Vantyghem v. R., [1999] 2 CTC 2159

Rip T.C.J.:

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[(2)](1.2) of the Income Tax Act (“Act’) to enable Mrs. Vantyghem, who has a prolonged mobility impairment, to be mobile or functional within the dwelling.

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 LI vertebra with compression along her upper spine and including her skull. She also suffered other internal problems.

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.

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.

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 mo- bile within her home. She states that she can control her pain with the hot tub treatments and by limiting her activities.

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.

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.

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.

The respondent relied upon a decision of this Court in Craig v. R., [1996] 3 C.T.C. 2037 (T.C.C.), 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.

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 wellbeing.

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)(/.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.

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”.

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)(/.2).

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: I. To renew. 2. To renew materially; to repair; to restore by replacing lost or damaged parts; to create anew.

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)(/.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”.

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’.

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.

In Williams v. R. (1997), [1998] 1 C.T.C. 2813 (T.C.C.) at paragraph 9, it was held that paragraph 118.2(2)(/.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”.

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.

The word “alterations” in paragraph 118.2(2)(/.2) includes “installation”; this is an interpretation that a typical person would find to be reasonable having regard to Mrs. Vantyghem’s plight.

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.

The appeal is allowed with costs, if any.

Appeal allowed.