Date: 20000411
Docket: 98-3860-IT-I
BETWEEN:
MARIA E. KNECHTEL
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
TAX COURT OF CANADA
IN RE: The Income Tax Act
--- Held before His Honour Judge Teskey of
The Tax Court of Canada, in Courtroom Number 2, 9th Floor,
Merrill Lynch Canada Tower, 200 King Street West, Toronto,
Ontario, on the 8th day of March, 2000.
REASONS FOR JUDGMENT
(Delivered orally from the Bench at Toronto, on
March 8, 2000)
----------------
APPEARANCES:
Maria E.
Knechtel
The Appellant in person
Kelly
Smith
For the Respondent
Elsie Menezes - Registrar
Per: Penny Stewart, CSR
(Reporter)
--- Upon commencing at 3:20 p.m.
HIS HONOUR: The appellant appeals her reassessment of
income tax for the year 1996 and in her Notice of Appeal she
elected the informal procedure.
Issue:
The main issue before me are travel expenses from the Toronto
area to Saskatoon and expenses incurred in Saskatoon.
Facts:
I find that this is a very abnormal situation where a taxpayer
living in west Toronto would seek medical treatment in
Saskatoon. Toronto is a large Metropolitan city having many
large teaching hospitals and is a leading centre in Canada for
medical treatment and research.
Against this background tab 1 of Exhibit R-1 is a letter
from Dr. Cynthia Gokavi of Saskatoon dated June 8th,
1997. The letter reads in full:
"Dear Maria:
With reference to your letter dated May 5, 1997, attaching a
copy of the letter from Revenue Canada, I am pleased to provide
the following explanation which I hope will suffice.
2. There are acupuncturists in Toronto who have learnt
the technique but have not had the same success with it as
Dr. Gunn and myself. The protocol requires spending
two to three hours per session to treat F.M.S. patients.
Prior to the I.M.S. which is a painful technique a special
protocol of acupuncture, moxabustion and laser is used so as to
produce enough of an endorphin release to withstand the I.M.S.
for two hours or more. I do recommend regular massage
therapy between treatments to prolong the effect of my
protocol.
3. Anything that helps a patient to be comfortable for a
longer period of time is essential for the well-being of
the patient. You have indicated that the mineral baths at
Watrous, Saskatchewan, 143 kms. Southwest of Saskatoon help you
to retain the effects of my treatment for a longer period of
time. I am not aware of any other such baths in
Canada. I definitely recommend continued use of such baths
and massage therapy.
I trust that this information is what you require.
Please contact me if I can be of further assistance to you.
Yours truly,
(DR. CYNTHIA N. GOKAVI)
President, Acupuncture Foundation of Canada Institute.
President, Saskatchewan Chapter of Acupuncture Foundation of
Canada
Teaching Faculty and Examiner, A.F.C.I."
The appellant, a retired high school music teacher, took a
leave of absence due to medical problems in the late fall of 1995
and retired on December 31st, 1995 because of constant pain and
stress in her fingers and other related problems.
The appellant testified that in July of 1995 she attended at a
music teachers' convention in Saskatoon.
Dr. Kovaki apparently was a guest speaker and the appellant
volunteered to be a trial patient. From the procedure
performed she obtained instant relief, something that she had
that had never happened before and she immediately started seeing
Dr. Gokavi on a regular basis. She claims that the
treatment described in Dr. Gokavi's letter is quite
different from acupuncture. The appellant stated that she
called the Acupuncture Institute and the Acupuncture Referral
Service and neither had ever heard of intramuscular stimulation
for patients with fibromyalgia (F.M.S.)
Dr. Gokavi gave the appellant a list of three people in
Toronto who had attended her lectures and supposedly could give
her similar treatment. She said that none of these people
were using or doing the type of treatment that Dr. Gokavi
did.
She did find a doctor at the Woodbridge Pain Centre and
attended there for a treatment. The appellant claims that
it was not done properly, that it hurt. She became badly
bruised and that it was medical malpractice and that she never
went back.
