Date: 20000411
Docket: 98-3860-IT-I
BETWEEN:
MARIA E. KNECHTEL
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
TAX COURT OF CANADA
IN RE: The Income Tax Act
--- Held before His Honour Judge Teskey of The Tax Court of Canada, in Courtroom Number 2, 9th Floor, Merrill Lynch Canada Tower, 200 King Street West, Toronto, Ontario, on the 8th day of March, 2000.
REASONS FOR JUDGMENT
(Delivered orally from the Bench at Toronto, on March 8, 2000)
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APPEARANCES:
Maria E. Knechtel The Appellant in person
Kelly Smith For the Respondent
Elsie Menezes - Registrar
Per: Penny Stewart, CSR (Reporter)
--- Upon commencing at 3:20 p.m.
HIS HONOUR: The appellant appeals her reassessment of income tax for the year 1996 and in her Notice of Appeal she elected the informal procedure.
Issue:
The main issue before me are travel expenses from the Toronto area to Saskatoon and expenses incurred in Saskatoon.
Facts:
I find that this is a very abnormal situation where a taxpayer living in west Toronto would seek medical treatment in Saskatoon. Toronto is a large Metropolitan city having many large teaching hospitals and is a leading centre in Canada for medical treatment and research.
Against this background tab 1 of Exhibit R-1 is a letter from Dr. Cynthia Gokavi of Saskatoon dated June 8th, 1997. The letter reads in full:
"Dear Maria:
With reference to your letter dated May 5, 1997, attaching a copy of the letter from Revenue Canada, I am pleased to provide the following explanation which I hope will suffice.
1. The treatment that I am providing you is called 'Intramuscular Stimulation'. This is a specialized form of dry needling technique that was introduced and perfected by Dr. Chan Gunn in Vancouver. Dr. Gunn and I have specialized and successfully treated fibromyalgia patients with this technique and are considered as the two medical practitioners of last resort for patients with F.M.S. I have personally become a resource person for such treatment and have been teaching this technique with other procedures for the Acupuncture Foundation of Canada Institute, Toronto.
2. There are acupuncturists in Toronto who have learnt the technique but have not had the same success with it as Dr. Gunn and myself. The protocol requires spending two to three hours per session to treat F.M.S. patients. Prior to the I.M.S. which is a painful technique a special protocol of acupuncture, moxabustion and laser is used so as to produce enough of an endorphin release to withstand the I.M.S. for two hours or more. I do recommend regular massage therapy between treatments to prolong the effect of my protocol.
3. Anything that helps a patient to be comfortable for a longer period of time is essential for the well-being of the patient. You have indicated that the mineral baths at Watrous, Saskatchewan, 143 kms. Southwest of Saskatoon help you to retain the effects of my treatment for a longer period of time. I am not aware of any other such baths in Canada. I definitely recommend continued use of such baths and massage therapy.
I trust that this information is what you require. Please contact me if I can be of further assistance to you.
Yours truly,
(DR. CYNTHIA N. GOKAVI)
President, Acupuncture Foundation of Canada Institute.
President, Saskatchewan Chapter of Acupuncture Foundation of Canada
Teaching Faculty and Examiner, A.F.C.I."
The appellant, a retired high school music teacher, took a leave of absence due to medical problems in the late fall of 1995 and retired on December 31st, 1995 because of constant pain and stress in her fingers and other related problems.
The appellant testified that in July of 1995 she attended at a music teachers' convention in Saskatoon. Dr. Kovaki apparently was a guest speaker and the appellant volunteered to be a trial patient. From the procedure performed she obtained instant relief, something that she had that had never happened before and she immediately started seeing Dr. Gokavi on a regular basis. She claims that the treatment described in Dr. Gokavi's letter is quite different from acupuncture. The appellant stated that she called the Acupuncture Institute and the Acupuncture Referral Service and neither had ever heard of intramuscular stimulation for patients with fibromyalgia (F.M.S.)
Dr. Gokavi gave the appellant a list of three people in Toronto who had attended her lectures and supposedly could give her similar treatment. She said that none of these people were using or doing the type of treatment that Dr. Gokavi did.
