Date: 20010405
Docket: 2000-2855-IT-I
BETWEEN:
BRIAN WILLIAMS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
__________________________________________________________________
Agent for the
Appellant:
Brenda Williams
Counsel for the
Respondent:
Margaret McCabe
____________________________________________________________________
Reasons for Judgment
(Delivered orally from the Bench at Edmonton, Alberta, on
Thursday, March 1, 2001)
Margeson, J.T.C.C.
[1]
The matter before the Court at this time for decision is that of
Brian Williams and Her Majesty the Queen, 2000-2855(IT)I. The
issue raised today is an issue that was raised earlier this week
and has been raised in a number of cases which have been decided
by the Tax Court of Canada. In most cases the results are
factually driven. These cases have gone both ways.
[2]
On the basis of the facts here today the question is whether or
not the Appellant is entitled to claim the amount of $5,992.00 in
the taxation year 1998 as a medical expense. He initially claimed
$6,152.00. There can be no doubt from the evidence of the
Appellant himself and from the material before me that what he is
seeking is the costs of the purchase of the hot tub,
$5,992.00.
[3]
The Court finds that Mrs. Brenda Williams, the Appellant’s
wife, was a very straightforward witness and what she said can
generally be accepted as factually correct. There is no issue
about the disability that she had. She had a very severe and
prolonged impairment.
[4]
This is not a disability tax credit issue, this is a claim for a
medical expense under section 118.2 of the Income Tax Act
(“Act”). In essence the Appellant seeks to
deduct the amount of the claim on the basis of subsection
118.2(2), paragraph (l.2) having to do with renovations in
their home. The other appropriate provision is for devices under
5700(m) of the Income Tax Regulations,
(“Regulations”).
[5]
The only way in which the Appellant can be successful in this
Court today is if he can bring this appeal within one of those
two provisions. Subsection 118.2(2), paragraph (l.2) says
as follows:
[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;
[6]
The Appellant has a number of problems with respect to this
particular section. He would have to show that the expenses were
reasonable, he would have to show that there were renovations or
alterations to the dwelling of the patient, he would have to show
that Mrs. Williams lacks normal physical development or has a
severe and prolonged mobility impairment and he would have to
show that the expenses were incurred to enable her to gain access
to or to be mobile or functional within the dwelling.
[7]
There is no doubt that Mrs. Williams has a severe impairment and
it may very well be a prolonged impairment. I believe the matter
can be dealt with on the basis of the last part of the section,
that is the intention or the purpose of obtaining the hot tub in
the first place.
[8]
This Court realizes that most cases are factually driven and the
facts in the case at bar are not on all fours with the cases
cited even though they may have been very close. This Court
believes that the purpose of the legislation in subsection
118.2(2), paragraph (l.2) was to deal with renovations or
alterations to a dwelling. The expense can only be allowed where
the person claiming the expense can satisfy the Court that these
were expenses for the renovation or alteration of the dwelling,
that the purpose of these renovations or alterations to the
dwelling and the expenses for the same were expended to enable
the patient to gain access to or to be mobile or functional
within the dwelling.
[9]
That is the purpose/intent of that section as far as the Court is
concerned. The question arises: Can the Statute be contemplating
more than one purpose? Does the purpose of enabling the patient
to gain access to or to be mobile or functional within the home
have to be the principle purpose or the principle reason for the
acquisition and the expenditure? Is it sufficient if the indirect
result of the acquisition and the expenditure is that the person
is more mobile or functional within the home?
[10] The
Appellant, in support of his position referred to the case of
Vantyghem v. R., [1999] 2 C.T.C. 2159 (T.C.C.); the case
of Gordon v. R., [2000] 2 C.T.C. 2399 (T.C.C.) and
the case of Galipeau v. R., 2000 CarswellNat 2269
(T.C.C.). This Court is unable to determine from a reading of
those cases the complete and exact factual picture which was
before the Judge or the exact basis upon which the Judge made the
decision. It would appear from those cases that the Courts were
giving a very broad interpretation to subsection 118.2(2),
paragraph (l.2) and concluded that so long as the
renovations or alterations and the purchase of the hot tub
indirectly led to Mrs. Williams becoming more mobile within
the home, that they would be deductible even if the expenses were
for the purchase of a device, such as a hot tub.
