Date: 20021023
Docket: 2001-3593-IT-I
BETWEEN:
ERIC G. DEMONT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Margeson, J.T.C.C.
[1] This is an appeal by Eric G. Demont from a reassessment by the Minister of National Revenue ("Minister"), notice of which is dated November 21, 2000 by which the Minister reassessed the Appellant's 1999 income tax return to disallow medical expenses in the amount of $12,182 related to the costs incurred by the Appellant and the patient (his spouse) while attending Dr. Dean Ornish's Program for Reversing Heart Disease, operated at the Preventive Medicine Research Institute ("PMRI") in Oakland, California as well as other amounts which were not supported by receipts and are not in issue in this appeal.
[2] The reassessment also included amounts related to foreign non-business income and foreign tax paid which was subsequently allowed by notice of reassessment dated January 4, 2001 and are not in issue in this appeal.
[3] In issue in this appeal is whether or not the Appellant is entitled to claim the amount of $10,696, in respect of the "program" or "treatment" which was pursued at the "clinic".
[4] Exhibit A-2 was introduced by consent and it contained an article describing the clinic and the qualifications of its founder and other staff members at the clinic including another medical doctor, William Porter. Franz Rischard was an osteopathic medical student at the Western University of Health Sciences who had extensive experience in exercise physiology and cardiac rehabilitation. He also had experience in the adaptations of the heart to injury. Arthur Richards was a participant in both the basic and advanced residential units. He was actively involved in the community-oriented outreach program aimed at the prevention of chronic diseases including diabetes and heart disease. His role at the retreat was both as a student and teacher.
[5] Exhibit A-1, Tab 2 contained considerable information with respect to the condition of the Appellant's spouse, the nature of her disease, the nature of advice given and the nature of treatment afforded to her from experienced medical practitioners in the Province of Nova Scotia including both specialists and general practitioners.
[6] The exhibit also contained at Tab 4, a memo to file from Canada Customs and Revenue Agency ("CCRA") directed to Eric Demont, which was disclosed pursuant to the Privacy Act indicating that it was the Minister's position that the "clinic" was involved in a program which emphasized strict exercise and low-fat diet. The Minister referred to it as "a change of lifestyle to prevent further health problems". The Minister pointed out that the decision to attend the clinic was solely that of the client and that the doctor had not prescribed this particular clinic but had advised the client to seek some kind of revascularization.
[7] The Minister indicated that the file had been looked at by the technical advisor and she felt that there was no indication of medical services other than the possible monitering of blood work and blood pressure and routine follow-ups. She correlated services provided at the "clinic" as being "not different than services offered by a health spa".
[8] Eric G. Demont testified that he advised CCRA that his wife had suffered from heart disease before she went to the clinic. He also had a heart condition and had undergone heart surgery. After this he read a book on the subject with respect to reversing heart disease through diet. He then read material with respect to Dr. Ornish's clinic and he thought it was an interesting program. He desired to enter the clinic for the purposes of reversing his heart disease because it was his position that if you do not change your lifestyle after the heart surgery you will have a recurrence of the problem. He was concerned with his future lifestyle. He saw Dr. Ornish on television and believed that he had amassed quite a bit of information about him between 1999 and 2000. When his wife was diagnosed with heart trouble he considered the clinic as an alternative form of treatment after she had received a recommendation from her doctors to undergo angioplasty or the alternative bypass surgery.
[9] He had been advised that the risks for both procedures were equal and he found this to be difficult to accept and requested further information from Dr. Sheridan as to why this would be so and this was explained to him. The Appellant pointed out that his wife did not want to undergo the surgery if there was some other way of being treated. He contacted the clinic and arranged to go there in September 1999. He expected to take the program, find out how they changed your lifestyle, intended to follow the program and if his wife's angina did not increase substantially he believed that this program would reverse the heart disease.
[10] At the clinic there were about 100 persons involved in the program when they were there. This number was divided into five or six groups. They met and performed activities. Ten or twelve patients were assigned to a medical doctor, a nutritionist, a registered nurse and a paramedic. Dr. Ornish himself gave several lectures and was available for consultation. The program started at 7:00 in the morning and involved yoga, breathing and relaxation techniques. The participants ate a low-fat breakfast which excluded any animal fat. This was followed by a lecture setting out what the participants would be doing. These lectures were conducted by a cardiologist, a nutritionist and a cardiac surgeon. The exercise program involved weightlifting, stretching, aerobics and walking or jogging for 45 minutes. During the exercise, blood pressure and pulse checks were performed periodically at the track. After the lunch break lectures were conducted in the afternoon with respect to demonstrations of low-fat cooking followed by a relaxation session. After dinner, during the evening, group meetings were held about the nature of the program.
