Citation: 2010 TCC 434
Date: 20100820
Docket: 2009-2427(IT)I
BETWEEN:
EDWARD MURPHY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
McArthur J.
[1]
This appeal is from an
assessment by the Minister of National Revenue (Minister) denying the
Appellant’s claim for acupuncture medical expenses of approximately $2,000.00
for his 2007 taxation year.
[2]
The Minister determined
that the fees paid for his wife’s (Cathy MacKechnie) acupuncture treatment
were not made to an individual or organization registered as a medical
practitioner in the province of Ontario within the meaning of paragraphs 118.2(2)(a)
and 118.4(2)(a) of the Income Tax Act (Act).
Facts
[3]
The Appellant made the
following undisputed statement in paragraph 2 of his Notice of Appeal:
2.
My wife underwent acupuncture as part of
extensive fertility treatments. Thankfully, these treatments eventually
resulted in the birth of our daughter. Introduction of acupuncture into the
treatment process was (at least in our view) the determining factor that
transformed months of failure into success (pregnancy). The treatment was
provided by the acupuncturist affiliated with the Ottawa Fertility Centre,
Steve Ryu. Mr. Ryu is a licensed acupuncturist (N.Y.), and is a member of the
Canadian Society of Chinese Medicine and Acupuncture.
[4]
The outcome of this
appeal rests with whether an acupuncturist in Ontario
is a "medical practitioner" within the meaning of the Act. The
evidence was not in dispute. Comprehensive arguments were presented by the Appellant
who is a lawyer and Antoine Lamarre, counsel for the Minister. A summary
of the parties’ submissions follows.
Appellant's Position
[5]
The issue is whether a
"medical practitioner" as described in the Act includes an
acupuncturist practicing in Ontario in 2007. Two criteria are required. First,
the expenses claimed must be made in respect of medical services
rendered by a medical practitioner authorized to practise in Ontario. The second requirement is whether the Ontario law recognizes acupuncture.
[6]
The Appellant submitted
that subsection 27(1) of the Regulated Health Professions Act, 1991
(RHPA)
states "nobody shall perform a controlled act...", but section 8 of the
Controlled Acts, Ontario Regulation 107/96 (Regulation) explicitly
exempts acupuncture from this restriction. In 2007, acupuncturists were legally
permitted to work in Ontario (Traditional Chinese Medicine Act).
In Couture v. Her Majesty the Queen, Boyle J., of
this Court found that this was a regulatory step to authorize acupuncture,
giving it formal recognition as a discipline under Ontario
law. The Federal Court
of Appeal (FCA)
reversed this finding, concluding that an exemption from a prohibition does not
amount to formal recognition or authorization.
[7]
The present situation
can be distinguished in that the FCA appeal considered the 2003 and 2004
taxation years. The present appeal relates to the 2007 taxation year and in
2006 the Traditional Chinese Medicine Act, 2006 (TCMA) was passed in Ontario.
The Appellant quotes from Hansard to the effect that acupuncture medical
treatment is an important part of our health care system.
[8]
The Appellant adds that
there are substantive provisions in TCMA that are not yet operative,
which would control how to regulate the profession and operate a governing college
yet the FCA stated in Couture
that the question is whether acupuncture has been formally recognized as a
discipline under provincial law, namely by the TCMA. Formal recognition
under provincial law has occurred because Ontario
established a legislative framework. At paragraph 13 of Couture,
Ryer J. indicates that "authorize" means to give formal approval to
or to formally approve. By contrast, if substantive regulation was a
prerequisite, the FCA would have said so. The legislature established a
foundation for a college, such that the goal of formal recognition is achieved.
Respondent's Submissions
[9]
In 2007, a medical
practitioner in Ontario was a person authorized to practise as
such, pursuant to the laws of the jurisdiction in which the service is
rendered.
[10]
The Respondent
submitted that paragraphs 13 and 14 of the FCA’s decision in Couture
require that there must be some formal approval of acupuncture that goes beyond
the section 8 Regulation exemption to the subsection 27(1) RHPA prohibition
on practising acupuncture. To be authorized to practise, the acupuncturist must
be a member of the College of Traditional Chinese Medicine
Practitioners and Acupuncturist of Ontario (College), pursuant to sections 4
and 8 of the TCMA contained a provision that revokes the section 8
Regulation exemption to the subsection 27(1) RHPA prohibition on
practising acupuncture. That section was also not in force during 2007, so
during that year the exemption to the prohibition was in operation and not the TCMA
authorization to practise.
