Citation: 2007TCC388
Date: 20070629
Docket: 2006-2782(IT)I
BETWEEN:
PINA GARCEA ZAFFINO,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Bowie
J.
[1] The appellant has suffered from very severe disabilities
for some years as the result of a motor vehicle accident. As a result it is
both very time consuming and very difficult for her to carry out many of the
activities that are for most people simply the routine activities of daily
living. She has great difficulty with such things as bathing, dressing herself,
shopping, cooking, cleaning the house, and attending medical appointments, to
name but a few. She can do many, if not most, of these things, but they take
her much longer than before the accident, and they frequently cause her
considerable pain that lasts beyond the period of the activity.
[2] During the 2003,
2004 and 2005 taxation years the appellant had a cleaning company come to her
house to do many of the cleaning tasks that she used to do herself. The appeals
before me relate to her claims in those years for a tax credit under section
118.2 of the Income Tax Act (the Act) based on the remuneration
that she paid for these services. The amounts involved are $1,391, $5,275 and
$4,410, respectively, for the three years in issue. She also claims as a
medical expense in 2004 the amount of $120.00 that she was required to pay to a
medical practitioner with whom she had an appointment that she was unable to
attend. All of these amounts were disallowed by the Minister of National
Revenue in assessing her, and they are now the subject of these appeals.
[3] Also before me
is her claim for a deduction for legal fees of $1,814 that the appellant paid
in 2004, to advance her claim for a disability pension. The respondent now
accepts that this is an amount that she is entitled to deduct under subsection 8(1)(b)
of the Act.
[4] As is too often
the case in informal appeals, the Reply to the Notice of Appeal filed by the
Deputy Attorney General of Canada is less than clear, but as I understand it the
Respondent does not dispute that the amounts claimed by the Appellant for
cleaning and for the missed appointment were in fact paid. All that is in
dispute is whether these can properly be characterized as “attendant care” and
“medical … services” coming within paragraphs 118.2(2)(b.1) and
118.2(2)(a), respectively. I shall deal first with the claim in respect
of attendant care. Paragraph 118.2(2)(b.1) of the Act reads:
118.2(2) For the purposes of subsection 118.2(1), a medical
expense of an individual is an amount paid
…
(b.1) as remuneration for attendant
care provided in Canada to the patient if
(i) the patient is a person in respect
of whom an amount may be deducted under section 118.3 in computing a taxpayer's
tax payable under this Part for the taxation year in which the expense was
incurred,
(ii) no part of the remuneration is
included in computing a deduction claimed in respect of the patient under
section 63 or 64 or paragraph (b), (b.2), (c), (d)
or (e) for any taxation year,
(iii) at the time the remuneration is
paid, the attendant is neither the individual's spouse or common- law partner
nor under 18 years of age, and
(iv) each receipt filed with the Minister
to prove payment of the remuneration was issued by the payee and contains,
where the payee is an individual, that individual's Social Insurance Number,
to
the extent that the total of amounts so paid does not exceed $10,000 (or
$20,000 if the individual dies in the year);
118.2(2) Pour l'application du paragraphe (1),
les frais médicaux d'un particulier sont les frais payés:
…
b.1) à titre de
rémunération pour les soins de préposé fournis au Canada au particulier, à son
époux ou conjoint de fait ou à une personne à charge visée à l'alinéa a), dans
la mesure où le total des sommes payées ne dépasse pas 10 000 $ (ou 20 000
$ en cas de décès du particulier dans l'année) et si les conditions suivantes
sont réunies:
(i) le particulier, l'époux ou
conjoint de fait ou la personne à charge est quelqu'un pour qui un montant est
déductible en application de l'article 118.3 dans le calcul de l'impôt payable
par un contribuable en vertu de la présente partie pour l'année d'imposition au
cours de laquelle les frais sont engagés,
(ii) aucune partie de la rémunération
n'est incluse dans le calcul d'une déduction demandée pour le particulier,
l'époux ou conjoint de fait ou la personne à charge en application des articles
63 ou 64 ou des alinéas b), b.2), c), d) ou e)
pour une année d'imposition,
(iii) au moment où la rémunération
est versée, le préposé n'est ni l'époux ou conjoint de fait du particulier ni
âgé de moins de 18 ans,
(iv) chacun des reçus présentés au
ministre comme attestation du paiement de la rémunération est délivré par le
bénéficiaire de la rémunération et comporte, si celui-ci est un particulier,
son numéro d'assurance sociale;
It
is not disputed that in this case the various conditions found in subparagraphs
(i) to (iv) are satisfied. The only issue concerns the meaning to be attributed
to the expression “attendant care” (“les soins de préposé”).
[5] There is no
doubt that the appellant’s disability resulting from the accident is severe.
The respondent does not contest that, and by the reassessments for 2003 and
2004 she has been allowed the disability tax credit under section 118.3 of the Act.
She has also been allowed a medical expense credit in respect of a service dog
that accompanies her to provide her with assistance of various kinds on a
fulltime basis. The appellant’s position is that she requires a great deal of
assistance in her daily activities, and I have no doubt that that is correct.
She does not have a fulltime personal caregiver, but she receives assistance
from her husband, from her parents, from other family members, from a number of
her friends and neighbours, and of course from her service dog. All these
people have contributed to her well‑being by providing various kinds of
assistance of the sorts that a fulltime attendant would provide, if she had
one.
