Date: 19981217
Docket: 97-3607-IT-I
BETWEEN:
JOHN F. VANTYGHEM,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for judgment
RIP,_J.T.C.C.
[1] The issue in this appeal by John F. Vantyghem from an
income tax assessment for 1996 is whether the installation of a
hot tub in the home he shared with his wife, Karen Vantyghem,
near Eden, Ontario, can be said to be included as
"renovations or alterations to a dwelling", within the
meaning of paragraph 118.2(l.2) of the Income Tax
Act ("Act") to enable Mrs. Vantyghem, who
has a prolonged mobility impairment, to be mobile or functional
within the dwelling.
[2] The parties agree that in 1996 Mrs. Vantyghem had a severe
and prolonged mobility impairment as a result of a fall from a
12-foot high platform in July 1991. Mrs. Vantyghem's fall
resulted in a fractured L1 vertebra with compression along her
upper spine and including her skull. She also suffered other
internal problems.
[3] After her injury Mrs. Vantyghem undertook various
therapies in an attempt to alleviate her pain, including
hydrotherapy and physiotherapy. The hydrotherapy, she testified,
helped increase her mobility but any benefit was lost when she
left the treatment facility in the cold weather to return home.
Her physicians prescribed various analgesics to alleviate the
pain.
[4] Mrs. Vantyghem was treated by various specialists
including an orthopaedic surgeon. One of her physicians, Dr.
Brown, advised her that even analgesics eventually would not be
of help to her. A Dr. Vincent VanHooydonk recommended
that she obtain a therapeutic tub to help with relief and to
reduce her dependence on analgesics. Mrs. Vantyghem also
testified that she was having adverse reactions to taking
analgesics as the dosage was being increased.
[5] Mrs. Vantyghem found that she benefited most from, and had
freer movement after, hydrotherapy. Before the installation of
the hot tub in her home, Mrs. Vantyghem had difficulty going
upstairs in her two-storey home. With hot tub treatments she is
able to forego analgesics and be mobile within her home. She
states that she can control her pain with the hot tub treatments
and by limiting her activities.
[6] The Vantyghem family live on a farm and it would take
Mrs. Vantyghem almost an hour to travel for the required
physiotherapy at a London hospital. In 1992, she was told that
physiotherapy would no longer help her and she stopped
treatments.
[7] Mr. Vantyghem confirmed that after his wife was informed
that physiotherapy would no longer be of help to her, she
continued exercising at home. However, he said, she was
"going downhill and taking more pills". He also said
that as the weather changed, she suffered more pain. Spending
time in a tub, he agreed, permitted her to control her pain and
be mobile around the house. He also stated that there was no
therapy available for his wife in the immediate area where they
lived and that the hot tub was the only therapy to offer her
relief from pain and offer her increased mobility.
[8] The parties agree that a hot tub is not one of the medical
devices and equipment prescribed by section 5700 of the
regulations to the Act.
[9] The respondent relied upon a decision of this Court in
Richard Craig v. The Queen, [1996] 3 CTC 2037, in which
the taxpayer's claim for a tax credit for a medical expense,
being the installation of a hot tub inside the family home for
his wife who was suffering from a debilitating condition known as
fibromyalgia, was dismissed. The wife's rheumatologist
recommended, but did not prescribe, the hot tub.
[10] In Craig, my colleague, Judge Lamarre-Proulx,
J.T.C.C., agreed with respondent's counsel that subsection
118.2(2) of the Act applies to modifications that assist
an impaired person in moving into a dwelling. She held the
provision refers to a technical or mechanical device oriented
towards the transportation of a person rather than towards a
person's physical well-being.
[11] Judge Lamarre-Proulx also referred to the May 1991
Technical Note of Revenue Canada and the 1991 Budget
Supplementary Information, respecting the amendment made to
paragraph 118.2(2)(l.2). The technical note stated that
this provision:
"...allows reasonable expenses relating to modifications
to a dwelling of an individual who lacks normal physical
development or is confined to a wheelchair to qualify as medical
expenses. This amendment extends this provision to all
individuals who have a severe and prolonged mobility
impairment".
