Date: 19980716
Docket: 96-262-IT-I
BETWEEN:
FRED WEEKS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Amended reasons for judgment
Teskey, J.T.C.C.
[1] The Appellant appeals his assessment of income tax for the
years 1991, 1992, 1993 and 1994. In his Notice of Appeal, he
elected the informal procedure.
Issues
[2] The issues in these appeals are:
(1) Can the Appellant's home be considered a "nursing
home" for the purposes of paragraphs 118.2(2)(b)
and (d) of the Income Tax Act
(the "Act")? If the answer to
number (1) is in the negative, then alternatively:
(2) Can the Appellant's home be considered an "other
place" for the purposes of paragraph 118.2(2)(e)
of the Act? If the answer to number (2) is in the
negative, then alternatively:
(3) Does subsection 118.2(2) of the Act
discriminate against the Appellant, contrary to section 15
of the Charter of Rights and Freedoms
(the "Charter")? If the answer to
number (3) is positive, then alternatively:
(4) Would the infringement be justified under section 1
of the Charter? And, in any event:
(5) Can the outstanding expenses be characterized as medical
expenses under paragraphs 118.2(2)(b), (d) and
(e) of the Act?
Facts
[3] The parties filed with the Court as Exhibit A-1 an agreed
statement of facts containing 14 paragraphs which read:
1. The taxpayer’s son, John Weeks, is currently 18 years
of age and resides with the taxpayer and his wife, as he has done
his entire life.
2. John Weeks was born with a congenital brain malformation as
a consequence of holopronsencephaly syndrome and
lissencephaly.
3. John Weeks is a person who has a severe and prolonged
mental and physical impairment of a nature which would make him
eligible for the disability tax credit in
subsection 118.3(1) of the Income Tax Act but for
paragraph 118.3(1)(c).
4. John Weeks required care and supervision 24 hours per day,
7 days a week because of his disabilities during the taxation
years in question.
5. John Weeks, now and in the foreseeable future, will
continue to be dependent on others for his personal needs and
care.
6. John Weeks lacks normal mental capacity.
7. Based on previous medical literature, it would have been
predicted that a person with a disability comparable to that of
John Weeks should have had a very reduced life experience and
life expectancy.
8. John Weeks requires understanding adult supervision, care
and control for everything he does and needs, virtually being
unable to care for himself or to make wise decisions for himself.
He is disabled socially, mentally, cognitively and
physically.
9. This proceeding is an appeal from the concurrent Notices of
Reassessment, dated May 26, 1995 for the Appellant’s 1991,
1992 and 1993 taxation years and from a Notice of Assessment,
dated May 30, 1995, for the Appellant’s 1994 taxation year.
The Notices will hereinafter be referred to as the
Reassessments.
10. The Appellant had claimed in his tax return for each of
the taxation years under appeal the medical expense credit and
the disability tax credit in respect of his son,
John Weeks.
11. The Minister of National Revenue (Minister) denied the
Appellant the disability tax credit. The Appellant withdrew the
claim to the credit.
12. Of the items outlined in Appellant’s Written Outline
of Argument Schedules A and B, the following are no longer in
issue in this Appeal:
·
Community Association for Riding for the Disabled
·
Sunny View Summer Enrichment Program
·
Shah Franco Martial Arts
·
Health Care Supplies (related to incontinence)
·
Multiple Vitamins
·
Cottage Accessibility
·
Walker
·
Replacement/Repairs to Home
·
Replacement Clothing
·
Extra Laundry Costs
·
Extra Large Bath Sheets
·
Extra Gas / Hydro
·
Cleaning Rugs and Furniture
·
Bendection Meeting (claim withdrawn by appellant)
·
Ankle & Arm Weights
·
Medical Investigation Tools (claim withdrawn by appellant)
13. The remaining outstanding expenses (Outstanding Expenses)
for which the
medical expense tax credit was disallowed related to the
following items:
·
Transportation Costs in 1993 and 1994
·
Computer Equipment in 1994
·
Wheelchair Games in 1992
·
Stimulation in each taxation year under appeal
·
Books, CDs and Videos in 1994
·
Toys and Equipment in 1991, 1992, and 1993.
14. The Appellant contends that ss. 118.2(2)(b),
(d) and (e) of the Income Tax Act permit the
remaining outstanding expenses to be claimed as eligible medical
expenses or in the alternative that they are in violation of
s.15(1) of the Canadian Charter of Rights and
Freedoms.
