Citation: 2008TCC677
Date: 20081219
Docket: 2004-657(IT)I
2004-2359(IT)I
2005-1354(IT)G
2005-4108(IT)G
BETWEEN:
FRANKLIN D. TALL,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
V.A. Miller, J.
[1]
These appeals are from
assessments for the Appellant’s 2001, 2002, 2003 and 2004 taxation years. They
were heard on common evidence.
[2]
The Appellant claimed a
medical expense tax credit (“METC”) in each of the years under appeal. The
medical expenses claimed were $43,791.64, $39,961.49, $16,144.68 and $26,696.37
in the 2001 to 2004 taxation years respectively. The Minister of National Revenue
(“the Minister”) reassessed the Appellant’s income tax liability by various
notices and allowed a METC for medical expenses of $37,617.96, $33,732.50,
$9,355.98 and $18,866.67. He disallowed a METC for the following Products and
Services on the basis that the expenses were not within the provisions of
subsection 118.2(2) of the Income Tax Act (the “Act”):
|
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2001
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2002
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2003
|
2004
|
|
The Products
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|
|
|
|
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Bottled water
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$ 489.46
|
$ 527.37
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$ 331.02
|
$ 537.94
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Organic food
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$ 449.71
|
$1,213.95
|
$1,197.37
|
$3,402.16
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|
Vitamins, herbs, Homeopathic remedies,
Health care products
|
$5,234.51
|
$4,257.67
|
$4,770.31
|
$3,500.64
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The Services*
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Mitzvah technique
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$ 240.00
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$ 340.00
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Reiki
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|
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$ 1.00
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Breast massage treatment for nursing wife
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$ 250.00
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Acupuncture
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$ 230.00
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Shower head filter
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|
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$ 47.96
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Total
|
$6,173.68
|
$6,228.99
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$6,788.70
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$7,829.70
|
*The Services were provided to Tomoko Tall,
the Appellant’s spouse.
[3]
After the hearing of
these appeals, the Minister conceded that the cost of the shower head filter
was an allowable medical expense and the Appellant stated that he was no longer
contesting the disallowance of the cost of the Mitzvah Technique and the
acupuncture services.
The Facts
[4]
The Appellant is a
professor of mathematics at the University of Toronto. In 1976 he was diagnosed by
his medical doctor as having environmental illness. In particular, he suffered
from multiple chemical sensitivities. At that time, his doctor recommended that
he avoid chemical contaminants and the Appellant started to consume organic
foods and bottled water. The evidence established that during the years under
appeal, the Appellant’s naturopath, Dr. Mikhael Adams, recommended the use of
the Products to address the Appellant’s environmental hypersensitivity. The
bottled water and organic foods were purchased from health stores, grocery
stores and a bottled water distributor. The vitamins, herbs, homeopathic
remedies and natural health care products (the “remedies”) were purchased from
the clinic where Dr. Adams practiced (the “clinic”).
[5]
The Appellant started
to practice Buddhism and New Age spirituality sometime between 1977 and 1982.
He stated that the main content of Buddhism is awareness. In order for him to
be as aware as possible, it is necessary for him to avoid contaminants that can
impair his awareness. He avoids additives. As an example he stated that he used
water in glass bottles and organic foods. This is also compatible with his
practice of New Age spirituality as one of its core beliefs is “natural is
better”. It was his evidence that avoiding pharmaceuticals and using vitamins,
herbs and homeopathic remedies are fundamental to New Age beliefs.
[6]
The Appellant testified
that although he believes that “natural is better”, he does not think that it
is the only way. In fact since 2002 he has been using prescription medication
to address a viral infection. As well, he does consume some foods that are not
organic.
[7]
It was also the
Appellant’s evidence that neither Buddhism nor his New Age beliefs strictly
forbid anything.
[8]
During the years under
appeal, the Appellant resided in the Province of Ontario.
[9]
The Appellant’s claim
for a METC also included expenses for Services received by his spouse, Tomoko
Tall. She testified that she was born in Japan and moved to Canada in 2001 when she married the Appellant. She does not
work outside of the home and therefore she does not file an income tax return.
In 2003, Mrs. Tall had a son and she received breast massage to release the
milk to feed her son. The breast massage was performed by one of her
acquaintances who had practised as a midwife in Japan.
