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.