[11] The program was repeated in the following days with different lectures and a different exercise format.
[12] This witness maintained that this was not a health spa. They were attended to by specialists. To refer to this clinic as a health spa would be a misunderstanding of the program. It was his position that CCRA had misunderstood the nature of the program.
[13] They stayed at the Claremont Hotel which was 5,000 kilometres from his home. They flew there by Air Canada. He identified Tab 3 of Exhibit A-1, which was a summary of his expenses amounting to $12,182.
[14] This witness pointed out that in his extensive reading and in discussions with other professionals and persons, he could not find any other program that was so unique as this one. Its main regimen included the use of a low-fat diet, the use of regular exercise and relaxation resulting in improvement and even reversal in heart disease as well as the prevention of heart disease.
[15] He did ask Dr. Sheridan to write a letter to PMRI regarding this clinic but he would not do so as he was a surgeon. He did not agree with the program. He believed that the only way to cure heart disease was through angioplasty or heart surgery.
[16] The Appellant and his wife were not advised of any other program that would achieve the same results as that of Dr. Ornish. He did admit that no other doctor had suggested that one could obtain the relief sought by diet, exercise and through relaxation techniques. At that time there was no information on the internet about this type of program although it is now available.
[17] The Mayo clinic had a health page on the internet but there was no other program that he could find that dealt with this problem as it was handled by the Ornish Clinic Program. The only criticism that he could find about the program was that it was completely low-fat and that people would have a hard time following it 100 per cent. He and his wife followed it. They tried to eat fish, little meat (lamb is eaten as a special meal) no pork, no roast beef. They eat vegetables. He and his wife exercise four times a week at the gym. They walk or jog in the winter and summer, spend one hour in an exercise room and play tennis. They have no problem with relaxation. He reads and his wife does yoga.
[18] After the program was completed they used the website to contact other participants in the program, compared the results, compared what they were doing at the time and how they felt. He went to the program as a spouse of a participant who wanted to avoid heart surgery. They learned that there were some aspects of the bypass surgery that were not welcomed as he experienced it, and as a result of a problem that he encountered during the surgery, he is now a very slow reader. Some times one suffers from mood swings, depression and irritability after the surgery.
[19] He went to the program as a spouse because the people at the clinic believed that it was important that both partners attend for the purposes of support for each other and he also wanted to complete the program as he had heart problems as well.
[20] He admitted that in June of 1999 Dr. Sheridan had recommended either open heart surgery or angioplasty but his wife was against having open heart surgery. As a result of that he wanted to obtain more information. He knew about the Ornish clinic and they concentrated on it as an alternative. He confirmed that after he had open heart surgery he wanted to find out more information about the disease and that is how he came across Dr. Ornish's book on Reversing Heart Disease. He also purchased other books prior to receiving Dr. Sheridan's recommendation with respect to angioplasty or open heart surgery. After he read the book he knew that he had to change his lifestyle and he went on a low-fat diet. He became a semi-vegetarian. As a result thereof his migraine headaches stopped. He started jogging as early as the late 1950s. He found that he did not have to make a great lifestyle change to accomplish the Ornish Program. Relaxation was not a problem for him but he knew how important the three aspects of the program were.
[21] At the clinic there were dieticians, doctors, fitness advisors, physiologists and psychiatrists. Formerly none of his doctors ever discussed lifestyle changes with him or his wife as a way of treating heart disease.
[22] His wife was a retired director of athletics at Mount Saint Vincent University in Halifax and a teacher at St. Pat's High School in Halifax in physical education. She also participated in the YWCA Board and the Canadian Association for the Advancement of Women in Sports. She was very familiar with the advantages of an active lifestyle although she was not on a semi-vegetarian diet to the same extent as he was although she ate less fatty meat than before.
[23] He reiterated that they knew of no other programs that dealt with reversing heart disease as did the Ornish Program. He did not inquire of any other programs but was satisfied that there were none because of his reading of health magazines and his search on the internet. He considered the Ornish Program to be radical. They did not come across any other program that dealt with the three aspects of the problem as did the Ornish Program.
[24] When they discussed his wife's problems with Dr. Sheridan he suggested drug therapy treatment as an alternative. Since 1998 she had been on drugs but it did not seem to help much. Dr. Sheridan recommended one of the other three treatments. He did not contact the Heart and Stroke Foundation of Canada.
