Citation: 2008TCC11
Date: 20080107
Docket: 2006-3169(IT)I
BETWEEN:
MARIE ESTHER LOUISE CHEVALIER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Bédard J.
I. INTRODUCTION
[1] This is an
appeal under the informal procedure for the 2002 taxation year. The Appellant,
Marie Esther Louise Chevalier claimed the medical expense tax credit for the
cost of organic products and foods as well as for services provided by a
naturopath and an osteopath. The Minister of National Revenue (“Minister”)
disallowed the medical expenses so claimed on the ground that they did not fall
within the scope of subsection 118.2(2) of the Income Tax Act (“Act”). Consequently, the Appellant
is challenging the constitutional validity of subsection 118.2(2) of the Act
on the basis that it infringes subsection 15(1) of the Canadian Charter
of Rights and Freedoms (“Charter”).
II. FACTS
[2] The Appellant is 56 years of age and resides in Saint-Charles-Borromée
in the province of Quebec. She served in the Canadian Forces (“Forces”) from
1973 until 1989 as an aerospace engineer.
[3] The Appellant
testified that she started experiencing severe health problems in 1978. With
the deterioration of her health, she was forced to leave the Forces in 1989.
Consequently, she went through a period of financial hardship until 2000, when
the Forces finally recognized the precarious state of her health and granted
her a pension on a retroactive basis.
[4] The Appellant
consulted a number of doctors and was diagnosed as suffering from chronic
fatigue syndrome. Furthermore, she testified that she has severe sensitivities
to food, drinks and even to clothing. She testified that she reacts severely to
chemicals in food as well as to natural foods such as meat, conventional bread,
potatoes and beets. In addition, she testified that she is intolerant to gluten
and lactose. These sensitivities confine her diet to organic foods and she can
only wear clothing made from 100% natural fibres, such as wool, cotton or silk.
Furthermore, she must use a purifier for her water, both for drinking and for
cooking. She also indicated at trial that she was sensitive to everyday
household cleaning products and therefore uses natural substances such as borax
and citric acid to clean her house.
[5] The Appellant
testified that she reacts strongly to pharmaceutical products and consequently
turned to natural remedies. Moreover, in an attempt to relax her muscles, she uses
the services of a naturopath and an osteopath.
[6] The Appellant
testified that due to her illness she is easily fatigued by performing any
minor task, such as cooking, cleaning or simply writing a cheque. Furthermore,
she testified that if she did not follow a strict natural diet her brain would
become severely irritated, which would then incapacitate her physically and
mentally. Although the Respondent accepted the fact that the Appellant suffers
from chronic fatigue syndrome, no expert evidence was presented at trial as to
the symptoms of that illness.
[7] The parties have partially agreed on certain facts. Among other things,
they have agreed that, for the purpose of computing her medical expense tax
credit for the taxation year at issue, the Appellant claimed medical expenses
in the amount of $18,252.79. This includes expenses of $3,253.74 conceded to be
medical expenses by the Minister. As indicated by the parties in the Partial Agreed
Statement of Facts, the following items remain at issue:
|
Item
|
Total expenses claimed by the Appellant
($)
|
Less medical expenses
($)
|
Less insurance reimbursement
($)
118.2(3) ITA
|
Less expenses conceded by the Appellant ($)
|
Total in issue ($)
|
|
Therapists,
water purification unit
|
5,380.66
|
3,253.74
|
461.08
|
6.34
|
1,659.50
|
|
Organic
products and food
|
11,995.39
|
0
|
0
|
5,665.28
|
6,330.11
|
|
Products
for personal and house hygiene
|
1,653.63
|
0
|
0
|
0
|
1,653.63
|
|
Natural
supplements
|
799.19
|
0
|
0
|
0
|
799.19
|
|
TOTAL
|
|
|
|
|
10,442.43
|
The
parties further explained the nature of the amounts claimed by the Appellant,
and the expenses left to be decided by this Court are as follows:
(i) $990.00 in expenses paid for osteopathic
treatments;
(ii) $375.00 in expenses paid for naturopathic
treatments;
(iii) $294.50 in expenses paid
for organic herbal products bought from a herbalist and naturopath.
(iv) $6,330.11 representing
expenses paid with respect to the “incremental cost” of acquiring organic
products and foods;
(v) $1,653.63 in expenses for
personal and household hygiene products, and;
(vi) $799.19 in expenses for natural
supplements.
III. ISSUES TO BE DECIDED
[8] The following questions have been raised by the parties and need to be
answered by this Court:
1. Are the products and services costs claimed
by the Appellant medical expenses under subsection 118.2(2) of the Act?
2. Does subsection 118.2(2) of the Act
violate section 15 of the Charter by discriminating against the
Appellant?
3. If subsection 118.2(2) of the Act
violates section 15 of the Charter, is that subsection saved by
section 1 of the Charter as demonstrably justifiable in a free and
democratic society?
4. Does the Tax Court of Canada have
jurisdiction to issue declarations and grant, under section 52 of the Constitution
Act, 1982, remedies consisting in reading up, reading down or severing
invalid legislation, specifically the impugned provision of the Act?
ISSUE 1
[9] Are the products
and services costs claimed by the Appellant medical expenses under subsection 118.2(2)
of the Act?
[10] Although the
Appellant bases her argument on a Charter violation, it is nonetheless
important to examine first whether or not any of the expenses at issue fall
within the scope of subsection 118.2(2) as it read in 2002. If such proves
to be the case, a Charter analysis will become futile. Furthermore, this
issue was brought forward by the Respondent in her written arguments. In order
to answer this first question, it is necessary to differentiate between the
expenses incurred for medical services and those incurred for medication
products. The latter will be examined next.
[11] Paragraph 118.2(2)(n) of the Act provides as follows:
(2) Medical expenses - For the purposes of subsection (1), a medical
expense of an individual is an amount paid
(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;
[Emphasis added]
[12] This statutory
provision enumerates three specific requirements to be met in order for
medication or other therapeutic substances to qualify as medical expenses. Under
these requirements the said products must:
(i) be manufactured, sold or represented for use
either
a. in the diagnosis, treatment or
prevention of a disease, disorder, abnormal physical state or the symptoms
thereof, or
b. in restoring, correcting or modifying an
organic function;
(ii) be prescribed by a medical practitioner;
(iii) be recorded by a pharmacist.
[13] This is not the
first time that this Court has had to determine whether alternative medical
products qualify as medical expenses under subsection 118.2(2) of the Act.
On the contrary, the case law is quite extensive and dictates a clear and
concise approach to the interpretation of this provision. In the case at bar, the
issue revolves around the third requirement of the test, namely whether the
product was “recorded by a pharmacist”. In Ray v. R., the Federal Court of
Appeal unanimously clarified the meaning of the words “recorded by a
pharmacist” by stating:
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.
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.
[Emphasis added]
[14] As indicated by
Associate Chief Justice Bowman (as he then was) in Herzig v. R., this requirement
leads to the conclusion that only prescription medicines qualify. Herzig
is a similar case to this one insofar as the taxpayer resorted to alternative
medicines and products for valid health reasons. However, in light of the Ray
decision, the Tax Court judge had no other choice than to dismiss the appeal.
In addition, Ray was followed by the Federal Court of Appeal in a
subsequent decision, Bekker v. R.
[15] At trial, the
Appellant acknowledged that the organic products and foods were not purchased
at a pharmacy and were not recorded by a pharmacist. She testified that she
bought them either directly from a farm or from a health food store. It is
evident that the amount of $6,330.11 claimed as medical expenses for organic
products and foods fails to meet the statutory requirements of subsection 118.2(2)
of the Act. Furthermore, the expenses in the amount of $1,653.63 claimed
for personal and household hygiene products are also disqualified. Some of
these products were bought from a specialized store and not from a pharmacy.
Although others were bought in a pharmacy, they were not recorded by a pharmacist
as they were products that are available off the shelf and without a
prescription. In addition, the Appellant testified that all of the natural
supplements, for which she claimed $799.19, were bought at a health food store
and not a pharmacy. As a result, these expenses cannot be claimed as medical
expenses in accordance with subsection 118.2(2) of the Act. The
same applies to the organic herbal products bought from a herbalist and
naturopath, for which the Appellant claims $294.50. In summary, none of the
expenses claimed by the Appellant for medical products meet the requirements
set out in paragraph 118.2(2)(n) of the Act.
[16] I will now
examine the amounts claimed for medical services, in particular, the expenses of
$990.00 and $375.00 paid for osteopathic and naturopathic treatments
respectively. Paragraph 118.2(2)(a) of the Act reads as
follows:
(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.
[17] Furthermore, subsection 118.4(2)
defines a “medical practitioner” as:
(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. . .
[18] These provisions require the Appellant to show that the cost of the
medical services has been paid to a medical practitioner authorized to practise
his or her profession pursuant to the laws of Quebec. Under Quebec
legislation, naturopaths and osteopaths are not recognized medical practitioners. The Appellant testified
that there was no discernible distinction between the osteopathic and
physiotherapy treatments, which were provided by the same therapist, namely, Ms. Marie‑France
Roy Gaudet. Thus, the Appellant argues that since physiotherapists are
recognized medical practitioners in the province
of Quebec, the $990.00 paid to Ms. Roy Gaudet for osteopathic
treatments should be allowed. I disagree with this reasoning. The receipts for
the $990.00 show that they were issued specifically for osteopathic treatments.