[11]
Subsection 118.2(2), paragraph (l.2) does not refer to a
device at all. It appears to be referring to changes which are
made or alterations which are made to the dwelling. In the case
at bar, the evidence of the Appellant was that he was not seeking
to claim any expenses for renovations or costs of renovations or
changes to the dwelling. The pictures and all of the evidence
indicated that the hot tub area and the patio to which it was
annexed were outside. The installation did not call for any major
renovations inside, except for some electrical work. The
Appellant is not seeking to claim those costs.
[12] This
Court would be prepared to say that if the Appellant could show
that the costs that he is claiming were related to renovations or
alterations to the dwelling, that he would have met one of the
prerequisites of this section.
[13] But even
then he would not be home free, because then he would have to
show that the renovations or alterations were made for the
purpose of enabling the patient to gain access to or to be mobile
or functional within the dwelling.
[14] The
evidence of Mrs. Williams on that, out of her own mouth, was that
the purpose for which she purchased the hot tub was to help her
to relax, to get better ready for the morning or to be able to
manage her pain. She said, “that is what I purchased it
for”. It also helped to decrease her irritability.
[15] It does
not seem to this Court that that is bringing yourself within the
appropriate provisions. It is this Court’s position that
the paragraph dictates that the primary purpose of the
expenditure must be for the purposes of enabling the party who
has a severe and prolonged mobility impairment to enable him or
her to gain access to or to be mobile or functional within the
dwelling. That may include being more mobile and more
functional.
[16] This
paragraph does not seem to contemplate hot tubs and apparatus of
that nature. It appears to contemplate things like railings,
ramps and other apparatus that might be directly related to the
person’s mobility. A hot tub cannot be directly related to
a person’s mobility. A possible indirect result of the
purchase of the hot tub might be to make the person more relaxed
and thus be more mobile because of the diminution of pain so that
the patient can be more active and mobile “and getting
ready for the day”, as the Appellant put it. That is an
indirect result of the use of the hot tub, but the Court cannot
see where, by any stretch of the imagination, it could interpret
that paragraph as contemplating the purchase of a hot tub.
[17] The Court
cannot conclude that the purchase and use of a hot tub could be
reasonably interpreted to be a renovation or an expense related
to the renovation or alteration to the 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.
[18]
Consequently, on the basis of the evidence, and the Court takes
the evidence of Mrs. Williams at face value and accepts what she
had to say about her pain and so on, but it cannot see how she
can gain relief under the appropriate legislation.
[19] Paragraph
118.2(2)(m) reads:
– 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)
(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,
When one refers to Regulation 5700 it says, inter
alia:
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;
One does not find “hot tub” listed there.
Therefore it was not prescribed under the Regulations.
[20] It was
not described in any other paragraph or subsection. It was
prescribed by a medical practitioner. The only other provision to
be considered is paragraph 5700(i) of the
Regulations.
[21] By no
stretch of the imagination can this Court conclude that the hot
tub was such a device. The only way you could conceivably bring
it within that section would be if the Court would stretch its
imagination to think that the section and the Regulations
contemplated something that could indirectly improve the mobility
of the individual. This Court is satisfied that this section was
not intended to cover such a device.
[22] Giving to
the Regulations and the Statute the broadest
interpretation, the Court cannot conclude that the legislators
intended that everything that rendered a person more mobile would
entitle one to the deduction of its costs, immaterial of how
indirect was the result.
[23] The
appeal is dismissed and the Minister’s assessment is
confirmed.
Signed at Ottawa, Canada, this 5th day of April
2001.
"T.E. Margeson"
J.T.C.C.
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