|
Citation: 2003TCC40
|
|
Date: 20030211
|
|
Docket: 2002-1614(IT)I
|
|
BETWEEN:
|
|
JACQUELINE MOTKOSKI,
|
|
Appellant,
|
|
and
|
|
|
|
HER MAJESTY THE QUEEN,
|
|
Respondent.
|
REASONS FOR JUDGMENT
(Delivered orally from the Bench at
Edmonton, Alberta, on January 7, 2003)
Miller J.
[1] Jacqueline
Motkoski appeals the assessment of her 2000 taxation year
pursuant to the Informal Procedure. She claimed a medical
expense of $8,179 for the installation of hardwood flooring
pursuant to paragraph 118.2(2)(l.2) of the Income Tax
Act. The Crown has denied the claim as not qualifying as a
medical expense pursuant to that paragraph.
[2] Mrs. Motkoski
testified that her four-year old son Lucas suffered numerous ear
infections in 2000. He was diagnosed with severe allergies and
asthma. A letter from Lucas' doctor referred to him as a
highly allergic asthmatic individual. Mrs. Motkoski was also
concerned about his speech development and had him tested by a
speech language pathologist, who found his use of words to be
slightly delayed. Her physician, Dr. Carr, made a number of
recommendations to the Motkoskis, including relocating their pets
and removing their carpeting. They followed all the doctor's
advice, and replaced relatively new carpeting with hardwood
floors, recovered their furnishings and did relocate their pets.
They also acquired a Hepa filter and dehumidifier. The cost of
the installation of the hardwood flooring was $8,179; there is no
dispute as to the cost of that renovation.
[3] Mrs. Motkoski
indicated it would be difficult for Lucas to engage in normal
activities without medication and a safe environment. He is
mobile and he does interact with other children.
[4] Although the
Motkoskis briefly raised the possibility of the hardwood floor
renovations qualifying pursuant to paragraph 118.2(2)(m)
of the Act, that position was not argued vigorously, and
for good reason. The renovations do not qualify as a device or
equipment as contemplated by that paragraph. No, what the
Motkoskis relied on primarily is paragraph 118.2(2)(l.2)
of the Act, and I will just read part of it.
... for reasonable expenses relating to
renovations or alterations to a dwelling of the patient who lacks
normal physical development or has a severe and prolonged
mobility impairment, to enable the patient to gain access to, or
to be mobile or functional within, the dwelling ...
[5] So, there are
four criteria to be met for the hardwood floor expense to qualify
as a medical expense. First, the expense must be reasonable.
Second, the expense must be for renovations or alterations to a
dwelling. Third, the dwelling must be of someone who either (a)
lacks normal physical development; or (b) has severe and
prolonged mobility impairment. And fourth, the expense must have
been incurred to either enable the patient to gain access to, or
be mobile or functional within the dwelling.
[6] There is no
dispute the expenses related to renovations. The Crown argued
that the other three conditions have not been met by the
Appellant. First, that the patient, Lucas, neither lacks normal
physical development, nor has a severe and prolonged mobility
impairment. Second, that the renovations have not enabled Lucas
to be functional, but has simply enhanced his well-being. And
third, the expense was unreasonable, given an alternative such as
linoleum would have been considerably cheaper.
[7] The Appellant
argues that the three criteria have been met. First, relying on
Judge Hershfield's decision in Russell v. Canada,[1] she maintains that
someone suffering with asthma can be found to lack normal
physical development. As Judge Hershfield put it, in referring to
a child with asthma:[2]
What is lacking for Michael is a natural
maturation of his respiratory system. He has an incapacity to
function normally due to physical imperfection.
With respect to the second criteria, the
Appellant maintains that the environment provided by them has
clearly enabled Lucas to function normally. Third, they maintain
the expenses were reasonable, as it would be unreasonable for the
whole main floor to be lined with linoleum.
[8] The Crown also
dealt with the question of a severe and prolonged impairment,
arguing that such did not exist in Lucas' case, and further
that this was not a question of enabling mobility. I agree. This
is not a matter of Lucas suffering a severe and prolonged
mobility impairment. This is a question of first, whether a child
with severe asthma lacks normal physical development, and second,
whether the renovations have enabled Lucas to be functional in
the home.
[9] Turning first
then to the issue of the lack of normal physical development, I
agree with Judge Hershfield's comment in Russell as
follows:[3]
I can find no medical or legal definition of
the phrase "normal physical development". I believe it
is fair to say it lacks both legal and medical certainty as to
its intended meaning and should, therefore, be given a liberal,
large meaning according to the common usage and understanding of
the words comprising the phrase.