In 2004, Mrs. Tall received Reiki from her husband, the Appellant. He is a
Reiki Master and he received his training in the United States. The Services were received by Mrs. Tall in the province of Ontario.
[10]
It was Mrs. Tall’s
evidence that all of the Services she received were widely used in Japan. She was accustomed to kompo in Japan. Kompo includes several types of alternative medicine
such as energy healing techniques, Traditional Chinese Medicine and
acupuncture. Reiki is one of the energy healing techniques.
[11]
The Appellant called
five witnesses who were accepted as experts. In the main, their evidence dealt
with the relationship between religion and medicine. Their evidence is
summarized in the following paragraphs.
[12]
Dr. Naomi Adelson, a
medical anthropologist and Chair of the Department of Anthropology at York University, testified that medical anthropologists
have learned, from cultures all over the world, that religion, health and
healing are inseparable. She gave three examples to illustrate how spiritual
practice[1]
and experiences of health and illness are closely linked in many medical
systems. The examples were the Cree of Whapmagoostui, the Navajo and people in India who practice Ayurveda.
[13]
She stated that
medicine as it is practised in Canada is biomedicine. She explained that
biomedicine developed a split between mind and body in that the physical body
is viewed as separate from mental or psychological processes and is considered
treatable in isolation from its social and cultural context. In biomedicine the
emphasis is on disease which is limited to the physical aspects of the body.
Spiritual practices and experiences of health and illness are not linked in
biomedicine.
[14]
Dr. Frances Garrett, a
professor of Tibetan Buddhist Studies at the University of Toronto, was qualified as an expert in Buddhism
and Tibetan medicine. She testified that there are five fundamental precepts
which most Buddhists may consider as the basis for their practice. The most
important of these precepts is to avoid the taking of intoxicants as they
damage the clarity of the mind. Clarity of the mind is the foundation of all
other Buddhist practices. It was her opinion that chemicals found in foods, if
they have an intoxicating effect on the user, can be considered an intoxicant
and should be avoided.
[15]
Another precept of
Buddhism is to abstain from harming all living beings. Dr. Garrett stated that
today, many Buddhist consider the use of pesticides as a violation of this
precept. It was her evidence that some Buddhists interpret this precept to mean
that they should consume only organic food. It was also her opinion, that for
these Buddhists, consumption of organic foods may be central to what it means
to be a practicing Buddhist.
[16]
Dr. Robert Campbell, a
professor of religious studies at the University of Toronto,
was qualified as an expert to give evidence on religion and sociology. The
essence of his evidence that pertained to the appeal before the court was that
the New Age movement embodies the belief that “natural is better”.
[17]
Dr. Peter Coyte, a
professor of Health Economics in the Faculty of Medicine at the University of Toronto, was qualified as an expert in health care
economics. A health economist gives advice on resource allocation in the health
field. In giving that advice, the economist looks at the costs as well as the
benefits related to the advice.
[18]
It was his opinion
that if the expenses incurred for organic foods, natural health products and
fees to complementary and alternative practitioners were eligible for the METC,
there would be both short term and longer term costs and benefits to society.
The short term costs would be the reduction in income tax revenues. In time,
this would be offset by the increases in sales tax revenues that would result
from the increased use of these products and services. He stated that the major
beneficial implications would be improved health of the population and this
would result in lower direct health care utilization and costs. A healthier
population would also be more productive and this would enhance the income tax
base of both the federal and provincial governments.
[19]
Dr. Coyte was not able
to support his opinion with any statistical analysis or data.
[20]
Dr. Marti Kheel, a
scholar with the Graduate Theological Union in Berkeley, California, was qualified as an expert in religious studies. It
was her opinion that western medicine, which she called allopathic medicine,
has a Judeo-Christian orientation that involves a negative attitude towards
nature. Whereas, holistic forms of medicines such as homeopathy, acupuncture,
Ayurveda, and naturopathy work with nature. Her qualifications did not allow
her to give opinion evidence with respect to the use of drugs or natural
substances and a person’s religious beliefs.
[21]
I have given no weight
to any of the evidence given by the experts. I found that it did not assist me
with the decision I had to make in this appeal.
The Issues
[22]
The following issues
have been raised by the parties:
1)
Is the Appellant
entitled to a METC for the disallowed expenses pursuant
to subsection 118.2(2) of the Act?
