Citation: 2009 TCC 429
Date: 20090901
Docket: 2008-2407(IT)I
BETWEEN:
COLIN J. BARNES,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Boyle J.
[1]
The appellant claimed a
medical expense tax credit (“METC”) pursuant to paragraph 118.2(2)(l.2)
in respect of the cost of a swimming pool put in for, and used principally by,
his daughter Zoë for physiotherapy and the relief of some of the symptoms of
her severe and prolonged mobility impairment. It is the Crown’s position that,
notwithstanding the relief that swimming brings to his daughter’s condition,
the swimming pool does not meet the requirements of paragraph 118.2(2)(l.2).
[2]
Zoë is now a teenager
and has, since birth, suffered from hemiplegia associated with brain damage,
with significant cerebral palsy affecting the right side of her body. Her
condition affects her gait and causes the limbs on her right side to drag. In
addition, she suffers from epilepsy and is prone to very severe seizures. The
epilepsy can aggravate her hemiplegia and vice versa. Following a seizure it
will take up to six months for Zoë to return to her prior state. Throughout,
these conditions affect her ability to walk, to talk, to dress and to attend to
the toilet herself.
[3]
Her condition is
assisted by her ongoing physiotherapy. Exercise also helps notably. Humidity
and temperature change adversely affect her condition.
[4]
Zoë participates in and
trains for Special Olympics swimming. This training includes a physical stamina
building program. The Special Olympics program runs from September through
April or May each year.
[5]
Swimming has been
recommended strongly by Zoë’s two neurosurgeons for therapeutic purposes to enhance
her neuromuscular functions and abilities. In addition to her participation in the
Special Olympics swimming program, Zoë’s physiotherapist has used swimming as
part of Zoë’s physiotherapy regime. Zoë’s swimming builds up her strength and
control with the direct result that her ability to walk upstairs, to dress and to
attend to the toilet herself is notably enhanced.
[6]
Zoë’s parents decided
to add a modest sized swimming pool in their backyard for the purpose of
assisting Zoë’s ongoing physiotherapy in the months she could not participate
in Special Olympics swimming. It is a conventional swimming pool that was not
custom-designed for Zoë’s purposes. It takes up most of the yard. It is
primarily used by and for Zoë. Her parents were concerned that Zoë’s Special
Olympics swimming did not continue in the hot humid summer months which
aggravated her condition. Alternate sources of exercise such as bicycling are
not available to Zoë in the hot humid summer periods as they will bring on
seizures. Further, there was no hydrotherapy physiotherapy available for
children at their community hospitals but only at two downtown Toronto hospitals. During the summer, both Zoë’s
physiotherapist and her parents work with her in the pool. Zoë is not welcomed
or well-accommodated in a public pool setting. According to her
physiotherapist, Zoë’s rehabilitative physiotherapy was greatly assisted by the
availability of the pool at home in the summer and is a necessary adjunct to
Zoë’s overall physiotherapy program.
[7]
Prior to the amendments
to the METC provisions in the Income Tax Act (the “Act”) in 2005,
the expenses in a case such as Zoë’s would have qualified. Zoë lacks normal
physical development and has a severe and prolonged mobility impairment. The
pool enhances her mobility and functioning within the home.
[8]
In 2005 Parliament
amended the METC provision in question by adding subparagraphs (i) and
(ii) to paragraph 118.2(2)(l.2). These were added in response to
decisions of this Court and the Federal Court of Appeal which permitted
expenses for hot tubs and hardwood flooring to qualify in appropriate
circumstances.
[9]
For purposes of
Mr. Barnes’ appeal of his 2005 year, the provision reads:
(2) Medical expenses – For the purposes of subsection
118.2(1), a medical expense of an individual is an amount paid
. . .
