Date: 19980811
Docket: 97-3606-IT-I
BETWEEN:
SANDRA L. BRYCE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor
Judgment
McArthur, J.T.C.C.
[1]
The Appellant appeals the Minister of National Revenue's
decision to disallow the expenses of $10,011.22 sought by the
Appellant in computing her 1995 taxation year pursuant to
subsection 118.2(1) of the Income Tax Act (the
"Act"), determining that the amount was not
medical expenses as defined in subsection 118.2(2) and in
particular that the travel expenses were not incurred in respect
of the patient or of an individual who accompanied the patient
incapable of travelling without assistance of an attendant to
obtain medical services.
[2]
The Appellant lives with her family in Whitehorse, Yukon where
this hearing took place. The facts are tragic and upon the
Appellant's request a ban of confidentiality is placed on
the transcript of the trial evidence.
[3]
Evidence was presented by the Appellant and her husband, Gregory
Bryce. They are highly intelligent, caring, compassionate and
articulate parents of the Appellant's adoptive daughter
Sarah. They also have six other children. Twenty year old Sarah,
a native Indian, was born with Fetal Alcohol Syndrome to a
15 year old mother and adopted by the Appellant shortly
after birth.
[4]
The facts will remain brief. During her first 12 years Sarah was
sick and hospitalized "over 100 times". She has led a
troubled life from birth. From the age of 12 in 1990 she
commenced a journey that included alcohol and substance abuse,
self abuse, suicide attempts and abuse by others. Whether under
the influence of drugs or not she was very vulnerable to the
influence of her peers and required intensive supervision.
[5]
About January 1, 1995, she was admitted to Foothills Hospital in
Calgary[1] under
the care of Dr. Wilkes. On January 4, 1995, he
wrote the following:
"It was necessary for Gregory and Sandra Bryce
(Sarah's stepfather and mother) to stay in Calgary on
January 1, 2, 3, 4 and 5, 1995 to have her admitted to the Young
Adult Program at the Foothills Hospital, to be interviewed by
myself and other staff on each day, and to work with us in
forming a treatment/care plan.
It will be important to conduct ongoing family meetings every
three to four weeks with Sarah's mother and stepfather.
Matt, her brother, should visit her regularly from Cranbrook. I
would strongly advocate for financial assistance regarding travel
and living expenses for Sarah's family."
[6]
On July 18, 1995, Dr. Wilkes wrote the
following:
"Sarah continues to be involved in treatment for her
substance abuse, post traumatic stress disorder and attention
deficit difficulties. It has been necessary for Gregory and
Sandra Bryce to visit Calgary regularly to meet with the
different treatment team leaders at Eagle Moon Lodge and attend
the different case review meetings. These dates include:
March 23-27, April 13-18,
May 5-9 and June 15-20.
These meetings will still continue to be relevant to
Sarah's treatment and well-being over this next year and
the proposed treatment period for Sarah. I hope you will support
the Bryce's application for financial support regarding
their travel and living expenses."
[7]
Sarah was admitted to Wood's
Homes - Bowness Treatment Centre August 1 to
August 31, 1995. In a report the Clinical Coordinator
wrote in part:
"IV.
FAMILY
Relations as before, remain very close. It was decided that
Sarah would talk to her mother on the phone Wednesdays and
Sundays. Sarah found it difficult at first but she eventually
accepted it. Sarah's mother had concerns that Sarah was too
dependent on her and believed that limiting contact to twice
weekly would be in Sarah's best interest. Sandy remained in
regular contact with Sarah's therapist and case manager on
a weekly basis via regularly scheduled teleconference calls.
Sandy is very committed to supporting Sarah through her treatment
and preparing her to return home."
[8]
The Appellant claims as medical expenses, travelling costs to
visit Sarah in Calgary, at times with her husband and children,
on 12 occasions in 1995. Presently, it would appear that
Sarah's condition is much more stable. She lives at home
with her parents. The Appellant also claimed the cost of
telephone calls in 1995 to Sarah and to those responsible for her
care in the amount of $4,000.