2)
Does paragraph
118.2(2)(n) violate section 15 of the Canadian Charter
of Rights and Freedoms (the “Charter”) by discriminating
against the
Appellant on the basis of his religion?
3)
Does paragraph
118.2(4)(a), as applied to paragraph 118.2(2)(a) violate section
15 of the Charter by discriminating against the Appellant’s spouse on
the basis of her national origin?
4)
In light of the above,
does paragraph 118.2(2)(a) violate section 27 of the Charter?
5)
If paragraphs
118.2(2)(n) and 118.4(2)(a) violate section 15 of the Charter,
can these paragraphs be saved under section
1 of the Charter as
demonstrably justified in a free and
democratic society?
6) Does this Court have the power to
grant a remedy under section 52 of the Constitution Act, 1982?
Issue 1
[23]
It is first necessary
to decide whether the claimed medical expenses are within the provisions of paragraphs
118.2(2)(n), 118.2(2)(a) and 118.4(2)(a) of the Act
as it existed during the years under appeal.
[24]
The relevant portions
of the Act read as follows:
118.2(2) Medical expenses -- For the purposes of subsection (1), a
medical expense of an individual is an amount paid
(a) [medical and dental services] -- to a medical practitioner, dentist or nurse
or a public or licensed private hospital in respect of medical or dental
services provided to a person (in this subsection referred to as the
"patient") who is the individual, the individual's spouse or
common-law partner or a dependant of the individual (within the meaning
assigned by subsection 118(6)) in the taxation year in which the expense was
incurred;
(…)
(n) [drugs]
– 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;
118.4(2) Reference to medical practitioners, etc. -- For the purposes of sections 63, 118.2,
118.3 and 118.6, a reference to an audiologist, dentist, medical doctor,
medical practitioner, nurse, occupational therapist, optometrist, pharmacist,
psychologist or speech-language pathologist is a reference to a person
authorized to practise as such,
(a) where the
reference is used in respect of a service rendered to a taxpayer, pursuant to
the laws of the jurisdiction in which the service is rendered;
(…)
(c) where
the reference is used in respect of a prescription issued by the person for
property to be provided to or for the use of a taxpayer, pursuant to the laws
of the jurisdiction in which the taxpayer resides, of a province or of the
jurisdiction in which the property is provided.
[25]
The Appellant has met
all of the requirements to claim a METC pursuant to paragraph 118.2(2)(n)
of the Act except the requirement that the purchase of the Products be
“recorded by a pharmacist”. It is settled law that this requirement is
mandatory[2].
[26]
It is the Appellant’s
position that this court should interpret “record” to mean the keeping of some
record of a substance with a Drug Identification Number or Natural Product
number.
[27]
The Federal Court of
Appeal has already dealt with this argument[3].
It has decided that, the phrase is not ambiguous and its meaning is clear.
Justice Sharlow of the Federal Court of Appeal stated the following at
paragraphs 12 to 14 of the decision in Ray:
12 In
my view, it is reasonable to infer that the recording requirement in paragraph
118.2(2)(n) is intended to ensure that tax relief is not available for
the cost of medications purchased off the shelf. There are laws throughout Canada
that govern the practice of pharmacy. Although the laws are not identical for
each province and territory, they have common features. Generally, they
prohibit a pharmacist from dispensing certain medications without a medical
prescription, and they describe the records that a pharmacist is required to
keep for medications dispensed by prescription, including information that
identifies the prescribing person and the patient. There is no evidence that
pharmacists anywhere in Canada are required to keep such records for the
substances in issue in this case.
13 I
cannot accept the suggestion that, in the case of a medication that is
prescribed by a physician but is purchased at a pharmacy off the shelf, a sales
slip or invoice from the pharmacist would be a sufficient "recording"
to meet the statutory requirement. A record in that form cannot meet the
apparent function of the recording requirement. There must be a record kept by
the pharmacist in his or her capacity as pharmacist. That necessarily excludes
substances, however useful or beneficial, that are purchased off the shelf.