She did find a doctor at the Woodbridge Pain Centre and attended there for a treatment. The appellant claims that it was not done properly, that it hurt. She became badly bruised and that it was medical malpractice and that she never went back.
Based on Dr. Gokavi's letter and the appellant's testimony, I am satisfied that the appellant did everything reasonable to find out if she could receive in the Toronto area substantially equivalent medical services as provided by Dr. Gokavi. However unbelievable this conclusion is, I must make my findings of fact based on the evidence before me.
The combination of the appellant's evidence and Dr. Gokavi's letter drives me to this conclusion: I am not prepared to reject the appellant's testimony. I also must look to the fact that the appellant was instantly relieved of pain by this new treatment.
The appellant has retired early due to her medical problems. I ask myself why would she travel repeatedly to Saskatoon on a regular basis with only a modest pension and pay out of her own pocket all of the expenses incurred if she could have received substantially equivalent medicare services in Toronto giving similar results, and would have in all probability been paid by OHIP.
I am satisfied that these expenses were not incurred lightly and that at the end of the day they still cost her more money than if she were having treatment here in Toronto.
The appellant for many years had been attending a spa 124 kms south of Saskatoon for massage therapy and to use the mineral baths at Watrous, Saskatchewan. I am not satisfied that this massage therapy could not have been obtained either in Toronto or Saskatoon.
Having come to this conclusion I must deal with the expenses.
I allow the air expenses of $2,912.00. In regards to the other expenses incurred in Saskatoon for accommodation and car rental, I have looked at each individual trip, the number of days in the hotel and the number of days the car was rented and the number of days that treatment was taken from Dr. Gokavi. I have tried to proportion these totally claimed expenses of $7,242.00.
Although I invited counsel for the respondent to try and agree on an amount, not that she would be agreeing to it being deductible, the invitation was not accepted. I therefore determine that expenses to stay in Saskatoon to travel to Dr. Gokavi's office and back and forth and stay in a motel, that a reasonable amount of $3,000.00 would be expended.
The respondent claims that the receipts for the massage therapy totalling $617.00 is not sufficient and there must be some further proof over and above the receipt and the oral evidence of the appellant that she saw the certificates on the wall of the masseurs. This is sufficient proof in my opinion. It is ridiculous that every taxpayer going to receive any professional treatment must contact the governing body to ascertain that the certificates that the professional is hanging on his or her office is not a forged document and cannot be relied upon. Therefore, I allow the claim of $617.00 for massage therapy.
The respondent consented to medical expenses at the opening of the hearing of $11,215.00. Therefore, an order will issue that the appeal is allowed with costs and the assessment is sent back to the Minister of National Revenue for reconsideration and reassessment on the basis that the appellant is to be allowed additional medical expenses of $11,832.00 and that she had travel expenses in the amount of $5,912.00.
Those last two figures are totals. Have I made a mathematical error?
MS. SMITH: I just want to make sure we haven't missed anything.
HIS HONOUR: I added the 617 to your 11,215. MS. SMITH: Is it 617 or 670?
617. Your Honour is correct.
HIS HONOUR: Okay. And I added $3,000.00 to the Air Canada bill and you gave me a figure of $2,912.00.
MS. SMITH: So the figure of 3,000 is for airfare and car?
HIS HONOUR: No.
MS. SMITH: No?
HIS HONOUR: No.
You said the airfare was $2,912.00.
MS. SMITH: M'hmm.
HIS HONOUR: And I have allowed $3,000.00 for taxis, car hotel, whatever. And her claim was just over 7,000. So that's simple mathematics, 3,000 and 2900. Do you agree with that?
MS. SMITH: And the figure was 5,912?
HIS HONOUR: Yes.
MS. SMITH: And I guess my only concern was the wording with respect to the travel expenses, maybe. And it's only for clarification purposes when it's sent back. I think technically the travel expenses would be considered additional medical expenses, so perhaps --
HIS HONOUR: Well, the auditor can surely add the two figures.
MS. SMITH: Okay. It's just what I heard.
HIS HONOUR: Because what I said is allow additional medical expenses of $11,832.00 and that she had travel expenses in addition thereto in the amount of $5,900.00.
MS. SMITH: Okay. Under the same section 118.2. Okay.
--- Whereupon concluding at 3:32 p.m.