Citation: 2012TCC113
Date: 20120405
Docket: 2011-3204(IT)I
BETWEEN:
JOHN R. POWER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Webb J.
[1]
The issue in this
appeal is whether the Appellant is entitled to
include in his claim for a tax credit based on medical expenses, the amounts
that were paid to an individual, who is not a licensed medical practitioner,
for acupuncture treatments for the Appellant and his spouse.
[2]
In 2009 the following payments
were made for acupuncture treatments for the Appellant and his spouse:
|
Acupuncture services rendered by:
|
Amount
|
|
Ermin Zhu T.C.M.D. Dr.
Ac.
|
$1,860
|
|
E. J. Smith, M.D., CAFCI
|
$84
|
[3]
During the hearing
counsel for the Respondent acknowledged that the amount paid to Dr. Smith could
be included in determining the medical expense tax credit of the Appellant. As
a result the only amount in dispute is the amount paid for the acupuncture
services rendered by Ermin Zhu.
[4]
Paragraph 118.2(2)(a)
and subsection 118.4(2) (in part) of the Income Tax Act provide as
follows:
(2) For the purposes of subsection (1), a medical expense of an
individual is an amount paid
(a) 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;
…
(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;
…
[5]
The issue in this case
is whether Ermin Zhu was authorized to perform acupuncture services in the province of Ontario in 2009. In The Queen v. Couture,
2008 FCA 412, Justice Ryer, writing on behalf of the Federal Court of Appeal,
stated as follows:
[12] With respect, I do not agree with the proposition that the
phrase “authorized to practise” in subsection 118.4(2) is synonymous with
permitted to practise or not prohibited from practising. In my view, the
dictionary definitions of the term “authorize” that are contained in paragraphs
20 and 21 of the respondent's factum establish the plain meaning of that term
in the present circumstances. The Shorter Oxford English Dictionary,
3d ed., defines authorize as follows:
1. To set up or acknowledge as authoritative;
2. To give legal force to; and
3. To give formal approval to; to sanction, countenance.
Black's Law Dictionary, 7th ed., defines
authorize as follows:
1. To give legal authority; to empower; and
2. To formally approve; to sanction.
[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 of 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.
[14] The Tax Court Judge found that the removal of a
prohibition against performing the act of acupuncture by virtue of section 8 of
the Controlled Acts Regulations provides a sufficient level of provincial authorization
for the practice of acupuncture. In my view, that conclusion is unwarranted
having regard to the ordinary meaning of that term, as adopted above in
relation to the interpretation of subsection 118.4(2). The mere fact that an
action is no longer prohibited does not lead to the conclusion that such action
has been formally approved.
[15] The Crown argues that specific legislative approval and
regulation of a particular area of practice or profession, in this case
acupuncture, is required to demonstrate that such practice 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 other circumstances. In the present
circumstances, the only legislative reference to acupuncture was its inclusion
in the Controlled Acts 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 practice of
acupuncture was formally approved by Ontario law in 2003 and 2004.
[6]
The taxation years
under appeal in Couture were the 2003 and 2004 taxation years. In 2006
the Ontario legislature passed the Traditional
Chinese Medicine Act. Section 4 of this Act provides as follows:
Authorized acts
4. In the course of engaging in
the practice of traditional Chinese medicine, a member is authorized, subject
to the terms, conditions and limitations imposed on his or her certificate of
registration, to perform the following:
1. Performing
a procedure on tissue below the dermis and below the surface of a mucous
membrane for the purpose of performing acupuncture.
2. Communicating
a traditional Chinese medicine diagnosis identifying a body system disorder as
the cause of a person’s symptoms using traditional Chinese medicine techniques.
[7]
Section 19 of this Act
provides that paragraph 1 of section 8 of the Controlled Acts Regulation (which
is the paragraph that exempts acupuncture from subsection 27(1) of the Regulated
Health Professions Act, 1991) would be revoked.
[8]
However, section 20 of
the Traditional Chinese Medicine Act provides as follows:
Commencement
20. (1) Subject
to subsection (2), this Act comes into force on the day it receives Royal
Assent.
