Citation: 2012 TCC 394
Date: 20121108
Docket: 2012-2088(IT)I
BETWEEN:
BILL JORDAN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Woods J.
[1]
Bill Jordan appeals in respect of
the disallowance of a medical expense tax credit for travel expenses in the
amount of $14,883 that he claimed for the 2010 taxation year. The expenses were
incurred in the course of traveling between Mr. Jordan’s home and the
location where his spouse was receiving medical treatment.
Background
[2]
The appellant’s spouse, Terri
Jordan, was struck by an aneurysm at the age of 48. Tragically, brain damage
resulted and Ms. Jordan currently resides in a long-term care facility.
[3]
Immediately after the incident,
Ms. Jordan was transported from her hometown of Weyburn, Saskatchewan to a
hospital approximately 120 kilometres away in Regina. She was treated in the
hospital for about six weeks and was then transferred to a rehabilitation centre
in Regina. Weyburn did not have appropriate hospital or rehabilitation
facilities for her treatment. After four months at the rehabilitation facility,
Ms. Jordan was taken back to Weyburn where she spent some time in hospital
and was then moved to a long-term care facility where she currently resides.
[4]
Mr. Jordan accompanied his spouse from Weyburn to Regina and six months later he accompanied her back to
Weyburn. In the interim, Mr. Jordan made almost daily trips between Weyburn and
Regina to assist with his spouse’s recovery, which required extensive
therapy.
[5]
Ms. Jordan was in Regina from March 19 to September 10, 2010. Up until August, Mr. Jordan was given leave from work and he spent long hours with his spouse on a daily basis.
Beginning early in August, Mr. Jordan went back to work on a part-time
basis but he continued to make the trek to Regina after work on most days.
[6]
In his income tax return for the
2010 taxation year, Mr. Jordan claimed a medical expense tax credit in
respect of $11,730 for motor vehicle expenses and $3,468 for meal expenses in Regina. These expenses were incurred in respect of 102 round trips between Weyburn and Regina.
[7]
The Minister allowed
the medical expense tax credit in respect of Mr. Jordan’s expenses for one round trip which took place when Ms. Jordan initially went to Regina and when she returned to Weyburn. The expenses were allowed on the basis
that Mr. Jordan’s attendance was necessary when his spouse was traveling. It is
the additional 101 round trips that are at issue. The Crown does not dispute
the amount that has been spent.
Analysis
[8]
Mr. Jordan relies on paragraph 118.2(2)(h) of the Income Tax Act, which permits a
medical expense tax credit in respect of certain travel expenses incurred when
a patient requires medical treatment at least 80 kilometres away from their
home. The provision is reproduced below, together with paragraph 118.2(2)(g),
a related provision.
(2) Medical
expenses - For the purposes of subsection (1), a medical expense of an
individual is an amount paid
[…]
(g) [transportation]
- to a person engaged in the business of providing transportation services, to
the extent that the payment is made for the transportation of
(i) the
patient, and
(ii) one
individual who accompanied the patient, where the patient was, and has been
certified by a medical practitioner to be, incapable of travelling without the
assistance of an attendant
from
the locality where the patient dwells to a place, not less than 40 kilometres
from that locality, where medical services are normally provided, or from that
place to that locality, if
(iii) substantially
equivalent medical services are not available in that locality,
(iv) the
route travelled by the patient is, having regard to the circumstances, a
reasonably direct route, and
(v) the
patient travels to that place to obtain medical services for himself or herself
and it is reasonable, having regard to the circumstances, for the patient to
travel to that place to obtain those services;
(h) [travel
expenses] - for reasonable travel expenses (other than expenses described
in paragraph (g)) incurred in respect of the patient and, where the patient
was, and has been certified by a medical practitioner to be, incapable of
travelling without the assistance of an attendant, in respect of one individual
who accompanied the patient, to obtain medical services in a place that is not
less than 80 kilometres from the locality where the patient dwells if the
circumstances described in subparagraphs (g)(iii), (iv) and (v) apply;
[9]
As I understand the Crown’s
position, it is that the tax credit only applies to travel expenses of an
accompanying person if they are incurred as part of the transportation of the
patient.
[10]
Counsel for the Crown acknowledges that this interpretation
is not explicit in the legislation, however he submits that it is implied by
the phrase “who accompanied the patient.”
[11]
Counsel for Mr. Jordan relies
in large part on the decision of this Court in Bell v The Queen, 2009
TCC 523, which concluded that s. 118.2(2)(h) includes the travel costs
of a spouse who accompanied the patient and lived away from home during the
period of treatment. In Bell, the Minister had allowed the hotel and
meal costs of the spouse but did not allow the cost of traveling between the
hotel and hospital. The reasons of Bowie J. in allowing the additional costs
are reproduced below.
5 [In
respect of the allowance by the Minister of hotel costs] I can only assume that
the Minister had regard not only to section 12 of the Interpretation
Act, which mandates
a fair, large and liberal interpretation of legislation, but also to the recent
jurisprudence requiring that statutes be given an interpretation that takes
into account not only language and context, but also the purpose of the
enactment. I expect that, having approached paragraph (h) in that way, he would have seen that it
was aimed not simply at the cost of moving the patient, but at those additional
expenses incurred by a patient, or the person accompanying a patient, during
the period between first leaving home to go to the place of medical treatment,
and returning home after the treatment is completed. Travel expenses, in
other words, embrace not simply the cost of movement from one place to another,
but also the attendant costs of living away from home during the treatment
period. The Minister, it seems, recognized this in respect of accommodation and
meals, but not in respect of the cost of travel back and forth between the
hotel and the hospital for the appellant's wife during his hospitalization. I
can see no difference between the two. They are both expenses to which the
patient's spouse was subject as a result of his illness and the need to be
treated more than 80 kms. from his home in Nanaimo. Clearly, the purpose of
this paragraph in section 118.2 of the Act is to provide some relief from the
extraordinary expenses incurred when a patient must receive medical treatment
80 kilometers or more from home. (Emphasis added.)
[12]
In my view, the interpretation
above is a very reasonable one in the context of a broadly-worded and ambiguous
provision.
[13]
The question that remains is
whether there is a difference between the expenses in Bell, which were
living expenses incurred away from home, and the expenses in this case, which
were motor vehicle expenses to travel back and forth between Weyburn and Regina. I do not see any principled reason for making a distinction between the two. They
are both travel expenses incurred by an accompanying person during the period
of treatment.
[14]
It may have been that the Minister
was influenced in this case by the long period of time that Ms. Jordan was
being treated in Regina and the high value of the expenses that were incurred. I
note, for example, that one of the assumptions made by the Minister in
reassessing was that Mr. Jordan’s presence was not necessary during the
rehabilitation phase.
[15]
The evidence in this case leaves
no doubt that Ms. Jordan was required to receive medical treatment in Regina for a protracted length of time and that Mr. Jordan’s daily presence
contributed significantly to her recovery. It is appropriate to apply the principle from Bell in this case, where the circumstances are obviously sympathetic.
[16]
The appeal will be
allowed, with costs to the appellant in accordance with the tariff.
Signed at Toronto, Ontario this 8th day of November
2012.
“J. M. Woods”
Email this Content