(l.2) for reasonable expenses relating to renovations or
alterations to a dwelling of the patient who lacks normal physical development
or has a severe and prolonged mobility impairment, to enable the patient to
gain access to, or to be mobile or functional within, the dwelling, provided
that such expenses
(i) are not of a type that would typically be expected to increase
the value of the dwelling, and
(ii) are of a type that would not normally be incurred by persons
who have normal physical development or who do not have a severe and prolonged
mobility impairment;
[10]
Subparagraph (i)
provides that, in addition to otherwise qualifying for the METC, a home
renovation or alteration expense must not be of a type that would typically be
expected to increase the value of the home in question. Mr. Barnes and his
wife listed their home for sale last year because its two-storey layout became
unsuitable as Zoë grew up. It did not sell in the spring of 2008. The evidence
from the listing agent is that “although the pool was very well done, it took
up all of the back yard and this had a negative effect on the price”. In this
case, I am satisfied that the Barnes’ swimming pool when installed was not of a
type that would be expected to increase the value of their home.
Subparagraph (i) does not disqualify the pool expenses in this case.
[11]
New subparagraph (ii)
proves more problematic. While perhaps worded somewhat awkwardly, it requires
in essence that qualifying home renovations or alterations be of a type that
one would not normally expect a person of normal physical development to have
done. While no evidence was led by the Crown on what people with normal
physical development normally do, I feel I must take judicial notice that many
fully able bodied Canadians put just such pools in their backyards. In my
opinion, a conventional backyard swimming pool such as the Barnes’ is not able
to satisfy this final requirement.
[12]
It is perhaps
unfortunate that, in a case such as Zoë Barnes’, this last restriction applies
regardless of the purpose or extent of use of the pool. Mr. Barnes may
well be correct in questioning a policy that does not provide relief even
though the primary purpose of having the pool installed was Zoë’s needs and
even though the pool is primarily used for Zoë’s needs. However, Parliament’s legislated
intention could not be more clear. This is evidenced by the Department of
Finance’s Explanatory Notes and the Budget papers accompanying the amendments
to the legislation in 2005. This is consistent with the decision of Paris J. in
Hendricks v. The Queen, 2008 TCC 497, 2008 DTC 4852,
dealing with the installation of hardwood floors benefiting a person suffering
severe asthma.
[13]
This is not to say that,
in an appropriate case, a swimming pool especially designed or altered for a
person for therapeutic physiotherapy purposes will be unable to qualify.
[14]
Mr. Barnes’ appeal
fails for the single reason that subparagraph (ii) imposes a requirement that his
swimming pool does not meet. The bar has been clearly set high by Parliament.
The Crown urged me more generally not to permit a swimming pool to qualify for
METC because it would open the flood gates for other swimming pool claims. I
have paid this no heed whatsoever. To my mind, it is entirely inappropriate in
a case involving either the disability tax credit or the METC to have regard to
possible consequences beyond the individual adversely affected Canadians
themselves.
[15]
The Court regrets that
it is unable under the provisions of the Act to afford Mr. Barnes
the relief he has asked for. The Court wishes him and Zoë continued success
with her treatments and could tell from Mr. Barnes’ evidence and
submissions in Court that Zoë’s continued relief and progress is genuinely more
important to him than his tax claim.
[16]
The law requires me to
dismiss this appeal.
Signed at Ottawa, Canada, this
1st day of September 2009.
"Patrick Boyle"
CITATION: 2009 TCC 429
COURT FILE NO.: 2008-2407(IT)I
STYLE OF CAUSE: COLIN J. BARNES v. HER MAJESTY THE QUEEN
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: August 17, 2009
REASONS FOR JUDGMENT BY: The
Honourable Justice Patrick Boyle
DATE OF JUDGMENT: September 1, 2009
APPEARANCES:
|
For the appellant:
|
The appellant himself
|
|
|
|
|
Counsel for the
respondent:
|
Rishma Bhimji (student-at-law)
Elizabeth Chasson
|
COUNSEL OF RECORD:
For the appellant:
Name:
Firm:
For the respondent: John
H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa,
Canada
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