As a result, the medical expenses claimed by the Appellant for osteopathic
treatments provided by Marie-France Roy Gaudet fail to comply with the
statutory provisions of the Act and must be disallowed. This is in
accordance with previous decisions of this Court. For example, in Davar v.
R.
the Appellant suffered from severe allergies and sought alternative treatments,
including the services from a naturopath. Justice Miller disallowed the appeal
on the basis that the services did not meet the requirements of paragraph 118.4(2)(a)
of the Act. He further commented regarding the medical expense tax
credit provision:
. . . While
this Court has interpreted these laws liberally and compassionately, the Court
cannot turn a blind eye to the real and exact meaning of the law, no matter how
unfair the taxpayer believes it to be. . .
Sometimes the
law leads society in a certain direction, but often times societal behaviour
leads the law. In the case of medical expenses, it is a matter of the law
eventually catching up to society’s behaviour and I am hopeful the legislators
will do that. . . .
[19] Unfortunately,
the law has not yet caught up to societal behaviour. Nevertheless, I too cannot
turn a blind eye to the real meaning of the law. Since the Appellant’s expenses
were not paid to a medical practitioner, they cannot be medical expenses. Thus,
none of the expenses claimed – neither those for medical services nor medical
products – qualify as medical expenses pursuant to subsection 118.2(2) of the Act.
I will therefore move on to the second issue.
ISSUE 2
[20] Does subsection 118.2(2)
of the Act violate section 15 of the Charter by discriminating
against the Appellant?
[21] This is the crux of the Appellant’s argument and constitutes the main
issue to be determined in the present appeal. The Appellant submits that subsection 118.2(2)
of the Act, considered in its entirety, violates section 15 of the Charter.
Section 15 of the Charter guarantees the Appellant’s right to
equality and reads as follows:
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.
(2)
Subsection (1) does not preclude any law, program or activity that has as its
object the amelioration of conditions of disadvantaged individuals or groups
including those that are disadvantaged because of race, national or ethnic
origin, colour, religion, sex, age or mental or physical disability.
[22] Section 19.2 of
the Tax Court of Canada Act
requires the claimant to serve notice on the Attorney General of Canada and the
attorney general of each province at least ten days before the constitutional
question is to be debated. This procedural requirement has been fulfilled by
the Appellant and the constitutional question can therefore be examined by this
Court.
[23] The Appellant argues
that subsection 118.2(2) of the Act was drafted in order to assist all
persons with disabilities. Furthermore, she submits that, as presently drafted,
subsection 118.2(2) fails to take into consideration her needs for a
special diet, while reducing the tax burden of virtually all other disabled
persons. In other words, she claims that she is being excluded from the medical
expense tax credit scheme on the basis of her disability. Section 118.2 of the Act
is reproduced in an appendix hereto along with section 5700 of the Income
Tax Regulations, which pertains to certain devices and equipment
qualifying under paragraph 118.2(2)(m).
[24] In Law v. Canada (Minister of Employment and Immigration), the Supreme Court
of Canada established a three‑part test to be used in a determination regarding
a section 15 Charter violation. That Court stated:
. . . Accordingly,
a court that is called upon to determine a discrimination claim under s. 15(1)
should make the following three broad inquiries:
(A) Does the impugned
law (a) draw a formal distinction between the claimant and others on the basis
of one or more personal characteristics, or (b) fail to take into account the
claimant’s already disadvantaged position within Canadian society resulting in
substantively differential treatment between the claimant and others on the
basis of one or more personal characteristics?
(B) Is the claimant
subject to differential treatment based on one or more enumerated and analogous
grounds?
and
(C) Does the
differential treatment discriminate, by imposing a burden upon or withholding a
benefit from the claimant in a manner which reflects the stereotypical
application of presumed group or personal characteristics, or which otherwise
has the effect of perpetuating or promoting the view that the individual is
less capable or worthy of recognition or value as a human being or as a member
of Canadian society, equally deserving of concern, respect, and consideration?
[25] It is important
to keep in mind that the above test is to be seen only as a guideline for
analysis. It goes without saying that the test should not be mechanically
applied but, as indicated by the Supreme Court of Canada, the analysis must be
purposive and contextual.
This was further emphasized by the Supreme Court of Canada in Auton
(Guardian ad litem of) v. British
Columbia (Attorney General),
a case in which that Court had to determine if the government of British Columbia
had infringed subsection 15(1) of the Charter by failing to fund
specific treatment for autistic children. It concluded that the benefit claimed
– funding for all medically required treatment – is not provided by law and
there exists no obligation for the provincial government to fund all medically
required treatments. As a result, a violation of subsection 15(1) could
not be found to exist. The analytical framework used in Auton can be of
assistance in the case at bar. Accordingly, the first question to be determined
is as follows:
Is the claim for a benefit provided by law?
[26] The Supreme Court
in Auton explained, at paragraph 27:
In order to
succeed, the claimants must show unequal treatment under the law — more
specifically that they failed to receive a benefit that the law provided, or
was saddled with a burden the law did not impose on someone else. The
primary and oft-stated goal of s. 15(1) is to combat discrimination and
ameliorate the position of disadvantaged groups within society. Its specific
promise, however, is confined to benefits and burdens “of the law”.
Combatting discrimination and ameliorating the position of members of
disadvantaged groups is a formidable task and demands a multi-pronged response.
Section 15(1) is part of that response. Section 15(2)’s exemption for
affirmative action programs is another prong of the response. Beyond these lie
a host of initiatives that governments, organizations and individuals can
undertake to ameliorate the position of members of disadvantaged groups. [Emphasis added]
[27] Before answering
the question whether or not there is a benefit provided by law, it is necessary
to establish what benefits the Appellant is claiming. The Appellant asks that
the following medical products and services qualify for the medical tax credit:
. . . on
behalf of the patient who has fibromyaglia [sic], chronic fatigue syndrome, or
multiple chemical sensitivities,
VII. vitamins and natural supplements,
VIII. specialty
personal hygiene, household cleaning, and skin care products that are free of
synthetic chemicals,
IX. homeopathic
products,
X. bottled
and chemical-free water,
XI. naturopathic
services, and
XII. the incremental cost of acquiring organic food
products as compared to the cost of comparable non-organic food products,
if the patient has been certified in writing by a medical practitioner
to be a person who, because of that disease, requires such items.
[28] The Appellant
submits that the benefit provided by law is established by the application of subsection 118.2(2)
of the Act. The Appellant argues that subsection 118.2(2) is
designed to cover all persons with disabilities. More precisely, the Appellant
contends that the medical tax credit is “intended to alleviate the tax
burden of an individual who incurs high medical expenses and otherwise incurs
sufficient tax payable in order to benefit from the medical expense tax credit.
Thus, there is a definite benefit provided to the individual since it lowers
one’s tax payable, and can be a significant tax saving.” In other words, the
Appellant claims that all individuals who incur high medical expenses benefit
from the tax credit, if their income is high enough. According to the
Appellant, the unequal treatment lies in allowing the medical expense tax
credit for individuals incurring high medical expenses, while denying it to
individuals who suffer from fibromyalgia, chronic fatigue syndrome or multiple
chemical sensitivities and who incur expenses for vitamins, osteopathy, organic
food, specialty creams and soaps, supplements, and sanitary products.
[29] This raises the
question of whether the legislative scheme created by the medical expense tax
credit provision in fact allows an alleviation of the tax burden for all
individuals who incur high medical expenses and otherwise incur sufficient tax
payable. An examination of the scheme shows that it does not.
[30] The predecessor
of the medical expense tax credit was first introduced in 1942 as a deduction
in computing income for a limited number of medical expenses. The purpose of the credit
is to recognize the effect of above-average medical and disability-related
expenses on an individual’s ability to pay tax. In 1988, it became a
deduction in computing tax payable.
At its inception, the claimable medical expenses were subject to a maximum
amount. This cap was removed in 1961.
Furthermore, a taxpayer’s claim for the deduction has always been subject to a
minimum threshold; in the 2002 taxation year, this threshold was the lesser of
$1,728 and 3% of the individual’s income for the year.
[31] The list of
expenses that qualify for the tax credit is regularly reviewed and updated and,
as a result, it has become a very lengthy and precise list. As indicated by the
Department of Finance of Canada in The Budget Plan 2005:
The list of
expenses eligible for the credit is regularly reviewed and updated in light of
new technologies and other disability-specific or medically related
developments.
[32] The Appellant
submits that this very lengthy list of allowable medical expenses “arguably
shows the purpose of such legislation is to accommodate every disability”
or at the very least “that the effect is that prima facie every
disability is . . . accommodated” (Emphasis added) by
virtue of the medical expense tax credit provision. I do not agree that the
legislative scheme of the medical expense tax credit is that broad. Although
its purpose is to recognize the effect of above-average medical and
disability-related expenses on an individual’s ability to pay tax, it is not
meant to cover every health-related expense. On the contrary, the legislative
scheme clearly demonstrates Parliament’s intention to limit the scope of subsection 118.2(2)
of the Act in an attempt to address specific needs and expenses. This is
in line with the decision rendered by this Court in Ali v. The Queen., in which Justice Woods,
after analyzing the purpose of subsection 118.2(2) of the Act,
stated:
On the other
hand, the decision to list specific qualifying expenses in s. 118.2(2)
rather than making all medical expenses eligible has the result that some
taxpayers will incur reasonable medical expenses that do not qualify. I think
that this result is intended. Parliament has decided that it is not appropriate
to allow tax relief for all medical expenses incurred either at the discretion
of the taxpayer or even on the advice of a medical practitioner.
