Docket: 2003-2619(IT)I

BETWEEN:

NICOLA MARRONE,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

____________________________________________________________________

Appeal heard on April 16, 2004, at Toronto, Ontario,

By: The Honourable Justice A.A. Sarchuk
Appearances:
Agent for the Appellant:	Aurelio Marrone
Counsel for the Respondent:	Eric Sherbert

____________________________________________________________________

JUDGMENT

          The appeal from the assessment of tax made under the Income Tax Act for the 2001 taxation year is dismissed.

Signed at Ottawa, Canada, this 15th day of July, 2004.

"A.A. Sarchuk"

Sarchuk J.

Citation: 2004TCC507

Date: 20040715

Docket: 2003-2619(IT)I

BETWEEN:

NICOLA MARRONE,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

Sarchuk J.

[1]      This is an appeal by Nicola Marrone from an assessment of tax with respect to his 2001 taxation year by virtue of which the Minister of National Revenue disallowed the deduction of a credit for mental or physical impairment. In so confirming the assessment of tax, the Minister made the following assumptions of fact:

(i)       in the 2001 taxation year, the Appellant was blind in his right eye and had 20/20 visual acuity in his left eye;

(ii)       the disability tax credit certificate dated October 21, 2001 and filed by the Appellant for the taxation year reported that the Appellant is able to see and that the Appellant is able to perform all of the basic activities of daily living that are listed on that certificate all or substantially all of the time; and

(iii)      in the 2001 taxation year, the Appellant was not blind nor was the Appellant suffering from a severe and 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 substantially all of the time, even with therapy and the use of appropriate devices and medication.

[2]      The Appellant was the sole witness to testify. In May 1968, in the course of his occupation as a carpenter, he suffered an injury as a result of which he lost all sight in his right eye. In his testimony, he indicated that at the present time he is having some difficulty with his left eye which he described as "I see other black spots on the left eye".[1] When asked questions such as the following by his representative:

With respect to other basic activities of daily living, you have mentioned walking. Seeing your vision is obviously a basic activity of daily living, how does that restrict your daily activities, for example, reading, seeing other objects, your perception?

and:

Does it takes you an inordinate amount of time, a lot longer, to look at things and make sense of what you're looking at, what you are seeing?

The Appellant responded:

The time will go by when always getting worse and not any better, eh.

and

It takes longer because, you know, the black spot that is in the eye, eh.

In other words, he was not particularly informative and his representative's efforts to elicit more detail were of no avail.

[3]      The Appellant's representative filed a disability tax credit certificate (Exhibit A-1) which had been completed by an optometrist. This document confirms that the Appellant is legally blind in his right eye. In the section captioned 'Diagnosis', the optometrist wrote:

As perviously (sic) stated in the Disability Tax Credit Certificate I signed on April 18, 1989, Mr. Marrone has a severe impairment that is prolonged and markedly restricts his activities of daily living, including but not limited to visual perception, peripheral vision.

Unfortunately, the author of the document failed to complete the form and nothing in that certificate or the testimony provides the Court with an explanation of the optometrist's decision not to answer any of the questions set out on page 3 which deal with the ability of the patient to walk, think and remember, feed or dress himself, etc. I should also note that on an earlier occasion, this appeal came before this Court and an adjournment was granted for the express purpose of permitting the Appellant to call a witness to provide the appropriate medical evidence. It was also indicated to the Appellant that while it would be open to the Court to admit the requisite written medical report without the doctor being there, that would depend on a number of factors and was not a sure thing. The Appellant's representative chose not to subpoena the optometrist and although he produced a certificate which, had it been completed properly, might have provided sufficient information to warrant consideration of the Appellant's appeal. However, that was simply not the case.

[4]      It must also be noted that no evidence whatsoever was adduced to negate the Minister's assumption that a disability tax credit certificate had been filed by the Appellant for the 2001 taxation year and it stated that the Appellant was in fact able to perform all of the basic activities of daily living listed therein.

[5]      The evidence before me with respect to the Appellant's condition in the taxation year in issue does not support his claim that the vision in the good eye was also affected to the extent that he was unable to continue performing his basic activities of daily living. I note that he drives a vehicle and that with respect to the other normal daily activities such as eating, dressing and so forth, he testified that "it is very, very hard with one eye doing things" and I accept that may well be the case. I must however conclude that although the Appellant's quality of life was obviously affected, the degree to which that has occurred is inadequate for the purposes of the relevant section of the Income Tax Act. Accordingly, the appeal is dismissed.

Signed at Ottawa, Canada, this 15th day of July, 2004.

"A.A. Sarchuk"

Sarchuk J.

CITATION:

2004TCC507

COURT FILE NO.:

2003-2619(IT)I

STYLE OF CAUSE:

Nicola Marrone and Her Majesty the Queen

PLACE OF HEARING:

Toronto, Ontario

DATE OF HEARING:

April 16, 2004

REASONS FOR JUDGMENT BY:

The Honourable Justice A.A. Sarchuk

DATE OF JUDGMENT:

July 15, 2004

APPEARANCES:

Agent for the Appellant:

Aurelio Marrone

Counsel for the Respondent:

Eric Sherbert

COUNSEL OF RECORD:

For the Appellant:

Name:

N/A

Firm:

N/A

For the Respondent:

Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada

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