Date: 20010926
Docket: 2000-3675-IT-I
BETWEEN:
KIM GOODWIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor
Judgment
Teskey, J.
[1]
The Appellant in his Notice of Appeal, wherein he appealed his
assessment of income tax for the 1998 year, elected the informal
procedure.
[2]
The only issue before the Court is whether the expense of $964.36
for travelling to Las Vegas, Nevada, in April 1998, and of
$505.21 for travelling to Phoenix, Arizona in November of 1998,
were medical expenses falling within the provisions of
section 118.2(2) of the Income Tax Act
(the "Act").
[3]
At the hearing of this appeal, I had the benefit of hearing the
Appellant's testimony and that of his dermatologist,
Gregory S. Storwick
(the "dermatologist"). As a result, the Respondent
acknowledges that the Appellant suffers from a severe case of
psoriasis. The dermatologist recommended that the Appellant
travel to a warmer climate in both April and November for short
periods where the Appellant could be in natural sunlight wearing
only shorts. This type of exposure is recommended no matter what
type of treatment a patient may be receiving.
[4]
The Respondent also acknowledges that the Appellant's medical
condition was helped by these two trips to a warmer climate.
[5]
At the present time, there is no cure for severe psoriasis of the
kind that affects the Appellant.
[6]
Psoriasis is an abnormality of the immune system which stimulates
the growth of skin at 10 times the normal rate of skin
regeneration. About five percent of those people afflicted with
psoriasis have severe chronic psoriasis. All the medical
profession can do is to ease the difficulties caused by the
affliction.
[7]
The dermatologist submitted a brief report which reads:
...
Photo Therapy is a long-standing and well recognised treatment
for moderate and severe psoriasis. It can be given as UVA, UVB or
natural sunlight. Natural sunlight is a preferred method of
treatment but unfortunately this medical service is not available
in Canada for most of the year on a consistent basis. Often we
recommend to psoriasis patients a mid-winter sunny holiday.
The Exposure to natural sunlight can be enhanced with the
addition of psorelens to increase the efficacy of the ultraviolet
light. This is similar to PUVA Therapy given in dermatologists
offices. It is more convenient to patients and less costly to the
medical system. If you have any questions please call our
office.
...
[8]
Natural sunlight cannot be reproduced by use of various ultra
violet lights at the present time, as natural sunlight has the
complete range of different types of rays.
[9]
The PUVA treatment as set out in the dermatologist's report
is a treatment using ultra violet light with or without the
addition of psorelens.
[10] There are
risks involved with both natural sunlight and PUVA treatments as
the patient can be burned by either. Burning of the skin can lead
to many forms of skin cancer.
[11] The
dermatologist's opinion, which was not challenged in any way,
that no matter what treatments a patient suffering from severe
psoriasis is receiving that a break in the treatment pattern with
natural sunlight is medically beneficial and that in the winter
months, November to May, there are just not enough warm days for
a patient to be in shorts and spend the necessary time in the
direct sun, and that only by travelling to a warmer climate, such
as that provided in Nevada and other similar places south of the
border, can a patient receive the benefit of natural sunlight at
that time of the year.
[12] The
dermatologist felt that it was reasonable for a patient with a
severe case of psoriasis such as the Appellant to go to a warm
climate for a short period (10 days to two weeks at a time) to
obtain the relief that the natural sunlight provides even though
it is temporary.
[13] It was
his position that natural sunlight in the long term was less
costly to the patient then the PUVA treatments.
[14] The
dermatologist did not put any reference of travelling to a warmer
climate in his medical records of the Appellant. He said that any
discussion of brief periods in a warm climate would be of a
casual nature. It was "patient advice".
Analysis
[15] The
pertinent part of subsection 118.2(2) of the Act
reads:
(2)
Medical expenses - For the purposes of subsection (1), a medical
expense of an individual is an amount paid
...
(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
...
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,
...
(h)
for reasonable travel expenses ... to obtain medical services in
a place that is not less than 80 kilometres from the locality
where the patient dwells ...;
[16] From
reading the above provision, the question to be decided is can a
patient, on the recommendation of a dermatologist, that
travelling for short periods to a warmer climate to receive
direct sunlight, be considered as medical services as used in the
above provisions of the Act.
[17]
Létourneau, J.A., of the Federal Court of Appeal in
Johnston v. Canada, [1998] F.C.J. No. 169 (Q.L.) when
dealing with paragraphs 118.3(1)(a) and
118.4(1)(e) of the Act said in paragraphs 10
and 11 of his reasons:
The purpose of sections 118.3 and 118.4 is not to indemnify a
person who suffers from a severe and prolonged mental or physical
impairment, but to financially assist him or her in bearing the
additional costs of living and working generated by the
impairment. As Bowman T.C.J. wrote in Radage v. R. ([1996]
3 C.T.C. 2510) p. 2528:
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 every one 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.