[33] It should be
noted that Ali is being appealed to the Federal Court of Appeal.
Nonetheless, I agree with the analysis of Justice Woods. Thus, the benefit
claimed by the Appellant – that every disability be accommodated by the medical
tax credit – is not one that the Act confers on anyone else.
Parliament intentionally limited the scope of subsection 118.2(2) of the Act;
it was never intended to accommodate every disability.
[34] The case law
shows that individuals who suffer from fibromyalgia, chronic fatigue syndrome
or multiple chemical sensitivities are not the only taxpayers who need to buy
vitamins, organic food, specialty creams and soaps, supplements, and sanitary
products or who require osteopathic services for justifiable medical reasons.
For example, in Herzig
described as a “most deserving case” by Associate Chief Justice Bowman
(as he then was), the appellant’s spouse was suffering from breast cancer that
proved to be fatal. The appellant was denied the medical expense tax credit for
the cost of homeopathic medicine and nutrients and herbal supplements
prescribed by the appellant’s wife's medical doctors, because these did not
fall within the scope of subsection 118.2(2). It becomes quite evident
that the benefit sought by the Appellant in the present case – i.e., the
alleviation of the tax burden for all individuals suffering from a disability
and who incur high medical expenses and otherwise incur sufficient tax payable
- is not a benefit that is provided by law.
[35] As indicated by
the Supreme Court of Canada in Auton, the analysis does not end here.
That Court explained:
. . . Courts should look to the
reality of the situation to see whether the claimants have been denied benefits
of the legislative scheme other than those they have raised. This brings up the
broader issue of whether the legislative scheme is discriminatory, since it
provides non-core services to some groups while denying funding for ABA/IBI
therapy to autistic children. The allegation is that the scheme is itself
discriminatory, by funding some non-core therapies while denying equally
necessary ABA/IBI therapy.
This argument moves beyond the legislative
definition of “benefit”. As pointed out in Hodge, supra, at
para. 25:
. . . the legislative definition, being the subject
matter of the equality rights challenge, is not the last word. Otherwise, a
survivor’s pension restricted to white protestant males could be defended on
the ground that all surviving white protestant males were being treated
equally.
We must look behind the words and ask whether the
statutory definition is itself a means of perpetrating inequality rather than
alleviating it. Section 15(1) requires not merely formal equality, but
substantive equality: Andrews, supra, at p. 166.
[36] In other words,
while Parliament is free to target the social programs it wishes to fund as a
matter of public policy, it cannot enact a law whose policy objectives and
provisions are discriminatory.
In Auton the Supreme Court of Canada further indicates that:
A statutory
scheme may discriminate either directly, by adopting a discriminatory policy or
purpose, or indirectly, by effect. Direct discrimination on the face of a
statute or in its policy is readily identifiable and poses little difficulty.
Discrimination by effect is more difficult to identify. Where stereotyping of
persons belonging to a group is at issue, assessing whether a statutory
definition that excludes a group is discriminatory, as opposed to being the
legitimate exercise of legislative power in defining a benefit, involves
consideration of the purpose of the legislative scheme which confers the
benefit and the overall needs it seeks to meet. If a benefit program
excludes a particular group in a way that undercuts the overall purpose of the
program, then it is likely to be discriminatory: it amounts to an arbitrary
exclusion of a particular group. If, on the other hand, the exclusion is
consistent with the overarching purpose and scheme of the legislation, it is
unlikely to be discriminatory. Thus, the question is whether the excluded
benefit is one that falls within the general scheme of benefits and needs which
the legislative scheme is intended to address.
[Emphasis added]
[37] As already
mentioned, the legislative scheme in the case at bar does not imply that all
medical expenses are to be accommodated by the medical expense tax credit.
Furthermore, the medical expense tax credit benefit does not exclude
individuals who suffer from fibromyalgia, chronic fatigue syndrome or multiple
chemical sensitivities. The Appellant was allowed to claim medical expenses
that fell within the scope of subsection 118.2(2) of the Act. In
addition, a cancer patient who might benefit from osteopathic treatments and
organic foods will not be allowed to claim such expenses for the purpose of the
medical expense tax credit. In short, medical expenses qualify for the medical
expense tax credit on the basis of the product or service purchased and not on
the basis of the type of disability from which the taxpayer suffers. This is
reiterated by Justice Woods in Ali where she emphasizes that “The
line that Parliament has chosen to draw is between types of therapeutic
substances and not physical characteristics of people”.
[38] Accordingly, I
conclude that the benefit claimed by the Appellant — accommodation
under subsection 118.2(2) of the Act for all disabilities — is not
a benefit provided by law. Thus, since the first branch of the equality test
has not been met, subsection 118.2(2) of the Act does not infringe
on the Appellant’s rights under subsection 15(1) of the Charter.
However, since this case raises important issues, it is appropriate to consider
whether the Appellant would have succeeded had she established that a credit
for medical expenses for alternative medicine products and services for patients
suffering from fibromyalgia, chronic fatigue syndrome or multiple chemical
sensitivities is a benefit provided by law. The next element in this
section 15 analysis consists in this Court's determining whether the
relevant benefit was denied to the claimant while being granted to a comparator
group alike. Thus, I will now turn to the second branch of the Law test.
Is the claimant subject to differential treatment based on one or more
enumerated and analogous grounds?
[39] Disability is one
of the enumerated grounds of discrimination in subsection 15(1) of the Charter.
The Appellant alleges that she was denied the medical expense tax credit for
the cost of medical products and services and thus she has been discriminated
against on the basis of disability. This allegation requires the identification
of the appropriate comparator group, with which the Appellant can then be
compared in terms of benefits available under subsection 118.2(2) of the Act.
[40] The first step in
this enquiry is to determine whether the group with which the claimant compares
herself is the appropriate comparator group. This step is a crucial one, and
the Supreme Court of Canada established guidelines in Hodge v. Canada
(Minister of Human Resources Development),
which were later summarized in Auton, where, that Court stated:
The law pertaining to the choice of comparators is
extensively discussed in Hodge, supra, and need not be
repeated here. That discussion establishes the following propositions.
First, the choice of the correct comparator is
crucial, since the comparison between the claimants and this group permeates
every stage of the analysis. “[M]isidentification of the proper comparator
group at the outset can doom the outcome of the whole s. 15(1) analysis”: Hodge,
supra, at para. 18.
Second, while the starting point is the comparator
chosen by the claimants, the Court must ensure that the comparator is
appropriate and should substitute an appropriate comparator if the one chosen
by the claimants is not appropriate: Hodge, supra, at para. 20.
Third, the comparator group should mirror the
characteristics of the claimant or claimant group relevant to the benefit or
advantage sought, except for the personal characteristic related to the
enumerated or analogous ground raised as the basis for the discrimination: Hodge,
supra, at para. 23. The comparator must align with both the
benefit and the “universe of people potentially entitled” to it and the alleged
ground of discrimination: Hodge, at paras. 25 and 31.
Fourth, a claimant relying on a personal
characteristic related to the enumerated ground of disability may invite
comparison with the treatment of those suffering a different type of
disability, or a disability of greater severity: Hodge, supra, at
paras. 28 and 32. Examples of the former include the differential treatment of
those suffering mental disability from those suffering physical disability in Battlefords
and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, and the
differential treatment of those suffering chronic pain from those suffering
other workplace injuries in Nova Scotia (Workers’ Compensation Board) v.
Martin, [2003] 2 S.C.R. 504, 2003 SCC 54. An example of the latter is the
treatment of persons with temporary disabilities compared with those suffering
permanent disabilities in Granovsky, supra.
[41] The comparator
group chosen by the Appellant is “all taxpayers who have other disabilities,
yet are able to claim the medical expense tax credit in respect of their
specific disabilities. Such persons have hearing, mobility, vision, and mental
disabilities.”
The Appellant further suggests that no other class of disabilities requires
organic food, natural supplements, personal and household hygiene products that
are free of synthetic chemicals, and bottled water for valid health reasons. Moreover, the Appellant
argues:
. . . Different
disabilities require different expenses. Hearing aids are required by the deaf
and hard of hearing but not by many persons who are blind or low vision.
Chemotherapy is required for cancer patients but not for many people with
mobility impairments. It would be absurd for the Court to choose a
comparator group that desires to claim organic food, natural supplements,
personal and household hygienic products that are free of synthetic chemicals,
and bottled water, since that would not be a “benefit” to persons with other
disabilities in the medical sense.
[Emphasis added]
[42] I disagree with
the Appellant for the following reasons. First, no evidence has been presented
with regard to the statement made by the Appellant that only individuals
suffering from fibromyalgia, chronic fatigue syndrome or multiple chemical
sensitivities require the use of alternative medicine, such as natural products
and services. Second, the case law indicates otherwise: there are several instances
of very deserving cases, ones in which taxpayers with other disabilities
requested the credit for similar health-related expenses and were denied. The suggestion by the
Appellant that a cancer patient, as in Herzig, cannot, medically
speaking, “benefit” from alternative medicine is open to medical debate. Be
that as it may on reading that case, one can conclude that Ms. Herzig was
benefiting just as much from the natural treatment she received as the
Appellant currently is from hers. Alternative medicine is not as narrow in
terms of those whom it may benefit as the Appellant claims it to be; it cannot
be compared with a hearing aid, which will, of course, serve its purpose only
for individuals with a hearing impairment.