[25] The Ornish clinic only runs three times a year and they made up their minds to go to it about three months before they left for it. Around the same time that Dr. Sheridan recommended the other two options, as a result of obtaining information about the clinic, they took his wife's name off the surgery list.
[26] He admitted that in the year 2000 his wife had an angioplasty despite attending the Ornish clinic. He explained that she had two blockages, one of 90 per cent and one of 70 per cent and in the year 1999 there was no change in these blockages. However, in the year 2000 after the Ornish Program was completed the blockage in the ramus was reduced by about 15 per cent (or less) and he attributed this to the treatment at the clinic. The report indicated that there was a significant reduction in risk at this point in time and that the procedure (angioplasty) was not a complicated one. Consequently, the angioplasty was done to restore his wife to being able to do more strenuous exercises without suffering from angina.
[27] He admitted that at the clinic the program consisted basically of lectures, demonstrations and hands-on exercises. Not all lectures were given by doctors. These were all group activities although at one point he did contact one of the doctors who was a specialist in limpids and blood. He talked about the medication, the quantities and how long one should be on them. He was given advice to withdraw some time from one of his medications. At the clinic they had lunch with a dietician. They took one half to three quarters of an hour meeting with the dietician and half an hour with the doctor. There was no one on one meeting with Dr. Ornish although he was available for consultation. The information contained on the website with respect to the clinic was not an accurate description of the Ornish Program. This was only an access document and did not list the cornerstones of the program. Dr. Ornish does not stress calories but fat. He did not recall any discussions with respect to supplements. This was not an essential part of his program. He was not being treated for a heart problem when he went to the program. He attended strictly as a spouse.
[28] At that time, his wife had no problems that would prevent her from going herself. He was not present when the discussion came up with respect to the clinic with Dr. Kathy M. Coughlan. However, there is a document in the exhibit which is a letter from Dr. Coughlan in which she indicates that she suggested that the Appellant's spouse attend Dr. Ornish's PMRI, which she referred to as a non profit public foundation of lifestyle changes to improve heart disease. This letter was sent in an effort to have MSI ("Medical Services Insurance" of Nova Scotia), cover the costs.
[29] Patricia Demont testified that in 1998 she was having an angina attack. She took nitroglycerin for this problem. She also went to the hospital in Kentville, Nova Scotia after which she contacted Dr. Coughlan. She was then referred to Dr. John Stewart who was an internist at the Dartmouth General Hospital. She had an electro-cardiogram and angiogram which showed that she had a strong right descending artery but the left artery had a serious plaque problem. Her ramus artery was approximately 75 per cent blocked and she described the same problem as referred to by her husband in his evidence. She could have elected medication treatment and she discussed this with Dr. Coughlan. She was quite upset that the election was left to her.
[30] She opined that open heart surgery is much more difficult with a small person such as her and that the operation had not been perfected for women. She discussed her lifestyle with Dr. Coughlan but was still baffled by the fact that she was having this condition despite her active lifestyle. When she went to see Dr. Sheridan he believed that she should have angioplasty. Her symptoms included pain and she believed that this was stress related and occurred when she was upset about her work.
[31] After she had a further angiogram it was noted that there was little change. Again it was suggested that she should have an angioplasty or bypass. They kept reading books about Dr. Ornish's clinic and they considered alternatives. She talked to Dr. Coughlan about the Ornish clinic. She thought that more information should be obtained about the clinic before considering surgery. Ultimately Dr. Sheridan suggested the program at Dr. Ornish's clinic.
[32] After she attended the clinic she had no more problems. She was playing tennis on the Labour Day weekend in the year 2000 and the next day had to go to the hospital. Nothing further was diagnosed but she went to see Dr. Coughlan after that and she was unhappy with her condition. Subsequently she had all the tests done over again. It was recommended that she have an angiogram which would be the third.
[33] She was subsequently advised that there was less lesion in the ramus and Dr. Johnson saw no reason why she should have a by-pass. He recommended angioplasty and this time she accepted it. She was advised that at that stage it would be uncomplicated because there was less blockage in the ramus. The only change that she had undertaken from before was to attend Dr. Ornish's clinic. It changed her whole outlook.
[34] At the clinic they watched her carefully. She had a blue dot on her tag which indicated more attention was required. She was accompanied to the weight room by a doctor and also had a meeting with him about medication. He suggested that she talk to her general practitioner about eliminating some drugs. The dietician helped her quite a bit. She spent two hours with the dietician on a one-on-one basis. In the evening they met with a psychologist to talk about themselves and how it would be helpful to get things out. She had three quarters of an hour to an hour session on a one-on-one basis with the psychiatrist.