The learned Judge went on to add, at p. 2529, and I agree with
him:
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.
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.
[18] There is
no doubt that many people who reside in Canada find that brief or
extended periods in warmer areas south of Canada obtain temporary
relief from the effect of natural sunlight. I am sure many
retired persons have an extended period of good health by being
in these warmer climates during the winter months rather than
staying and experiencing the rigors of Canadian winters.
[19] My
colleague Beaubier J., in Lazenby v. The Queen, a
decision dated December 1, 2000, unreported, when dealing
with a taxpayer who spent winter in Arizona, said in
paragraph 3 thereof:
His travel was not to obtain medical services as specified in
subsection 118.2(4) of the Income Tax Act. Rather, it
was to go to a more suitable climate in the winter where he would
not be confined indoors throughout the winter.
[20] In the
context of the facts before me, the Appellant's trips to a
warmer climate for the purpose of receiving natural sunlight for
several days was beneficial to the Appellant.
[21] The
New Lexicom Webster Dictionary of the English Language
defines "treatment" as follows:
- the act or a method or manner of treating someone // medical
or surgical case
"medical", as an adjective, is defined
as:
- concerned with or related to the practice of medicine.
"Service", as a noun, has many
entirely different meanings in the English language, those in the
dictionary that are of help define it as follows:
- the product of a professional persons paid activities
- assistance given to another
- the benefit derived from this
- the product of human activity meant to satisfy a human need
but not constituting an item of goods
[22] When
looking up the word "service" in the book "The
Synonym Finder" by J.I. Rodale, under the word
"service" you find: assistance, help, aid, abetment,
benefit, advancement, furtherance, advocacy, recommendation,
support, backing.
[23] Although
the dermatologist in his report referred to natural sunlight as a
"preferred method of treatment", then used the words
"medical service" as meaning the same. These words or
phrases are not synonyms.
[24] I do
believe "medical treatment" and
"medical service" are different. The
question is: Can casual "medical advice"
given in a general way to patients and not noted in the
patient's records be considered
"treatment" or
"service" or is this something different?
Examples of advice given by medical doctors to patients are:
- cut down on your alcohol intake
- loose 15 lbs and you will feel better
- get more exercise
- get more sleep
- eat a balance diet
- stop smoking
- fresh air and exercise such as walking
- restrict caffeine intake
[25] These are
all general medical advice which are advantageous to
patients' health and may or may not be headed by the patient.
Most knowledgeable adults know these things without a medical
doctor telling them. This type of advice certainly is within the
ambit of a doctor's training. It is not the
dermatologist's services that are before the Court, it is
travel expenses that are in question in both paragraphs. In both
paragraphs of the Act, it is travel to obtain
"medical service".
[26] In order
for a taxpayer to get travel expenses under either paragraph, he
or she must travel and receive medical service from some person
in the health care field. Of course, it goes without saying also
the other provision of these paragraphs must be satisfied.
[27] Being
exposed to the sun is not a medical service even though it may
give relief to the sufferer. The same can be said for loosing
weight, cutting down caffeine, getting more exercise or stopping
smoking. None of these example require a health care provider to
do or render anything to the patient
[28] For these
reasons, the appeal is dismissed.
Signed at Ottawa, Canada, this 26th day of September,
2001.
"Gordon Teskey"
J.T.C.C.
COURT FILE
NO.:
2000-3675(IT)I
STYLE OF
CAUSE:
Kim Goodwin and Her Majesty the Queen
PLACE OF
HEARING:
Calgary, Alberta
DATE OF
HEARING:
February 15 and September 19, 2001
REASONS FOR JUDGMENT BY: The
Honourable Judge Gordon Teskey
DATE OF
JUDGMENT:
September 26, 2001
APPEARANCES:
For the
Appellant:
The Appellant himself
Tim Goodwin (Agent)
Counsel for the
Respondent:
Mark Heseltine
David Jacyk
COUNSEL OF RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-3675(IT)I
BETWEEN:
KIM GOODWIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on February 15 and September
19, 2001 at Calgary, Alberta, by
the Honourable Judge Gordon Teskey
Appearances
For the
Appellant:
The Appellant himself
Tim Goodwin (Agent)
Counsel for the
Respondent:
Mark Heseltine
David Jacyk
JUDGMENT
The
appeal from the assessment made under the Income Tax Act
for the 1998 taxation year is dismissed, in accordance with the
attached Reasons for Judgment.
Signed at Ottawa, Canada, this 26th day of September, 200l
J.T.C.C.
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