14 Nor
do I think it relevant to the interpretation of paragraph 118.2(2)(n)
that a physician may dispense prescription medicines, and even sell them,
without breaching any legislation applicable to pharmacists. It appears that a
patient who purchases prescription medications from a physician may not be
entitled to a medical expense tax credit because there would be no recording by
a pharmacist: see Dunn (cited above). Some may consider that to be an
unfair or inappropriate result. Perhaps it is, but that cannot justify an
interpretation of paragraph 118.2(2)(n) that ignores the words "as
recorded by a pharmacist".
[28]
The decision in Ray states
that “a patient who purchases medications from his medical practitioner may not
be entitled to a METC as there is no recording by a pharmacist”. The Appellant
acknowledged at the hearing that the organic food and bottled water were
purchased “off the shelf”. The remedies purchased from the clinic were not
“recorded by a pharmacist”[4].
The expenses for the Products do not meet the requirements of paragraph
118.2(2)(n).
[29]
The cost of the
Services will be a medical expense if the following requirements are met:
a)
it is paid to a medical
practitioner, dentist or nurse or a public or licensed
private hospital in respect
of medical or dental services;
b)
the services are
provided to an individual, the individual’s spouse or
common-law partner or dependant;
c)
the service is provided
in the year that the expense is incurred; and
d) the medical practitioner, dentist,
or nurse is authorized to practise as such pursuant to the laws of the
jurisdiction in which the service is rendered.
[30]
The Services that Mrs.
Tall received were Reiki and Breast Massage for Nursing Mothers. Reiki
practitioners are not recognized as medical practitioners[5] under Ontario legislation. Mrs. Tall testified that her friend who
gave her Breast Massage for Nursing Mothers had practised as a midwife in Japan. She did not know if her friend had taken courses in Canada. There was no evidence that this person was a member
of the College of Midwives of Ontario.
As a result, I conclude that she was not such a member and therefore was not a
medical practitioner pursuant to the laws of Ontario.
[31]
I am mindful of Justice
Boyle’s decision in Couture v. The Queen[6]
where he decided that in 2003 and 2004, Ontario
acupuncturists were medical practitioners for purposes of the Act. As
acupuncture was specifically excluded by regulation from the definition of
controlled acts in subsection 27(2) of the Ontario
Regulated Health Professions Act, Justice Boyle concluded that anyone
was allowed to perform acupuncture in Ontario. He stated at
paragraph 31:
A specific
provincial law which allows a person to do something authorizes a person to do
it. There is no reason not to equate "authorized" with
"permitted".
[32]
The facts in Couture
are distinguishable from those in the present appeal. In that case, the service
in issue was specifically excluded from the controlled acts in subsection 27(2)
of the Ontario Regulated Health Professions Act.
That exclusion was in the regulation, Controlled Acts, O.reg.107/96 at
section 8. There is no such exclusion or exemption for the Services in issue in
this appeal. It should be noted that the decision in Couture has been
appealed to the Federal Court of Appeal.
[33]
I conclude that for a
person to be a medical practitioner in Ontario
for the purposes of the Act, that person must be authorized to practise
in accordance with the Regulated Health Professions Act. As the expenses
for the Services in this appeal were not paid to medical practitioners, they
are not medical expenses and do not qualify for a METC pursuant to section
118.2 of the Act.
Issue 2
[34]
It is the Appellant’s
position that the requirement to be “recorded by a pharmacist” in paragraph
118.2(2)(n) constitutes a violation of his equality rights under
subsection 15(1) of the Canadian Charter of Rights and Freedoms[7] (the
“Charter”) and the phrase should be struck. It is his position that this
requirement causes him to be treated differently from other taxpayers due to
his religious beliefs.
[35]
The Appellant submits
that alternatively, the cost of the remedies can be considered as part of the
naturopath’s fees for services and is therefore deductible under paragraph
118.2(2)(a). In support of this position, counsel for the Appellant
relied on rulings that had been given by the CRA in response to specific
questions that had been asked by other taxpayers. These documents were obtained
by counsel pursuant to the Access to Information Act.
[36]
Section 15 of the Charter
provides:
15. (1) Every
individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
[37]
The Appellant seeks to extend the
METC to cover the purchase of the Products not recorded by a pharmacist. As
stated previously, this purchase included “off the shelf” foods and bottled
water and remedies from a clinic. It is my opinion that this issue has already
been decided by the Federal Court of Appeal in Ali v. The Queen[8].