[35] She has had no angina since she attended the clinic. She was asked why she had the angioplasty in any event and she said that at that point, after attendance at the clinic, she was advised that there would be no risk and she believed that the angioplasty would take away the risk of a heart attack.
[36] In cross-examination, the Appellant described the three options that were presented to her. She went on the medication and had no after effects but said she did not like taking drugs and she did not want to get used to taking them. Further, she did not want the surgery due to the risk. As a result they started looking for alternatives since her husband also had a problem. They were alerted to Dr. Ornish's Program right away. She did her Master's Degree on Stress Management. She could not find any program that included the heart, stress management program and the good food habit program altogether. Only the Ornish Program put it all together into one. She discussed these matters with Dr. Coughlan, she was a supporter of this regimen.
[37] She was asked why she went to California and she said there was no program in their area that put all three aspects of the program together. She knew that she would fail if she was to go on the low-fat diet alone. She and her husband had to help each other. Dr. Coughlan was aware of the program before they spoke about it.
[38] In response to a question about the same degree of risk involved in the angioplasty and the heart surgery she said that she talked with Dr. Reid about it. However, she did not get the second opinion about the same degree of risk until after the Ornish Program. They were in the program for about seven days for 12 hours a day. She had one hour per day on a one-on-one basis with an actual healthcare provider.
Argument on behalf of the Appellant
[39] Counsel for the Appellant submitted a concise written brief in the matter and argued orally in support of his position. He opined that the real issue was whether or not the services provided here were medical services under the appropriate legislation under subsection 118.2(1) of the Income Tax Act ("Act"). A further question to be asked is whether or not it was reasonable for a patient to go to the "clinic"? Was it a medical service under the Act even though there is no definition of that term under the Act?
[40] There is no argument about the qualifications of Dr. Ornish as a medical practitioner.
[41] Is it a medical service? If it was a medical service, are the hotel and travel expenses deductible? He took the position that counsel for the Respondent had already conceded that one half of the air travel was deductible if the Court should find that the expenditures related to a medical service.
[42] The accommodation expenses are different because the Appellant was required to be there and this was an essential part of the expense. In any event, it would have been the same expense if the patient had been there alone. However, the principal issue remaining is whether or not the expenses related to a medical service.
[43] He referred to Income Tax Bulletin IT-519R2 and in particular paragraph 19 of that Bulletin, which indicated that fees paid to medical practitioners may be deductible even though they are not services provided by doctors and they can qualify as being "for medical services" for the purposes of a claim under paragraph 118.2(2)(a), to the extent that the fees are for diagnostic, therapeutic or rehabilitative services. In this case it is argued that the services provided were all therapeutic and rehabilitative and not preventive as the Minister has argued. The evidence disclosed that as a result of the patients' attendance at the clinic there was a reduction in the blockage in the ramus branch of the artery. There was a risk reduction of over 15 per cent. Consequently, the treatment was rehabilitative and therapeutic. It prevented the obstruction from getting worse and was aimed at reversing the heart disease problem based upon long-term, non-invasive treatment. Any doubt should be resolved in favor of the taxpayer.
[44] Dr. Coughlan also suggested this course of treatment and costs for this treatment should be covered under paragraphs 118.2(2)(a) and 118.2(2)(e). He referred to Tab 8 of his Book of Authorities showing the "left anterior descending branch" as described by the patient. The program was of a therapeutic and rehabilitative nature and it does not have to be successful but if this were required in the case at bar, it was successful. All but one half of the travel expenses should be allowed.
[45] Again with respect to the Appellant himself, and the expenses relating to him, in order for the program to be beneficial to the patient the husband had to be there since according to the evidence the greater the compliance, the greater the success. The patient testified that she needed the support of her husband in order for it to be successful. His participation in the discussions afterwards was crucial to the program's success.
[46] In the Appellant's written memorandum, he argued that the fees paid to the institute run by Dr. Ornish were deductible under the provisions of paragraph 118.2(2)(a) of the Act which described a medical expense of an individual as being an amount paid:
(a) 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 the "patient") who is the individual, the individual's spouse or a dependant of the individual (within the meaning assigned by subsection 118(6)) in the taxation year in which the expense was incurred;
"medical practitioner" is further defined at subsection 118.4(2) as being:
For the purposes of sections 63, 118.2, 118.3 and 188.6, a reference to an audiologist, dentist, medical doctor, medical practitioner, nurse, occupational therapist, optometrist, pharmacist or psychologist is a reference to a person authorized to practise as such,
(a) where the reference is used in respect of a service rendered to a taxpayer, pursuant to the laws of the jurisdiction in which the service is rendered;
. . .
