Date: 20020225
Docket: 2001-3066-IT-I
BETWEEN:
BARRY BISSONNETTE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
(delivered orally from the Bench at
Cranbrook, British Columbia on January 8, 2002)
Miller, J.T.C.C.
[1] This is an appeal by Mr. Bissonnette in connection with his 1999 taxation year. The appeal concerns certain payments that Mr. Bissonnette claims are medical expenses, qualifying as such pursuant to subparagraph 118(2)(a) of the Income Tax Act.
[2] Mr. Bissonnette and his wife travelled to Mexico for a two-week stay in December 1999 at a facility called Sanoviv. Sanoviv was advertised as a health retreat, though part of it was licensed as a private hospital. I would like to read how it is described in an advertising pamphlet tendered as an exhibit presented at trial:
The Sanoviv facility was built with gracious tranquility in mind. Sitting on a bluff overlooking the Pacific Ocean on Baja, California's bay of rest, Sanoviv affords the optimal environment for renewal and regeneration. The combination of positive atmospheric, electromagnetic, and geographic factors makes Sanoviv one of the healthiest locations on earth. Guests use the authentically restored library, dining and living rooms of the Levi Strauss mansion. The spectacular Great Hall leads to the health-stuff store, psycho-spiritual facilities and the teaching kitchen. The Sanoviv Towers include 47 luxurious guest suites, dining room, 20 health assessment and therapy rooms, a licensed hospital facility, laboratory, conference centre and spa facilities.
[3] The Bissonnettes came to know of Sanoviv, as Mrs. Bissonnette had some dealings on a business basis with the founder, a Dr. Wenz. Sanoviv charged a flat $10,000 US, approximately $15,000 Canadian, fee for the Bissonnettes' two-week stay. Of this amount, Revenue Canada allowed approximately $5,500 Canadian for legitimate medical services. The balance of approximately $9,500 was denied, as was the Bissonnettes' travel expenses of $1,064 for getting to and from Mexico.
[4] In discharge statements, Mr. and Mrs. Bissonnette were diagnosed respectively as suffering from exogenous obesity with glucemic discontrol and Diabetes 2 for Mr. Bissonnette, and exogenous obesity, pain in the lumbar area, urinary incontinence and hiatal hernia for Mrs. Bissonnette.
[5] The type of treatments they received at Sanoviv consisted of quite an assortment of both medical and what has come to be called "alternative" or "complementary" medicines. I will simply list some of these treatments: vitamin and mineral supplements; bioresonance therapy; spa and massage; colonics; hydrotherapies; diet and lifestyle recommendations. As well, the Bissonnettes attended classes on healing, nutrition, humour and meditation. No proof of prescriptions was provided for the vitamins and supplements taken. There was an attempt at a breakdown of the cost of these various treatments, but this was difficult as it was clear this was a package deal for $10,000 US.
[6] It was also clear that, notwithstanding what appeared to be a high-end first-class accommodation, the treatments were not exactly enjoyable. Mr. Bissonnette described the diet as consisting only of vegetables and water, though the promotional materials suggested the "daily feast" was somewhat more tempting than that description. If it was only vegetables, they were certainly well-presented.
[7] It was acknowledged by both Mr. and Mrs. Bissonnette that the room and board cost was approximately $6,000 US, though they maintained this was all part of the overall medical services provided. The amount of room and board, plus the amount of medical expenses actually allowed by Canada Customs and Revenue Agency eat up most of the $10,000 fee, as approximately $3,700 US was allowed by CCRA. So the bulk of the Appellant's claim is that the $6,000 US for room and board represents medical services.
[8] In materials from Sanoviv, the institution itself appears to break down its treatments between regular hospital services and regular medical services on the one hand, and other services such as massage, chelation, ozone therapy, colonics and bioresonance on the other hand. The Bissonnettes both stated that they both felt healthier for the Sanoviv experience. Indeed, Mrs. Bissonnette indicated no Canadian medical practitioner had provided a treatment with such successful results. She provided letters from two Canadian physicians, dated in May 2001, which indicate they are not aware of a similar facility in Canada.
[9] The issue is simply what is or is not included in the expression "medical services". This is found in subparagraph 118.2(2)(a). I will read that:
For the purpose of subsection (1) a medical expense of an individual is an amount paid to a medical practitioner, dentist or nurse, or a public or licensed private hospital in respect of medical or dental services provided to a person (in this subsection referred to as a patient) who is the individual, the individual's spouse...
et cetera.
[10] Neither side could provide a concise legal definition for the term "medical services", but counsel for the Respondent provided some case law that helps determine what is not medical services, and she quite adamantly maintained the cost of room and board in an attractive Mexican health retreat is definitely not medical services. I agree with her.
[11] I am pleased that Mr. and Mrs. Bissonnette truly felt better after their two weeks in Mexico. I certainly need no convincing that a number of alternative treatments combined with healthy dietary and exercise habits can have a remarkably positive impact on one's health. But the Income Tax Act is very specific in paragraph 118.2(2) in setting out what qualified for medical expenses, and to qualify under subparagraph 118.2(2)(a) the expense must be for medical services.
[12] At this stage in the evolution of Canada's medical practice, alternative treatments are just starting to gain some recognition as justified, well-researched medical treatments. I believe case law over the next few years will expand our understanding of what can legitimately be considered medical services. However, I also believe that $6,000 US for room and board at a health retreat does not, under the most liberal interpretation of medical services, qualify. This is not a case which can expand the definition of medical services. Mr. and Mrs. Bissonnette should be pleased on two fronts with their trip to Mexico: first, that they felt so much better; and second, that CCRA allowed approximately $5,500 Canadian for some of the costs incurred at Sanoviv. As these were costs for medical services that I am satisfied could be obtained in this area in British Columbia, I am also unable to allow the $1,064 travel expense, as subparagraph 118.2(2)(b) requires substantial equivalent medical services are not available in that locality. Here, clearly they were available.
[13] There may not be a similar facility in Canada that contains medical services and alternative services in a health-retreat setting. Frankly, that is too bad. I agree with Mrs. Bissonnette that an all-service facility like Sanoviv is a sign of things to come. The disallowed expenses incurred in 1999, however, simply do not qualify under subparagraph 118.2(2) as amounts paid in respect of medical services.
[14] The appeal is therefore dismissed.
Signed at Ottawa, Canada, this 25th day of February, 2002.
|
"Campbell J. Miller" |
J.T.C.C.
COURT FILE NO.: 2001-3066(IT)I
STYLE OF CAUSE: Barry Bissonnette v. The Queen
PLACE OF HEARING: Cranbrook, British Columbia
DATE OF HEARING: January 7, 2002
REASONS FOR JUDGMENT BY: The Honourable Judge C. J. Miller
DATE OF REASONS FOR JUDGMENT: February 25, 2002
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: Nadine Taylor
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada