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Citation: 2004TCC523
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Date: 20040813
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Docket: 2004-719(IT)I
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BETWEEN:
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KAREN J. KLYWAK,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Bell, J.
ISSUE
[1] Whether
the cost of a hot tub acquired in 2001 is a medical expense within the
definition of same in subsection 118.2(2) of the Income Tax Act ("Act")
for the purpose of computing a medical expense credit within the meaning of
subsection 118.2(1) of the Act.
FACTS
[2] The
Appellant, in computing her tax liability for the 2001 taxation year, claimed
in the computation of tax credit and tax payable, the amount of $9,639 for
medical expenses made up as follows:
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Cost of hot tub
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$7,974.30
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Installation of
hot tub
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809.30
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Doctor's letter
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16.25
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Dental
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366.08
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Medical travel
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464.94
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Other
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8.13
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Total
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$9,639.00
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The Respondent
allowed the foregoing expenses except for the hot tub cost of $7,974.30. This
appeal is from that disallowance.
[3] The Appellant was diagnosed in 2001 with fibromyalgia.
She received physiotherapy and medication for the pain. She testified that her
doctor said it was in her best interest to purchase a hot tub and to use it
daily to ease pain and to help her sleep. She stated that her doctor believed
the cost would be a medical expense. She asserted further that she had phoned
Revenue Canada and was advised that it was "OK" and was a
"medical expense". She followed this with the statement that she and
her husband then had the tub installed. She said that she uses it every day and
sometimes more often than daily, depending upon the pain. She described it as
having water jets and hot temperature and being muscle relaxing. She said that
it alleviated the severe pain in her arms, shoulders, back and neck. Although a
hot tub was available one-half hour away, she and her husband decided to buy
and install the hot tub because driving there and back "would undo the
good". She stated that a non-recliner tub would not do "the same
thing" and that other models did not have the same jet system. She said
that she gets into the tub and gets out of it by herself. She testified that
she uses the tub twelve months a year. She said that she needed it for her
health, that her husband used it occasionally and that her grandchildren used
it two or three times a year, adding that it was hard to say no to children. She stated that she can get into the tub with
great difficulty but finds it much easier to walk when she gets out of it. She
also said, on cross examination, that she could still walk without the tub but
that it would be with difficulty.
[4] The Appellant introduced
in evidence a letter dated February 12, 2002 addressed "To Whom It May
Concern" regarding the Appellant. It reads as follows:
This is to certify that Ms. Klywak is under my
care for medical reasons.
She has a working diagnosis of fibromyalgia. She
finds that moist heat is of significant benefit in controlling her symptoms.
Recently we have advised her for medical reasons
to purchase a hot tub. As a result of this, her ability to work has increased
and her usage of medications has decreased. She has medical indications to have
her hot tub, and I hope that through Income Tax, you will be able to support
this deduction.
Yours sincerely,
(signature)
Dr. Michael Omichinski
[5] The Appellant
also introduced a letter dated February 16, 2004 addressed "To Whom It May
Concern" respecting the Appellant signed by the same doctor and reading as
follows:
This is to certify that I am Karen's
physician. I have been taking care of her for the last 2½ years with regards to
a problem with fibromyalgia. We have tried various medicinal and non-medicinal
types of treatments to help control her symptomatology. We have not had great
success, although from a medical standpoint a hot tub has resulted in a
significant improvement in her symptoms to the point where she has been able to
function reasonably well. Apparently they are attempting to obtain income tax
credit for this and I believe that it is medically indicated that this be covered.
Thank you in advance for your
attention in this matter.
Yours sincerely,
APPELLANT'S SUBMISSIONS
[6] The Appellant
stated that if she did not have the hot tub she would be loaded with medication
and could not function properly. She referred to the letters from her doctor.
She also referred to Johnson v. Her Majesty the Queen, [2003] T.C.J. No.
41, in which Little, J. of this Court allowed as a medical expense the cost of
a hot tub purchased on the recommendation of the Appellant's doctor. The learned
Judge said:
I accept the Appellant's credible and
uncontradicted evidence that she purchased the hot tub only for the purpose of
hydrotherapy and relief of pain.
[7] She also
referred to James Donaghue v. Canada, [2003] T.C.J. No. 721, in which O'Connor,
J. considered the hot tub a prescribed device since he believed that it
qualified under subparagraph (i) of Regulation 5700 as a device that is
designed to assist an individual in walking where the individual has a mobility
impairment. He stated further that it may qualify under subparagraph 118.2(2)(m)
of the Act since it is of a prescribed kind and since it was purchased
on the advice of a medical practitioner. He stated that there was no indication
that the prescribing must be in writing and that the hot tub greatly alleviated
the Appellant's problem, thus enabling him to be mobile both within and outside
his home.
RESPONDENT'S SUBMISSIONS
[8] Respondent's
counsel referred to paragraph 118.2(2)(m) which reads as follows:
For the purposes of subsection (1),
a medical expense of an individual is an amount paid
…
(m) [prescribed
devices] - for any device or equipment for use by the patient that
(i) is
of a prescribed kind,
(ii) is
prescribed by a medical practitioner,
(iii) is not
described in any other paragraph of this subsection, and
(iv) meets such
conditions as may be prescribed as to its use or the reason for its
acquisition,
to the extent that the amount so
paid does not exceed the amount, if any prescribed in respect of the device or
equipment;
Counsel then
referred to section 5700 of the Income Tax Regulations ("Regulations"),
the pertinent part of which reads as follows:
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 designed to assist an individual in walking where the individual has a
mobility impairment;
[9] The Respondent submitted,
with reference to Regulation 5700, that the device referred to therein was
designed to assist an individual to walk where that individual had mobility
impairment and also that although it helped her with pain it did not help her
to walk.
[10] Respondent's
counsel referred to Gibson v. Canada, [2000] T.C.J. No. 753, affirmed by
the Federal Court of Appeal, [2001] F.C.J. No. 1758. In this court Mogan, J.
described the Appellant as having developed fibromyalgia in and around her
neck, causing severe pain in the muscles around the neck and in her right arm.
After a description of therapy he wrote that the Appellant found relief from
being in a tub with jets of hot water focused on her neck and arms. She,
therefore, had a whirlpool spa installed in her home. She found that the hot
tub reduced her pain and allowed her more mobility. The judgment referred to Vantyghem
v. The Queen, [1999] 2 C.T.C. 2159 in which Rip, J. of this Court
determined that the "renovation" of a bathroom may include the
installation of items that were not found in the bathroom when originally
built, such renovations being the cost of installing a hot tub. Judge Mogan
also referred to Clark v. The Queen, [1994] 4 C.T.C. 2005 in which Rowe,
J. of this Court dismissed the appeal of a wife who attempted to deduct as a
medical expense the cost of purchasing and installing a hot tub which was
prescribed by her husband's arthritis specialist. He further referred to Ollman
v. The Queen, [2000] 1 C.T.C. 2789 in which a woman purchased a hot tub on
the recommendation of her orthopaedic surgeon and physiotherapist to get relief
from chronic lower back pain following a car accident and serious injuries.
O'Connor, J. held that the cost of the hot tub did not qualify as a medical
expense. He referred also to Gordon v. The Queen, [2000] 2 C.T.C. 2399
in which Gordon's wife was recovering from a car accident which left her with
severe rheumatologic disorders including fibromyalgia and inflammatory
osteo-arthritis. Because she required frequent hot baths it was recommended
that she have one installed in her home. Beaubier, J. concluded that the hot
tub was not a device or equipment within the meaning of paragraph 118.2(2)(m)
but he allowed the installation cost as a reasonable expense relating to a
renovation or alteration of the Gordon family dwelling. Mogan, J. concluded
that having regard to paragraph 118.2(2)(m) of the Act and the
items listed in Regulation 5700 he was satisfied that the hot tub did not
qualify as a "device or equipment" and allowed only the cost of
installing same.
ANALYSIS AND REASONS
[11] The first
question to be answered is whether the hot tub is a device that is
"designed to assist an individual in walking where the individual has a
mobility impairment". Although it has been suggested that such a device
must be designed, such as a cane or crutches, to assist in the actual physical
exercise of walking, why should those words be accorded such a limited
interpretation? The evidence was clear that the regular and continuing use of
the hot tub did assist her to walk. The words "designed to assist an
individual in walking" surely cannot be interpreted to refer only to
mechanical external aids which, although assisting the walking function,
would not assist the internal muscular function arising from an internal
disease.
[12] A "hot
tub" is defined in the New Shorter Oxford English Dictionary, Volume
I as:
A wooden tub, freq. accommodating
several people, filled with hot aerated water for recreation or physical
therapy.
The evidence is
clear that the hot water jets in the Appellant's tub were of therapeutic value,
relaxing muscles and alleviating severe pain in her arms, shoulders, back and
neck. She testified that her doctor had recommended the use of a hot tub that
he, the doctor, regarded as a medical expense. That doctor's letter of February
12, 2002 stated that he had advised her, for medical reasons, to purchase a hot
tub resulting in increased ability to work and decreased usage of medications.
I find that it was, in these circumstances, designed, in part at least, for a
therapeutic purpose assisting the Appellant in walking, her fibromyalgia having
produced a mobility impairment. Therefore the hot tub is "a device or
equipment for use by the patient that … is of a prescribed kind" within
the meaning of 118.2(2)(m)(i).
[13] Can it be said
that this hot tub was "prescribed by a medical practitioner"? The
word "prescribe" is given several meanings in Volume II of the above
dictionary. They include:
…write before, direct in writing,
etc., …Write first or beforehand; write with foreknowledge. …Advise or order
the use of (a medicine, remedy, etc.), esp. by an authorized prescription; fig.
recommend as something beneficial… advise or order (a person) to take (a
medicine etc.).
The Appellant's
evidence that her doctor told her that it was in her best interest to purchase
a hot tub and use it daily qualifies the hot tub as being "prescribed by a
medical practitioner", Dr. Omichinski having described himself as a
medical doctor. This is buttressed by the letter stating that he had advised
her, for medical reasons, to purchase the hot tub and the subsequent letter
outlining the beneficial results from the use thereof. I agree with O'Connor,
J. that "there is no indication that the prescribing must be in
writing".
[14] I conclude,
therefore, that the disputed cost falls within the definition of a medical
expense in that it was an amount paid for use by a patient for equipment of a
prescribed kind, prescribed by a medical practitioner and not described in any
other portion of subsection 118.2(2).
[15] Accordingly, the
appeal is allowed.
Signed at Ottawa,
Canada this 13th day of August, 2004.
Bell,
J.
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