[5] In his 2002 income tax return, the
appellant claimed $4,491 which he paid for treatments at that
health centre. In a reassessment dated
September 5, 2003, the Minister allowed a medical
expense credit of $1,116 but disallowed $3,375.
[6] Before resorting to alternative
medicine, the appellant consulted all manner of recognized
conventional medical doctors over a lengthy period.
Although the conventional medical expert said that the
surgical removal of two veins from his legs would cure him of his
ailments, it did not.
[7] In desperation, the appellant
resorted to alternative medicine, aiming ultimately to improve
his condition. By his appeal, he seeks to obtain a credit for the
medical expenses that he incurred for treatment.
[8] Essentially, the appellant's
evidence consisted of his testimony, which is aptly summarized in
his Notice of Appeal:
[TRANSLATION]
Further to your letters of August 14, 2003, and
January 12, 2004, regarding account number
. . . under the name DENIS ROY.
I
hereby contest your decisions for the following reasons:
I
have a diagnosis from my physician, Dr. Sylvain Gamelin stating
that I have poor circulation, which causes cramping pain and
swelling in my legs.
In 2000, I underwent an operation in which my two veins, from my
foot to the top of the knee, were removed.
My pains and circulation were completely unchanged after the
operation.
For two years, I have been getting alternative medicine
treatments from the thalassotherapy centre and from a few other
specialists who have all the specialized diplomas in therapy,
physiotherapy, orthotherapy and kinesitherapy, to get rid of my
cramping pain and the swelling in my knees. I have also been
getting pedicure treatments because of the fissures in my heals
and massage therapy to boost my circulation.
I
got five to seven treatments a day from the aforementioned
specialists involving progressive heat, lymphogel, manipulation
and massage to soften my vertebrae, nerves, etc. and restore them
to good condition. This was also done by getting pressure through
specialized inflating equipment, etc., etc.
I
have had no pain whatsoever since getting these treatments twice
a year. I have even returned to my normal activities without pain
or swelling.
I
trust you can give me back the $3,621 entered on line 332 of the
2002 tax return.
[9] In establishing and maintaining
the assessment for the 2002 taxation year, the Minister relied on
the following factual assumptions:
[TRANSLATION]
(a) The appellant claimed $4,491 in medical
expenses on the income tax return that he filed for the year in
issue;
(b) The Minister allowed $1,116 of this amount in
computing the medical expense credit;
(c) The Minister disallowed the following
medical expenses:
|
Provider
|
Treatment
|
Date of receipt
|
Amount
|
|
Aqua-Mer Inc.
|
thalassotherapy cure
|
November 2, 2002
|
$2,700.00
|
|
Aqua-Mer Inc.
|
Nasal hygiene cure, kinesitherapeutic mobilization,
capillary care and bathing cap
|
May 26, 2002
|
$225.40
|
|
Aqua-Mer Inc.
|
kinesitherapeutic mobilization
|
May 26, 2002
|
$40.26
|
|
Aqua-Mer Inc.
|
pedicure
|
November 3, 2002
|
$48.90
|
|
Centre de gymnastique respiratoire Géraldine
Gagné
|
respiratory gymnastics session
|
September 5, 2002
|
$320.00
|
|
Massage therapy
|
pedicure
|
September 14, 2002
|
$40.00
|
[10] The Minister allowed $1,116 of the
$4,491 claimed as medical expenses, thereby disallowing an amount
of $3,375.
[11] Relying on the Charter of
Rights, the appellant also argued that he had the fundamental
right and freedom to choose the people best able to treat him and
help him with his physical health problems.
[12] As an additional argument, he submitted
that Revenu Québec had recognized the amounts claimed as
legitimate.
[13] The appellant was undoubtedly entitled
to choose the person or persons who could help him with his
condition. It is also perfectly understandable that the appellant
has trouble understanding why his claim was accepted by
Revenu Québec and disallowed by the Canada Customs
and Revenue Agency.
[14] Although the appellant's case
elicits sympathy, he articulated the facts very clearly, and the
evidence showed beyond a doubt that the treatments he obtained
were beneficial to his health, the Court must dispose of this
appeal essentially by asking whether or not the disallowance was
warranted in view of the provisions of the Income Tax Act
("the ITA").