[9]
In the Notice of Appeal, Gregory Bryce stated:
"I believe that my daughter's situation, as
described, constituted a severe and prolonged impairment which
markedly restricted her ability to perform a basic activity of
daily living - namely, that her alcohol
addiction, suicidal thoughts and actions, depression,
Post-Traumatic Stress and Fetal Alcohol Effect, among other
conditions, severely impaired her ability to perceive
reasonably and realistically. Sec. 118.4(1): (a),
(b) and (c)(l).
I also believe that my and my family's expenses to
travel to Calgary and to talk to my daughter by telephone were an
essential component of her care and treatment, were deemed so in
writing by her psychiatrist, and should be treated the same as
the costs of care or training at a school, institution or other
place. Sec. 118.2(2)(e); 118.2(2)(g) and
(h)."
[10] Applying
the criteria in section 118.4, the Appellant states she
qualifies for a disability tax credit pursuant to
subsection 118(3). She is a social worker who has become
very knowledgeable in the treatment required for Sarah. This
treatment includes as a necessary component, a supportive
family.
Position of the Respondent
[11] The
Appellant claimed medical expenses that are not found as medical
expenses in subsection 118.2(2) of the Act.
Subsection 118(3) does not apply because there was no
medical certificate as required and the criteria in
subsection 118.4(1) are not met.
Legislation
[12]
Subsection 118.2(1) reads in part:
"(1) For the purpose of computing the tax payable under
this Part by an individual for a taxation year, there may be
deducted an amount [...]"
[13]
Subsection 118.2(2) reads in part:
"(2) For the purposes of subsection (1), a medical expense
of an individual is an amount paid
[...]
(e) for the care, or the care and training, at a
school, institution or other place of the patient, who has been
certified by an appropriately qualified person to be a person
who, by reason of a physical or mental handicap, requires the
equipment, facilities or personnel specially provided by that
school, institution or other place for the care, or the care and
training, of individuals suffering from the handicap suffered by
the patient;
[...]"
Analysis
[14] Sarah
suffers from a multiplicity of factors affecting her mental state
which include the effects of fetal alcohol syndrome manifesting
as attention deficit disorder, depression and the effects of a
chaotic lifestyle involving substance abuse and experiencing a
variety of stressful events including extreme assault. In 1995,
she was given Depo-Provera injections for contraception and
as a mood stabiliser. Without constant care, in 1995, her life
was in danger. An example of this is found in the report of
Carole Sundborg[2] who wrote the following on page 3 of her
report:
"August 12, 1995 - (Sarah) left without telling
caregiver at 11:30 p.m. Met boyfriend at designated spot and
proceeded to drink hair spray during which time Sarah jumped into
the river and her boyfriend pulled her out. He threatened to get
hit by an oncoming train and Sarah stated that if he didn't
stop this behaviour, she would stand on the tracks with him and
she too would be hit by the train. A third person there pushed
her off the tracks and avoided the train. Her boyfriend was hit
and was hospitalized, suffering a severed liver."
[15] The
illness Sarah suffers is not yet fully understood by the medical
profession and, of course, Revenue Canada and this judge. It is
severe and has numerous symptoms requiring support, supervision
and care of trained personnel.
[16] In
applying paragraph 118.2(2)(e), humanely and with an
attempt to achieve the intention of the Legislature, I find that
the Appellant incurred medical expenses for the care of Sarah at
the institutions in which she resided in 1995 in Calgary.
Dr. Wilkes, an appropriately qualified person, certified
Sarah to be a person who by reason of mental handicap required
the personnel, including her parents for her care and training.
With an extraordinary dedication the Appellant, who is a
professional social worker, received the training necessary from
the Calgary institutions to qualify under the meaning of
personnel in paragraph 118.2(2)(e).
[17] Each case
depends on its own facts and to a degree on the Court's
perception of facts as applied to the legislation. I have arrived
at the conclusion, based on the evidence and on a compassionate
interpretation of what I feel Parliament intended in
paragraph 118.2(2)(e). The decision must be based not
only on the facts but on legal principles.