This accords with the direction Judge
Hershfield pointed out from Coté v. The
Queen,[4] which
is as follows:[5]
... while there are provisions specifying what
medical expenses are, the Court is required to give the most
equitable and large interpretation possible to this legislation
that is compatible with the attainment of its object.
[10] So, within that broad
context, can I find that Lucas lacked normal physical
development? I have no medical evidence as to whether severe
asthma constitutes a lack of normal physical development. What I
do have is information provided by the Motkoskis from a
consortium, including the Canadian Lung Association, which states
that:
... those suffering asthma have a chronic
condition in which the lining of the lungs' airways is
inflamed, swollen and extra sensitive to certain triggers.
This certainly sounds to the non-medical ear
like a physical problem. Why some children suffer from this
affliction more severely than others does not appear to be known,
certainly from the materials before me. In non-medical layman
terms, though, I am prepared to accept that the airways of the
severe asthmatic have developed differently than those of the
child without asthma. As a chronic condition, there must always
be something in the lungs' airways that cause the lungs to be
constantly under siege. It is not a quantum leap to find that
this has something to do with the development of the lungs'
airways. I do not need a medical expert to put any finer
definition on the term "normal physical development"
than what I have arrived at. I find Lucas as a severe asthmatic
lacks normal physical development because his lungs chronically
do not work as they should.
[11] The second condition
to consider is whether the renovation simply went to Lucas'
well-being, or really did enable him to be functional at home.
The Respondent cited certain hot tub cases in support of the
position that improved well-being is not sufficient. Those cases,
however, dealt with more of the issue of mobility as opposed to
functionality. That expression, in the context of this case, has
to do with functioning as a normal two or three-year old would
function. I am satisfied from Mrs. Motkoski's description of
Lucas that his environment and medication are essential to his
functioning normally.
[12] Now, it is not
possible to quantify what contributed more to this ability, but I
believe it is unnecessary to do so. Lucas functions as much as
possible as a child without asthma due partly to the environment
that his parents have provided for him. The second condition is
therefore met.
[13] So, are the expenses
reasonable? If any part of the $8,179 relates to refinishing
hardwood floors, as opposed to installing new floors, that
refinishing expense should be excluded as being unreasonable. The
Crown suggested much cheaper linoleum would have served a similar
purpose. Yet, presumably no one would want their whole main floor
done in linoleum. The Motkoskis reasonably would want a floor
that not only is safe for Lucas, but is also aesthetically
pleasing. But, while what they did is in that respect reasonable,
the reasonableness should relate only to the medical advantage
sought by the renovations, not to the aesthetics. This is not to
suggest that a reasonable expense necessarily implies the
cheapest alternative. There must be some balancing of the
reasonable medical expense versus the home improvement.
[14] The expense was
incurred for Lucas' benefit, but so to could a parquet or
linoleum floor have been installed for his benefit. It is
necessary to be somewhat arbitrary in making a determination on
the reasonableness of the medical expense of the hardwood floor.
I suggest that one should consider the range of possible
appropriate floorings for medical purposes, and determine an
average reasonable expenditure. Anything over that is more home
improvement than medical expense.
[15] The only evidence
before me on this issue was the Crown's contention that
linoleum would be one-third to one-half the cost of the hardwood.
The Motkoskis suggested that the third figure was low. I
therefore suggest an alternative flooring was approximately half
of the hardwood, and therefore averaging the hardwood cost and
the alternative cost would yield a reasonable expense of 75 per
cent of the hardwood cost, or approximately $6,000, and this is
what I allow as a medical expense.
[16] I want to be clear
that this broad interpretation of paragraph 118.2(2)(l.2)
is not an open invitation to the home renovation industry, but is
premised on some key significant facts from the case before me.
First, the patient, in this case Lucas, has a severe case of
asthma. Second, a doctor highly recommended the renovations,
amongst other recommendations. Third, the Appellant undertook all
of the doctor's recommendations, and fourth, the Appellant
did so immediately upon the diagnosis of her son's condition.
There was no delay.
[17] The appeal is allowed
and referred back to the Minister for reassessment on the basis
that the Appellant is entitled to a medical expense pursuant to
paragraph 118.2(2)(l.2) of the Income Tax Act,
in the amount of $6,000.
Signed at Ottawa, Canada, this 11th day of
February, 2003.
J.T.C.C.
Email this Content