Gibson v. The Queen, docket 1999-4728-IT-I (Informal Procedure)

Date: 20001102

Docket: 1999-4728-IT-I

BETWEEN:

BETH GIBSON,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Mogan J.T.C.C.

[1]            When filing her income tax return for 1997, the Appellant claimed medical expenses in the total amount of $15,097 and deducted a non-refundable tax credit based on those medical expenses. There were three components of the medical expenses:

                                Whirlpool Spa                                       $8,761.49

                                Travel Costs                                                          4,677.75

                                Miscellaneous                                       1,657.82

                                Total                                                        $15,097.06

By notice of reassessment dated November 1, 1999, the Minister of National Revenue allowed only the following amounts as medical expenses:

                                Travel Costs                                                          $5,147

                                Miscellaneous                                       1,657

                                Total                                                                        $6,804

The Appellant has appealed from that reassessment claiming that the cost of her whirlpool spa ($8,761) is a medical expense or, alternatively, that the cost of installing the whirlpool spa is a medical expense. The Appellant has elected the informal procedure.

[2]            The Appellant is a qualified school teacher residing in Hartney, Manitoba approximately 50 miles southwest of Brandon. She lives with her husband and their two children; a daughter born in 1981 and a son born in 1983. In 1991, the Appellant was working fulltime as an elementary school teacher. In the course of her work, she had a most unfortunate accident. At that time, she was teaching a class of 22 children who were seven or eight years old. Two of the children had severe behavioural problems. One of the children with a behavioural problem, an eight year old boy, climbed up on a counter in the classroom. The Appellant went over to the counter and tried to persuade the boy to come down. The boy jumped off the counter; he landed on the Appellant; and the two of them crashed to the floor. In falling, the Appellant struck a table with the back of her neck and was injured. She was not disabled at the time but realized that she had a very sore neck.

[3]            This accident happened in the spring of 1991. She went to see her family doctor immediately and was told that the pain in her neck was attributable to stress. She found this hard to believe but accepted the doctor's opinion and did not seek other medical help at that time. When the pain continued into the summer, she went back to the same doctor complaining about the severity of the pain. The doctor again said that the pain was attributable to stress and asked whether there were any problems in her domestic life. At that point, the Appellant realized that her doctor was not taking her pain seriously. She went to Brandon to obtain a second medical opinion. The doctor in Brandon advised her that she had had a serious whiplash at the time of her fall and, because of her failure to obtain appropriate physiotherapy in a timely manner, she had developed fibromyalgia in and around her neck. This is severe pain in the muscles around the neck. By that time, the pain had extended down into her right arm.

[4]            The Appellant commenced physiotherapy treatment and was required to travel frequently from her home in Hartney to Brandon. The pain was so bad that she was away from school for the whole of the academic year 1991-1992. She went back to school in the fall of 1992 but her neck and right arm continued to hurt. In the school year 1996-1997, she was required to stay away from school after the March break because of the pain. After leaving school in March, she received some kind of disability pension under the disability insurance plan which the teachers had in her school area. The insurance company providing the disability insurance insisted that she be examined by the company's own doctor in Winnipeg. The insurance doctor in Winnipeg recommended that she see a chiropractor immediately. She was required to follow his advice if she wanted to continue to receive the disability pension. She went to see a chiropractor but, according to the unchallenged evidence of the Appellant, the chiropractor did her more harm than good. She was in much more pain after seeing the chiropractor than she was before seeing him.

[5]            After taking time off in the last few months of the school year from March to June 1997, and after seeing the chiropractor recommended by the insurance company's doctor, the Appellant decided to do something herself to relieve the pain. In the course of some prior treatments in Brandon including hydrotherapy, the Appellant had found that being in a tub with jets of hot water focused on her neck and arms had helped relieve the pain. She therefore decided in the summer of 1997 to acquire either a new bathtub with jets or a whirlpool hot tub. After canvassing the market, she decided on the whirlpool hot tub because it was significantly less expensive to buy and install than a bathtub with jets. Also, the hot tub could be moved if she and her family moved to another house. Therefore, in late summer or early fall of 1997, the Appellant had a whirlpool spa installed in her home. It was later enclosed. She found that the hot tub really did reduce her pain and allowed her more mobility.

[6]            In cross-examination, the Appellant was questioned by counsel for the Respondent with a view to determining whether the hot tub was a recreational device for the Appellant and her family. The Appellant stated that her husband and her son used the hot tub only occasionally. She stated that her son used it only once or twice a year and that her husband hardly used it at all. In fact, although the tub will accommodate two or three adults, the Appellant's complaint is that she spends most of the time in the tub alone, given the fact that she is in there at least once every day. The Appellant was emphatic in stating that the tub was not a recreational device for her family and that it really did help loosen up the muscles in her neck and arms. On some days she could not work at all without using the hot tub first thing in the morning. As the Appellant explained, it was a question of what she could accomplish with limited energy; and she could not teach school on many days if she did not get relief from the hot tub.

