Williams v. R., [1998] 1 CTC 2813

Rip T.C.J.:

Shelley O. Williams has appealed (informal procedure) an income tax assessment for 1994 in which the Minister of National Revenue (“Minister”) disallowed the amount of $7,577.73 claimed as medical expenses. The amount claimed is the aggregate of $967.47 for vitamin and mineral supplements, $1,183.82 for food, cleaning supplies and personal grooming items, $1,258.21 for a mattress built in accordance with a doctor’s instructions, and $4,168.23 for home renovations, specifically the removal of carpets and the installation of hardwood floor. The Minister assessed on the basis that the amounts are not deductible in computing the appellant’s non-refundable tax credits pursuant to subsection 118.2(2) of the Income Tax Act (“Act’).

The Minister does not deny that in 1994 Ms. Williams suffered an environmental illness. Indeed, in his Reply to the Notice of Appeal, the respondent admits the appellant’s claim that she had a “severe chronic immune disregulation” created by exposure to high levels of chemicals in the workplace. It is not necessary for the purpose of these reasons to describe in detail the nature of the illness. Ms. Williams graduated as an occupational therapist from Dalhousie University in 1989 and commenced practising her profession at the Camp Hill Medical Centre in May 1989. In early 1990 she first experienced symptoms that she had never experienced before: rash, hair loss, joint pain, gastro intestinal and memory problems. She was not alone. Approximately 700 other employees of the Medical Centre had similar symptoms. In 1991 Ms. Williams took sick leave. She started working again in January 1996 for two hours a day and at time of trial she was working at the Medical Centre for six hours per day. She is still not working on a full time basis.

One of the symptoms of Ms. Williams’ illness was extreme fatigue. She stated that during the first year of the illness she could only walk from her bedroom to the sofa in the living room. She stated that she spent most of the day sleeping or resting, notwithstanding that she would sleep twelve hours at night.

In May 1994 she and her husband purchased a home and then proceeded to strip the house of all carpeting and in its place put in hardwood flooring. A Dr. Roy A. Fox of the Environmental Health Clinic at Dalhousie University wrote to Revenue Canada on July 18, 1996 that the treatment of Ms. Williams’ condition is extremely difficult and involves intensive modifications of the home environment to allow the person to live in a chemically free clean environment and give time for recovery to occur. He had recommended to Ms. Williams that she change the flooring in her home to hardwood flooring, that she purchase a custom built mattress free of chemicals such as fire retardants and that she eat clean uncontaminated food. She requires a diet of organic foods and clean water to build up her ability to detoxify chemicals in the air and repair the damage done. A Dr. Ross and Dr. Fox had prescribed taking vitamin and mineral supplements as well. She also purchased a mattress, built to a doctor’s specifications; this mattress contained no boric acid and consisted of 100 per cent cotton. The mattress did not contain any chemicals to make it flame retardant. She also purchased the various vitamin and mineral supplements and organic foods and clean water as prescribed to her by medical practitioners.

Ms. Williams submitted that the expenses she incurred to purchase the supplies were medical expenses which were prescribed by one or more medical practitioners to alleviate her problem of “severe chronic immune disregulation” created by exposure to high levels of chemicals in the workplace. The Minister contends that the disallowed medical expenses for vitamin and mineral supplements were not incurred for the purchase of drugs or medicaments prescribed by a physician or dentist and recorded by a pharmacist as required by paragraph 118.2(2)(n) of the Act. The Minister also states that a disallowed expenses for a special mattress were not incurred for the purchase of a hospital bed as prescribed by section 5700 of the Income Tax Regulations (“Regulations”) in accordance with paragraph 118.2(2)(m) of the Act. The Minister disallowed the expenses for the hardwood flooring since, in his view, they were not incurred for the purpose of providing access to a dwelling by a person who lacks normal physical development or has a prolonged and severe mobility impairment as required by paragraph 118.2(2)(/.2) of the Act. Finally, the Minister states that the expenses claimed for food and cleaning products are personal living expenses and are therefore not eligible medical expenses pursuant to the Act.