[38]
In its decision in Ali, the
Federal Court of Appeal found that the “recorded by a pharmacist” requirement
in paragraph 118.2(2)(n) of the Act did not violate the equality
rights guaranteed by section 15 of the Charter. Justice Ryer stated:
12 In
my view, this is a case in which the subsection 15(1) issue can be addressed in
a simpler manner. In Auton, the Supreme Court of Canada held that
subsection 15(1) of the Charter will not be infringed where the benefit that is
sought is not one that is provided by the law that is being challenged. In the
present case, the benefit claimed by the appellants is the METC in respect of
the cost of Dietary Supplements that are purchased "off the shelf".
That is what they claimed in their tax returns and it is the entitlement to
that claim that they sought to establish in their notices of appeal to the Tax
Court of Canada. In Ray, this Court confirmed that such a benefit is not
one that is provided by paragraph 118.2(2)(n) of the ITA. How then can
it be discriminatory to deny the appellants a benefit (the METC in respect of
the cost of "off the shelf" drugs) that no one gets?
13 The
appellants wish to have the scope of the METC extended to cover "off the
shelf" drugs but Parliament has not chosen to do so. In this regard, the
words of Chief Justice McLachlin in paragraph 41 of Auton, are apposite:
41 It is not open to Parliament or
a legislature to enact a law whose policy objectives and provisions single out
a disadvantaged group for inferior treatment; Corbiere v. Canada (Minister
of Indian and Northern Affairs), [1999] 2 S.C.R. 203. On the other hand,
a legislative choice not to accord a particular benefit absent demonstration of
discriminatory purpose, policy or effect does not offend this principle and
does not give rise to s. 15(1) review. This Court has repeatedly held that the
legislature is under no obligation to create a particular benefit. It is
free to target the social programs it wishes to fund as a matter of public
policy, provided the benefit itself is not conferred in a discriminatory
manner: Granovsky v. Canada (Minister of Employment and Immigration),
[2000] 1 S.C.R. 703, 2000 SCC 28, at para. 61; Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325, 2002 SCC 83, at para. 55;
Hodge, supra, at para. 16.
[Emphasis
added.]
14 It
is apparent from the passage in Auton that a legislative choice to
accord a particular benefit under the legislation under consideration can
potentially give rise to a valid claim that subsection 15(1) of the Charter has
been infringed. Paragraph 42 of Auton informs that such an infringement
can arise if the legislation discriminates directly, by adopting a
discriminatory policy, or indirectly, by effect. With respect to the more
difficult issue of discrimination by effect, the Supreme Court of Canada
stated, in that paragraph, that the non-inclusion of a benefit is unlikely to
be discriminatory if that non-inclusion is consistent with the purpose and
scheme of the relevant legislation.
15 With
respect to the matter of direct discrimination, the definition of medical
expenses in subsection 118.2(2) of the ITA does not explicitly exclude the cost
of Dietary Supplements. Moreover, nothing in the provisions of the ITA dealing
with the METC points to the express adoption by Parliament of a discriminatory
policy with respect to the non-availability of the METC in relation to the cost
of Dietary Supplements. Accordingly, I conclude that the legislative choice not
to extend the METC to include the cost of Dietary Supplements in the definition
of medical expenses in subsection 118.2(2) of the ITA does not constitute
direct discrimination.
16 The
matter of discrimination by effect requires a consideration of whether the
non-inclusion of a particular benefit is consistent with the purpose and scheme
of the impugned legislation. In Auton, Chief Justice McLachlin
determined that the non-inclusion of the benefit that was sought was consistent
with a legislative scheme that did not purport to be comprehensive, stating at
paragraph 43:
43 The legislative scheme in the
case at bar, namely the CHA and the MPA, does not have as its
purpose the meeting of all medical needs. As discussed, its only promise is to
provide full funding for core services, defined as physician-delivered
services. Beyond this, the provinces may, within their discretion, offer
specified non-core services. It is, by its very terms, a partial health plan.
It follows that exclusion of particular non-core services cannot, without more,
be viewed as an adverse distinction based on an enumerated ground. Rather, it
is an anticipated feature of the legislative scheme. It follows that one cannot
infer from the fact of exclusion of ABA/IBI therapy for autistic children from non-core
benefits that this amounts to discrimination. There is no discrimination by
effect.
