Date:
20021023
Docket:
2001-3593-IT-I
BETWEEN:
ERIC G.
DEMONT,
Appellant,
and
HER MAJESTY THE
QUEEN,
Respondent.
Reasons for
Judgment
Margeson,
J.T.C.C.
[1] This is an appeal by Eric G. Demont
from a reassessment by the Minister of National Revenue
("Minister"), notice of which is dated November 21,
2000 by which the Minister reassessed the Appellant's 1999 income
tax return to disallow medical expenses in the amount of $12,182
related to the costs incurred by the Appellant and the patient
(his spouse) while attending Dr. Dean Ornish's
Program for Reversing Heart Disease, operated at the Preventive
Medicine Research Institute ("PMRI") in Oakland,
California as well as other amounts which were not supported by
receipts and are not in issue in this appeal.
[2] The reassessment also included
amounts related to foreign non-business income and foreign tax
paid which was subsequently allowed by notice of reassessment
dated January 4, 2001 and are not in issue in this
appeal.
[3] In issue in this appeal is whether
or not the Appellant is entitled to claim the amount of $10,696,
in respect of the "program" or "treatment"
which was pursued at the "clinic".
[4] Exhibit A-2 was introduced by
consent and it contained an article describing the clinic and the
qualifications of its founder and other staff members at the
clinic including another medical doctor, William Porter.
Franz Rischard was an osteopathic medical student at the
Western University of Health Sciences who had extensive
experience in exercise physiology and cardiac rehabilitation. He
also had experience in the adaptations of the heart to injury.
Arthur Richards was a participant in both the basic and
advanced residential units. He was actively involved in the
community-oriented outreach program aimed at the prevention
of chronic diseases including diabetes and heart disease. His
role at the retreat was both as a student and teacher.
[5] Exhibit A-1, Tab 2
contained considerable information with respect to the condition
of the Appellant's spouse, the nature of her disease, the
nature of advice given and the nature of treatment afforded to
her from experienced medical practitioners in the Province of
Nova Scotia including both specialists and general
practitioners.
[6] The exhibit also contained at
Tab 4, a memo to file from Canada Customs and Revenue Agency
("CCRA") directed to Eric Demont, which was disclosed
pursuant to the Privacy Act indicating that it was the
Minister's position that the "clinic" was involved
in a program which emphasized strict exercise and low-fat
diet. The Minister referred to it as "a change of lifestyle
to prevent further health problems". The Minister pointed
out that the decision to attend the clinic was solely that of the
client and that the doctor had not prescribed this particular
clinic but had advised the client to seek some kind of
revascularization.
[7] The Minister indicated that the
file had been looked at by the technical advisor and she felt
that there was no indication of medical services other than the
possible monitering of blood work and blood pressure and routine
follow-ups. She correlated services provided at the
"clinic" as being "not different than services
offered by a health spa".
[8] Eric G. Demont testified that he
advised CCRA that his wife had suffered from heart disease before
she went to the clinic. He also had a heart condition and had
undergone heart surgery. After this he read a book on the subject
with respect to reversing heart disease through diet. He then
read material with respect to Dr. Ornish's clinic and he
thought it was an interesting program. He desired to enter the
clinic for the purposes of reversing his heart disease because it
was his position that if you do not change your lifestyle after
the heart surgery you will have a recurrence of the problem. He
was concerned with his future lifestyle. He saw Dr. Ornish
on television and believed that he had amassed quite a bit of
information about him between 1999 and 2000. When his wife was
diagnosed with heart trouble he considered the clinic as an
alternative form of treatment after she had received a
recommendation from her doctors to undergo angioplasty or the
alternative bypass surgery.
[9] He had been advised that the risks
for both procedures were equal and he found this to be difficult
to accept and requested further information from
Dr. Sheridan as to why this would be so and this was
explained to him. The Appellant pointed out that his wife did not
want to undergo the surgery if there was some other way of being
treated. He contacted the clinic and arranged to go there in
September 1999. He expected to take the program, find out how
they changed your lifestyle, intended to follow the program and
if his wife's angina did not increase substantially he
believed that this program would reverse the heart
disease.
[10]
At the clinic there were about 100 persons involved in the
program when they were there. This number was divided into five
or six groups. They met and performed activities. Ten or twelve
patients were assigned to a medical doctor, a nutritionist, a
registered nurse and a paramedic. Dr. Ornish himself gave several
lectures and was available for consultation. The program started
at 7:00 in the morning and involved yoga, breathing and
relaxation techniques. The participants ate a low-fat
breakfast which excluded any animal fat. This was followed by a
lecture setting out what the participants would be doing. These
lectures were conducted by a cardiologist, a nutritionist and a
cardiac surgeon. The exercise program involved weightlifting,
stretching, aerobics and walking or jogging for 45 minutes.