[43] When selecting
the appropriate comparator group, the Court has to find the group that shares
with the claimant all the characteristics that qualify for the benefit, other than
a personal characteristic that is among, or analogous to, those listed in
section 15 of the Charter. In the case at bar, the appropriate
comparator group for the Appellant is persons who have a disability other than
fibromyalgia, chronic fatigue syndrome or multiple chemical sensitivities and who
seek the medical expense tax credit for organic food, natural supplements, and
personal and household hygiene products that are free of synthetic chemicals.
Such a comparator group meets the requirements set out by the Supreme Court of
Canada in Hodge, since the members of that comparator group are
identical to the claimant in all ways except for the characteristics relating
to the alleged ground of discrimination, namely, that they do not suffer from
fibromyalgia, chronic fatigue syndrome or multiple chemical sensitivities.
[44] Taking as a basis
the appropriate comparator group, I will now compare the treatment given by law
to the Appellant with the treatment given to the comparator group and determine
if the claimant has been denied a benefit made available to the comparator
group. It is important to keep in mind that differential treatment in
comparison with the comparator group can be either direct or indirect. The former
is established by showing an explicit distinction, and the latter, by showing
that the effect of government actions amounts to singling out the claimant for
less advantageous treatment on the basis of the alleged grounds of
discrimination.
[45] The Appellant
alleges that she is being treated differently because she is not being allowed
the medical expense tax credit for products and services that she requires in
order to survive and maintain her health. As mentioned previously, these
products and services include osteopathic treatments, organic food, natural
supplements, and personal and household hygienic products that are free of
synthetic chemicals. In short, the question is whether subsection 118.2(2)
of the Act denies people suffering from chronic fatigue syndrome
benefits it accords others in the same situation, except that they do not have
this specific physical disability. The Appellant argues forcefully that the
line Parliament has chosen to draw is the physical disability of taxpayers, and
not medical products and services. I disagree; the legislation does not make a
distinction between individuals suffering from chronic fatigue syndrome and
individuals who suffer from a different disability. No one is allowed tax
relief for organic foods and dietary supplements, and this is so regardless of
the disability involved. In addition, no evidence was put forward by the Appellant
that would suggest that individuals suffering from chronic fatigue syndrome
have a greater need for natural products and/or alternative medicine. Justice
Woods made a statement that applies perfectly in this case when she said in Ali:
“The appellants must do more than establish that they are harshly affected
by the legislation. They must establish that they are affected differently
based on a personal characteristic.”
[46] As already mentioned, there are cases that clearly demonstrate that
individuals suffering from a different disability had just as great a need for
organic products as the Appellant, but were not able to claim any tax credit
for these products. I agree with the Respondent that, as regards to those
products, the credit was denied on the basis of the product purchased and not
the disability of the taxpayer.
[47] In support of her
argument, the Appellant refers to paragraph 118.2(2)(r) of the Act,
which allows individuals suffering from celiac disease to claim the
incremental cost of acquiring gluten-free food products as compared to the cost
of comparable non-gluten-free food products, if the patient has a written
certificate from a medical practitioner. The said paragraph has been in effect
since 2003 and reads as follows:
(r) [gluten-free
food] - on behalf of the patient who has celiac disease, the
incremental cost of acquiring gluten-free food products as compared to the cost
of comparable non-gluten-free food products, if the patient has been certified
in writing by a medical practitioner to be a person who, because of that
disease, requires a gluten-free diet;
[Emphasize added]
[48] The Appellant
uses paragraph 118.2(2)(r) of the Act as a justification for
allowing persons with chronic fatigue syndrome and multiple chemical
sensitivities to claim the medical expense tax credit for organic foods and
products. While the Appellant testified that she is intolerant of gluten, she
does not imply that paragraph 118.2(2)(r) violates the Charter but
rather argues that the entire medical expense tax credit provision is under‑inclusive
and in breach of her Charter rights. The Appellant has not established
that the organic products she bought were gluten‑free nor has she
presented any medical evidence showing that she requires gluten-free products.
It seems to me that by referring to paragraph 118.2(2)(r), the
Appellant is attempting to underline her position that the qualifying process
under the medical expense tax credit provision is based on disability rather
than on medical products or services. I disagree with any such inference
for the following reasons.
[49] First and
foremost, the Appellant cannot rely on a provision that was non‑existent
for the year at issue. Paragraph 118.2(2)(r) of the Act only
came into force for the 2003 taxation year and thus has to be ignored for the
purpose of this appeal. This being said, even if the gluten-free provision had
been applicable in 2002, that would not change the outcome of this appeal. I
will examine this point next.
[50] The question to
ask is whether paragraph 118.2(2)(r) of the Act indicates a
shift towards a disability‑based approach in regard to the medical
expense tax credit. It seems clear that the said provision makes a
differentiation based on disability; it restricts the benefit strictly to
persons who suffer from celiac disease. Before this provision was adopted, it
was examined by the Standing Committee on Human Resources Development and
the Status of Persons with Disabilities. The following dialogue took place:
Ms. Diane St-Jacques: You
spoke about medical expenses for people with gluten problems. There is no
reference to those with severe allergies. There is a case in my riding of
parents with two children who were allergic to nearly everything, probably even
gluten, but maybe not. In any case, the parents had to appeal because the
problem was not recognized. The children could not eat any food bought at a
grocery store.
Could you expand on the amendments
made to...?
Mr. Serge Nadeau: The list of medical expenses eligible for the tax credit has been
extended so that sufferers of celiac disease could claim the difference in cost
for gluten-free products.
Ms. Diane St-Jacques: But that applies only to people with that problem?
Mr. Serge Nadeau: Yes.
Ms. Diane St-Jacques: So other very severe allergies are not included in that?
Mr. Serge Nadeau: No.
Ms. Diane St-Jacques: Is that something else the interim committee can...?
Mr. Serge Nadeau: It is something else the committee could also review.
Ms. Diane St-Jacques: Those are all my questions, Mr. Chairman. [Emphasize
added]
The
Bill being discussed was later adopted by Parliament with the specific “celiac
disease” requirement. This requirement seems to have been thought through and
perhaps the legislator meant to avoid the financial impact of a larger and more
inclusive provision. The nature of the tax credit scheme involves a certain
degree of flexibility and requires Parliament to make certain policy decisions.
This was supported by the Supreme Court of Canada in Nova Scotia
(Workers’ Compensation Board v. Martin), where Justice Gonthier indicated:
Of course,
government benefits or services cannot be fully customized. As a practical
matter, general solutions will often have to be adopted, solutions which
inevitably may not respond perfectly to the needs of every individual. This is
particularly true in the context of large-scale compensation systems, such as
the workers’ compensation scheme under consideration.
[51] By adding paragraph 118.2(2)(r),
Parliament expanded and updated the list of specific allowable expenses in
light of new technologies and other disability‑specific or medically
related developments. While it is true that paragraph 118.2(2)(r)
of the Act specifically refers to a disability, namely, celiac disease,
I do not think that this can be seen as a general shift in policy. The gluten‑free
food provision is an exception to the overall objective of the medical expense
tax credit scheme rather than the norm. When determining the underlying
objective of the medical expense tax credit provision, one has to look at the
provision in its entirety. With the exception of paragraph 118.2(2)(r),
the legislator has been consistent in avoiding limiting the scope of the
medical expense tax credit provision on the basis of specific personal
disabilities. Such an approach is in line with the objective of making a
distinction based on medical products and services. Therefore, as long as
Parliament refrains from adding further provisions that differentiate on the
basis of disabilities, the general structure of the medical expense tax credit
remains unchanged: the distinction is based on types of medical products and
services and not on personal characteristics of taxpayers.
[52] Having concluded
that the distinction made by subsection 118.2(2) of the Act is
based on types of therapeutic substances and not physical characteristics of
people, it follows that the claimant has not shown that differential treatment
exists. She was not denied a benefit granted to a comparator group alike in all
ways relevant to the benefit, except for the personal characteristic associated
with an enumerated or analogous ground. If the Appellant had been able to show
that differential treatment exists, the third criterion of the Law test
would become relevant, and I will look at it next.
Has discrimination been effected?
[53] Since there is no
finding of differential treatment, for all practical purposes this question
becomes moot. However, as it raises some important issues of law, I will
nonetheless proceed by analyzing the third branch of the Law test as
though it had been found that subsection 118.2(2) of the Act
differentiates the Appellant on the basis of disability. As stated by the
Supreme Court of Canada in Law, the third question that the Court has to
answer is as follows:
Does the
differential treatment discriminate, by imposing a burden upon or withholding a
benefit from the claimant in a manner which reflects the stereotypical
application of presumed group or personal characteristics, or which otherwise
has the effect of perpetuating or promoting the view that the individual is
less capable or worthy of recognition or value as a human being or as a member
of Canadian society, equally deserving of concern, respect, and consideration?