With respect to the "air travel" fees, the relevant provision is paragraph 118.2(2)(g) which provides as follows:
(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
(ii) one individual who accompanied the patient, where the patient was, and has been certified by a medical practitioner to be, incapable of traveling without the assistance of an attendant
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,
(iv) the route travelled by the patient is, having regard to the circumstances, a reasonably direct route, and
(v) the patient travels to that place to obtain medical services for himself or herself and it is reasonable, having regard to the circumstances, for the patient to travel to that place to obtain those services;
[47] With respect to accommodation expenses, (paid to Claremont Hotel) he argued that the applicable provision is paragraph 118.2(2)(h) which provides:
(h) for reasonable travel expenses (other than expenses described in paragraph (g)) incurred in respect of the patient and, where the patient was, and has been certified by a medical practitioner to be, incapable of travelling without the assistance of an attendant, in respect of one individual who accompanied the patient, to obtain medical services in a place that is not less than 80 kilometres from the locality where the patient dwells if the circumstances described in subparagraph (g)(iii), (iv) and (v) apply;
[48] He also referred to paragraph 118.2(2)(n) and (o) in support of his position that costs for drugs, medicaments and other preparations used at the clinic for any laboratory, radiological or other diagnostic procedures used at the clinic should be deductible.
[49] In summary, in the written memorandum, he said that the amount that was paid was to a "medical practitioner" for "medical services" provided to the person or that person's spouse. There is no issue in this case with respect to the qualifications of Dr. Ornish. Further, the fact that the clinic is outside Canada does not affect entitlement.
[50] Travel and accommodation expenses are deductible under (g) and (h) because the following criteria have been met:
a) substantially equivalent medical services were not available where the patient resided.
b) the route traveled was direct;
c) the reason for the travel was to "obtain medical services" and is reasonable having regards to the circumstances for the person who travels to that place to obtain the services.
These criteria have been met according to the evidence produced.
[51] With respect to the case law, counsel took the position that the Court should give "the most equitable and large interpretation possible" to subsection 118(2) dealing with specified medical expenses. Counsel referred to Frank v. Canada, [2001] T.C.J. No. 416 (Q.L.), Teskey, T.C.J., where he confirmed the statement of the late Mr. Justice Sopinka that where there is a doubt as to the meaning of the words in the Act, the doubt is to be resolved in favor of the taxpayer.
[52] Similarly, a compassionate interpretation is required in the interpretation of the Act as can be seen from Bryce v. The Queen, [1998] T.C.J. No. 678 (Q.L.). Likewise, McArthur, T.C.J. relied on the reasoning of Bowman J. in Radage v. The Queen, 96 DTC 1615 and stated at paragraph 19:
While Judge Bowman was referring to the disability tax credit, section 118.3, I find his reasoning applies equally and as stated by him, to the present situation and subsection 118.2(2).
[53] Counsel further opined that the services provided in the present case meet the definition of "medical services" as set out in CCRA's own income tax bulletin. He referred to a number of other procedures which may or may not be covered as medical expenses. He relied on the principle that the meaning of the words in dispute ought to be given their ordinary meaning, unless the context indicates that they are "terms of art" and the context indicates that they should mean otherwise than their ordinary meaning. To that end the Appellant included definitions of "rehabilitation", "service" and "treatment" in his Book of Authorities at Tab 8.
[54] Following the hearing of the trial in the matter, counsel for the Respondent brought the attention of the Appellant and the Court to a case which had not been referred to at the time of the trial but has now been decided. That case was Bissonnette v. The Queen, [2002] T.C.J. No. 94 (Q.L.), Court file number 2001-3066(IT)I. The Appellant's counsel was given an opportunity to comment on this case and he did so. He submitted that this case stands for the proposition that the fees paid to the Ornish clinic in the case at bar should be considered in their entirety as medical expenses.
[55] Further, the evidence indicated that the services that were provided were only available at this clinic which was the leading research and treatment clinic in respect to reversing heart disease and there was no such clinic anywhere in Canada. This supported the position that the travel to and accommodations at the Ornish clinic should be included.
[56] Even though this case makes it clear that there has to be a line drawn between attending a "spa" and "modern or alternative" medicine and "complementary medicines", this case does not draw that line.
