Vucurevich v. The Queen, docket 1999-1827-IT-I (Informal Procedure)

Date: 19991215

Docket: 1999-1827-IT-I

BETWEEN:

NICHOLAS VUCUREVICH,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Teskey, J.T.C.C.

[1] The Appellant, in his Notice of Appeal wherein he appealed his income tax assessment for 1997, elected the Informal Procedure.

Issue

[2] The sole issue before the Court is whether $4,589, spent by the Appellant in 1997, qualify as medical expenses.

Facts

[3] The Respondent admitted that:

(1) The Appellant has been a paraplegic in a wheelchair for over 40 years;

(2) That due to the aging process and his diminishing body strength, the Appellant needs additional medical aides or devices to keep him living at home.

[4] The Appellant, who is 51 years of age, has enjoyed a very productive career, notwithstanding the fracture of his 2nd and 3rd thoracic vertebra, which placed him in the wheelchair for almost all his entire life.

[5] He was a hospital administrator for 30 some years, as well as being a consultant businessman. He oversaw the building and equipping of a 50-bed facility.

[6] Due to the loss of strength in his arms and as he has no use whatsoever of his legs, all unassisted movement has to be from one object to another at the same level, such as his bed to a wheelchair, to a sofa, to a bathtub.

[7] The expenses in question are:

(a) expenses disallowed in the amount of $700 were in respect of rebuilding his bed;

(b) expenses disallowed in the amount of $2,100 were in respect of rebuilding and reupholstering one sofa and one chair;

(c) expenses disallowed in the amount of $1,780 were in respect of rebuilding and reupholstering another sofa and chair and one footstool;

[8] The amount of the expenses were not in issue, only if they qualified as medical expenses.

[9] Dealing with each separately:

(A) The Appellant, because of his knowledge, rather than purchasing a hospital bed for several thousand dollars, arranged to have his own bed modified so that it could do what a standard hospital bed can do. That is electronically, he can raise and lower the bed, raise the head position so that a sitting position can be obtained or lower and raise the bottom area of the bed. These electronic adjustments mean he can get from the bed into the wheelchair and vice versa, without help as well as rest and read or sleep in the bed in many different positions.

(B) The one sofa and one chair that the amount of $2,100 was spent on to modify are in his living room. They were modified as to height so that again, he can go from the wheelchair onto the sofa and back himself, and also from the wheelchair into the upholstered chair and back to the wheelchair by himself, all unassisted. Thus, these two pieces of furniture are at an unusual height being much higher and harder than normal living room furniture. Although people without this disability can use these two items, they are not particularly comfortable and would be the last choice of a place to sit.

(C) The second sofa, chair and footstool that were reupholstered and rebuilt are in the dining-family room. The Appellant said that the footstool claimed was by inadvertence and should be deleted. The costs being $50 and thus, his claim under this heading should be reduced to $1,739. The same comments made above for the living room sofa and chair apply to those in the dining-family room.

[10] The Appellant has also had his bathtub modified so that he again can move unaided from his wheelchair into the bath and back. This expense was fully allowed.

[11] The Appellant explained that sitting in a wheelchair all day would put the occupant into a hospital with what is called "bed sores". He stated that the cost of medical care to treat patients with bed sores is enormous.

[12] Without these rebuilding and renovation expenses to his bed and the two sofas and chairs, one of the following would have occured:

(1) home care so that he could be moved about so that bed sores would not occur; or

(2) he would have to be institutionalised.

[13] These modifications allow him to be unattended all day long and at the same time, allow his wife the freedom to be employed.

[14] These modifications all came about because of several conversations with several doctors. There were several medical concurrances that advised him and prescribed these modifications.

[15] As a result of his reassessment, Dr. Mark C. Musk, the Appellant's family doctor, wrote a letter to Revenue Canada which, on consent, was accepted as Exhibit A-2. The Respondent also consented to giving full weight to this document, which reads:

...

"Mr. Vucurevich is a paraplegic, in a wheelchair for over forty years; and due to the aging process and his diminishing strength, he requires adjustments made to his bed and sofas. The adjustments are basically re-enforced springs in the sofas and rising the height level of same. The bedroom suite required similar adjustments. These provisions will provide Mr. Vucurevich an improved quality of lifestyle and will enable him to remain in his own home for a longer period of time.

