Citation: 2007TCC479
Date: 20070816
Docket: 2006-1922(IT)I
BETWEEN:
STUART G. URDANG,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Webb J.
[1] The issue in this Appeal is whether the amounts spent
by the Appellant in acquiring an exercise bike and a life line personal
response system qualify as medical expenses for the purposes of subsection
118.2(2) of the Income Tax Act (the “Act”). The Appellant spent
$2,224.10 to acquire the exercise bike and $290.39 to acquire the life line
personal response system.
[2] The Appellant suffered a stroke on August 3, 2001
which left him paralyzed on the left side of his body. Because the Appellant
had a form of leukemia the medical staff were unable to administer a particular
drug to him in the hospital which may have helped to reverse some of the
effects of the stroke. As a result the Appellant required several months of
rehabilitation.
[3] Initially the Appellant was confined to a wheelchair
but later was able to walk with the assistance of a cane, although walking was
difficult. The Appellant had no flexibility in his left knee.
[4] The Appellant had a second serious incident. He had a
pulmonary embolism and his right lung filled with blood. The Appellant
indicated that he was lucky to be alive.
[5] When the Appellant left the rehabilitation centre he
could walk but, however, he could not walk up stairs. He had balance issues and
as a result of the stroke all of his muscles had tightened up. Because he was
unable to bend his knee he had to hike his leg up and lift it. While at the
rehabilitation centre he was using a special form of exercise bike because he
could not use a regular exercise bike. The exercise bike at issue in this case
is the same type of bike that the Appellant was using at the rehabilitation
centre. The Appellant testified that the exercise bike helped to improve the
flexibility in his left knee.
[6] Bruce Hewson who is a retired registered nurse also
testified for the Appellant. He confirmed that one of the issues arising from
the stroke was the blood loss to the limbs. It was important to keep the blood
circulating to the muscles so that they would not tighten up. Of course, this
would obviously help him to walk. The exercise bike that was acquired was
helping to keep the blood circulating to the muscles and helping the Appellant
to be able to move his knee so that he would be better able to walk. It would,
of course, also help with the strengthening of the leg which would allow him to
walk further distances.
[7] In this particular case the exercise bike was
prescribed by a medical doctor. A copy of the prescription form for the
exercise bike was submitted into evidence. As well, in the letter from Colleen
O’Connell, MD, FRCPC she stated that:
[a]s part of his maintaining cardiovascular fitness, home exercise
equipment had been prescribed; the Ergosizer which allows Mr. Urdang to
maintain cardiovascular fitness within his home. Due to dense hemiplegia he is
not able to utilize treadmill or a walking program to maintain cardiovascular
fitness.
[8] The Appellant also had acquired a life line personal
response system. This equipment would allow the Appellant to call for help by
simply pressing a button in the event of an emergency. Because the Appellant
was living by himself and his mobility was obviously impaired, the life line
system was essential if he needed assistance. The Appellant had a letter from
the City of Saint John dated June 14, 2007 confirming that:
[s]ince January 2005, the total number of times an
ambulance has answered your request has been 32.
Therefore the Appellant obviously needed and used the
life line personal response system.
[9] The issue in this case is whether the two items - the
exercise bike and the life line personal response system - qualified as medical
expenses under paragraph 118.2(2)(m) of the Act. This paragraph is as
follows:
118.2(2) For the purposes of subsection (1), a medical expense of
an individual is an amount paid ...
(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 may be prescribed
as to its use or the reason for its acquisition,
to the extent that the amount so paid does not exceed the amount, if
any, prescribed in respect of the device or equipment;
[10] There was no evidence that the life line personal
response system had been prescribed by a medical practitioner. Therefore,
unfortunately, that equipment does not meet the conditions as set out in
subparagraph 118.2(2)(m)(ii) and therefore the amount paid by the Appellant for
the life line personal response system, although essential for the health and
well-being of the Appellant, is not a medical expense for the purposes of the Act.
As well, this equipment is not included in the list of prescribed devices and
equipment in section 5700 of the Income Tax Regulations.
[11] The exercise bike, however, was prescribed by a
medical practitioner. Although it was not prescribed to assist the Appellant in
walking, the test set out in subparagraph 118.2(2)(m)(ii) is simply that
it be prescribed by a medical practitioner. Since the exercise bike was
prescribed it meets this test. Therefore the remaining issue for the exercise
bike is whether it is of a prescribed kind. Section 5700 of the Income
Tax Regulations provides in part as follows:
5700. For the purposes of paragraph 118.2(2)(m) of the Act,
a device or equipment is prescribed if it is a
...
(i) device that is designed to assist an individual in walking
where the individual has a mobility impairment;
There is no doubt in this case that the individual has
a mobility impairment. As well both the Appellant and the retired registered
nurse confirmed that the exercise bike did assist the Appellant in walking, although
this was not the primary purpose for acquiring the exercise bike.
[12] In Klywak v. R., 2005 CarswellNat 3473, 2005
FCA 354, [2005] 1 C.T.C. 95, 2005 DTC 5712 (Eng.), 341 N.R. 337,
the Federal Court of Appeal dealt with the interpretation of this paragraph of Regulation
5700 and made the following comments:
7. In an excellent and thorough presentation, counsel for the
appellant Crown, understandably seeking a bright line interpretation, made
several arguments that, in the end, did not persuade the Court. The main
contention of the appellant was that at law this provision can apply only to
those devices that “provide direct physical support to assist an
individual in walking”, like canes and walkers. The Tax Court Judge opined (at
para. 11), in response to this argument, that the words “‘designed to
assist an individual in walking’ surely cannot be interpreted to refer only to
mechanical external aids which, although assisting the walking function,
would not assist the internal disease.” I cannot disagree.
8. The language in the section does not support the position of
the Crown. The words of Regulation 5700(i) stated, inter alia, “designed
to assist”, not “exclusively designed” to assist. By contrast, the word
“exclusively” is used in several of the other provisions in this same regulation
to limit strictly the devices that are deductible. (See provisions (c),
(m), (n), (o), (t), and (u).) As the word
“exclusively” is not used in the provision at issue, one cannot properly
conclude that the hot tub device must have been designed “exclusively” to
assist in walking. It is sufficient that one of the purposes of its
design is to assist in walking, which the Tax Court Judge held it was. Counsel
for the Crown made a valiant attempt to have this Court write the word
“exclusively” into Regulation 5700(i), but that task is reserved for
Parliament, not this Court.
[13] Therefore
since one of the purposes of the design of the exercise bike was to assist the
Appellant in walking by helping with the circulation of blood to his left leg (to
assist in keeping the muscles from tightening up) and helping him obtain more
flexibility in his knee, I find the exercise bike did satisfy this condition
and therefore the cost of the exercise bike should have been allowed as a
medical expense.
[14] The appeal is allowed in relation to the claim for the
medical expense for the exercise bike but not for the life line equipment. The
Appellant is entitled to his costs as determined in accordance with the Tax
Court of Canada Rules (Informal Procedure).
Signed at Halifax, Nova Scotia, this 16th day of August 2007.
"Wyman W. Webb"
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