During the exercise, blood pressure and pulse checks were
performed periodically at the track. After the lunch break
lectures were conducted in the afternoon with respect to
demonstrations of low-fat cooking followed by a relaxation
session. After dinner, during the evening, group meetings were
held about the nature of the program.
[11]
The program was repeated in the following days with different
lectures and a different exercise format.
[12]
This witness maintained that this was not a health spa. They were
attended to by specialists. To refer to this clinic as a health
spa would be a misunderstanding of the program. It was his
position that CCRA had misunderstood the nature of the
program.
[13]
They stayed at the Claremont Hotel which was 5,000 kilometres
from his home. They flew there by Air Canada. He identified
Tab 3 of Exhibit A-1, which was a summary of his expenses
amounting to $12,182.
[14]
This witness pointed out that in his extensive reading and in
discussions with other professionals and persons, he could not
find any other program that was so unique as this one. Its main
regimen included the use of a low-fat diet, the use of
regular exercise and relaxation resulting in improvement and even
reversal in heart disease as well as the prevention of heart
disease.
[15]
He did ask Dr. Sheridan to write a letter to PMRI regarding this
clinic but he would not do so as he was a surgeon. He did not
agree with the program. He believed that the only way to cure
heart disease was through angioplasty or heart
surgery.
[16]
The Appellant and his wife were not advised of any other program
that would achieve the same results as that of Dr. Ornish. He did
admit that no other doctor had suggested that one could obtain
the relief sought by diet, exercise and through relaxation
techniques. At that time there was no information on the internet
about this type of program although it is now
available.
[17]
The Mayo clinic had a health page on the internet but there was
no other program that he could find that dealt with this problem
as it was handled by the Ornish Clinic Program. The only
criticism that he could find about the program was that it was
completely low-fat and that people would have a hard time
following it 100 per cent. He and his wife followed it. They
tried to eat fish, little meat (lamb is eaten as a special meal)
no pork, no roast beef. They eat vegetables. He and his wife
exercise four times a week at the gym. They walk or jog in the
winter and summer, spend one hour in an exercise room and play
tennis. They have no problem with relaxation. He reads and his
wife does yoga.
[18]
After the program was completed they used the website to contact
other participants in the program, compared the results, compared
what they were doing at the time and how they felt. He went to
the program as a spouse of a participant who wanted to avoid
heart surgery. They learned that there were some aspects of the
bypass surgery that were not welcomed as he experienced it, and
as a result of a problem that he encountered during the surgery,
he is now a very slow reader. Some times one suffers from mood
swings, depression and irritability after the surgery.
[19]
He went to the program as a spouse because the people at the
clinic believed that it was important that both partners attend
for the purposes of support for each other and he also wanted to
complete the program as he had heart problems as well.
[20]
He admitted that in June of 1999 Dr. Sheridan had recommended
either open heart surgery or angioplasty but his wife was against
having open heart surgery. As a result of that he wanted to
obtain more information. He knew about the Ornish clinic and they
concentrated on it as an alternative. He confirmed that after he
had open heart surgery he wanted to find out more information
about the disease and that is how he came across Dr. Ornish's
book on Reversing Heart Disease. He also purchased other books
prior to receiving Dr. Sheridan's recommendation with
respect to angioplasty or open heart surgery. After he read the
book he knew that he had to change his lifestyle and he went on a
low-fat diet. He became a semi-vegetarian. As a result
thereof his migraine headaches stopped. He started jogging as
early as the late 1950s. He found that he did not have to make a
great lifestyle change to accomplish the Ornish Program.
Relaxation was not a problem for him but he knew how important
the three aspects of the program were.
[21]
At the clinic there were dieticians, doctors, fitness advisors,
physiologists and psychiatrists. Formerly none of his doctors
ever discussed lifestyle changes with him or his wife as a way of
treating heart disease.
[22]
His wife was a retired director of athletics at Mount Saint
Vincent University in Halifax and a teacher at St. Pat's High
School in Halifax in physical education. She also participated in
the YWCA Board and the Canadian Association for the Advancement
of Women in Sports. She was very familiar with the advantages of
an active lifestyle although she was not on a
semi-vegetarian diet to the same extent as he was although
she ate less fatty meat than before.
[23]
He reiterated that they knew of no other programs that dealt with
reversing heart disease as did the Ornish Program. He did not
inquire of any other programs but was satisfied that there were
none because of his reading of health magazines and his search on
the internet. He considered the Ornish Program to be radical.