In closing, these are medical adaptations for aides in daily living.

[16] Unfortunately, the Appellant chose to limit his medical evidence solely to this letter and his own testimony. However, I am satisfied Dr. Musk's testimony, if called as a witness, would have backed the Appellant's testimony completely.

[17] I accept the Appellant's evidence completely and without any reservation. Fortunately for him, because of his 30 years in the hospital administration field, I can accept his testimony that, to a large extent, was medical testimony.

The Law

[18] Medical expenses are dealt with in section 118 of the Income Tax Act (the "Act") and Regulation 5700 of the Income Tax Act Regulations (the "Regulations"), the pertinent portion thereof read:

118.2(2) For the purposes of subsection (1), a medical expense of an individual is an amount paid

...

(l.2) 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;

...

(m) for any device or equipment for use by the patient that

(i) is of a prescribed kind,

(ii) is prescribed by a medical practitioner,

(iii) is not described in any other paragraph of this subsection, and

(iv) meets such conditions as are prescribed as to its use or the reason for its acquisition;

5700 For the purposes of paragraph 118.2(2)(m) of the Act, a device or equipment is prescribed if it is a

...

(h) hospital bed including such attachments thereto as may have been included in a prescription therefor;

[19] I am satisfied that these provisions should be interpreted in the same manner as the medical disability tax credit provisions. My colleague Bowman, J.T.C., in Radage v. The Queen, 96 DTC 1615, said that the medical disability section should be construed liberally, humanly and compassionately and not narrowly and technically.

[20] He also said that if there is doubt on which side of the line a claimant falls, that doubt should be resolved in favour of the claimant.

[21] His comments in Radage were approved by the Federal Court of Appeal in Johnston v. The Queen, 98 DTC 6169.

[22] My colleague Rip, T.C.J., in Williams v. The Queen, [1998] 1 C.T.C. 2813, allowed as medical expenses the cost of a chemical free mattress and for removing carpets and replacing the same with hardwood flooring. He said at paragraph 8:

8 The English version of paragraph 118.2(2)(l.2) of the Act provides that a medical expense of an individual is an amount paid for reasonable expenses relating to renovations or alterations to the dwelling of an individual who lacks normal physical development or who has a severe and prolonged mobility. In order for these expenses to qualify they must be paid to enable the individual to gain access to the dwelling or be mobile and functional within it. There have been very few reported cases dealing with paragraph 118.2(2)(l.2). In Brown v. Minister of National Revenue (1994), 95 DTC 5126 (Fed. T.D.), an air conditioner was found to have been “designed to assist a crippled individual in walking” within the meaning of subsection 5700(i) of the Regulations and its cost was therefore deductible as a medical expense when it had been developed in a medical context in order to lower body temperature and thereby assist in the restoration of mobility. ...

Then, he went on and said in paragraphs 9, 10, 11 and 12:

9 The French and English versions of paragraph 118.2(2)(l.2) are not identical. In the French version of that provision the concluding words are “de s'y déplacer ou d'y accomplir les tâches de la vie quotidienne”. The “Robert & Collins” English French dictionary* defines the word “quotidienne” as:

De chaque jour; qui se fait, qui revient tous les jours.

The word “quotidienne” refers to something that is done daily, or daily activity. The French version provides for the renovations to enable the patient to gain access to and be mobile or to perform “daily activities” within the dwelling. The provision is not concerned with a “basic activity of daily living”, as set out in paragraphs 118.4(1)(c) and (d). The renovations or alterations are to enable the patient to be functional in the home so that she or he may perform daily activities. A daily activity includes a wide range of movement, not only a basic activity of daily living. An activity of daily living includes, but is not limited to, those activities set out in subparagraph 118.4(1)(d), that is, working, housekeeping, and social and recreational activities. The French version of paragraph 118.2(2)(l.2) adds an element to be considered when determining whether or not the renovations undertaken by Ms. Williams are eligible for the medical expense credit. The additional words “d'y accomplir les tâches de la vie quotidienne” in paragraph 118.2(2)(l.1), in my view, enlarge the application of that provision to include a renovation to permit a person who has a severe and prolonged mobility impairment to be mobile or functional within the dwelling in such manner that she or he may perform daily activities in the home

10 In the appeal at bar it is clear to me that Ms. Williams' mobility permitting her to perform daily activities in her home in 1994 was severely restricted and that the installation of hardwood flooring was necessary to enable her to be mobile and functional within her home as to perform a daily activity within that dwelling, that is to walk from room to room with relative ease within the house; she should be able to live in the house. Accordingly, in my view, the expenses relating to the acquisition and installation of the hardwood flooring ought to be allowed.

