Section 118.2

In finding for the taxpayer, Woods J. rejected a submission of the Crown that because the only kind of assistance provided by a service provider was housecleaning, such services could not qualify as "attendant care".

The taxpayer claimed a medical expense tax credit for tuition paid to a specialized private education school for her son. The Minister disputed the claim on the basis that the taxpayer's son was not certified as having a sufficient disability.

Campbell J granted the taxpayer's appeal. Her son was diagnosed over the course of two years by three different doctors, each of whom provided reports. Two of the letters declined to recommend that the son change schools, and on that basis Campbell J found that they were not certifications under s. 118.2(2)(e). The third was a certification - it clearly specified that the son had ADHD and potentially other learning disabilities, explained how they contributed to his learning difficulties, and stated:

An additional component of L's treatment for these learning disabilities is the need for placement in a specialized school which provides specialized teacher training and very specific individual program plans, optimizes the teacher to student ratio and provides a high level of individualized support. L is currently attending Calgary Academy, a school which I strongly recommend as it provides the facilities and personnel described above.

This amounted to a certification.

On the advice of a doctor, the taxpayer sent his son, who had ADHD, to a specialized program at a private school (the "Crestwood Transitions Program"). By the year in question, the son had completed eighth grade, which was the Transitions Program's highest grade, and had switched into Crestwood's normal program. He still received supplemental assistance such as extra time to write exams and extra help with classwork, at no additional charge to the taxpayer.

Woods J. found that no portion of the tuition could be deducted under s. 118(2)(2)(e) for the year in question. The letter that purportedly certified the taxpayer's son only referred to the facilities provided by the Transition Program. Woods J stated (at para. 12):

Since it does not address equipment, facilities or personnel provided by the mainstream program, I conclude that this letter does not satisfy the certification requirement.

Woods J. dismissed the Minister's contention that the taxpayer's school tuition for her dyslexic son did not meet the certification requirements under s. 118.2(2)(e). The son's doctor ("Dr. Johnston") wrote two letters that, in combination, established the son's specialized educational needs. Woods J. stated (at paras. 21-22):

Although neither assessment evaluated particular schools, the evidence of the principal of the TALC Academy made it clear that the methodology of the school was to do precisely what Dr. Johnston had recommended, which was to teach in a way that bypassed the child's problem areas. ...

It seems to me that the legislative requirements are satisfied in circumstances where Dr. Johnston's report specifies the nature of the disability and the type of training that is required, and the evidence establishes that the TALC Academy specializes in providing this type of training for children with this disability.

The taxpayer's child had a severe learning disability. The taxpayer enrolled her at a private school, where she received special attention from one teacher, who she started and ended each day with, quiet rooms for studying when she was not in class, computer equipment, and a special education plan based on her doctor's report.

Nevertheless, Bowie J. found that the taxpayer's expenses for tuition and course materials could not be deducted from income. As per Scott, the expense of the child attending the institution must be inextricably tied to the specific needs of that child. He stated (at para 9):

In plain English, GNS is not a special school for handicapped or learning disability children. It is an academic institution that prepares its students for the rigour of a university education. It is, however, capable of accommodating those children who meet its admission standards, but have physical or learning disabilities.

The taxpayer , who had progressive multiple sclerosis, claimed a medical expense tax credit under s. 118.2(2)(e) for payments to "Huron Lodge Home for the Aged." The Minister held that the expenses more properly fell under s. 118.2(2)(b) as nursing home expenses, and therefore denied a disability tax credit under s. 118.3(1)(c). Hogan J. granted the taxpayer's appeal. Because the expenses qualified under both s. 118.2(2)(b) and (e), the taxpayer was free to choose the more favourable treatment.

The taxpayer's transportation expenses in respect of dental procedures in Poland were not deductible even though the cost of the procedure in her locality exceeded her means. The costs in Poland and Canada were approximately $10,000 and $30,000. Hershfield J. stated (at para. 31):

The language "substantially equivalent medical services are not available in that locality", does not speak of whether the service is available to the particular taxpayer.

The taxpayer, diagnosed with psioriasis and psioratic arthritis, needed a hot tub and UVB phototherapy unit. Unable to install the equipment in his condo, he drove regularly to his parents house, 50 kilometers away, where the equipment was installed. Little J. found that the taxpayer's resulting transportation and meal expenses were deductible under paragraph 118.2(2)(g). The use of a hot tub and UVB unit was medical treatment even though it was self-administered. Little J., applying Patton v. The Queen, 2005 DTC 1786, therefore concluded that the taxpayer was recieving "medical services" as per clause 118.2(2)(g)(v).

Travel and meal expenses for the taxpayer's attendant were not deductible. The attendant was not "engaged in the business of providing transportation services." Moreover, claiming transportation expenses for both the taxpayer and attendant was excessive given that they travelled in the same car.

Frequent flyer points applied by the taxpayer to purchase air tickets to Chicago for medical treatment there constituted "an amount paid" for purposes of s. 118.2(2)(g).

The taxpayer's daughter, who had learning disabilities, attended at a special school where a portion of the day was devoted to specific exercises to improve cognitive processing. Paris J. found that the taxpayer was entitled to claim the expenses of driving her daughter to and from the school as being in respect of obtaining "medical services" given that this term included "any services relating to the scientific diagnosis, treatment and prevention of disease, not just those provided by a medical practitioner or a medically trained person" (p. 1789), and the activities undertaken at the school represented a "form of neurological therapy designed to treat a medical condition".