They did not come across any other program that dealt with the
three aspects of the problem as did the Ornish
Program.
[24]
When they discussed his wife's problems with
Dr. Sheridan he suggested drug therapy treatment as an
alternative. Since 1998 she had been on drugs but it did not seem
to help much. Dr. Sheridan recommended one of the other three
treatments. He did not contact the Heart and Stroke Foundation of
Canada.
[25]
The Ornish clinic only runs three times a year and they made up
their minds to go to it about three months before they left for
it. Around the same time that Dr. Sheridan recommended the other
two options, as a result of obtaining information about the
clinic, they took his wife's name off the surgery
list.
[26]
He admitted that in the year 2000 his wife had an angioplasty
despite attending the Ornish clinic. He explained that she had
two blockages, one of 90 per cent and one of 70 per cent and
in the year 1999 there was no change in these blockages. However,
in the year 2000 after the Ornish Program was completed the
blockage in the ramus was reduced by about 15 per cent (or less)
and he attributed this to the treatment at the clinic. The report
indicated that there was a significant reduction in risk at this
point in time and that the procedure (angioplasty) was not a
complicated one. Consequently, the angioplasty was done to
restore his wife to being able to do more strenuous exercises
without suffering from angina.
[27]
He admitted that at the clinic the program consisted basically of
lectures, demonstrations and hands-on exercises. Not all lectures
were given by doctors. These were all group activities although
at one point he did contact one of the doctors who was a
specialist in limpids and blood. He talked about the medication,
the quantities and how long one should be on them. He was given
advice to withdraw some time from one of his medications. At the
clinic they had lunch with a dietician. They took one half to
three quarters of an hour meeting with the dietician and half an
hour with the doctor. There was no one on one meeting with
Dr. Ornish although he was available for consultation. The
information contained on the website with respect to the clinic
was not an accurate description of the Ornish Program. This was
only an access document and did not list the cornerstones of the
program. Dr. Ornish does not
stress calories but fat. He did not recall any discussions with
respect to supplements. This was not an essential part of his
program. He was not being
treated for a heart problem when he went to the program. He
attended strictly as a spouse.
[28]
At that time, his wife had no problems that would prevent her
from going herself. He was not present when the discussion came
up with respect to the clinic with Dr. Kathy M. Coughlan.
However, there is a document in the exhibit which is a letter
from Dr. Coughlan in which she indicates that she suggested
that the Appellant's spouse attend Dr. Ornish's
PMRI, which she referred to as a non profit public foundation of
lifestyle changes to improve heart disease. This letter was sent
in an effort to have MSI ("Medical Services Insurance"
of Nova Scotia), cover the costs.
[29]
Patricia Demont testified that in 1998 she was having an angina
attack. She took nitroglycerin for this problem. She also went to
the hospital in Kentville, Nova Scotia after which she
contacted Dr. Coughlan. She was then referred to
Dr. John Stewart who was an internist at the Dartmouth
General Hospital. She had an electro-cardiogram and
angiogram which showed that she had a strong right descending
artery but the left artery had a serious plaque problem. Her
ramus artery was approximately 75 per cent blocked and she
described the same problem as referred to by her husband in his
evidence. She could have elected medication treatment and she
discussed this with Dr. Coughlan. She was quite upset that the
election was left to her.
[30]
She opined that open heart surgery is much more difficult with a
small person such as her and that the operation had not been
perfected for women. She discussed her lifestyle with Dr.
Coughlan but was still baffled by the fact that she was having
this condition despite her active lifestyle. When she went to see
Dr. Sheridan he believed that she should have angioplasty.
Her symptoms included pain and she believed that this was stress
related and occurred when she was upset about her
work.
[31]
After she had a further angiogram it was noted that there was
little change. Again it was suggested that she should have an
angioplasty or bypass. They kept reading books about
Dr. Ornish's clinic and they considered alternatives.
She talked to Dr. Coughlan about the Ornish clinic. She thought
that more information should be obtained about the clinic before
considering surgery. Ultimately Dr. Sheridan suggested the
program at Dr. Ornish's clinic.
[32]
After she attended the clinic she had no more problems. She was
playing tennis on the Labour Day weekend in the year 2000 and the
next day had to go to the hospital. Nothing further was diagnosed
but she went to see Dr. Coughlan after that and she was
unhappy with her condition. Subsequently she had all the tests
done over again. It was recommended that she have an angiogram
which would be the third.
