Pawlychka v. The Queen, docket 98-1472-IT-I (Informal Procedure)

Date: 19991214

Docket: 98-1472-IT-I

BETWEEN:

GARY PAWLYCHKA,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Bell, J.T.C.C.

ISSUE:

[1] The issue is whether the Appellant is entitled, pursuant to subsection 118.2(1) and (2) of the Income Tax Act ("Act") to certain expenses in calculating his medical expense credit for his 1996 taxation year.

FACTS:

[2] The Appellant had a son, Stephen, now ten years of age, who, in 1996, suffered from multiple chemical sensitivity. The Appellant described the condition also as environmental hypersensitivity. He testified that Stephen experienced allergic type reactions to every day chemicals. The Appellant testified that Stephen had trouble with perception and remembering. He stated that his condition was so aggravated that he would bump into furniture and trip over his own feet. He said that the condition was becoming worse as the body absorbed more chemicals. Stephen was removed from public school and is now receiving instruction at home, the school being a place where chemicals of all sorts exacerbated his condition.

[3] The Appellant modified his home, incurring costs totalling $8,451 for renovations. Those renovations involved changing furniture including Stephen's bed. The Appellant replaced particle board in the house with oak, replaced the mattress with cotton futons and bought a steel frame for the bed. The cost of changing the bed, mattress and frame was $988, also included in his claim. He also removed all carpet from the house and replaced it with hardwood floors which were chemically free and which were finished with a baking process to prevent "off-gassing". The Appellant testified that no retail furniture was available for Stephen's unique allergic condition. In short, the Appellant was obliged, on the recommendation of an immunologist, to change all of the rooms used by Stephen. He testified that the house was only five years old and that nothing warranted these changes other than his son's condition. He stated that the alterations made a remarkable difference. He also testified that the allergist advised him that Stephen would improve as he grew older but would never be without some environmental sensitivity.

[4] Stephen also used charcoal masks and the Appellant's seeks the inclusion of $43 therefor in his claim.

APPELLANT'S SUBMISSIONS:

[5] The Appellant seeks, within the meaning of subsection 118.2(2) of the Act to categorize the aforesaid costs of $988, $43 and $8,451 as medical expenses. Specifically, the claim is sought by virtue of paragraph (l.2) of that subsection. That includes a medical expense of an individual being an amount paid:

for reasonable expenses relating to renovations or alterations of the dwelling of the patient who lacks 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.

[6] This would apply to the expenses of $8,451. The Appellant submitted that Stephen had "a severe and prolonged mobility impairment" in that he was unable to attend school and was unable, without normal mobility, to be in spaces in his own home without the modifications that were made. Paragraph 118.4(1)(a) of the Act states that an impairment is prolonged where it has lasted, or can reasonably be expected to last, for a continuous period of at least twelve months. The Appellant testified that Stephen's physical condition did last for that length of time and was expected to continue. He buttressed his "mobility" impairment argument by referring to Stephen's inability to walk without difficulty as a result of the chemical sensitivities. He then said that the alterations to the house enabled Stephen to be mobile or functional within the dwelling. Finally, he stated that the renovations were a "one time" expense, no subsequent work of this nature having been done.

RESPONDENT'S SUBMISSIONS:

[7] Respondent's counsel submitted that there was no specific deduction for bed and mattress described in subsection 118.2(1) and that, therefore, such claim should not be allowed. He said that with respect to the charcoal masks, paragraph 18.2(2)(m) referred to devices or equipment of a prescribed kind for use by a patient. He referred to section 5700 of the Income Tax Regulations and after examining each of the inclusions so prescribed, stated that there was no foundation for the inclusion of the $43 respecting charcoal masks.

[8] With regard to the claim for renovations in the above of $8,451, in referring to paragraph (l.2), counsel stated that in order to qualify, a person must lack normal physical development or have a severe and prolonged mobility impairment. He said there was no evidence of either of those conditions being met and, accordingly, the cost of renovations would not qualify for inclusion in the claim.

ANALYSIS AND CONCLUSION:

[9] Although paragraph (l.2) appears to refer to mobility impairment in the sense of one not having normal use of limbs, it is not necessarily restricted to that interpretation. I accept the credibility of the Appellant and also his submission that Stephen's acute condition was a severe and prolonged mobility impairment. I also accept his submission that the alterations enabled Stephen to be "functional within the dwelling". It is noted that, having accepted the existence of a severe and prolonged mobility impairment, only one of the three remaining conditions need be met. They are, as set forth above, to enable the patient to gain access to or to be mobile or to be functional within the dwelling.

[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.

[12] I wholeheartedly agree with the views of both judges. Therefore, the appeal is allowed with respect to the renovation and alteration claim of $8,451. However, I agree with Respondent's counsel with respect to the other two claims and accordingly, the sums of $988 and $43 will not be allowed as medical expenses.

Signed at Ottawa, Canada this 14^th day of December, 1999.

"R.D. Bell"

J.T.C.C.