17 With
respect to the legislative scheme at issue in this case, the definition of
"medical expense" in subsection 118.2(2) of the ITA contains an
enumeration of the specific types of costs that are eligible for the METC. This
indicates a legislative purpose of limiting the availability of the METC to a
specific list of items. Paragraph 118.2(2)(n) of the ITA exemplifies
this purpose by drawing a line between items that meet the "recorded by a
pharmacist" requirement and those that do not. Thus, paragraph 118.2(2)(n)
of the ITA is fully consistent with the purpose and scheme of the METC
legislation which is to only provide the METC in respect of specifically enumerated
types of medical expenses and not with respect to all types of medical
expenses.
18 This
distinction was recognized by this Court in Ray, in which Sharlow J.A.,
at paragraph 12, stated:
[12] In my view, it is reasonable
to infer that the recording requirement in paragraph 118.2(2)(n) is
intended to ensure that tax relief is not available for the cost of medications
purchased off the shelf. There are laws throughout Canada
that govern the practice of pharmacy. Although the laws are not identical for
each province and territory, they have common features. Generally, they
prohibit a pharmacist from dispensing certain medications without a medical
prescription, and they describe the records that a pharmacist is required to
keep for medications dispensed by prescription, including information that
identifies the prescribing person and the patient. There is no evidence that
pharmacists anywhere in Canada are required to keep such records for the
substances in issue in this case.
This conclusion was also reached
by the Tax Court Judge who, at paragraph 136 of her reasons, stated:
[136] In summary, in enacting s.
118.2(2)(n), Parliament had to decide where to draw the line between
therapeutic substances that qualify for tax relief and those that do not.
19 In
my view, it cannot be said that the non-inclusion of the cost of the Dietary
Supplements in the definition of medical expenses in subsection 118.2(2) of the
ITA, in general, or paragraph 118.2(2)(n) of the ITA, in particular, is
inconsistent with the purpose and scheme of the METC legislation. Rather, the
non-inclusion of that benefit is fully consistent with the purpose of only
extending the benefit of the METC to a specific enumeration of medical
expenses. Accordingly, I am of the view that the non-inclusion of the benefit
claimed by the appellants from the legislation in question does not constitute
discrimination by effect.
20 Having
reached the conclusion that the benefit sought by the appellants is not a
benefit provided by the law and that the legislative choice not to provide such
a benefit does not give rise to direct discrimination or discrimination by
effect, I am of the view that the appellants' subsection 15(1) argument need
not be further considered. In so concluding, I note that a similar conclusion
was reached by the Supreme Court of Canada in Auton, at paragraph 47:
47 I conclude
that the benefit claimed, no matter how it is viewed, is not a benefit provided
by law. This is sufficient to end the enquiry.
[39]
The Federal Court of Appeal
decision in Ali is directly applicable to the facts in the present
appeal. It has concluded that paragraph 118.2(2)(n) does not violate the
equality rights guaranteed by section 15 of the Charter. This paragraph
does not make a distinction based on personal characteristics[9]. The benefit that the
Appellant seeks (a METC for Products not recorded by a pharmacist) is a benefit
that is not conferred by the Act on anyone, regardless of their religion
or spiritual beliefs. The benefit sought is not provided by law.
[40]
It was the Appellant’s alternative
argument that the costs of the remedies can be considered to be part of the
fees for Dr. Adams’ services. This
alternative argument is not supported by the evidence. It is apparent from the
invoices issued by the clinic that the naturopath’s fees were itemized
separately from the remedies. The Appellant has been allowed a METC for the
naturopath’s fees.
[41]
In support of his
alternative argument, the Appellant relied on rulings made by the CRA for other
unknown taxpayers. These rulings are an opinion of CRA and are not binding on
this court. As well, it is my opinion that counsel’s interpretation of these
rulings is not correct.
Issue 3
[42]
The Appellant argued
that the phrase “pursuant to the laws of the jurisdiction in which the service
is rendered” in paragraph 118.4(2)(a), as it relates to paragraph
118.2(2)(a), of the Act violates Mrs. Tall’s equality rights
under section 15 of the Charter. It is his position that Euro-centric
taxpayers can more easily claim medical expenses closely affiliated with their
national origin or race.
[43]
As in the Federal Court of Appeal
decision in Ali, I intend to address the application of section 15(1) to
this issue by referring to the Auton[10]
decision. The question to be answered is whether the benefit that is sought is
one which is provided by the law that is being challenged[11].