[12] The Budget Supplementary Information explains that the
amendment expanding the list of medical expenses includes
"modifications to the home in order to enable a person with
a severe and permanent mobility restriction (e.g. those with
multiple sclerosis or cerebral palsy) to gain access to the home
or rooms within it to persons in addition to those confined to a
wheelchair".
[13] The budget statement and technical notes above refer to
"modifications" to the home. In The Shorter Oxford
Dictionary on Historical Principles, 1983 ("Shorter
Oxford") defines the verb "modify" as "to
make partial changes in; to alter without radical
transformation". Thus, a modification to a home may include
a very wide range of changes so long as there is no substantive
change to the home. The use of a broad and inclusive term like
"modification" in the published budget statement and
the technical notes suggest a broad and inclusive interpretation
of the terms "alterations" and "renovations"
in paragraph 118.2(2)(l.2).
[14] The Shorter Oxford defines the verbs
"alter" and "renovate" in the following
manner:
alter: 1. To make otherwise or different in some respect,
without changing the thing itself. 2. To become otherwise, to
undergo some change...
renovate: l. To renew. 2. To renew materially; to repair; to
restore by replacing lost or damaged parts; to create anew.
[15] The plain meaning of the word "alteration"
would seem to include almost any kind of change. Thus, the word
"alter" appears to be broad enough to encompass
installations. Furthermore, the fact that the words
"alterations" and "renovations" are used
disjunctively in paragraph 118.2(2)(l.2) encourages
reading the terms in a manner that would not make either
superfluous.[1] One
may reasonably read "alterations" to include changes in
addition to those already covered by the word
"renovation". An installation may be an
"alteration" that is not simply a
"renovation".
[16] The term "renovate" was considered judicially
in Edinburgh Parish Council v. Edinburgh Assessor, 43
S.L.R. 442, per Lord Dundas, who wrote:
The expense of renovating buildings, gas-holders, mains',
though perhaps ambiguous, probably means 'renewals by way of
repair, and not replacements involving the introduction of new
heritable subjects'.
[17] Both Shorter Oxford and Edinburgh
indicate that a "renovation" refers to a renewal or
restoration to what previously existed to the exclusion of
introducing what is significantly new. Depending on the
circumstances, the plain meaning of the word
"renovation" may be the opposite or may complement the
word "installation". The term "renovation" is
often used broadly in everyday speech to refer to changes to a
dwelling which could include installations. Thus, the
"renovation" of a bathroom may include the installation
of items that were not found in the bathroom when originally
built.
[18] In Williams v. Canada [1997] T.C.J. No. 1346 at
paragraph 9, it was held that paragraph 118.2(2)(l.2) is
not confined to renovations or alterations that provided access
to a residence.[2]
Instead, the provision could include renovations or alterations
that permit the disabled person "to be mobile or functional
within the dwelling in such manner that she or he may perform
daily activities in the home".
[19] The medical expense and disability tax credit provisions
in the Act should be interpreted in its most equitable and
liberal manner compatible with the attainment of the object of
those provisions and Parliament's intent in enacting the
provisions.[3]
Every enactment should "be given such a fair, large and
liberal construction and interpretation as best ensures the
attainment of its objects".[4] Where it is not unreasonable to hold, in the
particular circumstances of a case, that an amount paid by a
taxpayer can be described as a medical expense, one should
examine if the amount so paid qualifies as a medical expense
pursuant to subsection 118.2(2) of the Act.
[20] The word "alterations" in paragraph
118.2(2)(l.2) includes "installation"; this is
an interpretation that a typical person would find to be
reasonable having regard to Mrs. Vantyghem's plight.
[21] In the appeal at bar, Mr. Vantyghem incurred an expense
relating to an alteration to the home, the installation of a hot
tub, to permit Mrs. Vantyghem who in 1996 had a severe and
prolonged mobility impairment to be mobile within their home.
This was the evidence before me and I accept it as fact.
[22] The appeal is allowed with costs, if any.
Signed at Ottawa, Canada, this 17th day of December 1998.
"Gerald J. Rip"
J.T.C.C.
Email this Content