[33]
She was subsequently advised that there was less lesion in the
ramus and Dr. Johnson saw no reason why she should have a
by-pass. He recommended angioplasty and this time she
accepted it. She was advised that at that stage it would be
uncomplicated because there was less blockage in the ramus. The
only change that she had undertaken from before was to attend Dr.
Ornish's clinic. It changed her whole outlook.
[34]
At the clinic they watched her carefully. She had a blue dot on
her tag which indicated more attention was required. She was
accompanied to the weight room by a doctor and also had a meeting
with him about medication. He suggested that she talk to her
general practitioner about eliminating some drugs. The dietician
helped her quite a bit. She spent two hours with the dietician on
a one-on-one basis. In the evening they met with a psychologist
to talk about themselves and how it would be helpful to get
things out. She had three quarters of an hour to an hour session
on a one-on-one basis with the psychiatrist.
[35]
She has had no angina since she attended the clinic. She was
asked why she had the angioplasty in any event and she said that
at that point, after attendance at the clinic, she was advised
that there would be no risk and she believed that the angioplasty
would take away the risk of a heart attack.
[36]
In cross-examination, the Appellant described the three options
that were presented to her. She went on the medication and had no
after effects but said she did not like taking drugs and she did
not want to get used to taking them. Further, she did not want
the surgery due to the risk. As a result they started looking for
alternatives since her husband also had a problem. They were
alerted to Dr. Ornish's Program right away. She did her
Master's Degree on Stress Management. She could not find any
program that included the heart, stress management program and
the good food habit program altogether. Only the Ornish Program
put it all together into one. She discussed these matters with
Dr. Coughlan, she was a supporter of this
regimen.
[37]
She was asked why she went to California and she said there was
no program in their area that put all three aspects of the
program together. She knew that she would fail if she was to go
on the low-fat diet alone. She and her husband had to help
each other. Dr. Coughlan was aware of the program before they
spoke about it.
[38]
In response to a question about the same degree of risk involved
in the angioplasty and the heart surgery she said that she talked
with Dr. Reid about it. However, she did not get the second
opinion about the same degree of risk until after the Ornish
Program. They were in the program for about seven days for
12 hours a day. She had one hour per day on a one-on-one
basis with an actual healthcare provider.
Argument
on behalf of the Appellant
[39]
Counsel for the Appellant submitted a concise written brief in
the matter and argued orally in support of his position. He
opined that the real issue was whether or not the services
provided here were medical services under the appropriate
legislation under subsection 118.2(1) of the Income Tax
Act ("Act"). A
further question to be asked is whether or not it was reasonable
for a patient to go to the "clinic"? Was it a medical
service under the Act even though there is no definition
of that term under the Act?
[40] There is no argument about the
qualifications of Dr. Ornish as a medical
practitioner.
[41] Is it a medical service? If it was a
medical service, are the hotel and travel expenses deductible? He
took the position that counsel for the Respondent had already
conceded that one half of the air travel was deductible if the
Court should find that the expenditures related to a medical
service.
[42] The accommodation expenses are different
because the Appellant was required to be there and this was an
essential part of the expense. In any event, it would have been
the same expense if the patient had been there alone. However,
the principal issue remaining is whether or not the expenses
related to a medical service.
[43] He referred to Income Tax Bulletin
IT-519R2 and in particular paragraph 19 of that Bulletin,
which indicated that fees paid to medical practitioners may be
deductible even though they are not services provided by doctors
and they can qualify as being "for medical services"
for the purposes of a claim under paragraph 118.2(2)(a),
to the extent that the fees are for diagnostic, therapeutic or
rehabilitative services. In this case it is argued that the
services provided were all therapeutic and rehabilitative and not
preventive as the Minister has argued. The evidence disclosed
that as a result of the patients' attendance at the clinic
there was a reduction in the blockage in the ramus branch of the
artery. There was a risk reduction of over 15 per cent.
Consequently, the treatment was rehabilitative and therapeutic.
It prevented the obstruction from getting worse and was aimed at
reversing the heart disease problem based upon long-term,
non-invasive treatment. Any doubt should be resolved in favor of
the taxpayer.
[44] Dr. Coughlan also suggested this
course of treatment and costs for this treatment should be
covered under paragraphs 118.2(2)(a) and
118.2(2)(e). He referred to Tab 8 of his Book of
Authorities showing the "left anterior descending
branch" as described by the patient. The program was of a
therapeutic and rehabilitative nature and it does not have to be
successful but if this were required in the case at bar, it was
successful. All but one half of the travel expenses should be
allowed.