[6] Curiously, the
respondent takes the position that if the appellant had paid for an attendant
to do several different kinds of tasks for her — tasks of the kind that her
relatives, friends and neighbours help with — including the cleaning which
she now seeks to include in her medical expense claims, then the cost of that
would be allowed to her under paragraph 118.2(2)(b.1), but the services
provided by the cleaning companies do not qualify as “attendant care”, because
the only kind of assistance that they provide is house cleaning. The Minister’s
view, if I understand it correctly, is that an “attendant” provides a variety
of different services to assist a person who suffers from a disability, not
just one; hence a person who simply provides one type of service cannot provide
“attendant care” as that expression is used in paragraph 118.2(2)(b.1). It
was put this way in a letter to the appellant from the Appeals Division of the
Canada Revenue Agency that enclosed the Notice of Confirmation:
… attendant
care is care provided by an attendant who performs those personal tasks, which
the person with the disability in [sic] unable to do for himself or
herself. Such tasks could include meal preparation, maid and cleaning services
and transportation. However, if a person is employed to do a specific task, for
example, provide maid and cleaning services, the provision of such would not be
viewed as “attendant care.”
I
must confess that if there is logic in this analysis it escapes me. I should
have thought that the expression “attendant care” refers to the totality of the
services provided by an attendant, and that if a particular service falls
within it when it is delivered along with other services, then it must
necessarily fall within it when delivered alone. The fact that a particular
taxpayer requires to obtain only one of the services commercially surely does
not change the nature of that service from being “attendant care” to something
else.
[7] The respondent’s
view requires one to give an unjustifiably narrow interpretation to the
expression “attendant care” (“les soins de préposé”). The Canadian Oxford
Dictionary defines an “attendant” as “a person employed to wait on others
or provide a service” and the many meanings of the word “care” include “process
of looking after or providing for someone …; the provision of what is needed
for health or protection”. The expression “les soins de préposé” used in the
French version of the Act is equally expansive in meaning: see Le
Nouveau Petit Robert at pages 1766, 2104; Harrap’s Shorter Dictionary
at pages 720, 861. The ordinary meaning of the expression, in either official
language, takes in the kind of cleaning services for which the appellant claims
in this case, as the respondent admits. Those services cannot then be excluded
from that meaning simply because the appellant is fortunate enough to obtain
the other attendant services that she requires from other sources at no cost.
If house cleaning is an “attendant service” when it is provided along with
other services then it surely must be an “attendant service” when it is
provided alone.
[8] In Johnston
v. The Queen, the Federal Court of Appeal approved the following
passages from the judgment of Bowman J., as he then was, in Radage v. the
Queen:
The
legislative intent appears to be to provide a modest relief to persons who fall
within a relatively restricted category of markedly physically or mentally
impaired persons. The intent is neither to give the credit to every one who
suffers from a disability nor to erect a hurdle that is impossible for
virtually every disabled person to surmount. It obviously recognizes that
disabled persons need such tax relief and it is intended to be of benefit to
such persons.
…
If the object of Parliament, which is to give to disabled persons a measure
of relief that will to some degree alleviate the increased difficulties under
which their impairment forces them to live, is to be achieved the provisions
must be given a humane and compassionate construction.
These
statements were made in the context of sections 118.3 and 118.4 of the Act,
but they must apply with equal force when interpreting paragraph 118.2(2)(b.1),
whose purpose is the same.
[9] I note, too,
that in the definition of the basic activities of daily living found in
subsection 118.4(1), Parliament, by paragraph (d), specifically excluded
“housekeeping”. It could easily have excluded housekeeping from the expression
“attendant care”, had it chosen to do so.
[10] For all these
reasons, the appellant succeeds in respect of her claim that she is entitled to
include the amounts that she paid for cleaning services in computing her
medical expenses under section 118.2 of the Act.
[11] I turn now to the
appellant’s contention that she should be entitled to include in her
computation of medical expenses the sum of $120 that she was required to pay to
a medical practitioner on an occasion when she was unable to keep an
appointment. She argues that the reason she could not keep the appointment was
because on the day of the appointment she was suffering a degree of pain that
made it impossible for her to travel to the doctor’s office. She therefore
attributes the missed appointment directly to her medical condition, and says
that it would be unfair not to treat it as a medical expense.
[12] I am not
unsympathetic to the appellant’s plight, but the words of the Act are
quite clear. The relevant provision is paragraph 118.2(2)(a).
118.2(2) For the purposes of
subsection 118.2(1), a medical expense of an individual is 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 common-law partner or a dependant of the individual (within the
meaning assigned by subsection 118(6)) in the taxation year in which the
expense was incurred;
118.2(2) Pour l'application du
paragraphe (1), les frais médicaux d'un particulier sont les frais payés:
a) à un médecin, à un dentiste, à une infirmière ou un
infirmier, à un hôpital public ou à un hôpital privé agréé, pour les
services médicaux ou dentaires fournis au particulier, à son époux ou
conjoint de fait ou à une personne à la charge du particulier (au sens du
paragraphe 118(6)) au cours de l'année d'imposition où les frais ont été
engagés;
(emphasis added)
[13] It is abundantly clear in both the French and the English versions of
the Act that, in order for an amount to be considered as a medical
expense for the purpose of section 118.2, it is not sufficient that it has been
paid to a medical practitioner — it must have been paid “… in respect of
medical … services …” (pour les services médicaux). In argument, the appellant
characterized the service of the doctor to whom the payment was made as having
been to make himself available for her during the period of the appointment. In
my view the language of the Act simply does not admit of that
construction. To constitute a medical service requires something more than
simply being available to see a patient should she attend his office at a given
time.
[14] The appeals are allowed, with costs if any, and the assessments are
referred back to the Minister of National Revenue for reconsideration and
reassessment on the basis that the appellant is entitled to have included in
the computation of her medical expenses the amounts that she paid in those
years for housecleaning services, and is entitled to a deduction in computing
her income for 2004 of $1,814 for legal fees.
Signed at Ottawa, Canada, this
29th day of June, 2007.
“E.A. Bowie”
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