Same
(2) Sections
3 to 12, 14, 18 and 19 come into force on a day to be named by proclamation of
the Lieutenant Governor.
[9]
In 2009 none of the
sections referred to in subsection 20(2) of the Chinese Traditional Medicine
Act had been proclaimed, nor had these provisions been proclaimed at the
time of the hearing of this appeal.
[10]
In Schneider v.
British Columbia, [1982] 2 S.C.R. 112, the Supreme Court of
Canada stated that:
In advancing
this argument the appellant relies to a great extent upon Part II of the Narcotic
Control Act. McFarlane J.A. and McEachern C.J.S.C. declined to consider the
provisions of that Part on the ground that it is as yet unproclaimed and of no
legal effect. This is consistent with the decision of this Court in Canadian
Indemnity Company v. Attorney-General of British Columbia, [1977] 2
S.C.R. 504. In that case the Court, speaking through Mr. Justice Martland,
referring to certain sections of the Automobile Insurance Act of British
Columbia said at pp. 512-13: "None of these provisions has been
proclaimed since this Act was enacted on April 18, 1973, and, consequently,
they have never had any legal effect. In these circumstances I do not consider
it necessary to determine the extent of their application, if proclaimed
...."
[11]
As the provisions of
the Traditional Chinese Medicine Act that would provide the
authorization for a person to perform acupuncture had not been proclaimed as of
2009, they were of no legal effect in 2009. The legislative provisions
applicable to the performance of acupuncture in Ontario
in 2009 were the same legislative provisions that were applicable to the
performance of acupuncture in 2003 and 2004. In each of these years a person
could perform acupuncture because the performance of acupuncture was not
prohibited. Paragraph 8 of the Controlled Acts Regulations exempts acupuncture
(as well as ear or body piercing for accommodating jewellery, electrolysis and
tattooing for cosmetic purposes) from subsection 27(1) of the Regulated
Health Professions Act, 1991 which otherwise would have prohibited the
performance of these acts except by a person who is a member authorized by a
health profession Act to perform such acts or by a person to whom the
performance of the act has been delegated by such a member.
[12]
There was no indication
that Ermin Zhu was authorized by any health profession Act to perform
acupuncture in 2009 or that Ermin Zhu was delegated this task by anyone who was
so authorized. The reason that Ermin Zhu could perform acupuncture was because
Ermin Zhu was not prohibited from performing acupuncture. Since the provisions
of the Traditional Chinese Medicine Act that would provide specific
authority for a person to perform acupuncture were not proclaimed, they are of
no legal effect and in 2009 there was still no formal approval for a person to
perform acupuncture. Therefore Ermin Zhu was not authorized to perform
the acupuncture treatments in 2009.
[13]
The Appellant placed a
great deal of emphasis on another decision of a Judge of this Court in Murphy
v. The Queen, 2010 TCC 434. In that case it was held that the passing of
the Chinese Traditional Medicine Act was sufficient to find that the
person was authorized to perform acupuncture treatments. However, I am unable
to agree with this decision. Until the provisions of the Traditional Chinese
Medicine Act related to the persons who are authorized to perform acupuncture
are proclaimed, there is no formal approval for any particular person to
perform acupuncture and anyone can perform acupuncture. The reason that Ermin
Zhu was allowed to perform acupuncture in 2009 was the same reason that a
person was allowed to perform acupuncture in 2003 and 2004 and that was because
the performance of acupuncture was not prohibited. How can a person be authorized
to perform acupuncture if anyone can perform this service?
[14]
As a result the amount
incurred in relation to the acupuncture services performed by Ermin Zhu is not
included as part of the medical expenses eligible for a credit under the Act.
[15]
The Appellant’s appeal
is therefore allowed, without costs, in relation to the amount paid to Dr.
Smith and the matter is referred back to the Minister of National Revenue for
reconsideration and reassessment on the basis that the Appellant is entitled to
include in determining his medical expenses for the purposes of the medical
expense tax credit for 2009 the amount of $84 paid by the Appellant to Dr.
Smith.
Signed at Ottawa, Canada, this 5th
day of April 2012.
“Wyman W. Webb”
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