[54] Furthermore, it
is well established that whether there is an infringement on human dignity is
to be determined by examining four contextual factors: (1) pre‑existing
disadvantage; (2) correspondence between the grounds upon which the
differential treatment is based and the claimant’s actual needs, capacities and
circumstances; (3) ameliorative purpose or effects; and (4) the
nature and scope of the interest affected by the impugned law. These four factors are not
exhaustive and should not be applied mechanically. Furthermore, the
appropriate perspective to be used in this analysis is a subjective-objective
one.
In Law, the Supreme Court of Canada emphasized that:
. . . Equality
analysis under the Charter is concerned with the perspective of a person
in circumstances similar to those of the claimant, who is informed of and
rationally takes into account the various contextual factors which determine
whether an impugned law infringes human dignity, as that concept is understood
for the purpose of s. 15(1).
[55] The Appellant argues that the differential treatment discriminates
against her by withholding a benefit, namely, the medical expense tax credit,
in a manner reflective of the stereotypical application of presumed group or
personal characteristics. The Appellant adds that the differential treatment
has the effect of promoting the view that she is less capable or worthy of
being valued as a human being or as a member of Canadian society deserving
concern, consideration and respect. To answer the Appellant’s allegation of
discrimination and to follow the guidelines set out by the Law test, I
have to examine whether individuals suffering from fibromyalgia, chronic
fatigue syndrome or multiple chemical sensitivities experience pre‑existing
disadvantages.
(a) Pre-existing disadvantage
[56] The Respondent
recognizes that individuals with disabilities have experienced disadvantages.
In Martin, the Supreme Court of Canada examined the pre-existing
disadvantage of individuals suffering from chronic pain. While the Court found
it unnecessary to make a finding on that issue, it noted that “many elements”
seemed to indicate that chronic pain sufferers have historically been subject
to disadvantages or stereotypes.
In the case at bar, some elements certainly point in the same direction. The
Appellant testified that she was not recognized as qualifying for an Armed Forces
pension until 11 years after she had left. None of the medical doctors
seemed to believe she was in fact suffering from a serious illness. She further
indicated that she was not taken seriously and was told by some medical doctors
that it was “all in her head”. For these reasons, I accept that individuals
suffering from fibromyalgia, chronic fatigue syndrome or multiple chemical
sensitivities are subject to a pre-existing disadvantage. However, this does not
automatically result in discrimination. It will depend on the circumstances of
each case and the other contextual factors involved. This leads me to examine
the second factor.
(b) Correspondence between the grounds upon which the differential
treatment is based and the claimant's actual needs, capacities and
circumstances
[57] With respect to
this factor, I will consider the relationship between the ground of distinction
and the actual needs, capacities and circumstances of individuals who suffer
from fibromyalgia, chronic fatigue syndrome or multiple chemical sensitivities. I have to ask the
following question: does subsection 118.2(2) of the Act take into
account the needs, capacities or circumstances of taxpayers suffering from
fibromyalgia, chronic fatigue syndrome or multiple chemical sensitivities in a
manner that respects their value as human beings and as members of Canadian
society?
[58] The Appellant
claims that she is left out from the benefits provided by subsection 118.2(2)
of the Act. More specifically, the Appellant argues that the said
provision is under-inclusive in that that it recognizes “a great multitude
of disabled persons in its listing of dozens of products and services, but has
practically nothing for her as a person with the disability of chronic fatigue
syndrome and multiple chemical sensitivities.” The Appellant further
argues that a reasonable person would sympathize with her situation or her
circumstances. In other words, the Appellant claims that the government acts as
if chronic fatigue syndrome were not a real medical condition and fails to
treat her with the respect and consideration she deserves.
[59] First, one should
note that the medical expense tax credit in the Act is a large‑scale
benefit program that is available to all taxpayers. In Martin, the
Supreme Court of Canada recognized that, with such large-scale social benefit
programs, general solutions, such as classification and standardization, are in
many cases necessary.
This is certainly the case with the medical expense tax credit under the Act.
It is impossible for the government to personalize the medical expense tax
credit in accordance with the individual medical needs of each taxpayer. In Law,
the Supreme Court of Canada described human dignity as follows:
. . . Human
dignity means that an individual or group feels self-respect and
self-worth. It is concerned with physical and psychological integrity and
empowerment. Human dignity is harmed by unfair treatment premised upon
personal traits or circumstances which do not relate to individual needs,
capacities, or merits. It is enhanced by laws which are sensitive to the needs,
capacities, and merits of different individuals, taking into account the
context underlying their differences.
[60] As mentioned previously, the medical expense tax credit, being a large‑scale
benefit program, cannot take into account every taxpayer’s needs. Furthermore,
there is no legal requirement that it do so.
I agree that subsection 118.2(2) of the Act does not allow the
Appellant to deduct all medical expenses that relate to her individual needs.
However, this was never the intended purpose of subsection 118.2(2) of the Act.
Also, the said provision does not exclude the Appellant on the basis of
personal traits or circumstances; it is not arbitrary, but, rather, it applies
equally to all taxpayers. Many taxpayers suffering from various types of
illnesses seek alternative medical treatment, thus it cannot be said that the
legislation draws a line based on physical characteristics. The government
simply had to define the scope of subsection 118.2(2); it did so on the
basis of the type of medical services and products. Consequently, the needs of
the Appellant have been taken into account by the government, since she
qualifies for some tax relief under that subsection.
(c)
Ameliorative purpose or effects
[61] In regard to this
contextual factor, the Supreme Court of Canada explained in Law:
Another
possibly important factor will be the ameliorative purpose or effects of
impugned legislation or other state action upon a more disadvantaged person or
group in society. As stated by Sopinka J. in Eaton, supra,
at para. 66: “the purpose of s. 15(1) of the Charter is not only to
prevent discrimination by the attribution of stereotypical characteristics to
individuals, but also to ameliorate the position of groups within Canadian
society who have suffered disadvantage by exclusion from mainstream
society”. An ameliorative purpose or effect which accords with the
purpose of s. 15(1) of the Charter will likely not violate the human
dignity of more advantaged individuals where the exclusion of these more
advantaged individuals largely corresponds to the greater need or the different
circumstances experienced by the disadvantaged group being targeted by the
legislation. I emphasize that this factor will likely only be
relevant where the person or group that is excluded from the scope of
ameliorative legislation or other state action is more advantaged in a relative
sense. Underinclusive ameliorative legislation that excludes from its
scope the members of a historically disadvantaged group will rarely escape the
charge of discrimination: see Vriend, supra, at paras.
94-104, per Cory J.
[Emphasize added]
[62] The Respondent asserts
that some taxpayers who benefit from subsection 118.2(2) might be in a
position of greater disadvantage than the Appellant. This may very well be
true, but the reverse might also be true. I do not think that the measuring of
relative disadvantages as between the Appellant and other disabled individuals
is the key point here. I have determined that the Appellant does belong to a
historically disadvantaged group and, as indicated by the Supreme Court of
Canada in Law, in such cases the threshold to escape the charge of
discrimination becomes high.
Nevertheless, the impugned provision in this case is a large‑scale
benefit program and its purpose is not to provide unlimited tax relief for all
medical expenses. It is not under-inclusive since it does provide individuals
suffering from fibromyalgia, chronic fatigue syndrome or multiple chemical
sensitivities with partial tax relief. This distinguishes the present case from
Martin, where the claimants were totally excluded under the Nova Scotia
Workers’ Compensation Act on the basis of their disabilities. Such is not the
case here, and for the above reasons, I conclude that the overall ameliorative
purpose of subsection 118.2(2) of the Act does not conflict with
the values enshrined in subsection 15(1) of the Charter.
(d) The nature and scope of the interest affected by the impugned law
[63] The last
contextual factor to be taken into account requires me to consider the nature
and scope of the interest affected by the impugned law. In Law the
Supreme Court of Canada explained this factor as follows:
A further
contextual factor which may be relevant in appropriate cases in determining
whether the claimant’s dignity has been violated will be the nature and scope
of the interest affected by the legislation. This point was well
explained by L’Heureux-Dubé J. in Egan, supra, at paras.
63-64. As she noted, at para. 63, “[i]f all other things are
equal, the more severe and localized the . . . consequences on the affected
group, the more likely that the distinction responsible for these consequences
is discriminatory within the meaning of s. 15 of the Charter”.
L’Heureux-Dubé J. explained, at para. 64, that the discriminatory calibre
of differential treatment cannot be fully appreciated without evaluating not
only the economic but also the constitutional and societal significance
attributed to the interest or interests adversely affected by the legislation
in question. Moreover, it is relevant to consider whether the distinction
restricts access to a fundamental social institution, or affects “a basic
aspect of full membership in Canadian society”, or “constitute[s] a complete
non-recognition of a particular group”.
[64] Accordingly, it
is necessary to examine whether the Appellant was denied access to a
fundamental social institution or was not recognized as being a full member of
Canadian society. The Respondent argues that the Appellant’s interests at stake
here are only financial. This question was examined in Martin, where the
Supreme Court of Canada stated:
. . . While
a s. 15(1) claim relating to an economic interest should generally be
accompanied by an explanation as to how the dignity of the person is engaged,
claimants need not rebut a presumption that economic disadvantage is unrelated
to human dignity. In many circumstances, economic deprivation itself may
lead to a loss of dignity. In other cases, it may be symptomatic of
widely held negative attitudes towards the claimants and thus reinforce the
assault on their dignity.