[44]
It is the Appellant’s
position that the benefit claimed is provided by law. In his Memorandum of Fact
and Law, the Appellant submitted that the benefit provided by law is the METC
which is intended to alleviate the tax burden of an individual who incurs
significant medical expenses. He argued that this is a definite benefit as it
lowers one’s tax payable and can be a significant tax saving.
[45]
The benefit which is claimed by
the Appellant is a METC in respect of the cost of Services from individuals who
were not authorized to
practise as medical practitioners in Ontario. The
Appellant asks that the phrase “pursuant to the laws of the jurisdiction in
which the service is rendered” be struck from paragraph 118.4(2)(a). In
essence, the Appellant seeks to extend the METC so that all health practices in
all jurisdictions would entitle a taxpayer to benefit from the METC.
[46]
The benefit that the
Appellant seeks is not one that is provided by law. This benefit is not
conferred on anyone. Parliament has not chosen to allow a METC for all health
services in all jurisdictions. It has chosen to recognize the effect of
above-average medical and disability related expenses on an individual’s
ability to pay tax[12].
The purpose of the METC is to provide tax relief for specific expenses[13].
[47]
The legislative history of
sections 118.2 and 118.4 shows that when a deduction for a medical expense was
first introduced in 1942, it covered only payments made in respect of a birth,
an illness or an operation, or for full-time attendant care for a person
confined to a bed or wheelchair, or who was totally blind[14].
[48]
Prior to 1988, a medical expense
was allowed for payments made to a medical practitioner, dentist or nurse
“qualified to practice under the laws of the place where the expenses were
incurred”[15].
This wording was capable of a more liberal interpretation than the wording in
the present 118.2(2)(a) and 118.4(2)(a). However, the
specification that the medical practitioner must be authorized to practice as
such in the jurisdiction where the services are provided, ensures the validity
and safety of such services. It is also in accord with the purpose of providing
tax relief for specific medical expenses. The legislative history of the METC
also demonstrates that Parliament sought to limit the services covered by the
METC.
[49]
In Auton, the
Supreme Court of Canada stated that it was possible that a legislative choice
to grant a benefit may discriminate directly, by adopting a discriminatory
policy or purpose, or indirectly, by effect[16].
[50]
It is my opinion that
the legislative choice not to extend the METC to include the cost of all health
practices in all jurisdictions does not constitute direct discrimination. The
wording of paragraphs 118.2(2)(a) and 118.4(2)(a) does not
explicitly exclude the Services that Mrs. Tall received. Likewise the wording
does not explicitly refer to any racial, national or ethnic group. Nothing in
these provisions indicates that Parliament has adopted a discriminatory policy
with respect to the METC and the cost of the Services or the METC and any
racial, national or ethnic group. These paragraphs only make a distinction with
respect to the laws applicable where the services are provided.
[51]
As well, the
legislative choice not to extend the METC does not constitute discrimination by
effect[17].
[52]
Both the history and
the structure of the METC show that Parliament did not intend to provide a
benefit which included all health-related expenses and services. The METC is a
partial tax relief plan. The fact that Parliament has left it to the provinces
and territories to authorize persons to practise as medical practitioners respects the division of constitutional powers. It is
the provincial and territorial governments that have the right to regulate
health professionals. It is my opinion that paragraphs 118.2(2)(a) and
118.4(2)(a) do not discriminate by effect.
[53]
As I have concluded
that there was no discrimination under section 15 of the Charter, it is
not necessary to consider issues 5 and 6.
Issue 4
[54]
Section 27 of the Charter
reads:
27. This Charter shall be interpreted in a
manner consistent with the preservation and enhancement of the multicultural
heritage of Canadians.
[55]
This section is an interpretative
aid when analyzing legislation in terms of the Charter. It is
inapplicable in the present appeal as the legislative scheme in issue does not
refer to any service or product that the Appellant can characterize as “ethnic”.
[56]
The appeals for the
2001, 2002 and 2003 taxation years are dismissed with costs. The appeal for the
2004 taxation year is allowed, without costs, on the basis that the Appellant
is allowed a METC for the cost of the shower head filter.
Signed at Halifax,
Nova Scotia, this 30th day of December 2008.
“V.A. Miller”
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