11 Paragraph 118.2(2)(m) provides that a medical expense is an amount paid for any device or equipment which meets the conditions prescribed in paragraph 5700(h) of the Regulations. The Regulation stipulates that a prescribed device or equipment includes a hospital bed with attachments thereto. I agree with the Minister that the special mattress prescribed by a physician for Ms. Williams is not a hospital bed, as prescribed in the Regulations. However, Ms. Williams was suffering from a “severe chronic immune disregulation”.* May one consider the prescribed and specially constructed mattress a “device or equipment ... designed exclusively for (her) use ...” within the meaning of paragraph 5700(c) of the Regulations? The word “equipment” includes furniture.* The mattress was designed for the appellant's exclusive use due to her severe chronic immune disregulation and therefore the cost ought to be a medical expense. This is a teleological interpretation of the provision.

12 I also refer to the decision of Léger, T.C.J. in Côté c. R. (1996), [1997] 3 C.T.C. 2607 (T.C.C.) in which he allowed a taxpayer's appeal from a disallowance of medical expenses on the basis that “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”. He held that notwithstanding there was no doctor's prescription for a water softener or for costs associated with the energy needed to operate a whirlpool bath, the expenses for such equipment and supplies were deductible in computing taxable income. I believe Ms. Williams' position with respect to the mattress in the appeal at bar is stronger than that of the appellant in Côté.

[23] My colleague Bowie, T.C.J., in Crockart v. The Queen, [1999] 2 C.T.C. 2409, when dealing with a bed claimed as medical expenses, purchased by the husband of a woman afflicted by multiple sclerosis, said at paragraph 6:

... either Parliament, when enacting section 118.2, or the Governor-in-Council, when enacting Regulation 5700, to so limit the availability of the credit as to deny it to Mr. Crockart because he bought a bed having the desirable attributes of a “classic hospital bed”, but one more beneficial to his wife than such a “classic hospital bed” would be. Nor, I am sure would Parliament or the Governor-in-Council have intended the provision to be construed in such a way as to preclude its application to a bed which could be shared by husband and wife. I find that the bed in question here has sufficient of the attributes of a “classic hospital bed” as to bring it with the Regulation.V

[24] I see no difference in purchasing a bed similar to a hospital bed or modifying an existing bed so that it has the same attributes as a "classic hospital bed" and therefore, find that those expenses are proper medical expenses.

[25] In regards to the expenses for the modifications of the two sofas and the two chairs, the fact that there are two of each, one set for the living room and one set for the dining-family room, is immaterial. If one set is allowable, both are.

[26] I believe the operative words of paragraph 118.2(2)(l.2) that I have to consider are "or to be mobile or functional within the dwelling". I see no difference between what is normally considered as a fixture in a dwelling such as a bathtub, which is raised and modified or kitchen cupboards that are lowered to allow a paraplegic access thereto or customary normal furniture found in a dwelling being modified to allow a paraplegic's unassisted use and access thereto and mobility from one chattel to another via a wheelchair.

[27] I do not believe it was the intention of Parliament, when enacting section 118.2, to so limit the availability of these types of medical expenses as to deny the Appellant herein the availability of using these expenses as medical expenses as they allowed him to be independent during the daytime and to keep him from requiring home care or to be institutionalised.

[28] The appeal is allowed, with costs, and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that, in 1997, the Appellant's claim for medical expenses is to be increased by $4,539, being all the expenses claimed, except for the $50 for the footstool.

Signed at Ottawa, Canada, this 15th day of December, 1999.

"Gordon Teskey"

J.T.C.C.