Ismael v. R. – TCC: No medical expense credits for travel to foreign fertility clinics

Bill Innes on Current Tax Cases

http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/71803/index.do New Window

Ismael v. The Queen (May 16, 2014 – 2014 TCC 157) involved a variety of expenses associated with the taxpayer’s treatments at fertility clinics in the United States and in the Ukraine. At issue were:

1. Medical expenses at the clinics;

2. The costs of finding an egg donor;

3. The taxpayer’s travel and accommodation expenses;

4. The taxpayer’s spouse’s travel and accommodation expenses;  and

5. Wiring and banking fees.

The Crown conceded the actual medical expenses. The court rejected the costs associated with finding an egg donor:

[23] According to these definitions, an ovum is clearly a “cell” but it is not an “organ”. It is not a part of the body that “performs a function”. If it were an organ, it would be included in the list of “internal female genital organs” (as defined in Dorland’s), but it is not included. Since an ovum is not an organ, an egg donation cannot be considered to be an “organ transplant”. Therefore, paragraph 118.2(2)(l.1) would not apply either to allow this expense.

The court also concluded that the travel and accommodation expenses were not allowable:

[33] Respondent Counsel referred me to the case of Justice Woods in Jordan v The Queen, 2012 TCC 394, 2013 DTC 1015, where she followed the decision in Bell v The Queen, 2009 TCC 523, 2009 DTC 1342, to allow the taxpayer’s motor vehicle expenses, which he incurred to travel from his home to visit his wife in a long-term care facility. The taxpayer in Jordan made the trips alone to visit his wife. The requirement of the provision for the patient not being able to travel alone was clearly absent in the circumstances in Jordan. Although I am of the view that the decision in Jordan is over‑reaching in light of the wording in that provision, it is not necessary for me to reconcile it to the facts before me because equivalent treatment was available to the Appellant in the Toronto area and she was not required to receive treatment outside Canada. In addition, as previously discussed, there was no certification that she was unable to travel alone, which is a requirement for accommodation and meal expenses, as claimed by the Appellant for herself and her spouse, to be deductible pursuant to paragraph 118.2(2)(h).

Finally, the court disallowed the wiring and banking fees:

[35] Similarly, interest charges are not specifically listed in this provision. Although it might be argued that interest could be claimed under paragraph (a) of subsection 118.2(2) as the interest could be part of the payment to obtain medical services, because the interest was not paid to a medical practitioner but to a bank, the requirement in paragraph (a) is not met. Neither wiring nor interest charges were paid to a medical practitioner but, more importantly, neither of these expenses are specifically itemized in subsection 118.2(2). Therefore, since the provision is very specific in setting out what items will qualify as medical expenses, they were properly disallowed by the Minister.

As a result the appeal was allowed to the extent of the Crown’s concessions, but without costs.