[57] In conclusion, Bissonnette, supra, supports the position that some if not all of the Appellant's expenses in the case at bar should have been allowed by CCRA and deductible as medical expenses.
[58] At the end of the day he said that all of the expenses should be allowed and that costs should be granted as well.
Argument on behalf of the Respondent
[59] In argument, counsel for the Respondent submitted that there were four different issues to be resolved.
1) Was the money paid to Dr. Ornish deductible?
2) Was the money paid for Mr. Demont deductible?
3) Was the money paid for Mrs. Demont deductible?
4) Was the airfare for either deductible?
[60] He argued that the monies paid to Dr. Ornish were not deductible because they were not paid for medical services. There were no medical services provided by Dr. Ornish. We must be bound by the four corners of the Statute and cannot find deductibility where there is none.
[61] He referred to the case of Goodwin v. The Queen, 2001 CarswellNat 2113 where Teskey T.C.J. at paragraph 27, page 5 said:
...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 examples require a health care provider to do or render anything to the patient.
Teskey T.C.J. went on to dismiss the appeal where the claim was for expenses involved in traveling to Las Vegas, Nevada and Phoenix, Arizona on the recommendation of the patient's dermatologist that he should travel to a warmer climate in both April and November for short periods where he could be in natural sunlight wearing only shorts. There was no doubt in that case that the Appellant's medical condition was helped by these trips to a warmer climate.
[62] Likewise, in Zack v. Canada, [1997] T.C.J. No. 1102 (Q.L.) DRS 98-07837, Court File Nos. 97-495(IT)I, 97-496(IT)I, McArthur,T.C.J. found that where musical therapists treated a patient, they were not medical practitioners under paragraph 118.2(2)(a) of the Act as they did not appear on the list of registered persons entitled to practice medicine under section 77 of the Medical Practitioners Act. However, he did find that the therapy fell within paragraph 118.2(2)(e) of the Act as qualified persons within that section were not limited to medical practitioners and he allowed the appeal.
[63] He further referred to the case of Bley v. The Queen, 2001 CarswellNat 686, [2001] 2 C.T.C. 2532, where this Court indicated that no matter how serious the illness, in order for the expenses to be deducted, the authority for same has to be found within the Act or in the Income Tax Regulations. This Court went on to find that expenses claimed for the receipt of therapy, even though provided by a Registered Member in Good Standing of the Association of Massage Therapists and Wholistic Practitioners, is not deductible because such a person is not a person authorized by provincial legislation, contemplated by section 118.2 of the Act. The therapist was not a member of a designated profession as required by the Act.
[64] He further relied upon Bishoff v. Canada, [2001] T.C.J. No. 597 (Q.L.), Court File No. 2001-482(IT)I, where O'Connor, T.C.J. dismissed the appeal under paragraph 118.2(2)(n) of the Act which provide that only drugs, medicaments or other preparations or substances purchased for use by the patient as prescribed by a medical practitioner or dentist and as recorded by a pharmacist could be claimed. In that case the claim was for homeopathic expenses.
[65] In Pagnotta v. The Queen, 2001 CarswellNat 1887, [2001] 4 C.T.C. 2613 Miller T.C.J. had to consider the question of deductible medical expenses with respect to a taxpayer who suffered from chronic pain disorder aggravated by hip fracture, osteoporosis and fibromyalgia. The taxpayer's therapy and pain-control program included massage therapy treatments and the consumption of various herbal remedies and vitamins. Physicians recommended herbal and vitamin remedies which were then sold by physicians, pharmacies or unregistered herbalists. The taxpayer claimed the cost of these therapies in calculating medical expense credit. These were disallowed by the Minister.
[66] Miller T.C.J. allowed the appeal and referred the assessment back to the Minister on the basis that the expenses of $344.73 and $188.56 incurred by the Appellant at Nutrition Plus Pharmacy and Kripps Pharmacy Ltd. respectively qualified as medical expenses pursuant to paragraph 118.2(2)(n) of the Act.
[67] He questioned the nature of the program provided by Dr. Ornish's clinic. He questioned how much of the treatment was actually provided by Dr. Ornish. The Appellant's own documents show that the clinic was involved in preventive medicine. This was not a medical service. It is not enough that the service be provided by a medical practitioner but it must be a medical service.
[68] Further, all of what went on in the clinic was not provided by a medical practitioner. He presumably took the position that the mere recommendation of the patient's doctor that she should attend the clinic was not enough to make it a medical service. If the money was not paid for medical service then that is the end of it. If it were, then it is deductible.