For the 1994 taxation year subsection 118.2(2) of the Act read, in part, as follows:

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

(1.2) 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;

(n) for drugs, medicaments or other preparations or substances (other than those described in paragraph (k)) manufactured, sold or represented for use in the diagnosis, treatment or prevention of a disease, disorder, abnormal physical state, or the symptoms thereof or in restoring, correcting or modifying an organic function, purchased for use by the patient as prescribed by a medical practitioner or dentist and as recorded by a pharmacist;

118.2(2) Frais médicaux. Pour l’application du paragraphe (1), les frais médicaux d’un particulier sont les frais payés:

.2) pour les frais raisonnables afférents à des rénovations ou transformations apportées à l’habitation du particulier, de son conjoint ou d’une personne à charge visée à l’alinéa a) — ne jouissant pas d’un développement physique normal ou ayant un handicap moteur grave et prolongé - pour lui permettre d’avoir accès à son habitation, de s’y déplacer ou d’y accomplir les tâches de la vie quotidienne;

m) pour tout dispositif ou équipement destiné à être utilisé par le particulier, par son conjoint ou par une personne à charge visée à l’alinéa a), qui, à la fois:

(i) est d’un genre prescrit,

(ii) est utilisé sur ordonnance d’un médecin,

(iii) n’est pas visé à un autre alinéa du présent paragraphe,

(iv) répond aux conditions prescrites quant à son utilisation ou à la raison de son acquisition;

n) pour les médicaments, les produits pharmaceutiques et les autres préparations ou substances - sauf s’ils sont déjà visés à l’alinéa k) - qui sont, d’une part, fabriqués, vendus ou offerts pour servir au diagnostic, au traitement ou à la prévention d’une maladie, d’une affection, d’un état physique anormal ou de leurs symptômes ou en vue de rétablir, de corriger ou de modifier une fonction organique et, d’autre part, achetés afin d’être utilisés par le particulier, par son conjoint ou par une personne à charge visée à l’alinéa a), sur ordonnance d’un médecin ou d’un dentiste, et enregistrés par un pharmacien;

Regulation 5700 provides that for the purpose of paragraph 118.2(m) of the Act, a device or equipment is prescribed if it is a...

(h) hospital bed including such attachments thereto as may have been included in a prescription therefor...

I shall deal first with the question of home renovations, that is the installation of hardwood floors.

The English version of paragraph 118.2(2)(/.2) of the Act provides that a medical expense of an individual is an amount paid for reasonable expenses relating to renovations or alterations to the dwelling of an individual who lacks normal physical development or who has a severe and prolonged mobility. In order for these expenses to qualify they must be paid to enable the individual to gain access to the dwelling or be mobile and functional within it. There have been very few reported cases dealing with paragraph 118.2(2)(/.2). In Brown v. Minister of National Revenue (1994), 95 D.T.C. 5126 (Fed. T.D.) , an air conditioner was found to have been “designed to assist a crippled individual in walking” within the meaning of subsection 5700(i) of the Regulations and its cost was therefore deductible as a medical expense when it had been developed in a medical context in order to lower body temperature and thereby assist in the restoration of mobility. In Craig v. R., [1996] 3 C.T.C. 2037 (T.C.C.), further to the recommendation (and not prescription) of the wife’s rheumatologist, the taxpayer installed a hot tub inside the family home for his wife, who suffered from a debilitating condition known as fibromyalgia. The trial judge concluded that the acquisition and installation of the hot tub was not a medical expense of the type described in paragraph 118.2(2)(/.2) since that section applied to modifications that assisted an impaired person in moving into a dwelling and was oriented towards the transportation of a person rather than ensuring a person’s well-being. Furthermore, the expense for acquiring and installing a hot tub was not prescribed by a medical practitioner and therefore did not satisfy subparagraph 118.2(2)(m)(ii) of the Act. In addition, subparagraph 118.2(2)(m)(1) was not complied with since there was no evidence that the hot tub was designed to assist an individual in walking.