[7]            Counsel for the Respondent admitted that the cost of the hot tub was $8,761. In other words, it is not the cost of the whirlpool spa that is in dispute but whether it qualifies as a medical expense. The relevant provisions of the Income Tax Act and the Regulations to the Act are as follows. Subsection 118.2(1) permits the deduction of a tax credit based upon the total of an individual's "medical expenses" which are proven by filing receipts.

118.2(2) For the purposes of subsection (1), a medical expense of an individual is an amount paid

               

                (a)            ...

(l.2)          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;

(m)           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;

Having regard to any device or equipment "of a prescribed kind" within the meaning of paragraph (m), section 5700 of the Income Tax Regulations contains a list of what is described in the following words:

5700         For the purposes of paragraph 118.2(2)(m) of the Act, a device or equipment is prescribed if it is a

                (a)            ...

(i)             device that is designed to assist an individual in walking where the individual has a mobility impairment;

[8]            Counsel for the Respondent referred to five cases in this Court (all under the informal procedure and decided since 1996) concerning the cost of acquiring or installing a hot tub which, for all practical purposes, is the same as the whirlpool spa purchased by the Appellant in this appeal. In Craig v. The Queen, [1996] 3 C.T.C. 2037, Mr. Craig purchased a hot tub for his wife who suffered from fibromyalgia. She had previously obtained relief from using the hot tub of a friend. Mr. Craig claimed the cost of the hot tub as a medical expense. Judge Lamarre Proulx dismissed Mr. Craig's appeal because the hot tub for his wife had not been prescribed by her doctor.

[9]            In Vantyghem v. The Queen, [1999] 2 C.T.C. 2159, the issue was whether a husband could deduct as a medical expense the cost of installing a hot tub as "renovations or alterations to a dwelling" within the meaning of paragraph 118.2(2)(l.2) of the Act. His wife had a prolonged mobility impairment and she found that she benefited most from hydrotherapy. After referring to definitions of "renovation" and "alteration", Judge Rip stated:

                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. ...

                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.

Mr. Vantyghem's appeal was allowed.

[10]          In Clark v. The Queen, [1994] 4 C.T.C. 2005, Judge Rowe 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. In Ollman v. The Queen, [2000] 1 C.T.C. 2789, a woman purchased a hot tub (cost of $8,546) on the recommendation of her orthopaedic surgeon and physiotherapist to get relief from chronic lower back pain following a car accident and serious injury. Judge O'Connor held that the cost of the hot tub did not qualify as a medical expense.

[11]          In Gordon v. The Queen, [2000] 2 C.T.C. 2399, Mr. Gordon's wife was recovering from a car accident which left her with severe rheumatologic disorders including fibromyalgia and inflammatory osteoarthritis. She required hot baths at a physiotherapy facility 10 miles from her home. Because she required frequent hot baths, it was recommended that she have one installed in her home. Judge Beaubier concluded that the hot tub was not a device or equipment within the meaning of paragraph 118.2(2)(m) but he allowed Mr. Gordon's appeal on the basis that the installation cost was a reasonable expense relating to a renovation or alteration of the Gordon family dwelling.

[12]          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. In particular, I find that it was not intended to be and has not been a recreational device for her family. The Appellant uses the hot tub everyday for the relief of pain and, for all practical purposes, she uses it alone. The hot tub loosens up her muscles, reduces her pain, and on many days she could not work without it. With respect to domestic work in her home and performing her profession as a school teacher, her mobility is dependent upon her regular use of the hot tub.

[13]          Having regard to paragraph 118.2(2)(m) of the Act and the items listed in Regulation 5700, I am satisfied that the hot tub in question does not qualify as a "device or equipment" within the meaning of paragraph (m). But with respect to paragraph 118.2(2)(l.2), I will follow the decisions of Judge Rip in Vantyghem and Judge Beaubier in Gordon. In my opinion, the cost of installing the hot tub in 1997 was a reasonable expense "relating to ... alterations to a dwelling" of the Appellant who had a "severe and prolonged mobility impairment". I find that the cost of installing the hot tub was a "reasonable expense" within the meaning of paragraph 118.2(2)(l.2).

[14]          The Respondent does not dispute the cost of the hot tub as being $8,761. That cost, however, is not a medical expense. I have accepted the Appellant's alternative argument and decided that the installation cost comes within paragraph 118.2(2)(l.2). There is no precise evidence concerning the installation cost but the Appellant stated that it exceeded the cost of the hot tub itself. I will allow the appeal and permit the installation cost as a medical expense under paragraph 118.2(2)(l.2) up to a maximum amount of $9,000 subject to the Appellant's production of acceptable receipts verifying such installation cost. I can be approached through the Registrar if there should be any dispute concerning the acceptability of one or more receipts. The appeal is allowed on the above terms, without costs.

Signed at Ottawa, Canada, this 2nd day of November, 2000.

"M.A. Mogan"

J.T.C.C.