[65] While it is true
that the benefits of the medical expense tax credit are monetary, in light of
the Martin decision, deprivation of such monetary benefits may in some
circumstances lead to a loss of dignity. Therefore, it is not surprising that
the Appellant compares herself with the claimants in Martin. However, in
the case at bar, the situation is quite different. First, the Appellant is not
excluded from the scope of subsection 118.2(2) of the Act, since
for some medical expenses she did qualify for the credit. Second, the medical
expense tax credit only applies to taxpayers with an income high enough to
actually qualify for the credit. Many individuals suffering from the same
illness as the Appellant will not gain any benefit from the Appellant’s
proposed amendment to the medical expense tax credit provision of the Act.
This suggests that the medical expense tax credit is a financial benefit of
which only certain people can avail themselves. Therefore, if a medical expense
does not qualify under the Act, that is not by itself a denial of access
to some fundamental social institution, nor has the government failed to
recognize the claimant as being a full member of Canadian society.
Thus,
I conclude that, if under subsection 118.2(2) of the Act, there is differential
treatment of taxpayers suffering from fibromyalgia, chronic fatigue syndrome or
multiple chemical sensitivities, that differential treatment does not
discriminate against the Appellant. As shown above, subsection 118.2(2)
does not promote the view that the Appellant is less capable or less worthy of
recognition as a human being. The impugned law simply provides for a financial
benefit to qualifying taxpayers on the basis of qualifying services and
products. Consequently, there is no discrimination and subsection 118.2(2)
of the Act does not violate human dignity.
ISSUE 3
[66] If subsection 118.2(2) of the Act violates section 15
of the Charter, is that subsection saved by section 1 of the Charter
as demonstrably justifiable in a free and democratic society?
[67] If I were to assume that subsection 118.2(2) of the Act violates
subsection 15(1) of the Charter, the Respondent could then
demonstrate that such a violation is justified under section 1 of the Charter.
Section 1 reads as follows:
The Canadian Charter of Rights and Freedoms guarantees the rights
and freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.
[68] The test
applicable for a section 1 analysis was established by the Supreme Court of
Canada in R. v. Oakes.
It is a two-part test; first, in order to limit a constitutional guarantee, the
objective of the legislation must be pressing and substantial. Second, the court
has to determine if the limit is proportional to that objective in that it is
rationally connected to the legislative aims, it minimally impairs the
claimant’s rights to equality, and finally, its positive objectives and effects
outweigh the effects of the abridgement of those rights. Furthermore, the
standard of proof is the preponderance of probabilities and the onus in that
regard is on the Respondent.
(a) Pressing and substantial objective
[69] At this stage, it
is necessary to determine whether the objective of the impugned law is pressing
and substantial such that it justifies a restriction of an equality right. It
goes without saying that the legislator cannot legislate contrary to the principles
enshrined in section 15 of the Charter. To determine whether such has
been done, it is essential to find the legislator’s true objective. In other
words, what did Parliament intend to achieve when first enacting the medical expense
tax credit? It should be noted that the original intention might have changed
over time, and this will have to be taken into consideration.
[70] The purpose of
the medical expense tax credit provision of the Act has already been
examined, and I will refrain from repeating myself. In short, the purpose of
the medical expense tax credit is to alleviate the tax burden of taxpayers who
incur high medical expenses, within certain limits. These limits have been
intentionally drawn by the legislator, and subsection 118.2(2) was never
intended to accommodate every disability. The Appellant argues that this case
is different from Ali since it does not specifically question the
validity of the “recorded by a pharmacist” requirement set out in
paragraph 118.2(2)(n) of the Act. She stresses that “it
is time for this Honourable Court to take a fresh new approach”. Furthermore, the
Appellant argues that subsection 118.2(2) is not about the safety and
efficacy of medical products and services. I disagree; the legislator limited
the application of the medical expense tax credit provision in order to avoid
abuse and ensure that the provision is in line with concerns for safety and
efficacy. This is consistent with the decision rendered by Justice Woods in Ali,
in which she stated:
Assurance of safety and efficacy would not be met if the pharmacist‑recording
requirement were removed. The evidence as a whole suggests that the efficacy of
natural health products is very controversial. In terms of the safety and
efficacy of dietary supplements to treat FMS and CFS, Health Canada generally
has not required clinical trials for these products and the FMS Report and CFS
Report suggest that there is no general acceptance that NHPs generally are
efficacious to treat these conditions.
[71] While I agree
with the Appellant that the question in the Ali case was more
specifically directed towards paragraph 118.2(2)(n), the overall
purpose and objective of the medical expense tax credit provision remains
identical. It is quite evident that controlling the safety and efficacy of medication
is a pressing and substantive objective. It is important that the benefits
provided by the application of subsection 118.2(2) of the Act be
geared towards ensuring safe and efficacious medications. I do not suggest that
alternative medicine is unsafe or inefficacious; I wish rather to
emphasize that by restricting the application of subsection 118.2(2)
Parliament seeks to ensure that the tax relief is beneficial to taxpayers and
is within the monetary means of the government. Furthermore, the Appellant
argues that alternative medicine, such as herbal medicine, homeopathic
preparation, vitamins and mineral supplements are safe and “certainly much
more safe that [sic] pharmaceuticals”.
The Appellant further argues that natural products will have a natural
product number by the end of 2010 and that this could serve to ensure safety.
The Appellant also suggests that this Court “may mandate inclusion in the
medical expense tax credit of natural health products that have a government
approved Natural Product Number.”
Again, whether alternative medicines, such as natural medicaments, are safe is
not for this Court to determine, but is for Parliament to debate. What matters
at this stage of the analysis is that the safety and efficacy of medical
products and services was taken into consideration by the legislator when
determining the scope of subsection 118.2(2) of the Act. These
considerations are pressing and substantial objectives.
[72] The Respondent
also raises the issue of the government’s ability to control costs by limiting
the scope of the medical expense tax credit provision. As mentioned previously,
the medical expense tax credit is not an all-inclusive medical health plan, but
rather a limited and specific benefit available to taxpayers. In summary, the
objective of the impugned law, namely, to ensure that the benefit provides tax
relief with respect to safe and efficacious medical products and services as
well as to limit abuse and control costs in order to maintain the credit’s financial
sustainability, is a pressing and substantial objective. I will now examine
whether the limit imposed on the equality right is proportional to the
objective of subsection 118.2(2) of the Act. This question is
answered by evaluation of the three following elements.
(b) Proportionality
(i) Rational connection
[73] In Oakes,
the Supreme Court of Canada indicated that the law must be “carefully
designed to achieve the objective in question”; it should not be “arbitrary
unfair, or based on irrational considerations.” In the case at bar, the
question is whether subsection 118.2(2) of the Act logically supports
the underlying objective of the legislator. In Rodriguez v. British Columbia (Attorney General), the
Supreme Court of Canada makes it clear that a rule of law is arbitrary if there
is no rational connection with its objective. Subsection 118.2(2) of the Act
has as its purpose tax relief for specific health‑related expenses. This
reduction in taxes is only for specific products and services that have been
listed and defined by Parliament. There is a clear connection between: (1)
the goal of limiting tax relief for safe and efficacious services and products
and ensuring that the program is financially sustainable and (2) the limitative
scope of the services and products that are allowed to be claimed under
subsection 118.2(2) of the Act.
(ii) Minimal impairment
[74] Does the impugned law unnecessarily impair the Appellant’s rights? Her
case is a very deserving one and there is no doubt that the Appellant would
benefit from a medical expense tax credit that would include alternative
medicine and medicaments. However, unlike the situation in the Martin
case, the Appellant presently benefits from the tax credit; she is not excluded
entirely from the scheme. Furthermore, the only way for the government to control
a large-scale tax benefit is to narrow its scope and specify what is included
and what is not. As already mentioned, this process is carried out not
arbitrarily, but in the light of new medical technology. It is, moreover, not
up to this Court to rewrite policies in this regard. As indicated by the
Supreme Court of Canada in Chaoulli v. Quebec (Attorney General):
In past cases,
the Court has discussed a number of situations in which courts must show
deference, namely situations in which the government is required to mediate
between competing interests and to choose between a number of legislative
priorities (Irwin Toy Ltd. v. Quebec (Attorney General), [1989]
1 S.C.R. 927, at pp. 993‑94). It is also possible to
imagine situations in which a government might lack time to implement programs
or amend legislation following the emergence of new social, economic or
political conditions. The same is true of an ongoing situation in which
the government makes strategic choices with future consequences that a court is
not in a position to evaluate.
In short, a court must show deference where the
evidence establishes that the government has assigned proper weight to each of
the competing interests. Certain factors favour greater deference,
such as the prospective nature of the decision, the impact on public finances,
the multiplicity of competing interests, the difficulty of presenting
scientific evidence and the limited time available to the state. [Emphasis added]
[75] Considering its
limitative purpose, I conclude that subsection 118.2(2) does not unnecessarily
impair the Appellant’s rights under the Charter.
(iii) Do the positive objectives
and effects outweigh the effects of the abridgement of the Appellant’s rights?
[76] Peter W. Hogg
notes that what this test requires is “a balancing of the objective sought
by the law against the infringement of the Charter. It asks whether the Charter
infringement is too high a price to pay for the benefit of the law”.