[45] Again with respect to the Appellant
himself, and the expenses relating to him, in order for the
program to be beneficial to the patient the husband had to be
there since according to the evidence the greater the compliance,
the greater the success. The patient testified that she needed
the support of her husband in order for it to be successful. His
participation in the discussions afterwards was crucial to the
program's success.
[46] In the Appellant's written
memorandum, he argued that the fees paid to the institute run by
Dr. Ornish were deductible under the provisions of
paragraph 118.2(2)(a) of the Act which
described a medical expense of an individual as being an amount
paid:
(a) to a medical practitioner, dentist or nurse or a
public or licensed private hospital in respect of medical or
dental services provided to a person (in this subsection referred
to as the "patient") who is the individual, the
individual's spouse or a dependant of the individual (within
the meaning assigned by subsection 118(6)) in the taxation year
in which the expense was incurred;
"medical
practitioner" is further defined at subsection 118.4(2) as
being:
For the
purposes of sections 63, 118.2, 118.3 and 188.6, a reference to
an audiologist, dentist, medical doctor, medical practitioner,
nurse, occupational therapist, optometrist, pharmacist or
psychologist is a reference to a person authorized to practise as
such,
(a) where the
reference is used in respect of a service rendered to a taxpayer,
pursuant to the laws of the jurisdiction in which the service is
rendered;
. . .
With respect to the
"air travel" fees, the relevant provision is
paragraph 118.2(2)(g) which provides as
follows:
(g) 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 traveling 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;
[47] With respect to accommodation expenses,
(paid to Claremont Hotel) he argued that the applicable provision
is paragraph 118.2(2)(h) which provides:
(h) 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 subparagraph
(g)(iii), (iv) and (v) apply;
[48] He also referred to
paragraph 118.2(2)(n) and (o) in support of
his position that costs for drugs, medicaments and other
preparations used at the clinic for any laboratory, radiological
or other diagnostic procedures used at the clinic should be
deductible.
[49] In summary, in the written memorandum, he
said that the amount that was paid was to a "medical
practitioner" for "medical services" provided to
the person or that person's spouse. There is no issue in this
case with respect to the qualifications of Dr. Ornish.
Further, the fact that the clinic is outside Canada does not
affect entitlement.
[50] Travel and accommodation expenses are
deductible under (g) and (h) because the following
criteria have been met:
a)
substantially equivalent medical
services were not available where the patient
resided.
b)
the route traveled was
direct;
c)
the reason for the travel was to
"obtain medical services" and is reasonable having
regards to the circumstances for the person who travels to that
place to obtain the services.
These criteria have been
met according to the evidence produced.
[51] With respect to the case law, counsel
took the position that the Court should give "the most
equitable and large interpretation possible" to
subsection 118(2) dealing with specified medical expenses.
Counsel referred to Frank v. Canada, [2001] T.C.J. No. 416
(Q.L.), Teskey, T.C.J., where he confirmed the statement of the
late Mr. Justice Sopinka that where there is a doubt as to the
meaning of the words in the Act, the doubt is to be
resolved in favor of the taxpayer.
[52] Similarly, a compassionate interpretation
is required in the interpretation of the Act as can be
seen from Bryce v. The Queen, [1998] T.C.J. No. 678
(Q.L.). Likewise, McArthur, T.C.J. relied on the reasoning of
Bowman J. in Radage v. The Queen, 96 DTC 1615 and
stated at paragraph 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).
[53]
Counsel further opined that the services provided in the present
case meet the definition of "medical
services" as set out in CCRA's own income tax bulletin.
He referred to a number of other procedures which may or may not
be covered as medical expenses. He relied on the principle that
the meaning of the words in dispute ought to be given their
ordinary meaning, unless the context indicates that they are
"terms of art" and the context indicates that they
should mean otherwise than their ordinary meaning. To that end
the Appellant included definitions of "rehabilitation",
"service" and "treatment" in his Book of
Authorities at Tab 8.
[54] Following the hearing of the trial in the
matter, counsel for the Respondent brought the attention of the
Appellant and the Court to a case which had not been referred to
at the time of the trial but has now been decided. That case was
Bissonnette v. The Queen, [2002] T.C.J. No. 94
(Q.L.), Court file number 2001-3066(IT)I. The
Appellant's counsel was given an opportunity to comment on
this case and he did so. He submitted that this case stands for
the proposition that the fees paid to the Ornish clinic in the
case at bar should be considered in their entirety as medical
expenses.
[55] Further, the evidence indicated that the
services that were provided were only available at this clinic
which was the leading research and treatment clinic in respect to
reversing heart disease and there was no such clinic anywhere in
Canada. This supported the position that the travel to and
accommodations at the Ornish clinic should be
included.
