Citation: 2010TCC548
Date: 20101028
Docket: 2010-464(IT)I
BETWEEN:
EDWARD S. ROGERS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Sheridan, J.
[1]
The Appellant, Edward Rogers, is
appealing the disallowance by the Minister of National Revenue of a deduction
for medical expenses claimed for massage therapy in the 2008 taxation year.
[2]
In 2006, Mr. Rogers’ wife suffered
a massive stroke; Mr. Rogers is bothered by arthritis in his neck. Part of the
treatment prescribed by their physician was massage therapy. The Minister
accepts that in 2008, the Appellant paid $12,762.45 for their massage therapy
treatments.
[3]
The only issue in dispute is
whether that amount is deductible under sections 118.2 and 118.4 of the Income
Tax Act, the relevant portions of which are:
118.2(1) Medical expense credit
- For the purpose of
computing the tax payable under this Part by an individual for a taxation year,
there may be deducted the amount determined by the formula
…
118.2(2) Medical
expenses - For the purposes of subsection 118.2(1), a
medical expense of an individual is an amount paid
(a) to a medical
practitioner …in respect of medical … services provided to a person (in this subsection
referred to as the “patient”) who is the individual, the individual’s spouse … in
the taxation year in which the expense was incurred;
….
118.4(2)
Reference to medical practitioners, etc. - 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;
. . .
[Emphasis added.]
[4]
While acknowledging that a massage
therapist might not be a “medical practitioner” within the meaning of
subsection 118.2(2)(a), the Appellant submitted that because the massage
therapy treatments had been administered pursuant to a prescription issued by a
physician, that provision ought to be interpreted to include the cost of such
treatments.
[5]
Although sympathetic to the
Appellant’s situation, counsel for the Respondent argued that a deduction could
not be allowed because the statutory criteria had not been fulfilled;
specifically, that the $12,762.45 paid by the Appellant had not been paid to a “medical
practitioner”; it was paid to massage therapists. In support of the
Minister’s position, counsel cited Roy v. R. and Parent v. R., Quebec cases in
which the Tax Court of Canada upheld the Minister’s disallowance of the
taxpayers’ claims for medical expense deductions for thalassotherapy and
naturopathy, respectively. As in the present case, such treatments had been prescribed
by a physician but that was not sufficient to satisfy the requirements of paragraph
118.2(2)(a). That provision requires that the amount be paid to a
“medical practitioner” which under paragraph 118.4(2)(a), must be
determined in accordance with the laws of the jurisdiction in which the
services were rendered:
[25] The
definition of "physician" in section 1 of the Medical Act,
R.S.Q., chapter M-9, refers to a person entered on the roll. The term
"roll", also defined in section 1, means the list of the members in
good standing of the Order, prepared in accordance with the Professional
Code and this Act. Lastly, the term "Order" is a reference to the
Ordre des médecins du Québec, constituted by this Act. Here is how these
definitions in section 1 of the Medical Act are worded:
(c)
"physician" or "member of the Order":
any person entered on the roll;
(g)
"roll": the list of the members in good standing
of the Order, prepared in accordance with the Professional Code and this Act.
(a)
"Order": the Ordre des médecins du Québec,
constituted by this Act;
[26] Thus,
it is clear that the thalassotherapists and massage therapists that may have
provided services for which the appellant seeks a deduction are not entered on
the roll of physicians maintained by the Ordre des médecins in the province of Quebec.
[6]
Similar decisions can be found in
other jurisdictions of Canada: see Laurie v. R. (Nova Scotia) and in Pagnotta
v. R.
(Alberta), both of which involved unsuccessful claims for the deduction of the
cost of massage therapy. In the present matter, there is no evidence before me that
the massage therapists paid by the Appellant were medical practitioners within
the meaning of paragraph 118.2(2)(a); accordingly, the $12,762.45 paid
by the Appellant cannot be deductible under that provision.
[7]
Because Revenue Quebec had
allowed his claim for a medical expense deduction for massage therapy, the
Appellant argued that, for the sake of consistency, a similar deduction ought
to be allowed at the federal level. While I can follow the logic of the
Appellant’s argument, the deductibility of any particular claim will depend on
the precise criteria in the relevant federal or provincial income tax
legislation. In the Roy case cited above, after considering the Quebec tax
legislation, Tardif, J. concluded:
[27] With
regard to the argument that Revenu Québec accepted his claim, I will simply
note that in order for a medical expense to be eligible for tax credits under
Quebec's Taxation Act, it appears to be sufficient that it was paid to a
"practitioner". Obviously, the term "practitioner" is more
general than the term "medical doctor".
[8]
In the present case, whatever the
Quebec tax authorities decided in respect of the deductibility of the massage
therapy costs, this Court must determine the correctness of the Minister’s
assessment in accordance with paragraph 118.2(2)(a) of the federal Income
Tax Act. As explained to the Appellant at the hearing, this Court has no
discretion to interpret that provision “equitably” out of consideration for the
Appellant’s or his wife’s health problems, however serious they may be. Whether
to expand the list of professionals in subsection 118.4(2) to provide a
deduction under paragraph 118.2(2)(a) for the cost of alternative
medical treatments is for Parliament to decide. And it is for the taxpayers in
support of such an amendment to deliver their message to their federal
representatives.
[9]
As the conditions of paragraph
118.2(2)(a) have not been satisfied, the appeal of the 2008 taxation
year must be dismissed.
Signed at Montreal, Quebec, Canada,
this 28th day of October 2010.
“G.A. Sheridan”
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