Docket: 2006-1892(IT)I
BETWEEN:
JOHANNE GAUDRY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
____________________________________________________________________
Appeal
heard on February 1, 2007, at Montréal, Quebec.
Before: The Honourable
Justice Réal Favreau
Appearances:
|
For the Appellant:
|
The Appellant herself
|
|
Agent for the Respondent:
|
Isabelle Pipon, Student-at-law
|
____________________________________________________________________
JUDGMENT
The appeal from the assessment made under
the Income Tax Act and dated September 15, 2005, in respect of
the 2004 taxation year, is dismissed in accordance with the attached Reasons
for Judgment.
Signed at Montréal, Quebec, this 23rd day of February 2007.
"Réal Favreau"
Translation
certified true
on this 25th day
of September 2007
Monica F.
Chamberlain, Reviser
Citation: 2007TCC108
Date: 20070223
Docket: 2006-1892(IT)I
BETWEEN:
JOHANNE GAUDRY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Favreau J.
[1] This is an appeal,
under the informal procedure, from a decision of the Minister of National
Revenue ("the Minister") disallowing the amount of $14,699,
claimed by the Appellant as an amount eligible for a medical expense credit, in
respect of the 2004 taxation year.
[2] The sum of $14,699
consists of the following expenses:
(a) $746 for a spa cover
(b) $5,419 for a spa cabinet
(c) $1,260 for a base in which to
install the cabinet;
(d) $1,536 for an irrigation system; and
(e) $5,736 for
the landscaping of the Appellant's house lot.
[3] The Appellant
submits that the expenses set out in the preceding paragraph are necessary to
improve her quality of life as a disabled person, and to avert further harm to
her health.
[4] The Appellant was a
field sales representative for the Yellow Pages Group. She ceased all work four
years ago and suffers from numerous health problems. She required a discectomy
because of her persistent back problems, but the surgery was unsuccessful. She
also received a diagnosis of [Translation] "fibromyalgia
with chronic fatigue" and was declared by her physicians to be suffering
from a [Translation]
"permanent total disability".
[5] The Appellant
tendered a medical certificate from Dr. M'Seffar, dated June 8, 2004,
which confirms that the Appellant was suffering from the following problems:
[Translation]
(a) after-effects
of an L4-L5 laminectomy and discectomy with pain and severe restriction;
(b) mild oligoarticular
psoriatic arthritis;
(c) severe and treatment-resistant
fibromyalgia; and
(d) carpal tunnel syndrome,
and that, consequently, he considered the Appellant to
be totally and permanently disabled.
[6] The Appellant also
produced a letter from Dr. Yvon Vaillancourt, her family doctor, dated February
22, 2006, which described the need for the expenses incurred by the Appellant
and the benefits that she can derive therefrom.
[7] However, the
Appellant's testimony discloses that none of the disallowed expenses was
incurred pursuant to a medical prescription, and no document to such an effect
was adduced in evidence.
[8] The evidence also
discloses that the Appellant is not disabled within the ordinary meaning of the
term, because she is able to walk unassisted, drive a car, live at home alone,
look after her own needs and take care of a guard dog.
[9] The Disability Tax
Credit Certificate (Form T2201), filled out by Dr. Vaillancourt on
April 25, 2005, makes no reference to reduced mobility, but refers to
the Appellant's impaired ability to perceive, think and remember
since 2002.
[10] In view of the
medical information provided, there is no doubt that the Appellant suffers from
"severe and prolonged mental or physical impairment" within the
meaning of subsection 118.4(1) of the Income Tax Act and that,
consequently, she is eligible for the "disability tax credit" under
section 118.3 of the Act and to the "medical expense credit" under
section 118.2 of the Act.
[11] Paragraph 118.2(2)(m)
of the Act makes a credit available for any device or equipment for use
by the individual that is prescribed, i.e. of the type contemplated in
section 5700 of the Income Tax Regulations ("the Regulations"),
provided it is prescribed by a medical practitioner and meets such conditions
as are prescribed as to its use or the reason for its acquisition.
[12] Section 5700 of the
ITR provides, inter alia, that, for the purposes of paragraph 118.2(2)(m),
a device or equipment is prescribed if it was designed to assist an individual
in walking where the individual has a mobility impairment.
[13] In light of the
evidence produced at the hearing, the Court is satisfied that the disallowed
expenses set out in paragraph 2 were not prescribed by a medical practitioner
and could not be considered one or more devices to assist the Appellant in
walking. The expenses in question undoubtedly improve the Appellant's quality
of life, but they do not actually dispense treatment.
[14] Paragraph 118.2(2)(l.2)
of the Act contemplates reasonable expenses relating to renovations or
alterations to a dwelling of the Appellant that can be eligible medical
expenses. In order to be eligible, the expenses must have been paid in order to
enable the Appellant to gain access to, or to be mobile or functional within,
the dwelling, so that the Appellant can carry out the activities of daily
living more autonomously.
[15] The Court is not
persuaded that the disallowed expenses, set out in paragraph 2, can be
considered related to renovations or alterations to an actual dwelling for the
purpose of enabling the Appellant to gain access to the dwelling or be mobile
or carry out the activities of daily living therein. It does not appear
possible to consider the disallowed expenses to be related to the items that
are deductible under the Act or the Regulations.
[16] The Court is
satisfied that the Appellant has not discharged the onus upon her to prove that
she is entitled to deduct the expenses set out in paragraph 2. Consequently,
the Court confirms the Minister's assessment in this regard.
[17] For these reasons,
the appeal from the reassessment made under the Act and dated September 2005,
in respect of the 2004 taxation year, is dismissed.
Signed at Montréal, Quebec, this 23rd day of February
2007.
"Réal Favreau"
Translation
certified true
on this 25th day
of September 2007
Monica F.
Chamberlain, Reviser
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