[56] Even though this case makes it clear that
there has to be a line drawn between attending a "spa"
and "modern or alternative" medicine and
"complementary medicines", this case does not draw that
line.
[57] In conclusion, Bissonnette, supra,
supports the position that some if not all of the Appellant's
expenses in the case at bar should have been allowed by CCRA and
deductible as medical expenses.
[58] At the end of the day he said that all of
the expenses should be allowed and that costs should be granted
as well.
Argument on behalf of
the Respondent
[59] In argument, counsel for the Respondent
submitted that there were four different issues to be
resolved.
1) Was the money paid to Dr. Ornish
deductible?
2) Was the money paid for Mr. Demont
deductible?
3) Was the money paid for Mrs. Demont
deductible?
4) Was the airfare for either
deductible?
[60] He argued that the monies paid to Dr.
Ornish were not deductible because they were not paid for medical
services. There were no medical services provided by
Dr. Ornish. We must be bound by the four corners of the
Statute and cannot find deductibility where there is
none.
[61] He referred to the case of Goodwin v.
The Queen, 2001 CarswellNat 2113 where Teskey T.C.J. at
paragraph 27, page 5 said:
...Being exposed
to the sun is not a medical service even though it may give
relief to the sufferer. The same can be said for loosing weight,
cutting down caffeine, getting more exercise or stopping smoking.
None of these examples require a health care provider to do or
render anything to the patient.
Teskey T.C.J. went on to
dismiss the appeal where the claim was for expenses involved in
traveling to Las Vegas, Nevada and Phoenix, Arizona on the
recommendation of the patient's dermatologist that he should
travel to a warmer climate in both April and November for short
periods where he could be in natural sunlight wearing only
shorts. There was no doubt in that case that the Appellant's
medical condition was helped by these trips to a warmer
climate.
[62] Likewise, in Zack v. Canada,
[1997] T.C.J. No. 1102 (Q.L.) DRS 98-07837, Court File Nos.
97-495(IT)I, 97-496(IT)I, McArthur,T.C.J. found that
where musical therapists treated a patient, they were not medical
practitioners under paragraph 118.2(2)(a) of the
Act as they did not appear on the list of registered
persons entitled to practice medicine under section 77 of the
Medical Practitioners Act. However, he did find that the
therapy fell within paragraph 118.2(2)(e) of the
Act as qualified persons within that section were not
limited to medical practitioners and he allowed the
appeal.
[63] He further referred to the case of
Bley v. The Queen, 2001 CarswellNat 686, [2001] 2 C.T.C.
2532, where this Court indicated that no matter how serious the
illness, in order for the expenses to be deducted, the authority
for same has to be found within the Act or in the
Income Tax Regulations. This Court went on to find that
expenses claimed for the receipt of therapy, even though provided
by a Registered Member in Good Standing of the Association of
Massage Therapists and Wholistic Practitioners, is not deductible
because such a person is not a person authorized by provincial
legislation, contemplated by section 118.2 of the Act. The
therapist was not a member of a designated profession as required
by the Act.
[64] He further relied upon Bishoff v.
Canada, [2001] T.C.J. No. 597 (Q.L.), Court File No.
2001-482(IT)I, where O'Connor, T.C.J. dismissed the appeal
under paragraph 118.2(2)(n) of the Act which
provide that only drugs, medicaments or other preparations or
substances purchased for use by the patient as prescribed by a
medical practitioner or dentist and as recorded by a pharmacist
could be claimed. In that case the claim was for homeopathic
expenses.
[65] In Pagnotta v. The Queen, 2001
CarswellNat 1887, [2001] 4 C.T.C. 2613 Miller T.C.J. had to
consider the question of deductible medical expenses with respect
to a taxpayer who suffered from chronic pain disorder aggravated
by hip fracture, osteoporosis and fibromyalgia. The
taxpayer's therapy and pain-control program included massage
therapy treatments and the consumption of various herbal remedies
and vitamins. Physicians recommended herbal and vitamin remedies
which were then sold by physicians, pharmacies or unregistered
herbalists. The taxpayer claimed the cost of these therapies in
calculating medical expense credit. These were disallowed by the
Minister.
[66] Miller T.C.J. allowed the appeal and
referred the assessment back to the Minister on the basis that
the expenses of $344.73 and $188.56 incurred by the Appellant at
Nutrition Plus Pharmacy and Kripps Pharmacy Ltd. respectively
qualified as medical expenses pursuant to paragraph
118.2(2)(n) of the Act.