[4] Of the reassessments before me, the Minister of National
Revenue (the "Minister") allowed some of the
claimed medical expenses and disallowed the rest as follows:
|
|
1991
$
|
1992
$
|
1993
$
|
1994
$
|
|
Total medical expenses claimed by the Appellant
|
19,730.62
|
22,078.61
|
35,692.84
|
47,551.82
|
|
Medical expenses allowed by
the Minister
|
12,259.27
|
12,755.45
|
16,377.50
|
11,817.45
|
[5] In 1997, prior to the trial, the Appellant conceded that
the following expenses were not medical expenses:
|
Taxation Year
|
Expense
|
Amount
|
|
1992
|
Bendiction meeting
|
$ 891.63
|
|
1994
|
Medical investigation tools
|
$ 580.23
|
[6] The Respondent has conceded that all other medical
expenses claimed by the Appellant are medical expenses for which
the Appellant may claim the medical expense tax credit, except
for the following expenses:
Outstanding Expenses
|
|
|
|
|
|
|
Expenses
|
1991
|
1992
|
1993
|
1994
|
|
|
$
|
$
|
$
|
$
|
|
|
|
|
|
|
|
Stimulation
|
1,500.00
|
1,820.00
|
1,820.00
|
1,820.00
|
|
Toys & Equipment
|
1,368.61
|
877.04
|
589.89
|
|
|
Wheelchair games
|
|
1,250.00
|
|
|
|
Transportation costs
|
|
|
7,636.49
|
25,588.86
|
|
Books, CDs and videos
|
|
|
|
409.37
|
|
Computer Equipment
|
|
|
|
2,458.75
|
|
Total
|
2,868.61
|
3,947.04
|
10,046.38
|
30,276.98
|
[7] The items categorized as toys and equipment are for toys
that are purchased in the normal places toys are purchased and
would be played with by normal children.
[8] The items categorized as stimulation are an estimate cost
of taking John to movies and concerts over the year. These
expenses are normal expenses occurred by parents raising
children.
[9] The wheelchair games expense was incurred to take John to
West Virginia to participate in games for blind children or
children that require a wheelchair for mobility. The cost
included the renting of a car, food and lodging.
[10] The transportation costs included the entire cost of a
1993 Ford Aerostar van, including interest paid on a loan from
Canada Trust used to purchase the van. The Appellant has been
allowed the cost of converting the van to receive and discharge a
wheelchair with a person on it.
[11] The items characterized as books, CDs and videos are the
cost of buying books, CDs and videos in the normal places they
are purchased and would be enjoyed by normal children.
[12] Computer equipment was the expense to purchase an IBM
compatible computer of which no special modification has been
made to accommodate John. It is a computer that would be
purchased for a normal child.
[13] There was a great deal of evidence before the Court.
However, because of my reasons set forth, I do not believe it
serves any purpose to summarize it and my only comment would be
that I accept Dr. Keith Horner's testimony as an
expert in Canadian tax policy and as an economist. His estimates
are the best available to the Court, and criticisms of the report
by Adele D. Furrie is not accepted as she is a
statistician, not an expert in economics or tax policy and she,
although critical of Dr. Horner's report, could not
propose alternative figures.
Analysis
[14] The relevant portion of paragraphs 118(2)(b),
(d) and (e) read:
(2) Medical expenses
For the purposes of subsection (1), a medical expense of an
individual is an amount paid
...
(b) as remuneration for one full-time attendant (other
than a person who, at the time the remuneration is paid, is the
individual's spouse or is under 18 years of age) on, or for
the full-time care in a nursing home of, the patient in respect
of whom an amount would, but for paragraph 118.3(1)(c), be
deductible under section 118.3 in computing a taxpayer's tax
payable under this Part for the taxation year in which the
expense was incurred;
...
(d) for the full-time care in a nursing home of the
patient, who has been certified by a medical practitioner to be a
person who, by reason of lack of normal mental capacity, is and
in the foreseeable future will continue to be dependent on others
for the patient's personal needs and care;
(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;
Issue (1) – "Nursing Home"
[15] Was the family residence a nursing home? My opinion is
"no", which is based on the ordinary everyday,
and every person's belief of what a nursing home is.
Normally, a nursing home is:
a) subject to governmental regulation;
b) enters into a contractual relationship with its
residents;
c) provides professional medical staff for its
residents;
d) charges fees to the extent permitted by law.
[16] "Nursing Home" is defined in Webster's
Ninth New Collegiate Dictionary (Merriam Webster) as:
"a privately operated establishment where maintenance and
personal or nursing care are provided for persons
(as the aged or chronically ill) who are unable to care for
themselves properly".
