Docket: 2012-589(IT)I
BETWEEN:
DARLENE ANTHONY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on September 13, 2012 at Kingston, Ontario
By: The Honourable
Justice J.M. Woods
Appearances:
For the
Appellant:
|
The
Appellant herself
|
Counsel for the Respondent:
|
Christopher Kitchen
Jack
Warren
|
____________________________________________________________________
JUDGMENT
The
appeal with respect to an assessment made under the Income Tax Act for
the 2009 taxation year is dismissed. Each party shall bear their own costs.
Signed at Toronto, Ontario this 21st day of
September 2012.
“J. M. Woods”
Citation: 2012 TCC 334
Date: 20120921
Docket: 2012-589(IT)I
BETWEEN:
DARLENE ANTHONY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Woods J.
[1]
The appellant, Darlene Anthony,
purchased a hot tub on the recommendation of her doctors. The use of this
equipment has alleviated her severe chronic pain to such an extent that she has
a greater ability to walk. This appeal concerns the disallowance of a medical
expense tax credit (METC) in respect of the cost of the hot tub, which was
$7,063.
[2]
The relevant reassessment was made
under the Income Tax Act for the 2009 taxation year.
Legislative framework
[3]
I was referred to two types of
expenditures which potentially could qualify for the METC in these
circumstances.
[4]
Subsection 118.2(2)(l.2) of the Act
applies to the cost of home renovations that are undertaken to increase
mobility in the home. The provision reads:
(2) Medical expenses - For the purposes of subsection (1), a medical expense of an
individual is an amount paid
[…]
(l.2) [alterations to home]
- 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;
(Emphasis added.)
[5]
Subsection 118.2(2)(m) of the Act
applies to equipment or devices that are described in Regulation section 5700
and are prescribed by a medical practitioner. The relevant provision in this
case is paragraph (i), which reads:
5700. For the
purposes of paragraph 118.2(2)(m) of the Act, a device or equipment is
prescribed if it is a
[…]
(i) device
that is exclusively designed to assist an individual in walking where
the individual has a mobility impairment;
(Emphasis added.)
Analysis
[6]
It is not in dispute that
Ms. Anthony suffers from severe chronic pain or that the hot tub has assisted
her in walking.
[7]
The Crown submits that
it is not enough that the expenditure is of assistance in walking. Counsel
suggests that the hot tub does not qualify because the product is of a type
commonly purchased by persons who do not suffer severe disabilities and is not
exclusively designed to assist persons with a mobility impairment. The relevant
parts of the legislation are underlined above.
[8]
I would agree with the
Crown’s submission.
[9]
Ms. Anthony searched to find a hot
tub that was reasonable in price and that had jets placed appropriately near
her neck which were necessary to alleviate her symptoms of back pain. The only
equipment that she found that met this criteria was a hot tub that she
purchased at Costco. It had five seats, and the jets in the corner seat accommodated
her needs.
[10]
This Court recently
commented on a similar situation in Johnston v The Queen, 2012 TCC 177. I agree with the comment of Boyle J. in
that case at paragraph 12:
[12] […] While there was no evidence led either way, 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.
[11]
Although the facts in this case
are sympathetic, the appeal must be dismissed as the legislative intent is
clear that this type of expenditure is not intended to qualify for the METC.
[12]
As a final comment, I would
briefly mention that at the commencement of the hearing I informed the parties
that the Crown should bear the burden of proof concerning one of the
assumptions. The relevant assumption is stated in paragraph 9(d) of the Reply,
which reads:
9. In
determining the appellant’s tax liability for the 2009 taxation year, the
Minister relied on the following assumptions of fact:
[…]
d) the appellant did
not incur medical expenses in excess of $209.
[13]
The purpose that the Minister’s
assumptions are stated in the Reply is to inform taxpayers of the facts that
they have to establish at trial. The assumption above is not at all meaningful
in this regard. Notwithstanding this deficiency, the exclusivity requirement
was mentioned in other parts of the Reply. As a result, I concluded that the
issue was properly raised in the pleading, but that it was appropriate to shift
the burden of proof to the Crown because the assumption was inadequate. As it
turned out, the shifting of the burden did not change the outcome of the
appeal.
[14]
The appeal will be dismissed, and
each party shall bear their own costs.
Signed at Toronto, Ontario this 21st day of September
2012.
“J. M. Woods”
CITATION: 2012 TCC 334
COURT FILE NO.: 2012-589(IT)I
STYLE OF CAUSE: DARLENE ANTHONY v.
HER
MAJESTY THE QUEEN
PLACE OF HEARING: Kingston, Ontario
DATE OF HEARING: September 13, 2012
REASONS FOR JUDGMENT BY: The
Honourable Justice J.M. Woods
DATE OF JUDGMENT: September 21, 2012
APPEARANCES:
For the
Appellant:
|
The Appellant herself
|
Counsel for the
Respondent:
|
Christopher Kitchen
Jack
Warren
|
COUNSEL OF RECORD:
For the Appellant:
Name: n/a
Firm:
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa, Ontario