Based on Dr. Gokavi's letter and the appellant's
testimony, I am satisfied that the appellant did everything
reasonable to find out if she could receive in the Toronto area
substantially equivalent medical services as provided by
Dr. Gokavi. However unbelievable this conclusion is, I
must make my findings of fact based on the evidence before
me.
The combination of the appellant's evidence and
Dr. Gokavi's letter drives me to this conclusion:
I am not prepared to reject the appellant's testimony.
I also must look to the fact that the appellant was instantly
relieved of pain by this new treatment.
The appellant has retired early due to her medical
problems. I ask myself why would she travel repeatedly to
Saskatoon on a regular basis with only a modest pension and pay
out of her own pocket all of the expenses incurred if she could
have received substantially equivalent medicare services in
Toronto giving similar results, and would have in all probability
been paid by OHIP.
I am satisfied that these expenses were not incurred lightly
and that at the end of the day they still cost her more money
than if she were having treatment here in Toronto.
The appellant for many years had been attending a spa 124 kms
south of Saskatoon for massage therapy and to use the mineral
baths at Watrous, Saskatchewan. I am not satisfied that
this massage therapy could not have been obtained either in
Toronto or Saskatoon.
Having come to this conclusion I must deal with the
expenses.
I allow the air expenses of $2,912.00. In regards to the
other expenses incurred in Saskatoon for accommodation and car
rental, I have looked at each individual trip, the number of days
in the hotel and the number of days the car was rented and the
number of days that treatment was taken from
Dr. Gokavi. I have tried to proportion these totally
claimed expenses of $7,242.00.
Although I invited counsel for the respondent to try and agree
on an amount, not that she would be agreeing to it being
deductible, the invitation was not accepted. I therefore
determine that expenses to stay in Saskatoon to travel to
Dr. Gokavi's office and back and forth and stay in a
motel, that a reasonable amount of $3,000.00 would be
expended.
The respondent claims that the receipts for the massage
therapy totalling $617.00 is not sufficient and there must be
some further proof over and above the receipt and the oral
evidence of the appellant that she saw the certificates on the
wall of the masseurs. This is sufficient proof in my
opinion. It is ridiculous that every taxpayer going to
receive any professional treatment must contact the governing
body to ascertain that the certificates that the professional is
hanging on his or her office is not a forged document and cannot
be relied upon. Therefore, I allow the claim of $617.00 for
massage therapy.
The respondent consented to medical expenses at the opening of
the hearing of $11,215.00. Therefore, an order will issue
that the appeal is allowed with costs and the assessment is sent
back to the Minister of National Revenue for reconsideration and
reassessment on the basis that the appellant is to be allowed
additional medical expenses of $11,832.00 and that she had travel
expenses in the amount of $5,912.00.
Those last two figures are totals. Have I made a
mathematical error?
MS. SMITH: I just want to make sure we haven't
missed anything.
HIS HONOUR: I added the 617 to your 11,215.
MS. SMITH: Is it 617 or 670?
617. Your Honour is correct.
HIS HONOUR: Okay. And I added $3,000.00 to the Air
Canada bill and you gave me a figure of $2,912.00.
MS. SMITH: So the figure of 3,000 is for airfare and
car?
HIS HONOUR: No.
MS. SMITH: No?
HIS HONOUR: No.
You said the airfare was $2,912.00.
MS. SMITH: M'hmm.
HIS HONOUR: And I have allowed $3,000.00 for taxis, car
hotel, whatever. And her claim was just over 7,000.
So that's simple mathematics, 3,000 and 2900. Do you
agree with that?
MS. SMITH: And the figure was 5,912?
HIS HONOUR: Yes.
MS. SMITH: And I guess my only concern was the wording
with respect to the travel expenses, maybe. And it's
only for clarification purposes when it's sent back. I
think technically the travel expenses would be considered
additional medical expenses, so perhaps --
HIS HONOUR: Well, the auditor can surely add the two
figures.
MS. SMITH: Okay. It's just what I heard.
HIS HONOUR: Because what I said is allow additional
medical expenses of $11,832.00 and that she had travel expenses
in addition thereto in the amount of $5,900.00.
MS. SMITH: Okay. Under the same section
118.2. Okay.
--- Whereupon concluding at 3:32 p.m.
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