[77] Here the
objective of the law outweighs the negative consequences; the fact that many
taxpayers who incur high medical expenses benefit from the medical expense tax
credit outweighs the fact that not all medical services and products can be
claimed. The more the effects of a given provision are negative for the
claimant the more difficult it becomes to justify its necessity. However, in
the case at bar, the detrimental effects on some taxpayers, who do not qualify
for the credit with respect to some of the expenses they incur for medical
products or services, is outweighed by the general purpose of the provision,
that is, to provide partial tax relief for specific medical expenses.
[78] Therefore, even
if subsection 118.2(2) of the Act infringes subsection 15(1)
of the Charter, such infringement can be justified under section 1 of
the Charter.
ISSUE 4
[79] Does the Tax
Court of Canada have jurisdiction to issue declarations and grant, under
section 52 of the Constitution Act, 1982, remedies consisting in
reading up, reading down or severing invalid legislation, specifically the
impugned provision of the Act?
[80] Since I have
concluded that there is no Charter violation, I find it unnecessary to
entertain this question.
CONCLUSION
[81] While her case is
a very deserving one, what the Appellant is really seeking is a legislative
change and not judicial review. That lies beyond the power of the judiciary.
[82] With regard to the medical expense tax credit, Parliament has to make
certain policy choices. In this particular case, the result might seem harsh
for the Appellant. One can only hope that current reality and the progress of
alternative medicine will be taken into consideration by Parliament and that
the Act will ultimately be amended.
[83] Therefore, I conclude that the Appellant shall only be allowed to claim
the amount of $3,253.74 as medical expenses, as agreed by the parties in their
Partial Agreed Statement of Facts. Consequently, the Appellant’s 2002 medical
tax credit is $244 [($3,253 - $1,728) x 16%]. For the reasons provided in this judgment,
the remaining portion of the medical expenses claimed, amounting to a total of $10,442.43,
ought to be ignored in the calculation of the Appellant’s medical tax credit.
Signed at Ottawa,
Canada, this 7th day of January 2008.
"Paul Bédard"
Appendix
Relevant
Statutory Provisions as they read in 2002.
118.2. Medical expense credit
(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 an amount determined by the formula
A(B - C) - D
where
A is the appropriate percentage for the year;
B is the total of the individual's medical expenses that are
proven by filing receipts therefor with the Minister, that were not included in
determining an amount under this subsection or subsection 122.51(2) for a
preceding taxation year and that were paid by either the individual or the
individual's legal representative,
(a) where the individual died
in the year, within any period of 24 months that includes the day of death, and
(b) in any other case, within
any period of 12 months ending in the year;
C is the lesser of $1,500 and 3% of the individual's income
for the year; and
D is 68% of the total of all amounts each of which is the
amount, if any, by which
(a) the income for the year
of a person (other than the individual and the individual's spouse or
common-law partner) in respect of whom an amount is included in computing the
individual's deduction under this section for the year
exceeds
(b) the amount used under
paragraph (c) of the description of B in subsection 118(1) for the year.
(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;
(b) [attendant or nursing
home care] - as remuneration for one full-time attendant (other than a
person who, at the time the remuneration is paid, is the individual's spouse or
common-law partner or is under 18 years of age) on, or for the full-time care
in a nursing home of, the patient in respect of whom an amount would, but for
paragraph 118.3(1)(c), be deductible under section 118.3 in computing a
taxpayer's tax payable under this Part for the taxation year in which the
expense was incurred;
(b.1) [attendant]
- as remuneration for attendant care provided in Canada to the patient if
(i) the patient is a
person in respect of whom an amount may be deducted under section 118.3 in
computing a taxpayer's tax payable under this Part for the taxation year in
which the expense was incurred,
(ii) no part of the remuneration is
included in computing a deduction claimed in respect of the patient under
section paragraph 63 or 64 or (b), (b.2), (c), (d) or (e) for any taxation
year,
(iii) at the time the remuneration
is paid, the attendant is neither the individual's spouse or common-law partner
nor under 18 years of age, and
(iv) each receipt filed with the
Minister to prove payment of the remuneration was issued by the payee and
contains, where the payee is an individual, that individual's Social Insurance
Number,
to the extent that the total of
amounts so paid does not exceed $10,000 (or $20,000 if the individual dies in
the year);
(b.2) [group home care] - as
remuneration for the patient's care or supervision provided in a group home in
Canada maintained and operated exclusively for the benefit of individuals who
have a severe and prolonged impairment, if
(i) because of the patient's
impairment, the patient is a person in respect of whom an amount may be
deducted under section 118.3 in computing a taxpayer's tax payable under this
Part for the taxation year in which the expense is incurred,
(ii) no part of the remuneration is
included in computing a deduction claimed in respect of the patient under
section paragraph 63 or 64 or (b), (b.1), (c), (d) or (e) for any taxation
year, and
(iii) each receipt filed with the
Minister to prove payment of the remuneration was issued by the payee and
contains, where the payee is an individual, that individual's Social Insurance
Number;
(c) [full-time attendant
at home] - as remuneration for one full-time attendant upon the patient in
a self-contained domestic establishment in which the patient lives, if
(i) the patient is, and has been
certified by a medical practitioner to be, a person who, by reason of mental or
physical infirmity, is and is likely to be for a long-continued period of
indefinite duration dependent on others for the patient's personal needs and
care and who, as a result thereof, requires a full-time attendant,
(ii) at the time the remuneration is
paid, the attendant is neither the individual's spouse or common-law partner
nor under 18 years of age, and
(iii) each receipt filed with the
Minister to prove payment of the remuneration was issued by the payee and
contains, where the payee is an individual, that individual's Social Insurance
Number;
(d) [nursing home care] - for
the full-time care in a nursing home of the patient, who has been certified by
a medical practitioner to be a person who, by reason of lack of normal mental
capacity, is and in the foreseeable future will continue to be dependent on
others for the patient's personal needs and care;
(e) [school, institution,
etc.] - for the care, or the care and training, at a school, institution or
other place of the patient, who has been certified by an appropriately
qualified person to be a person who, by reason of a physical or mental
handicap, requires the equipment, facilities or personnel specially provided by
that school, institution or other place for the care, or the care and training,
of individuals suffering from the handicap suffered by the patient;
(f) [ambulance fees] - for
transportation by ambulance to or from a public or licensed private hospital
for the patient;
(g) [transportation] - to
a person engaged in the business of providing transportation services, to the
extent that the payment is made for the transportation of
(i) the patient, and
(ii) one individual who accompanied
the patient, where the patient was, and has been certified by a medical
practitioner to be, incapable of travelling without the assistance of an
attendant
from the locality where the patient
dwells to a place, not less than 40 kilometres from that locality, where
medical services are normally provided, or from that place to that locality, if
(iii) substantially equivalent
medical services are not available in that locality,
(iv) the route travelled by the
patient is, having regard to the circumstances, a reasonably direct route, and
(v) the patient travels to that
place to obtain medical services for himself or herself and it is reasonable,
having regard to the circumstances, for the patient to travel to that place to
obtain those services;
(h) [travel expenses] - for
reasonable travel expenses (other than expenses described in paragraph (g))
incurred in respect of the patient and, where the patient was, and has been
certified by a medical practitioner to be, incapable of travelling without the
assistance of an attendant, in respect of one individual who accompanied the
patient, to obtain medical services in a place that is not less than 80
kilometres from the locality where the patient dwells if the circumstances
described in subparagraphs (g)(iii), (iv) and (v) apply;
(i) [devices] - for or
in respect of an artificial limb, iron lung, rocking bed for poliomyelitis
victims, wheel chair, crutches, spinal brace, brace for a limb, iliostomy or
colostomy pad, truss for hernia, artificial eye, laryngeal speaking aid, aid to
hearing or artificial kidney machine, for the patient;
(i.1) [devices for
incontinence] - for or in respect of diapers, disposable briefs, catheters,
catheter trays, tubing or other products required by the patient by reason of
incontinence caused by illness, injury or affliction;
(j) [eyeglasses] - for
eye glasses or other devices for the treatment or correction of a defect of
vision of the patient as prescribed by a medical practitioner or optometrist;
(k) [various] - for an
oxygen tent or other equipment necessary to administer oxygen or for insulin,
oxygen, liver extract injectible for pernicious anaemia or vitamin B12 for
pernicious anaemia, for use by the patient as prescribed by a medical
practitioner;
(l) [guide
dogs, etc.] - on behalf of the patient who is blind or profoundly deaf or
has a severe and prolonged impairment that markedly restricts the use of the
patient's arms or legs,
(i) for an animal
specially trained to assist the patient in coping with the impairment and
provided by a person or organization one of whose main purposes is such training
of animals,
(ii) for the care and maintenance of
such an animal, including food and veterinary care,
(iii) for reasonable travel expenses
of the patient incurred for the purpose of attending a school, institution or
other facility that trains, in the handling of such animals, individuals who
are so impaired, and
(iv) for reasonable board and
lodging expenses of the patient incurred for the purpose of the patient's
full-time attendance at a school, institution or other facility referred to in
subparagraph (iii);
(l.1) [transplant costs] -
on behalf of the patient who requires a bone marrow or organ transplant,
(i) for reasonable expenses (other
than expenses described in subparagraph (ii)), including legal fees and
insurance premiums, to locate a compatible donor and to arrange for the
transplant, and
(ii) for reasonable travel, board
and lodging expenses (other than expenses described in paragraphs (g) and (h))
of the donor (and one other person who accompanies the donor) and the patient
(and one other person who accompanies the patient) incurred in respect of the
