20031024
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Docket: 2002-4958(IT)I
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BETWEEN:
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LEO HOBEN,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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____________________________________________________________________
Appearances
For the
Appellant:
The Appellant himself
Counsel for the
Respondent:
Dominique Gallant
____________________________________________________________________
REASONS FOR JUDGMENT
(Delivered orally from the Bench at Sydney,
Nova Scotia, on
Thursday, June 19, 2003 and revised as to style and
syntax at
Ottawa, Canada, on October 23, 2003.)
Margeson, J.T.C.C.
[1] One of the jurisdictions of the
Court is the hearing of appeals under the Income Tax Act,
("Act"). The Minister of National Revenue
("Minister") assessed the Appellant for the taxation
year 2000. In filing a return, the Appellant did not include a
claim for a disability tax credit. Then he asked that his file be
adjusted for the years 1985 to 2000 to include claims for the
disability tax credit for those years.
[2] The Minister advised the Appellant
that this request was denied. Then he filed a Notice of Objection
for the 2000 taxation year. The Court is only dealing with the
2000 taxation year here today. The Minister confirmed the
assessment for the 2000 year, and in that, he denied the request
for a disability tax credit. In doing so, he made certain
presumptions of fact. At paragraph 8 of the Reply to the Notice
of Appeal ("Reply"), he said:
a) the Appellant filed a Disability Tax Credit Certificate
dated May 31, 2001 and signed by
Dr. Knott;
b) Dr. Knott indicated that the
Appellant had 20/20 vision in his left eye and no vision in his
right eye; and
c) the Appellant's request
included a letter by Dr. Gupta, and [sic] eye surgeon,
explaining that cataract surgery did not improve the
Appellant's vision.
[3] The issue to be decided is whether
or not the Appellant is entitled to claim the disability tax
credit for the 2000 taxation year under sections 118.3 and 118.4
of the Act.
[4] The Appellant indicated to the
Court that he was schizophrenic and is not himself. He hears
voices and does not like to be around people. He gets very upset
when he is in places where he does not feel comfortable so he
rarely leaves his house. He indicated that he does not know where
he is sometimes.
[5] The Court asked him if he could
proceed and he was not sure but when faced with an adjournment,
he indicated that he could proceed. The Court believed that
adjourning the matter would only increase the tension on the
Appellant and, lead to further uncertainty in his mind. He did
not believe that he would be in a better condition to proceed at
a later date.
[6] The Court, after further
questioning of the Appellant, was satisfied that he could proceed
and inform the Court about the factual situation that existed in
the relevant period of time for this appeal.
Evidence
[7] The Appellant indicated that he
was blind in his right eye. He reviewed the circumstances leading
up to this appeal. He was in a most agitated state of mind in
Court but was able to tell the Court that his disability claim
was in regard to his right eye. He also saw a psychiatrist about
his mental state. (It is possible that a claim might be presented
at some time in light of his mental condition.)
[8] In cross-examination he was
referred to the medical certificate and was familiar with its
contents after having it read to him. He did not object to the
certificate being tendered into evidence but he did not
understand the full import of some of the questions. i.e.:
regarding his visual acuity, but this is normal for most lay
persons. He was, however, able to answer the Court's specific
questions about the certificate and his medical history.
[9] He was able to tell the Court that
he worked as a belt operator at Devco in the year 2000 and that
he worked on a conveyor belt that moved coal. This was during the
year under review.
Argument on behalf of the Respondent
[10] The only question that this Court has
to decide is with respect to the 2000 taxation year. Whatever the
Court decides about the 2000 taxation year and whatever is argued
with respect to that year does not apply to 2001 or 2002. There
is no doubt that Mr. Hoben had a serious condition. He did
not have any vision in one eye. He did have some vision in the
other eye, although we do not know exactly how much.
[11] From the certificate and
Mr. Hoben's testimony, the Court should conclude that he
was able to see with the one eye. He had other health problems in
2000 but there is no certificate regarding these problems. The
case law has consistently denied the disability tax credit where
the claimants could see with one eye.
Analysis and Decision
[12] This is a very touching case, I must
say. Mr. Hoben certainly has a huge disability, there is no
question about that. But what is before the Tax Court at this
time is the year 2000 and his application for a disability tax
credit based upon the problem with his eyesight. The certificate
that is before the Court indicates that he had 20/20 vision in
his left eye but no vision in his right eye. It does not refer to
any other disability that he may very well have had. He was
working in the year 2000. Even though he might have done it with
difficulty, he must have been at least capable of performing the
job on that conveyor belt in the year 2000.
[13] Taking all of the circumstances into
account for the year 2000, the Court finds that on the basis of
the certificate before me and on the basis of the law, he is not
entitled to the disability tax credit for his vision problem in
the year 2000. That has nothing to do with 2001 and 2002.
[14] The Court suggests that he obtain a
further certificate for the following years based upon his mental
condition.
[15] The appeal is dismissed and the
Minister's assessment is confirmed.
Signed at Ottawa, Canada, this 24th day of October 2003.
Margeson, J.
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