[69] Further, the Appellant must show that a substantially similar service could not be provided within 40 kilometres from home even though the service may not include all of the service provided at Dr. Ornish's clinic. He argued that the patient knew of the benefits of this type of activity before she went to the clinic and it was available in her area. It would not be reasonable for the Court to conclude that the Appellant had established, on a balance of probability, that this service was not available in their area.
[70] The Appellant and the patient had their minds made up to go to the clinic and they did not look very hard for another program in their area. They did not even check with the Heart and Stroke Foundation.
[71] Finally, he argued that the expenses claimed are not covered by the legislation. However, he was prepared to consider that if any amount could be claimed it was the $4,409.52 (Cnd.) paid to the clinic on behalf of Mrs. Demont for the program.
Analysis and Decision
[72] This case was well presented, ably and fairly argued. The Court was most impressed with the evidence of the Appellant and Patricia Demont, the patient. Both parties displayed a considerable knowledge of the nature and extent of their health problems, the traditional and accepted treatment available in their regular medical community with respect to their problems, and the Court is satisfied that they were not prepared to accept the medical alternatives which were offered to Mrs. Demont in their area. The Court is satisfied that they were not unreasonable in seeking out other information with respect to alternative methods of treatment when the Court considers all of the information that they had available to them with respect to Mrs. Demont's health problems.
[73] The Appellant and his wife availed themselves of all means of obtaining further information with respect to alternative treatments and during the course of their investigation they became familiar with the program offered at Dr. Ornish's clinic. Before they made the decision to attend the clinic, they were convinced that this program offered something substantial and that, after completion of the program the heart disease with which Mrs. Demont was saddled could even be reversed. Both were satisfied that there was no other program anywhere that could compare to this program, that was similar in nature or that could offer any results which they reasonably expected to obtain from participating in this program.
[74] Both parties searched diligently for a similar type program available to them in their own area and were unable to find one. No evidence at trial indicated that one was available anywhere in their area. Further, even though Dr. Sheridan, a surgeon, would not write a letter to PMRI to assist the Appellant in claiming the expenses for this program and even though he did not agree with the program, the patient did receive medical advice from Dr. Kathy Coughlan who suggested that she attend Dr. Dean Ornish's PMRI after she had diagnosed her as a patient with two vessel critical coronary artery disease involving LAD and ramus coronary arteries.
[75] Even though it may not be necessary to decide so, the Court is satisfied that after the Appellant and his spouse attended Dr. Ornish's clinic she and he both obtained a substantial advantage from their attendance at the clinic. In particular, Mrs. Demont showed a considerable medical improvement which was so substantial that it enabled her to proceed with the angioplasty which by that time was described as a fairly routine procedure whereas earlier it was equated to the much more serious procedure of open heart surgery. This change in her medical condition was brought about by her attendance at the clinic.
[76] The Court has considered carefully all of the cases referred to by both counsel and has already referred to them in the recitation of facts found by the Court during the trial. Suffice it to say that the case that mostly closely reflects the case at bar is that of Bissonnette, supra, which was not referred to at the trial but which was graciously acknowledged by counsel for the Respondent in his research after the trial. The information was passed on to the Court and the information was further passed on to counsel for the Appellant who commented upon it in writing.
[77] The Court is satisfied that it may consider this case as both parties have had reasonable opportunity to reflect upon it.
[78] The facts in that case were similar to the facts in the present case since Mr. Bissonnette and his wife travelled to Mexico for a two-week stay at a facility which was advertised as a health retreat although partly licensed as a private hospital as well. The type of treatments they received at the clinic were quite varied including both medical and so-called "alternative" or "complementary" medicines and treatments.
[79] The treatments referred to in that case were more varied and possibly more complex than those received at the Ornish clinic. However, they are obviously in the same class. As in that case, the treatments received at the Ornish clinic were not all pleasant or completely enjoyable because they encompassed a relatively strict diet regimen and a considerable amount of exercise. As in the case at bar, Mr. and Mrs. Bissonnette argued that the room and board cost was all part of the overall medical services provided.
[80] In that case CCRA had already allowed some medical expenses to the extent of $3,700. The bulk of the claim before the Court was $6,000 US for room and board which the parties argued represented medical services. Judge Miller accepted the argument of counsel for the Respondent of what was not included in the expression "medical services". He concluded that cost of room and board in an attractive Mexican health retreat was definitely not medical services. He concluded:
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.