transplant;
(l.2) [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;
(l.21) [home construction
costs] - for reasonable expenses, relating to the construction of the
principal place of residence of the patient who lacks normal physical
development or has a severe and prolonged mobility impairment, that can
reasonably be considered to be incremental costs incurred to enable the patient
to gain access to, or to be mobile or functional within, the patient's
principal place of residence;
(l.3) [lip reading and
sign language training] - for reasonable expenses relating to
rehabilitative therapy, including training in lip reading and sign language,
incurred to adjust for the patient's hearing or speech loss;
(l.4) [sign language
services] - on behalf of the patient who has a speech or hearing
impairment, for sign language interpretation services, to the extent that the
payment is made to a person engaged in the business of providing such services;
(l.5) [moving expenses] - for
reasonable moving expenses (within the meaning of subsection 62(3), but
not including any expense deducted under section 62 for any taxation year) of
the patient, who lacks normal physical development or has a severe and
prolonged mobility impairment, incurred for the purpose of the patient's move
to a dwelling that is more accessible by the patient or in which the patient is
more mobile or functional, if the total of the expenses claimed under this
paragraph by all persons in respect of the move does not exceed $2,000;
(l.6) [driveway
alterations] - for reasonable expenses relating to alterations to the
driveway of the principal place of residence of the patient who has a severe
and prolonged mobility impairment, to facilitate the patient's access to a bus;
(l.7) [van for wheelchair]
- for a van that, at the time of its acquisition or within 6 months after
that time, has been adapted for the transportation of the patient who requires
the use of a wheelchair, to the extent of the lesser of $5,000 and 20% of the
amount by which
(i) the amount paid
for the acquisition of the van
exceeds
(ii) the portion, if any, of the
amount referred to in subparagraph (i) that is included because of paragraph
(m) in computing the individual's deduction under this section for any taxation
year;
(l.8) [caregiver training]
- for reasonable expenses (other than amounts paid to a person who was at
the time of the payment the individual's spouse or common-law partner or a
person under 18 years of age) to train the individual, or a person related to
the individual, if the training relates to the mental or physical infirmity of
a person who
(i) is related to the
individual, and
(ii) is a member of the individual's
household or is dependent on the individual for support;
(l.9) [therapy] - as
remuneration for therapy provided to the patient because of the patient's
severe and prolonged impairment, if
(i) because of the patient's
impairment, an amount may be deducted under section 118.3 in computing a taxpayer's
tax payable under this Part for the taxation year in which the remuneration is
paid,
(ii) the therapy is prescribed by,
and administered under the general supervision of,
(A) a medical doctor or a
psychologist, in the case of mental impairment, and
(B) a medical doctor or an
occupational therapist, in the case of a physical impairment,
(iii) at the time the remuneration
is paid, the payee is neither the individual's spouse nor an individual who is
under 18 years of age, and
(iv) each receipt filed with the
Minister to prove payment of the remuneration was issued by the payee and
contains, where the payee is an individual, that individual's Social Insurance
Number;
(l.91) [tutoring services]
- as remuneration for tutoring services that are rendered to, and are
supplementary to the primary education of, the patient who
(i) has a learning
disability or a mental impairment, and
(ii) has been certified in writing
by a medical practitioner to be a person who, because of that disability or
impairment, requires those services,
if the payment is made to a person
ordinarily engaged in the business of providing such services to individuals
who are not related to the payee.
(m) [prescribed devices] -
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) 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;
to the extent that the amount so
paid does not exceed the amount, if any, prescribed in respect of the device or
equipment;
(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;
(o) [lab test] - for
laboratory, radiological or other diagnostic procedures or services together
with necessary interpretations, for maintaining health, preventing disease or
assisting in the diagnosis or treatment of any injury, illness or disability,
for the patient as prescribed by a medical practitioner or dentist;
(p) [dentures] - to a
person authorized under the laws of a province to carry on the business of a
dental mechanic, for the making or repairing of an upper or lower denture, or
for the taking of impressions, bite registrations and insertions in respect of
the making, producing, constructing and furnishing of an upper or lower
denture, for the patient; or
(q) [health plan premiums]
- as a premium, contribution or other consideration under a private health
services plan in respect of one or more of the individual, the individual's
spouse or common-law partner and any member of the individual's household with
whom the individual is connected by blood relationship, marriage, common-law
partnership or adoption, except to the extent that the premium, contribution or
consideration is deducted under subsection 20.01(1) in computing an
individual's income from a business for any taxation year.
(3) Deemed medical expense - For the purposes of subsection (1),
(a) any amount included in
computing an individual's income for a taxation year from an office or
employment in respect of a medical expense described in subsection (2) paid or
provided by an employer at a particular time shall be deemed to be a medical
expense paid by the individual at that time; and
(b) there shall not be
included as a medical expense of an individual any expense to the extent that
(i) the individual,
(ii) the person
referred to in subsection (2) as the patient,
(iii) any person
related to a person referred to in subparagraph (i) or (ii), or
(iv) the legal representative of any
person referred to in any of subparagraphs (i) to (iii)
is entitled to be reimbursed for the
expense, except to the extent that the amount of the reimbursement is required
to be included in computing income and is not deductible in computing taxable
income.
(4) Deemed payment of medical expenses - Where, in circumstances in which a
person engaged in the business of providing transportation services is not
readily available, an individual makes use of a vehicle for a purpose described
in paragraph (2)(g), the individual or the individual's legal representative
shall be deemed to have paid to a person engaged in the business of providing
transportation services, in respect of the operation of the vehicle, such
amount as is reasonable in the circumstances.
Regulation,
Part LVII — Medical Devices and Equipment [S. 5700]
5700. For the purposes of paragraph 118.2(2)(m) of the Act,
a device or equipment is prescribed if it is a
(a) wig made to order for an
individual who has suffered abnormal hair loss owing to disease, medical
treatment or accident;
(b) needle or syringe
designed to be used for the purpose of giving an injection;
(c) device or equipment,
including a replacement part, designed exclusively for use by an individual
suffering from a severe chronic respiratory ailment or a severe chronic immune
system disregulation, but not including an air conditioner, humidifier,
dehumidifier, heat pump or heat or air exchanger;
(c.1) air or water filter or
purifier for use by an individual who is suffering from a severe chronic
respiratory ailment or a severe chronic immune system disregulation to cope
with or overcome that ailment or disregulation;
(c.2) electric or sealed
combustion furnace acquired to replace a furnace that is neither an electric
furnace nor a sealed combustion furnace, where the replacement is necessary
solely because of a severe chronic respiratory ailment or a severe chronic
immune system disregulation;
(c.3) air conditioner
acquired for use by an individual to cope with the individual's severe chronic
ailment, disease or disorder, to the extent of the lesser of $1,000 and 50% of
the amount paid for the air conditioner;
(d) device or equipment
designed to pace or monitor the heart of an individual who suffers from heart
disease;
(e) orthopaedic shoe or boot
or an insert for a shoe or boot made to order for an individual in accordance
with a prescription to overcome a physical disability of the individual;
(f) power-operated guided
chair installation, for an individual, that is designed to be used solely in a
stairway;
(g) mechanical device or
equipment designed to be used to assist an individual to enter or leave a
bathtub or shower or to get on or off a toilet;
(h) hospital bed including
such attachments thereto as may have been included in a prescription therefor;
(i) device that is designed
to assist an individual in walking where the individual has a mobility
impairment;
(j) external breast
prosthesis that is required because of a mastectomy;
(k) teletypewriter or similar
device, including a telephone ringing indicator, that enables a deaf or mute
individual to make and receive telephone calls;
(l) optical scanner or
similar device designed to be used by a blind individual to enable him to read
print;
(m) power-operated lift or
transportation equipment designed exclusively for use by, or for, a disabled
individual to allow the individual access to different areas of a building or
to assist the individual to gain access to a vehicle or to place the
individual's wheelchair in or on a vehicle;
(n) device designed
exclusively to enable an individual with a mobility impairment to operate a
vehicle;
(o) device or equipment,
including a synthetic speech system, braille printer and large print-on-screen
device, designed exclusively to be used by a blind individual in the operation
of a computer;
(p) electronic speech synthesizer
that enables a mute individual to communicate by use of a portable keyboard;
(q) device to decode special
television signals to permit the script of a program to be visually displayed;
(q.1) a visual or vibratory
signalling device, including a visual fire alarm indicator, for an individual
with a hearing impairment;
(r) device designed to be
attached to infants diagnosed as being prone to sudden infant death syndrome in
order to sound an alarm if the infant ceases to breathe;
(s) infusion pump, including
diposable peripherals, used in the treatment of diabetes or a device designed
to enable a diabetic to measure the diabetic's blood sugar level;
(t) electronic or
computerized environmental control system designed exclusively for the use of
an individual with a severe and prolonged mobility restriction;
(u) extremity pump or elastic
support hose designed exclusively to relieve swelling caused by chronic
lymphedema;
(v) inductive coupling
osteogenesis stimulator for treating non-union of fractures or aiding in bone
fusion; and
(w) talking textbook
prescribed by a medical practitioner for use by an individual with a perceptual
disability, in connection with the individual's enrolment at an educational
institution in Canada.
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