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
|
"Gordon Teskey" |
J.T.C.C.