[18] For those
principles I have relied heavily on the reasoning of Bowman, J.
in Radage v. The Queen, 96 DTC 1615 wherein at
page 1625, dealing with subsection 118.3, he stated:
"[...]
(a) The legislative intent appears to be to provide a modest
amount of tax relief to persons who fall within a relatively
restricted category of markedly physically or mentally impaired
persons. The intent is neither to give the credit to everyone who
suffers from a disability nor to erect a hurdle that is
impossible for virtually every disabled person to surmount. It
obviously recognizes that disabled persons need such tax relief
and it is intended to be of benefit to such persons.
(b) The court must, while recognizing the narrowness of the
tests enumerated in sections 118.3 and 118.4, construe the
provisions liberally, humanely and compassionately and not,
narrowly and technically. In Craven v. The Queen,
94-2619(IT)I, I stated:
The application of the inflexible tests in section 118.4 leaves
the court no room to apply either common sense or compassion in
the interpretation of the disability tax credit provisions of the
Income Tax Act - provisions that require a compassionate
and common sense application.
In my view I stated the test unduly narrowly in that case. I
have heard many disability tax credit cases since that time and
my thinking has evolved. [...] If the object of Parliament, which
is to give to disabled persons a measure of relief that will to
some degree alleviate the increased difficulties under which
their impairment forces them to live, is to be achieved the
provision must be given a humane and compassionate construction.
Section 12 of the Interpretation Act reads as
follows:
Every enactment is deemed remedial, and shall be given such fair,
large and liberal construction and interpretation as best ensures
the attainment of its objects.
(c) If there is doubt on which side of the line a claimant
falls, that doubt should be resolved in favour of the
claimant.
[...]"
[19] While
Judge Bowman was referring to the disability tax credit,
section 118.3, I find his reasoning applies equally and as
stated by him, to the present situation and
subsection 118.2(2).
[20] In
addition to the amounts allowed by the Minister the travel
expenses in the net amount of $6,012 are allowed.
The
amount for telephone costs is not allowed. Telephone costs are
not provided in the medical expenses enumerated in
subsection 118.2(2).
[21] While
Sarah's impairment may have entitled the Appellant to
successfully make a claim under section 118.3 of the
Act, this approach was an after thought of
Mr. & Mrs. Bryce and no certificate in
prescribed form, as required by paragraph 118.3(1)(a.2) was
provided. This claim fails.
[22] In
conclusion, the appeal is allowed to permit the further allowance
of $6,012 in medical expenses in excess of the amount allowed by
the Minister for the 1995 taxation year. No order is made with
respect to costs.
Signed at Ottawa, Canada, this 11th day of August 1998.
" C.H. McArthur "
J.T.C.C.
COURT FILE
NO.:
97-3606(IT)I
STYLE OF
CAUSE:
Between Sandra L. Bryce and
Her Majesty the Queen
PLACE OF
HEARING:
Whitehorse, North West Territories
DATE OF
HEARING:
July 20, 1998
REASONS FOR JUDGMENT BY: the
Honourable Judge C.H. McArthur
DATE OF
JUDGMENT:
August 11, 1998
APPEARANCES:
Agent for the
Appellant:
Gregory Bryce
Counsel for the
Respondent:
John C. O'Callaghan
COUNSEL OF RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
97-3606(IT)I
BETWEEN:
SANDRA L. BRYCE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on July 20, 1998, at Whitehorse,
North West Territories, by
the Honourable Judge C.H. McArthur
Appearances
Agent for the
Appellant:
Gregory Bryce
Counsel for the
Respondent:
John C. O'Callaghan
JUDGMENT
The
appeal from the assessment made under the Income Tax Act
for the 1995 taxation year is allowed to permit the further
allowance of $6,012 in medical expenses in excess of the amount
allowed by the Minister. The amount of $4,000 for telephone costs
is not allowed. The assessment is referred back to the Minister
of National Revenue for reconsideration and reassessment in
accordance with the attached Reasons for Judgment. A ban of
confidentiality is placed on the transcript of the trial
evidence.
Signed at Ottawa, Canada, this 11th day of August 1998.
J.T.C.C.
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