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Citation: 2004TCC589
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Date: 20040901
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Docket: 2003-3903(IT)I
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BETWEEN:
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HERVE LEJEUNE,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Little J.
A. Statement of
Facts:
[1] In 1998 the Appellant's spouse
contracted meningitis.
[2] The Appellant's spouse was
hospitalized as a result of the meningitis and she has severe and
prolonged mobility impairment and is confirmed to a
wheelchair.
[3] The Appellant was unable to obtain
home care services from the Government of Manitoba for his
spouse.
[4] In order to provide 24-hour care
for his spouse the Appellant realized that he would be required
to renovate his home in order to provide living accommodation for
his mother-in-law in the basement plus a room on the main floor
for his spouse.
[5] The Appellant spent $10,531.62 on
renovations to his home to accommodate his spouse.
[6] In the 2001 taxation year the
Appellant also incurred the following expenses:
Taking
spouse from home to her
doctor
$688.00
Physiotherapy
$252.00
[7] When the Appellant filed his
income tax return for the 2001 taxation year he claimed the
following medical expenses:
Physiotherapy
$252.00
Travel to
doctor
$688.10
Renovations to his home
to
accommodate his
spouse
$10,531.62
Total
$11,471.72
[8] The Minister of National Revenue
(the "Minister") reassessed the Appellant's 2001
taxation year and allowed the following items:
1. Cost of two
ramps to accommodate a
wheelchair (all of
the other renovation
expenses were
disallowed)
$160.50
2.
Physiotherapy
$252.00
The travel expenses
to travel
to the doctor were
disallowed.
B. Issue:
[9] The issue is whether the Appellant
is entitled to deduct medical expenses in excess of the amount
allowed by the Minister.
C. Analysis and
Decision:
[10] During his testimony the Appellant made
the following comments:
1. My wife was paralyzed
by meningitis and she required full-time assistance from an
attendant or nurse;
2. My wife was unable to
function by herself;
3. The Home Care Program
was not willing to provide any assistance at that time;
4. My wife's mother
was prepared to move into our home and provide full-time care for
my wife;
5. In order to provide
accommodation for my mother-in-law I constructed a bedroom and
bathroom in the basement of my home;
6. In order to provide
accommodation for my wife I constructed her own bedroom and
bathroom;
7. I basically made these
changes to enable my wife to continue to reside at our home.
Without these renovations to our home my wife would have been
confined to an institution.
[11] In a letter dated November 15, 2001 the
Appellant's Physician, Dr. T. St. Vincent,
stated as follows:
Re: Lejeune, Joan
To Whom It May Concern
This is to notify you that the above noted patient is disabled
due to a bout with meningitis and requires 24-hour care. She is
wheelchair confined.
(See
Exhibit A-1.)
[12] A Disability Tax Credit Certificate was
filed for the Appellant's spouse. (See Exhibit A-2.)
[13] The Certificate establishes that the
Appellant's spouse is confined to a wheelchair and is unable
to look after herself without 24-hour care. The Certificate also
establishes that the Appellant's spouse has a severe and
prolonged mobility impairment.
[14] From an analysis of the above comments
it will be noted that because the Appellant carried out the
renovations on his home to create accommodation for his spouse
and his mother-in-law, his spouse was able to remain at home with
her family. Furthermore, while the Appellant's wife was
confined to a wheelchair, the mother-in-law provided all of the
care required.
[15] In my opinion the renovations that were
carried out by the Appellant in his home enabled his wife to be
functional in her home.
[16] In Gibson v. The Queen, [2002] 1
C.T.C. 147 the Federal Court of Appeal was reviewing a decision
of Justice Mogan of the Tax Court. (See Gibson v. The
Queen, [2001] 1 C.T.C. 2054.) Mogan J. had allowed the
taxpayer's appeal and held that the costs of the renovations
to her dwelling to enable the installation of a hot tub should be
allowed.
[17] In reviewing the application for
judicial review Mr. Justice Rothstein of the Federal Court of
Appeal said at page 148:
The reasons for decision of the Tax Court Judge
stressed the difficulties the respondent experienced in
performing her work as a teacher. The extent to which the Tax
Court Judge referred to that question led the applicant to argue
that the Tax Court Judge was misinterpreting
paragraph 118.2(2)(1.2). We agree with the applicant that
the availability of a tax credit under
paragraph 118.2(2)(1.2) is not predicated on an
individual's difficulty in working, but rather on the ability
of an individual to be mobile or functional within a dwelling.
However, we are satisfied that there was evidence before the Tax
Court Judge that the respondent had a severe and prolonged
mobility impairment and that the alterations to her dwelling
enabled her to be functional within the dwelling.
The application for judicial review will be
dismissed.
[18] Based on the authority as outlined by
Rothstein J. in Gibson and based on the evidence that was
presented to me I have concluded that the Appellant's spouse
had a severe and prolonged mobility impairment and that the
alterations to the Appellant's home enabled the spouse to be
functional within the family home.
[19] I am not convinced that the Appellant
can claim the travelling expenses in the amount of $688.00.
[20] The appeal is to be allowed so that the
Appellant may deduct renovation expenses in the amount of
$10,531.62.
Signed at Vancouver, British Columbia, this 1st day of
September 2004.
Little J.
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