[17] Stedman's Medical Dictionary, 25th ed.
(Baltimore: Williams & Wilkins 1990) at 1073, defines
"Nursing Home" as:
"A convalescent home or private facility for the care of
individuals who do not require hospitalization and
who cannot be cared for at home".
[18] Of course, if Parliament had defined these words, that
definition would prevail. The province of Ontario, in its
Nursing Home Act, R.S.O. 1990, chapter 320, used the
following definition:
"nursing home means any premises maintained and operated
for persons requiring nursing care or in which such
care is provided to two or more unrelated persons, but does not
include any premises falling ....."
Issue (2) - "Other Place"
[19] Likewise, I reject the Appellant's contention that
his home can be the "other place" in
paragraph 118.2(2)(e) of the Act. The meaning
of "other place" is limited to a place outside the
family home. The ejusdem generis rule of construction
applies to paragraph 118.2(2)(e). The term
"other place" is part of the phrase "a school,
institution or other place" and should take its meaning from
the words preceding it.[1]
[20] There are common characteritics to the terms
"school" and "institution" that influence the
meaning of "other place":[2]
(i) both places provided care to a handicapped person
outside a family home;
(ii) in both, teachers and or other professional staffs, not
the family of the handicapped person, generally provide care to
the handicapped person; and
(iii) both would offer their services to at least part of the
public;
Issue (3) - The Charter
[21] Subsection 15(1) of the Charter provides:
Every individual is equal before and under the law and has the
right to the equal protection and equal benefit of the law
without discrimination and, in particular without discrimination
based on race, national or ethnic origin, colour, religion, sex,
age or mental or physical disability.
[22] Cory J. in his majority reasons in the Supreme Court
of Canada decision of Vriend v. Alberta, 1998,
156 D.L.R. (4th) 385, when dealing with an allegation of
discrimination under this provision wrote, starting at
page 417, paragraph [70] through to
paragraph [74]:
[70] How then should the analysis of s. 15 proceed? In
Egan the two-step approach taken in Andrews v.
Law Society of British Columbia, [1989] 1 S.C.R. 143, 56
D.L.R. (4th) 1, and R. v. Turpin, [1989] 1 S.C.R.
1296, was summarized and described in this way (at
paras. 130-131):
The first step is to determine whether, due to a distinction
created by the questioned law, a claimant's right to equality
before the law, equality under the law, equal protection of the
law or equal benefit of the law has been denied. During this
first step, the inquiry should focus upon whether the challenged
law has drawn a distinction between the claimant and others,
based on personal characteristics.
Not every distinction created by legislation gives rise to
discrimination. Therefore, the second step must be to determine
whether the distinction created by the law results in
discrimination. In order to make this determination, it is
necessary to consider first, whether the equality right was
denied on the basis of a personal characteristics which is either
enumerated in s. 15(1) or which is analogous to those
enumerated, and second, whether that distinction has the effect
on the claimant of imposing a burden, obligation or disadvantage
not imposed upon others or of withholding or limiting access to
benefits or advantages which are available to others.
A similar approach was taken by McLachlin J. in Miron
(at p. 485):
The analysis under s. 15(1) involves two steps. First,
the claimant must show a denial of "equal protection"
or "equal benefit" of the law, as compared with some
other person. Second, the claimant must show that the denial
constitutes discrimination. At this second stage, in order for
discrimination to be made out, the claimant must show that the
denial rests on one of the grounds enumerated in s. 15(1) or
an analogous ground and that the unequal treatment is based on
the stereotypical application of presumed group or personal
characteristics.
[71] In Miron and Egan, Lamer C.J. and
La Forest, Gonthier and Major J.J. articulated a
qualification which, as described in Benner v. Canada
(Secretary of State), [1997] 1 S.C.R. 358,
143 D.L.R. (4th) 577 (at para. 64), "focuses on
the relevancy of a distinction to the purpose of the legislation
where that purpose is not itself discriminatory and recognizes
that certain distinctions are outside the scope of
s. 15". This approach is, to a certain extent,
compatible with the notion that discrimination commonly involves
the attribution of stereotypical characteristics to members of an
enumerated or analogous group.
[72] It has subsequently been explained, however, that it is
not only through the "stereotypical application of presumed
group or personal characteristics" that discrimination can
occur, although this may be common to many instances of
discrimination. As stated by Sopinka J. in Eaton v. Brant
County Board of Education, [1997] 1 S.C.R. 241, 142 D.L.R.