[67] He questioned the nature of the program
provided by Dr. Ornish's clinic. He questioned how much of
the treatment was actually provided by Dr. Ornish. The
Appellant's own documents show that the clinic was involved
in preventive medicine. This was not a medical service. It is not
enough that the service be provided by a medical practitioner but
it must be a medical service.
[68] Further, all of what went on in the
clinic was not provided by a medical practitioner. He presumably
took the position that the mere recommendation of the
patient's doctor that she should attend the clinic was not
enough to make it a medical service. If the money was not paid
for medical service then that is the end of it. If it were, then
it is deductible.
[69] Further, the Appellant must show that a
substantially similar service could not be provided within 40
kilometres from home even though the service may not include all
of the service provided at Dr. Ornish's clinic. He argued
that the patient knew of the benefits of this type of activity
before she went to the clinic and it was available in her area.
It would not be reasonable for the Court to conclude that the
Appellant had established, on a balance of probability, that this
service was not available in their area.
[70] The Appellant and the patient had their
minds made up to go to the clinic and they did not look very hard
for another program in their area. They did not even check with
the Heart and Stroke Foundation.
[71] Finally, he argued that the expenses
claimed are not covered by the legislation. However, he was
prepared to consider that if any amount could be claimed it was
the $4,409.52 (Cnd.) paid to the clinic on behalf of
Mrs. Demont for the program.
Analysis
and Decision
[72]
This case was well presented, ably and fairly argued. The Court
was most impressed with the evidence of the Appellant and
Patricia Demont, the patient. Both parties displayed a
considerable knowledge of the nature and extent of their health
problems, the traditional and accepted treatment available in
their regular medical community with respect to their problems,
and the Court is satisfied that they were not prepared to accept
the medical alternatives which were offered to Mrs. Demont
in their area. The Court is satisfied that they were not
unreasonable in seeking out other information with respect to
alternative methods of treatment when the Court considers all of
the information that they had available to them with respect to
Mrs. Demont's health problems.
[73]
The Appellant and his wife availed themselves of all means of
obtaining further information with respect to alternative
treatments and during the course of their investigation they
became familiar with the program offered at Dr. Ornish's
clinic. Before they made the decision to attend the clinic, they
were convinced that this program offered something substantial
and that, after completion of the program the heart disease with
which Mrs. Demont was saddled could even be reversed. Both
were satisfied that there was no other program anywhere that
could compare to this program, that was similar in nature or that
could offer any results which they reasonably expected to obtain
from participating in this program.
[74]
Both parties searched diligently for a similar type program
available to them in their own area and were unable to find one.
No evidence at trial indicated that one was available anywhere in
their area. Further, even though Dr. Sheridan, a surgeon,
would not write a letter to PMRI to assist the Appellant in
claiming the expenses for this program and even though he did not
agree with the program, the patient did receive medical advice
from Dr. Kathy Coughlan who suggested that she attend Dr. Dean
Ornish's PMRI after she had diagnosed her as a patient with
two vessel critical coronary artery disease involving LAD and
ramus coronary arteries.
[75]
Even though it may not be necessary to decide so, the Court is
satisfied that after the Appellant and his spouse attended Dr.
Ornish's clinic she and he both obtained a substantial
advantage from their attendance at the clinic. In particular,
Mrs. Demont showed a considerable medical improvement which
was so substantial that it enabled her to proceed with the
angioplasty which by that time was described as a fairly routine
procedure whereas earlier it was equated to the much more serious
procedure of open heart surgery. This change in her medical
condition was brought about by her attendance at the
clinic.
[76]
The Court has considered carefully all of the cases referred to
by both counsel and has already referred to them in the
recitation of facts found by the Court during the trial. Suffice
it to say that the case that mostly closely reflects the case at
bar is that of Bissonnette, supra, which was not referred
to at the trial but which was graciously acknowledged by counsel
for the Respondent in his research after the trial. The
information was passed on to the Court and the information was
further passed on to counsel for the Appellant who commented upon
it in writing.
[77]
The Court is satisfied that it may consider this case as both
parties have had reasonable opportunity to reflect upon
it.
[78]
The facts in that case were similar to the facts in the present
case since Mr. Bissonnette and his wife travelled to Mexico
for a two-week stay at a facility which was advertised as a
health retreat although partly licensed as a private hospital as
well. The type of treatments they received at the clinic were
quite varied including both medical and so-called
"alternative" or "complementary" medicines
and treatments.
[79]
The treatments referred to in that case were more varied and
possibly more complex than those received at the Ornish clinic.