The French and English versions of paragraph 118.2(2)(/.2) are not identical. In the French version of that provision the concluding words are “de s’y déplacer ou d’y accomplir les tâches de la vie quotidienne”. The “Robert & Collins” English French dictionary [1] defines the word “quotidienne” as:

De chaque jour; qui se fait, qui revient tous les jours.

The word “quotidienne” refers to something that is done daily, or daily activity. The French version provides for the renovations to enable the patient to gain access to and be mobile or to perform “daily activities” within the dwelling. The provision is not concerned with a “basic activity of daily living”, as set out in paragraphs 118.4(1)(c) and (d). The renovations or alterations are to enable the patient to be functional in the home so that she or he may perform daily activities. A daily activity includes a wide range of movement, not only a basic activity of daily living. An activity of daily living includes, but is not limited to, those activities set out in subparagraph 118.4(1)(d), that is, working, housekeeping, and social and recreational activities. The French version of paragraph 118.2(2)(/.2) adds an element to be considered when determining whether or not the renovations undertaken by Ms. Williams are eligible for the medical expense credit. The additional words “d’y accomplir les tâches de la vie quotidienne” in paragraph 118.2(2)(/.1), in my view, enlarge the application of that provision to include a renovation to permit a person who has a severe and prolonged mobility impairment to be mobile or functional within the dwelling in such manner that she or he may perform daily activities in the home.

In the appeal at bar it is clear to me that Ms. Williams’ mobility permitting her to perform daily activities in her home in 1994 was severely restricted and that the installation of hardwood flooring was necessary to enable her to be mobile and functional within her home as to perform a daily activity within that dwelling, that is to walk from room to room with relative ease within the house; she should be able to live in the house. Accordingly, in my view, the expenses relating to the acquisition and installation of the hardwood flooring ought to be allowed.

Paragraph 118.2(2)(/n) provides that a medical expense is an amount paid for any device or equipment which meets the conditions prescribed in paragraph 5700(/i) of the Regulations. The Regulation stipulates that a prescribed device or equipment includes a hospital bed with attachments thereto. I agree with the Minister that the special mattress prescribed by a physician for Ms. Williams is not a hospital bed, as prescribed in the Regulations. However, Ms. Williams was suffering from a “severe chronic immune disregulation”. [2] May one consider the prescribed and specially constructed mattress a “device or equipment ... designed exclusively for

(her) use ...” within the meaning of paragraph 5700(c) of the Regulations? The word “equipment” includes furniture. [3] The mattress was designed for the appellant’s exclusive use due to her severe chronic immune disregulation and therefore the cost ought to be a medical expense. This is a teleological interpretation of the provision.

I also refer to the decision of Léger, T.C.J. in Côté c. R. (1996), [1997] 3 C.T.C. 2607 (T.C.C.) in which he allowed a taxpayer’s appeal from a disallowance of medical expenses on the basis that “while there are provisions specifying what medical expenses are, the Court is required to give the most equitable and large interpretation possible to this legislation that is compatible with the attainment of its object”. He held that notwithstanding there was no doctor’s prescription for a water softener or for costs associated with the energy needed to operate a whirlpool bath, the expenses for such equipment and supplies were deductible in computing taxable income. I believe Ms. Williams’ position with respect to the mattress in the appeal at bar is stronger than that of the appellant in Côté.

The costs incurred for the purchase of vitamin and mineral supplements and other natural foods are not medical expenses. Paragraph 118.2(2)(n) of the Act provides that only expenses incurred for drugs, medicaments and other preparations or substances purchased for use by the patient as prescribed by a medical practitioner and as recorded by a pharmacist can be so claimed. With respect to these expenses, none of the purchases were recorded by a pharmacist. See for example Mongillo v. R. (1994), 95 D.T.C. 199 (T.C.C.) . For the same reasons expenses incurred for food, cleaning supplies and personal grooming do not fall within the scope of any of the specific provisions of the Act or its Regulations.

Accordingly the appeal will be allowed with costs to permit the appellant to claim a medical expense of the costs and installation of the hardwood flooring and the cost of the mattress.

Appeal allowed.