Citation: 2009 TCC 523
Date: 20091001
Docket: 2009-1390(IT)I
BETWEEN:
JOHN BELL,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Bowie J.
[1] Mr. Bell appeals
his income tax assessment for the 2007 taxation year. Mr. Bell and his
wife live in Nanaimo, British Columbia. In 2007 Mrs. Bell had hip surgery
which was carried out in Vancouver, and Mr. Bell had bypass surgery which was carried
out in Victoria. As a result, he claimed a medical expense tax credit
for the year based upon medical expenses totaling $12,248. Initially he was
assessed as filed. On November 3, 2008, he was reassessed to disallow all the
medical expenses. On November 10, 2008, he was reassessed again to allow a
credit based upon medical expenses totaling $6,036. He served a notice of
objection in respect of that reassessment. As a result of the objection, he was
reassessed on March 19, 2009 to allow him to include an additional $3,912 in
his medical expense computation. The parties are in agreement that this $3,912
pertains to expenses incurred by his wife for accommodations and meals in Victoria during
the 18 days that he was hospitalized for bypass surgery.
[2] The amounts that
remain disallowed, and as to which the appellant now brings this appeal, fall
into three categories. $267.40 is the cost of the three return trips made daily
by Mrs. Bell from the hotel where she stayed in Victoria to the hospital where
Mr. Bell’s surgery took place. $153.00 is the total cost of parking at the
hospital during those 18 days, and $311.40 is an amount claimed by Mr. Bell for
incidental expenses which he says his wife incurred during this period at the
rate of $17.30 per day. He estimates this amount on the basis of the allowance
paid to federal public servants on travel status as a daily incidental
allowance.
[3] The relevant
provisions of the Income Tax Act
are paragraphs 118.2(2)(g) and (h) and subsection 118.2(4).
118.2(2)
For the purposes of subsection 118.2(1), a medical expense of an
individual is an amount paid
(a) …
(g) to a person
engaged in the business of providing transportation services, to the extent that
the payment is made for the transportation of
(i) the patient, and
(ii) one individual who
accompanied the patient, where the patient was, and has been certified by a
medical practitioner to be, incapable of travelling without the assistance of
an attendant
from the locality where the patient dwells to a
place, not less than 40 kilometres from that locality, where medical services
are normally provided, or from that place to that locality, if
(iii) substantially equivalent
medical services are not available in that locality,
(iv) the route travelled by the
patient is, having regard to the circumstances, a reasonably direct route, and
(v) the patient travels to
that place to obtain medical services for himself or herself and it is
reasonable, having regard to the circumstances, for the patient to travel to
that place to obtain those services;
(h) for reasonable
travel expenses (other than expenses described in paragraph 118.2(2)(g))
incurred in respect of the patient and, where the patient was, and has been
certified by a medical practitioner to be, incapable of travelling without the
assistance of an attendant, in respect of one individual who accompanied the
patient, to obtain medical services in a place that is not less than 80 kilometres
from the locality where the patient dwells if the circumstances described in
subparagraphs 118.2(2)(g)(iii),
118.2(2)(g)(iv)
and 118.2(2)(g)(v)
apply;
118.2(4)
Where, in circumstances in which a person engaged in the business of
providing transportation services is not readily available, an individual makes
use of a vehicle for a purpose described in paragraph 118.2(2)(g), the
individual or the individual’s legal representative shall be deemed to have
paid to a person engaged in the business of providing transportation services,
in respect of the operation of the vehicle, such amount as is reasonable in the
circumstances.
[4] Counsel for the Minister
argued that paragraphs (g) and (h) of subsection 118.2(2)
apply only to provide for the deduction of amounts expended for the
transportation of the patient and an accompanying family member from the vicinity
of the patient's home to the vicinity where the medical services will be
provided. His position was that the Income Tax Act simply does not make
provision whereby taxpayers can take into account expenses incurred at the
place of treatment, as opposed to those incurred to reach the place of
treatment. Curiously, counsel was unable to tell me under what authority the Minister
in his last reassessment had allowed the expenses sustained by Mrs. Bell for
accommodation and meals in Victoria.
[5] I can only
assume that the Minister had regard not only to section 12 of the Interpretation
Act,
which mandates a fair, large and liberal interpretation of legislation, but also
to the recent jurisprudence
requiring that statutes be given an interpretation that takes into account not
only language and context, but also the purpose of the enactment. I expect
that, having approached paragraph (h) in that way, he would have seen that
it was aimed not simply at the cost of moving the patient, but at those
additional expenses incurred by a patient, or the person accompanying a
patient, during the period between first leaving home to go to the place of
medical treatment, and returning home after the treatment is completed. Travel
expenses, in other words, embrace not simply the cost of movement from one
place to another, but also the attendant costs of living away from home during
the treatment period. The Minister, it seems, recognized this in respect of
accommodation and meals, but not in respect of the cost of travel back and
forth between the hotel and the hospital for the appellant’s wife during his
hospitalization. I can see no difference between the two. They are both
expenses to which the patient's spouse was subject as a result of his illness
and the need to be treated more than 80 kms. from his home in Nanaimo. Clearly,
the purpose of this paragraph in section 118.2 of the Act is to provide
some relief from the extraordinary expenses incurred when a patient must
receive medical treatment 80 kilometers or more from home.
[6] Counsel for the
respondent very fairly concedes that in the present case the appellant was
certified to be incapable of traveling without the assistance of an attendant,
and that the conditions of subparagraphs (iii), (iv) and (v) of paragraph (g)
apply. I take judicial notice that the distance between Nanaimo and Victoria is
greater than 80 kms. That being so, the appellant is entitled to include in the
computation of his medical expenses for the year the amounts of $267.40 and
$153.00 in respect of travel between the hotel and the hospital, and parking,
for his wife during the 18 days that he was in hospital in Victoria.
[7] Turning now to
the claim that the appellant is also entitled to include $17.30 per day for
incidental expenses, I agree with Mr. Canzer that the Act provides no
basis upon which to allow these amounts. To be allowable, an amount must fall
within the words "... an amount paid ..." in the opening words of
subsection 118.2(2), or else it must fall within the deeming provision in
subsection 118.2(4). Mr. Bell's claim for a per diem amount simply
does not fit. No doubt a person who has to live in a hotel for three weeks does
have some incidental expenses that are the direct result of being away from
home. If they were identifiable, then the appellant would be entitled to take
them into account. In the present case they have not been identified, and so
they cannot be taken into account.
[8] The appeal will
be allowed and the reassessment referred back to the Minister of National Revenue
for reconsideration and reassessment on the basis that the appellant, in the
computation of his medical expense tax credit, is entitled to have the
additional amounts to of $267.40 and $153.00 taken into account.
Signed at Ottawa, Canada, this 1st day of October, 2009.
“E.A. Bowie”
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