|
Citation: 2003TCC342
|
|
Date: 20030617
|
|
Docket: 2001-1335(IT)I
|
|
BETWEEN:
|
|
JUDY K. SEELY,
|
|
Appellant,
|
|
and
|
|
|
|
HER MAJESTY THE QUEEN,
|
|
Respondent.
|
____________________________________________________________________
Counsel for the Appellant: Richard Speight
Counsel for the Respondent: Christa MacKinnon
____________________________________________________________________
REASONS FOR JUDGMENT
(Delivered orally from the Bench at
Fredericton, New Brunswick on May 17, 2002)
McArthur J.
[1] The issue
in this appeal is whether the Appellant is entitled to a medical
expense credit for the cost of hardwood flooring under section
118.2 of the Income Tax Act for the 1999 taxation year.
The cost of the flooring was approximately $11,000. This included
a moulding and a barrier to retain the moulding. The tax refund
claimed was approximately $3,000.
[2] Mrs. Seely states that the medical
expenses were incurred with respect to her husband, Jim.
Subsection 118.2(1) permits a credit for a percentage of the
taxpayer's medical expenses and paragraph 118.2(2)(l.1)
defines medical expenses as follows:
118.2(2)
... an amount paid
(l.1) for reasonable
expenses relating to renovations or alterations to a dwelling of
the patient who lacks a normal physical development or has a
severe and prolonged mobility impairment, to enable the patient
to gain access to, or to be mobile or functional within, the
dwelling;
[3] The relevant facts as I find them
and taken in large part from the comprehensive Notice of Appeal
completed by Mrs. Seely on behalf of her husband are:
Jim has been a patient of a number of physicians including
specialists in environmental illness. He has suffered from
allergies due to lack of normal physical development (as
supported by his doctor). We were advised by doctors that the
removal of old carpeting and sources of mould would improve his
health. Before we undertook these extensive home renovations, my
husband suffered from chronic diarrhea daily for more than one
year, (food allergies), sinus headaches, again due to allergies.
and in January 1999 he had an irreversible ear damage due to ear
infection, and a burst eardrum which can also be attributed to
allergies. He is now partially deaf in one ear.
Some of his symptoms were/are:
1. A reaction to
many food and drinks - chronic diarrhea, heartburn ...
2. Ear
infection ...
3. Severe
headaches and sinus problems ...
4 Severe
headaches and sinus problems due to dust, mould and pollens
...
[4] The Appellant refers to a major
incident during Christmas 1998 where her husband had severe
headaches and suffered severe discomfort. And in 1999, his
eardrum burst. He has seen many specialists. He has been working
for and continues to work for New Brunswick Power since 1973. The
report also contains a comprehensive medical history which, for
the purposes of brevity, I will not recite at this time.
[5] The Appellant was the only witness
and her credibility is not questioned and she was ably
represented by legal counsel. She indicated that Jim was referred
by his general practitioner to an allergy specialist. Both
doctors advised him to remove the old carpeting at home. Letters
to this effect were put in evidence. The first from his general
practitioner, Dr. Anna Marie MacKinnon, dated February 14, 2001
reads:
Because of significant health impairment secondary to his
immune dysfunction aggravated by presence of chemicals and moulds
in his home, James Seely was unable to be functional in his own
home until the carpets were removed and replaced with hardwood.
He has been advised by Dr. Imbulgoda, an allergy specialist, and
myself that he should replace his carpets as a health
measure.
And a shorter letter from Dr. Manel Imbulgoda reads:
Mr. Seely has house dust allergies. He stated his symptoms
were worse due to the carpeting in his home. He was advised to
remove the carpeting which he did and subsequently installed
hardwood flooring. As a result of this change, his symptoms have
improved.
The Appellant added:
Since we've made our home renovations, my husband has been
able to achieve a normal lifestyle. The renovations have enabled
him to function within the home where previously before the
renovations he was not. Although his ear damage is irreversible,
a portion of his allergy symptoms have been alleviated. The
renovations were made solely on the advice of a medical
practitioner and we were aiming solely at improving the ability
of my husband to be able to function normally within the
dwelling.
[6] From the lengthy medical history
of Mr. Seely's health, there is no doubt that he lacked normal
physical development within the meaning of the Act. The
Appellant acknowledges that Mr. Seely suffered from allergies and
he was advised by his doctors that the removal of his carpeting
and sources of mould would improve his health.
[7] The quantum of expense is not an
issue. The Minister's position includes:
The cost of acquisition and installation of hardwood flooring
was not an expense relating to a renovation or alteration to a
dwelling for a patient who lacks physical development or has a
severe and prolonged mobility impairment.
Upon reading the letters of Drs. MacKinnon and Imbulgoda and
hearing the Appellant's extensive evidence, there was no doubt
that Mr. Seely had a severe and prolonged impairment. The expense
for the hardwood floors and the work done to remove the mould was
reasonable. His impairment was a mobility one in that the
carpeting and mould prevented him from functioning within his
dwelling. Dr. MacKinnon further stated:
James Seely was unable to be functional in his home until the
carpets were removed and replaced with hardwood.
[8] The Respondent presented no
evidence other than able cross-examination.
[9] I agree with the Appellant's
counsel as stated in paragraph 29 at page 14 of his written
argument. The Minister's counsel presented no case law but
attempted to distinguish the present facts from cases submitted
on the Appellant's behalf, on the basis that Mr. Seely's
impairment was not as severe as that suffered by the taxpayers in
those cases. In particular, there were some four cases of a list
of eleven that were given most of the attention, McGaugh,
[1999] T.C.J. No. 954, Williams, [1997] T.C.J. No.
1346, Pawlychka, [1999] T.C.J. No. 886, and
Russell, [2001] T.C.J. No. 442.
[10] There was no comparative evidence with
respect to the degree of mobility impairment. I am satisfied that
the Appellant has met the criteria in section 118.2. The
following statements of Judge Bell in Pawlychka, apply
equally to Mrs. Seely's appeal:
10 Section 118.2 is
intended to provide tax relief for individuals with certain
conditions. As stated above, although paragraph (l.2)
appears to refer to a certain and obvious type of mobility
impairment, I do not think it can be interpreted only in such
narrow fashion. In Johnston v. Her Majesty the Queen, 98
DTC 6169, Letourneau, J.A. stated at page 6171, after referring
to the words of Bowman, T.C.J. in Radage v. R.,
[1996] 3 C.T.C. 2510:
|
|
Indeed, although the scope of these provisions is
limited in their application to severely impaired persons,
they must not be interpreted so restrictively as to negate
or compromise the legislative intent.
|
|
11 The words of
Bowman, T.C.J. to which he referred are:
|
|
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
everyone 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
|
|
[11] In conclusion, the appeal is allowed,
and costs are granted to the Appellant fixed in the amount of
$300.
Signed at Ottawa, Canada, this 17th day of June, 2003.
J.T.C.C.
Email this Content