Woods J allowed the deduction under s. 118.2(2)(h) of travel expenses for the taxpayer's almost daily trips between Weyburn and Regina to assist with his spouse's recovery from brain damage, which required extensive therapy. There was solid evidence that the taxpayer's daily presence contributed significantly to her recovery.

Bell (2009 DTC 1342, 2009 TCC 523) concluded that 118.2(2)(h) includes travel costs of a spouse who accompanied the patient and lived away from home during the period of treatment. Woods J stated that this interpretation was "a very reasonable one in the context of a broadly-worded and ambiguous provision" (para. 12).

The taxpayer's husband had Parkinson's disease, and was at risk of falling on the carpeted floors. Accordingly, the taxpayer replaced the carpeting with laminate flooring.

Pizzitelli J found that s. (l.2) did not apply to make the related expenses non-creditable. The laminated floors do not generally represent an increase in value over carpeted floors. As to (l.2)(ii), he found it would be more consistent with Parliament's intention to find that the floor installation would not normally be incurred by persons with normal physical development. He stated (at para. 11):

The Budget Papers and explanatory notes make it clear the two conditions were inserted to ensure the taxpayer was not subsidizing personal consumption and personal choices. I agree with the Appellant that if her only choice was to install low-cost laminate floors to deal with her husband's condition, then there is no element of personal consumption or choice here that the taxpayer is being asked to fund.

The taxpayer's METC claim for a hot tub was denied on the same reasoning as in Johnston.

The taxpayer installed a hot tub to be used as a hydrotherapy pool for her daughter, who had cerebral palsy-related spastic quadriplegia and other conditions. Boyle J. found that the installation was excluded under s. 118.2(2)(l.2) from qualifying for a medical expense tax credit. Although subparagraph (i) did not apply (it was generally accepted that a hot tub, like a pool, will tend to limit the available market for a property and therefore not increase the value of the dwelling), subparagraph (ii) did. Boyle J. stated (at para. 12):

I must take judicial notice that many fully able bodied Canadians put similar hot tubs in their homes and yards. In my opinion, a typical hot tub generally available in the retail market such as the Johnstons' is not able to satisfy this final requirement.

A swimming pool which the taxpayer built in his backyard for the purposes of permitting essential physiotherapy to be conducted for the benefit of his disabled daughter did not qualify given that many fully able bodied Canadians installed pools such as this in their backyards.

Additional costs incurred by the taxpayer, who was suffering from multiple sclerosis but not yet confined to a wheelchair, in constructing his principal residence in order to make it easier for him to navigate the home including by wheelchair, were found to qualify. The lesions on his brain indicated a lack of normal physical development of his brain; and the costs were incurred to enable him to have mobility. There was no requirement that he be required to wait until the disease totally crippled him before the costs of an elevator shaft would qualify. Miller J. stated (at p. 2153) that "in dealing with medical expenses generally, the Court should give the most equitable and large interpretation compatible with the attainment of the legislation's object".

In finding that the additional cost of constructing a new home that were attributable to the need to establish a contaminant-free environment for the daughter of the taxpayer (who is suffering from pervasive developmental disorder) qualified for credit, Bowman TCJ. stated (at p. 2147):

"All alterations or renovations involve in some degree the creation of something new. I see no reason why this should not, in the context of this legislation, involve the creation of a new structure where there must be changes and additions to conventional plans to incorporate special features necessary to accommodate the medical needs of a particular person."

The taxpayer was not allowed to deduct the cost of over-the-counter supplements to alleviate her fibromyalgia, chronic fatigue syndrome, and polymyalgia rheumatica, because the supplements were not prescribed. She was also unable to deduct supplements bought before the 2008 amendment to paragraph (n) (which established the requirement prescriptions had to be made by a medical professional or dentist or pursuant to regulation) because there was not a prescription recorded by a pharmacist.

V.A. Miller, J. followed the decision in Ali v. The Queen, 2008 DTC 6446, 2008 FCA 190 in finding that the "recorded by a pharmacist" requirement in s. 118.2(2)(n) did not violate the equality rights guaranteed by s. 15 of the Charter as this paragraph did not make a distinction based on personal characteristics.

The taxpayer was a qualified medical doctor who prescribed various vitamins and herbs for his wife to take, who had severe ailments, with such prescriptions being filled by a licensed pharmacist who then issued official receipts. Such expenditures qualified under s. 118.2(2)(n), notwithstanding that the vitamins and herbs could have been purchased over the counter without the participation of the pharmacist, given that the Quebec Pharmacy Act regime required that any prescriptions that were filled by a pharmacist were to be recorded. McArthur J. stated (at para. 18):

"From my reading of the provision, eligibility under paragraph 118.2(2)(n) of the Act is determined not by the classification of the medication but by the execution of certain actions by the authorized professionals who control the access to that medication."

The Minister denied the taxpayer's claim for medical expense tax credits for storing her child's cord blood. Based on the wording of s. 118.2(2)(o), such expenses must be:

(a) in respect of a laboratory, radiological or other diagnostic procedure or service together with necessary in interpretations;

(b) for maintaining health, preventing disease or assisting in the diagnosis or treatment of any injury, illness or disability;

(c) for the patient; and

(d) as prescribed by a medical practitioner.

Hogan J dismissed the taxpayer's appeal, as the last requirement had not been met; he noted, however, that the first three had. In particular, the taxpayer and her child were "patients" for the purpose of the third requirement, as the French version does not suggest that the patient need suffer from any illness during the years in question (para. 14).