Analysis
[11]
The crux of the
Appellant’s position is that after the Couture FCA decision, things have
changed. The TCMA was enacted to legally recognize acupuncture as a
discipline. Although the substantive portions are not yet operative, all that
was required was the legislature to pass the TCMA, which it did with Royal
Assent in December 2009.
[12]
The core of the
Respondent’s position is that not all provisions of TCMA are in force,
and only when they are will the prohibition and its corresponding exemption disappear
to be replaced by an authorization of acupuncture.
[13]
Both parties emphasized
reliance on the FCA Couture decision. I am indebted to both Boyle
J. of the Tax Court and Ryer J. of the FCA, respectively, for their analyses.
Boyle J. whose conclusion was overturned by Ryer J., considered the same issue
as the present one, but for the 2003 and 2004 taxation years.
[14]
At the outset,
reference should be made to section 27 of the Ontario’s Regulated
Health Professions Act, 1991,
and the relevant portion reads:
Controlled Acts Restricted
27(1) No person shall perform a controlled
act set out in subsection (2) in the course of providing health care services
to an individual unless,
(a) the person is a member
authorized by a health profession Act to perform the controlled act; or
27(2) A "controlled act"
is...
Performing a procedure on tissue
below the dermis…
[15]
Section 27
effectively prohibited the practise of acupuncture, but section 8 of the Controlled
Acts, exempts acupuncture from the operation of section 27. The
question is whether this exemption is sufficient to conclude that an
acupuncturist was authorized in 2007 to practise acupuncture in Ontario, meeting the requirements of paragraph 118.4(2)(a)
of the Act which reads:
118.4(2) For the purposes of sections 63,
64,
118.2,
118.3
and 118.6,
a reference to an audiologist, dentist, medical doctor, medical practitioner,
nurse, occupational therapist, optometrist, pharmacist, physiotherapist,
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;
(b) ...
[16]
On appeal of Boyle J.’s
decision in Couture,
Ryer J. from the FCA held that an exemption from a prohibition on practising
acupuncture in Ontario is not synonymous with being authorized to practise
acupuncture in Ontario, as required by paragraph 118.4(2)(a) of the
Act.
[17]
At paragraph 13 ,
15 and 16, he stated:
[13] Each of these definitions states that
"authorize" can be taken to mean "to give formal approval
to" or "to formally approve". In my view, those meanings are
appropriate with respect to the interpretation to the phrase "authorized
to practise" in subsection 118.4(2). Thus, some formality or
formal recognition of acupuncture as a discipline that is legally countenanced
under Ontario law
must be shown.
[15] The Crown argues that specific legislative approval and
regulation of a particular area of practise or profession, in this case
acupuncture, is required to demonstrate that such practise had been authorized
by the applicable law. In support of that contention, the Crown refers to a
passage from Noddin, in which Bowie J. states, at paragraph 8:
Clearly the policy objective is that the credit is to be available
only where there is some legislated assurance of competence of the person
administering the service.
[16] In my view, the level of legislative approval put forward
by the Crown would be clearly sufficient to demonstrate the requisite
legislative authorization. However, I would not rule out the possibility
that something else might be sufficient in the circumstances. In the
present circumstance the only legislative reference to acupuncture was
its inclusion in the Controlled Act Regulations as something that is no longer
prohibited as a controlled act. As previously stated, I am of the view that
this level of legislative reference is insufficient to establish that the
practise of acupuncture was formally approved by Ontario law in 2003 and 2004. (Emphasis
added)
[18]
The law relating to the
practise of acupuncture in Ontario changed after 2004 with the passing of the
TCMA. The requirement of a formal legal recognition of acupuncture as a
medical discipline has now been countenanced.
