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Counsel for the Appellant: C. Michael Ollier

Counsel for the Respondent: Bonnie Boucher

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REASONS FOR JUDGMENT

(Delivered orally from the Bench at

Hamilton, Ontario, on March 22, 2004)

McArthur J.

[1]      These are appeals by Vernon Peter from a decision of the Minister of National Revenue disallowing the deduction of a non-refundable tax credit in respect of a disability for the 1998 and 1999 taxation years. The Minister's assumptions of fact and position is that at no time in the 1998 and 1999 taxation years was the Appellant suffering from a severe, prolonged mental or physical impairment, the effects of which were such that the ability of the Appellant to perform a basic activity of daily living was markedly restricted all or almost all of the time even with therapy and the use of appropriate aids and medication.

[2]      Both parties referred to sections 118.3 and 118.4 of the Income Tax Act. The Appellant in his Notice of Appeal sets out briefly several disabilities, the most serious of which includes his sight (keratoconjutivitis sicca), depression and anxiety, and type II diabetes. He states:

... As a result of the keratoconjutivitis sicca, I am unable to keep my eyes open for more than 4 hours. I generally must keep my eyes completely closed for approximately 1 hour out of every 4. Along with this, I have blurred vision and photophobia. The depression and anxiety cause me to frequently withdraw and avoid leaving my home because of an inability to deal with people. I feel that my diabetes is serious and is uncontrollable due to my allergy to insulin.

Briefly, the Appellant who is approximately 45 years old, had been working for the steel plant Dofasco until 1992 or 1993 when he was put on disability where he remains. The disability was brought on through his being exposed at work to high-intensity lighting which severely damaged his eyesight.

[3]      The Appellant gave evidence in chief and in cross-examination to the effect that he has to wear heavy sunglasses which were prescribed by a doctor, although they can be easily purchased without prescription and his do not require a prescription. He stated that his daily routine, including in the two years in question, is such that he stays in bed until about noon. He operates very poorly during the daylight because of his sight restriction. Upon eating at about 12:00 noon, he exercises to reduce the effects of his diabetes and then takes a nap and does not go out at all or very little in the daylight. He resides with his mother. He does drive a car to a limited extent but for short periods and in the immediate neighbourhood of his home. He cannot drive for more than a period of one hour. He can go out and do banking and grocery shopping and medical appointments and the like, but whenever possible, he does these activities after 6:30 p.m. depending on the season. After the daylight has turned to dusk, if he is to be out more than one hour, he has to rest every hour.

[4]      He is constantly in pain. Eye drops make his situation worse, but he does use some eye lubricant some 20 times a day. He described his situation as dry-eye syndrome. He can read, but in a very limited amount, and it affects the situation if he reads for any extended periods. He can dress himself, prepare his own meals, exercise, use a stationary bike, and his legs are physically able to take him where he wants. It is his eyesight that severely restricts his activity of daily living. In cross-examination, he stated that if his mother asked him to go for milk, he would not go until after daylight. If he did, he would get sick. He stated: "I live in complete isolation. I exercise at home. I could not go to a gym".

[5]      On one occasion he was asked to make a presentation on the invitation of Worker's Compensation or a related organization. He had to leave before he made the presentation because he could not tolerate being exposed to the light. He stated: "If I was blind or in a wheelchair, I could function and perhaps go to university. But under my present circumstances, I cannot because it takes an inordinate amount of time to read and function in the daylight. It aggravates the problem, and my walking is severely restricted because of it". He goes to bed finally for the evening or for the night between 3:00 and 4:00 a.m. and does not sleep very well. He can listen to the radio and music. He has not been diagnosed as being legally blind and he does not wear prescription lenses, but exposing his cornea to the light causes swelling. The cornea in his eyes were burnt through his work conditions with Dofasco.

[6]      The Respondent called as a witness Dr. Haines who had signed the Disability Tax Credit Certificates which were entered as Exhibits R-1 and R-2 for the years in issue. Dr. Haines had listened to the Appellant's evidence (which he agreed with) and confirmed that in his professional dealings with the Appellant, he considered the Appellant blind most of the time because of his restriction. Although he can read on occasion he is limited. The doctor referred to subparagraph 118.4(1)(c)(i) of the Act which deals with eyesight. Dr. Haines is not an ophthalmologist and had sent the Appellant to four or five eye doctors over the years. In reading their reports, Dr. Haines came to the conclusion that the Appellant was markedly restricted substantially all of the time and that he is blind or unable to perform a basic activity of daily living. He refers to the criteria of "perception" in subsection 118(4). He came to that conclusion having seen the Appellant since about 1994 or 1995 and having corresponded with a specialist.

[7]      I have no difficulty in concluding for the purposes of the disability tax credit, that the Appellant is effectively blind. In addition, it takes him an inordinate amount of time to perform a basic activity of daily living which includes perceiving. I agree with the Appellant's counsel, Mr. Ollier, who referred the Court to Johnston v. The Queen,[1] and specifically where the Court agrees that one should take a compassionate view. As stated many times, subsections 118(3) and (4) must be given a human and compassionate construction.

[8]      The Appellant is very deserving and the appeals for the 1998 and 1999 taxation years are allowed.

Signed at Ottawa, Canada, this 14th day of June, 2004.

McArthur J.

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