However, they are obviously in the same class. As in that case,
the treatments received at the Ornish clinic were not all
pleasant or completely enjoyable because they encompassed a
relatively strict diet regimen and a considerable amount of
exercise. As in the case at bar, Mr. and
Mrs. Bissonnette argued that the room and board cost was all
part of the overall medical services provided.
[80]
In that case CCRA had already allowed some medical expenses to
the extent of $3,700. The bulk of the claim before the Court was
$6,000 US for room and board which the parties argued represented
medical services. Judge Miller accepted the argument of
counsel for the Respondent of what was not included in the
expression "medical services". He concluded that cost
of room and board in an attractive Mexican health retreat was
definitely not medical services. He concluded:
However, I
also believe that $6,000 US for room and board at a health
retreat does not, under the most liberal interpretation of
medical services, qualify. This is not a case which can expand
the definition of medical services. Mr. and Mrs. Bissonnette
should be pleased on two fronts with their trip to Mexico: first,
that they felt so much better; and, second, that CCRA allowed
approximately $5,500 Canadian for some of the costs incurred at
Sanoviv. As these were costs for medical services that I am
satisfied could be obtained in this area in British Columbia, I
am also unable to allow the $1,064 travel expense, as
subparagraph 118.2(2)(b) requires substantial equivalent
medical services are not available in that locality. Here,
clearly they were available.
[81]
In the case at bar the Court is satisfied that the patient
received "medical services" at the Ornish clinic and
such expenses that relate to "medical services" are
deductible under paragraph 118.2(2)(a). These
deductible expenses relate to the fees paid to PMRI and Dr.
Ornish. However, this section covers only the expenses paid to
Dr. Ornish and the clinic on behalf of the patient. It was
clear from the evidence as the claim was advanced that the
expenditures that were claimed were the expenses of the patient.
The Appellant claimed as the patient's costs some amounts
that related to him because he had accompanied her to the program
as a co-partner. He claimed that his attendance was necessary in
order to make the program more effective. The Court does not
doubt this purpose, but that does not provide a basis for
allowing his expenses to be claimed.
[82]
Consequently, in this regard, the Court will allow the appeal in
respect to the sum of $4,409.52 (Cnd.) as the deductible fees
paid to PRMI and Dr. Ornish for the medical services
delivered to the wife.
[83]
With respect to the "air travel" fees, the Court has to
consider the provision of paragraph 118.2(2)(g), as
earlier set out. A reasonable interpretation of this section
leaves no doubt in the Court's mind that the expenditure for
"air travel" fees expended on behalf of the Appellant
are not deductible. There was no evidence whatsoever that the
patient was certified by a medical practitioner to be incapable
of travelling without the assistance of an attendant, which was
the husband, in this case.
[84]
That leaves for further consideration the question as to whether
or not the facts of this case fall within the provisions of
subparagraphs 118.2(2)(g)(iii), (iv) and (v). Unlike the
case of Bissonnette, supra, this Court is satisfied that
the evidence has disclosed, on a balance of probabilities, that
this expense falls within the above referred to provisions.
Unlike Miller, T.C.J., this Court is satisfied that substantial
equivalent medical services were not available in the locality
where the Appellant and the patient resided. Therefore, the
airfare costs of Mrs. Demont are deductible in the amount of
$603.
[85]
The Court now considers the question of the accommodation
expenses (paid to Claremont Hotel). Counsel for the Appellant
based his claim on the basis of the provisions of paragraph
118.2(2)(h) but this Court is satisfied that the
references of Miller T.C.J. in Bissonnette, supra, at
paragraph 12 are applicable in the case at bar. The expenses
related to the accommodation of the Appellant and the patient at
the Claremont Hotel are not deductible.
[86]
At first blush, it may seem unreasonable that one could claim
travel expenses to get to the treatment and not be able to claim
accommodation expenses but the former is clearly covered in the
legislation and the latter is not. One can think of many reasons
why it would not be covered.
[87]
In the end result the Court will allow the appeal and refer the
matter back to the Minister for reassessment and reconsideration
on the basis that in the year in question, the Appellant was
entitled to deduct medical expenses, in the amount of $4,409.52
(Cnd.) which was an amount paid to Dr. Ornish for the
patient's treatment together with the airfare for travel to
California for the patient in the sum of $603.
[88]
Under the circumstances, the Court is satisfied that the
Appellant should have his costs, on a party to party basis, to be
taxed or agreed upon by the parties.
[89]
The Appellant is entitled to no further relief.
Signed at Ottawa, Canada,
this 23rd day of October 2002.
J.T.C.C.
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