[19]
The Ontario
Legislature’s intention was expressed by the Minister of Health and Long‑Term
Care, who said:
Accordingly, it is appropriate today in this
Legislature of Ontario that we move forward as the second jurisdiction in
Canada, and one of decidedly few, to say that we will create the
circumstances to allow a College of Traditional Chinese Medicine
Practitioners and Acupuncturists of Ontario to come to life, giving it the
formal acknowledgement in law that the people of Ontario, by the droves, have
send a signal that they respect. (Emphasis
added)
[20]
I agree that some
provisions of the TCMA were not in force during the 2007 taxation
year including sections 4, 5, 6, 8 and 19. Section 4 authorizes College members
to practise acupuncture. Section 5 establishes the College. Section 8
prohibits non-members from practising acupuncture. Considering these provisions
not being in force, the Respondent submitted that in 2007, no College had been
established, so no members existed, and since one must be a member to practise
acupuncture, nobody was authorized to practise acupuncture in Ontario during that year. The Respondent concludes that an
acupuncturist was not “authorized” to practise in Ontario within the meaning of
the term “authorized” found in paragraph 118.4(2)(a) of the Act.
I do not accept this premise and conclusion as it defies reality at the present
time. I take judicial notice to the effect that acceptance of acupuncture by
the Ontario public is a growing phenomena. Considering
the common usage of the terms, an acupuncturist is a medical practitioner but,
of course, not a medical doctor, physician or surgeon.
[21]
I note that section 13
of the TCMA was in force allowing for a transitional Council with broad
powers to be formed.
Transition before certain provisions in force
13(1) The
Lieutenant Governor in Council may appoint a transitional Council.
Registrar
13(2) The Lieutenant Governor in Council may
appoint a Registrar who may do anything that the Registrar may do under the Regulated
Health Professions Act, 1991.
Powers of transitional Council and Registrar
13(3) Before section 6 comes into force, the
Registrar, the transitional Council and its employees and committees may do
anything that is necessary or advisable for the implementation of this Act and
anything that the Registrar, the Council, and its employees and committees
could do under this Act.
[22]
The Respondent
submitted that subsection 19(1) of the TCMA
(which revokes the section 8 Regulation exemption to the subsection
27(1) RHPA prohibition) was not in force in 2007, so the exemption to
the prohibition was still in operation and not the TCMA authorization to
practise. I do not accept this argument. An exemption to a prohibition, by
operation of the RHPA and Regulation, and an authorization, by
operation of the TCMA, can operate simultaneously in harmony. They do
not conflict. Additionally, while subsection 19(1), if in force, would remove
the exemption to the prohibition, subsection 19(2), which was also not in force
at the time, would have re-added the exemption to the prohibition in a table in
the Regulation. In short, section 19 has a zero-sum effect and if
section 19 was in force, the exemption to the prohibition would remain
alongside the TCMA authorization.
[23]
Had the legislatures
and the FCA required that further regulation of acupuncturists be in force,
they would have stated so.
Conclusion
[24]
I accept the Appellant’s
position. The FCA defined the term "authorize". "Authorize"
requires formal recognition of acupuncture as a discipline that is legally
countenanced under Ontario law. The formal recognition must go beyond
a mere exemption from a prohibition but does not have to be as extensive as regulations.
The Royal Assent of the TCMA and the statement in Hansard relating to
the TCMA are sufficient formal recognition that acupuncture was a
discipline legally accepted under Ontario law in 2007, satisfying the
definition of "authorize" in paragraph 118.4(2)(a) of the Act.
I make this finding notwithstanding that not all provisions of the TCMA
were in force in 2007.
[25]
The FCA did not require
the regulation of acupuncture in order for an acupuncturist to be
"authorized". Ryer J. defined "authorize" in paragraph 12
as "to give formal approval to" or "to formally approve".
"Regulate" has a much different meaning than "authorize"
and requires more than formal approval. The Oxford Paperback Dictionary,
New Expanded Edition 1998, provided to the Court by the Appellant, defines
"regulate" as "to control or direct by means of rules and
restrictions". If Parliament wanted the "medical practitioner"
to be regulated in order to qualify for a medical expense credit, it would have
used the term "regulate" in paragraph 118.4(2)(a) of the Act
instead of "authorize".
[26]
The appeal is allowed
with costs.
Signed at Ottawa,
Canada, this 20th day of August, 2010.
“C.H. McArthur”
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