(4th) 385 at paras. 66-67:
... the purpose of s. 15(1) of the Charter is not
only to prevent discrimination by the attribution of
stereotypical characteristics to individuals, but also to
ameliorate the position of groups within Canadian society who
have suffered disadvantage by exclusion from mainstream society
as has been the case with disabled persons.
The principal object of certain of the prohibited grounds is
the elimination of discrimination by the attribution of untrue
characteristics based on stereotypical attitudes relating to
immutable conditions such as race or sex ... the other
equally important objective seeks to take into account the true
characteristics of this group which act as headwinds to the
enjoyment of society's benefits and to accommodate them.
[73] These approaches to the analysis of s. 15(1) have been
summarized and adopted in subsequent cases, e.g. Eaton (at
para. 62), Benner (at para. 69) and, most
recently, Eldridge. In Eldridge, LaForest J.,
writing for the unanimous Court, stated (at para. 58):
While this Court has not adopted a uniform approach to s.
15(1), there is broad agreement on the general analytic
framework; see Eaton v. Brant County Board of Education,
[1997] 1 S.C.R. 241, at para. 62, Miron, supra, and
Egan, supra. A person claiming a violation of s.
15(1) must first establish that, because of a distinction drawn
between the claimant and others, the claimant has been denied
"equal protection" or "equal benefit" of the
law. Secondly, the claimant must show that the denial constitutes
discrimination on the basis of one of the enumerated grounds
listed in s. 15(1) or one analogous thereto.
[74] In this case, as in Eaton, Benner and
Eldridge, any differences that may exist in the approach
to s. 15(1) would not affect the result, and it is therefore
not necessary to address those differences. The essential
requirements of all these cases will be satisfied by enquiring
first, whether there is a distinction which results in the denial
of equality before or under the law, or of equal protection or
benefit of the law; and second, whether this denial constitutes
discrimination on the basis of an enumerated or analogous
ground.
In summary, Cory J. concludes in paragraph [107],
starting at page 429:
5. Conclusion Regarding Section 15.
[107] In summary, this Court has no choice but to conclude
that the IRPA, by reason of the omission of sexual
orientation as a protected ground, clearly violates s. 15 of the
Charter. The IRPA in its underinclusive state
creates a distinction which results in the denial of the equal
benefit and protection of the law on the basis of sexual
orientation, a personal characteristic which has been found to be
analogous to the grounds enumerated in s. 15. ....
[23] I cannot find where any personal characteristic of the
Appellant has been discriminated in regards to his race, national
or ethnic origin, colour, religion, sex, age or mental or
physical disability. There is no personal characteristic of the
Appellant that is at issue herein.
[24] Also, at the end of the day, the Appellant and his spouse
made the free and voluntary choice to keep their badly disabled
child at home.
[25] It has been demonstrated that by this decision,
John Weeks has developed far greater than expected and does
have a better quality of life and a greater life expectancy than
if he had been placed in an institution.
[26] The Appellant and his spouse are saints and deserve a
great deal of credit. My heart bleeds for them and I have nothing
but the greatest admiration for them.
Issue (4) - Section 1 of the
Charter
[27] I do not have to make any comment on this in light of my
finding that subsection 15(1) of the Charter has not
been breached.
Issue (5) - Medical Expenses
[28] Are the expenses before me "medical expenses".
The answer is NO. Even if I had found for the Appellant in the
affirmative on any of issues (1), (2), (3) and (4), I still would
not have allowed this appeal. These expenses at issue herein are
the normal personal or living expenses that most parents
encounter in the raising of their children. The Appellant and his
spouse elected to look after this child at home and the claimed
expenses before me are the normal personal or living expenses
encountered by most parents. The Respondent has allowed
"all" expenses which were directly attributable
to John's disability.
[29] Since the Respondent conceded prior to trial that the
appeals should be allowed in the following years for the
following amounts, namely:
1991 - $4,602.74
1992 - $4,484.54
1993 - $9,268.96
1994 - $4,877.16
the appeals are allowed, without costs, and the assessments
are referred back to the Minister for reconsideration and
reassessment on the basis that the Appellant is to be allowed
additional medical expenses in the amounts of $4,602.74,
$4,484.54, $9,268.96 and $4,877.16, in the respective years.
[30] The Appellant is entitled to no further relief.
Signed at Sydney, Nova Scotia, this 16th day of July 1999.
"Gordon Teskey"
J.T.C.C.
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