[81] In the case at bar the Court is satisfied that the patient received "medical services" at the Ornish clinic and such expenses that relate to "medical services" are deductible under paragraph 118.2(2)(a). These deductible expenses relate to the fees paid to PMRI and Dr. Ornish. However, this section covers only the expenses paid to Dr. Ornish and the clinic on behalf of the patient. It was clear from the evidence as the claim was advanced that the expenditures that were claimed were the expenses of the patient. The Appellant claimed as the patient's costs some amounts that related to him because he had accompanied her to the program as a co-partner. He claimed that his attendance was necessary in order to make the program more effective. The Court does not doubt this purpose, but that does not provide a basis for allowing his expenses to be claimed.
[82] Consequently, in this regard, the Court will allow the appeal in respect to the sum of $4,409.52 (Cnd.) as the deductible fees paid to PRMI and Dr. Ornish for the medical services delivered to the wife.
[83] With respect to the "air travel" fees, the Court has to consider the provision of paragraph 118.2(2)(g), as earlier set out. A reasonable interpretation of this section leaves no doubt in the Court's mind that the expenditure for "air travel" fees expended on behalf of the Appellant are not deductible. There was no evidence whatsoever that the patient was certified by a medical practitioner to be incapable of travelling without the assistance of an attendant, which was the husband, in this case.
[84] That leaves for further consideration the question as to whether or not the facts of this case fall within the provisions of subparagraphs 118.2(2)(g)(iii), (iv) and (v). Unlike the case of Bissonnette, supra, this Court is satisfied that the evidence has disclosed, on a balance of probabilities, that this expense falls within the above referred to provisions. Unlike Miller, T.C.J., this Court is satisfied that substantial equivalent medical services were not available in the locality where the Appellant and the patient resided. Therefore, the airfare costs of Mrs. Demont are deductible in the amount of $603.
[85] The Court now considers the question of the accommodation expenses (paid to Claremont Hotel). Counsel for the Appellant based his claim on the basis of the provisions of paragraph 118.2(2)(h) but this Court is satisfied that the references of Miller T.C.J. in Bissonnette, supra, at paragraph 12 are applicable in the case at bar. The expenses related to the accommodation of the Appellant and the patient at the Claremont Hotel are not deductible.
[86] At first blush, it may seem unreasonable that one could claim travel expenses to get to the treatment and not be able to claim accommodation expenses but the former is clearly covered in the legislation and the latter is not. One can think of many reasons why it would not be covered.
[87] In the end result the Court will allow the appeal and refer the matter back to the Minister for reassessment and reconsideration on the basis that in the year in question, the Appellant was entitled to deduct medical expenses, in the amount of $4,409.52 (Cnd.) which was an amount paid to Dr. Ornish for the patient's treatment together with the airfare for travel to California for the patient in the sum of $603.
[88] Under the circumstances, the Court is satisfied that the Appellant should have his costs, on a party to party basis, to be taxed or agreed upon by the parties.
[89] The Appellant is entitled to no further relief.
Signed at Ottawa, Canada, this 23rd day of October 2002.
|
"T.E. Margeson" |
J.T.C.C.
COURT FILE NO.: 2001-3593(IT)I
STYLE OF CAUSE: Eric G. Demont and
Her Majesty The Queen
PLACE OF HEARING: New Glasgow, Nova Scotia
DATE OF HEARING: July 22, 2002
REASONS FOR JUDGMENT BY: The Honourable T.E. Margeson
DATE OF JUDGMENT: October 23, 2002
APPEARANCES:
Counsel for the Appellant: Frank E. Demont
Counsel for the Respondent: R. Scott McDougall
COUNSEL OF RECORD:
For the Appellant:
Name: Daley & Demont
Barristers and Solicitors
Firm: 133A Provost Street
New Glasgow, Nova Scotia
B2H 2P6
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-3593(IT)I
BETWEEN:
ERIC G. DEMONT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on July 22, 2002, at New Glasgow, Nova Scotia, by
the Honourable Judge T.E. Margeson
Appearances
Counsel for the Appellant: Frank E. Demont
Counsel for the Respondent: R. Scott McDougall
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1999 taxation year is allowed and the matter is referred back to the Minister for reassessment and reconsideration on the basis that the Appellant was entitled to deduct medical expenses in the amount of $4,409.52 together with the airfare for travel to California in the sum of $603.00.
The Appellant will have his costs, on a party to party basis, to be taxed or agreed upon by the parties.
The Appellant is entitled to no further relief.
Signed at Ottawa, Canada, this 23rd day of October 2002.
|
"T.E. Margeson" |
J.T.C.C.