[15] All assessments must be based on the
provisions of the applicable or relevant statute. In the instant
case, the only relevant statute is the ITA.
[16] In order to be able to claim the
medical expense credit contemplated in subsection 118.2(1)
of the ITA, a taxpayer must inevitably have incurred medical
expenses within the meaning of the ITA. The relevant parts of
subsections 118.2(1) and (2) provide as follows:
118.2. (1) 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 ending in the
year;
. . .
118.2. (2) For the purposes of subsection (1),
a medical expense of an individual is an
amount paid
a)
to a medical practitioner, dentist or nurse or a
public or licensed private hospital in respect of dental or
medical 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;
. . .
[Emphasis mine.]
[17] Paragraph 118.4(2)(a) of the ITA
sets out an additional condition that must be met in order for
the medical expense to qualify under subsection 118.2(2).
The paragraph provides as follows:
118.4. (2) 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;
. . .
[Emphasis mine.]
[18] In order to benefit from the medical
expense credit, the appellant had to show that the expenses he
incurred for his treatments were medical expenses paid to a
medical doctor authorized to practice his profession
pursuant to the legislation applicable in the province of
Quebec.
[19] The appellant himself admitted that the
payments were made to persons who practiced and offered a
non-traditional approach that differed fundamentally from
the approaches offered by conventional physicians.
[20] If Parliament had wished to grant a
credit for medical expenses paid to a massage therapist, it would
have named the relevant category or categories of alternative
medicine practitioners in paragraph 118.2(2)(a) of the
ITA.
[21] In enacting
paragraph 118.4(2)(a) and referring to provincial
legislation, Parliament was simply seeking to ensure that
taxpayers can avail themselves of the medical expense credit only
if they have paid the medical expense to a medical doctor
authorized to practice his profession. Consequently, the medical
doctor must be a member of the Ordre des médecins, a
fundamental requirement that must be met in order to be a
physician under the laws of the province of Quebec.
[22] The amount paid and claimed by the
appellant was for a thalassotherapy cure at Aqua-Mer Inc., a
gymnastics session ($320.00), a nasal hygiene cure ($225.40),
some kinesitherapeutic mobilization ($40.26) and a pedicure
($48.90).
[23] Unfortunately for the appellant, these
expenses cannot be considered medical expenses within the
meaning of paragraph 118.2(2)(a) of the ITA, even
though the care greatly improved his physical condition.
[24] Paragraph 118.4(2)(a)
refers us to the laws of the province of Quebec.
Upon reading the provision, it is very clear that
"medical doctor" cannot include a thalassotherapist,
massage therapist, etc.
[25] The definition of "physician"
in section 1 of the Medical Act,
R.S.Q., chapter M-9, refers to a person entered on the
roll. The term "roll", also defined in section 1,
means the list of the members in good standing of the Order,
prepared in accordance with the Professional Code and this
Act. Lastly, the term "Order" is a reference to the
Ordre des médecins du Québec, constituted by this
Act. Here is how these definitions in section 1 of the Medical
Act are worded:
(c)
"physician" or "member of the Order": any person entered on the
roll;
(g) "roll":
the list of the members in good standing of the Order, prepared
in accordance with the Professional Code and this Act.
(a) "Order":
the Ordre des médecins du Québec, constituted by
this Act;
[26] Thus, it is clear that the
thalassotherapists and massage therapists that may have provided
services for which the appellant seeks a deduction are not
entered on the roll of physicians maintained by the Ordre des
médecins in the province of Quebec.
[27] With regard to the argument that Revenu
Québec accepted his claim, I will simply note that in
order for a medical expense to be eligible for tax credits under
Quebec's Taxation Act, it appears to be sufficient
that it was paid to a "practitioner". Obviously, the
term "practitioner" is more general than the term
"medical doctor".
[28] The appellant undoubtedly did not incur
medical expenses within the meaning of the ITA: while he did
incur expenses for treatment, these expenses were not paid to a
medical doctor, as contemplated in
paragraph 118.2(2)(a) of the ITA.
[29] I understand that most taxpayers faced
with health problems clearly feel that expenses paid to
alternative medical practitioners should entitle them to the
medical expense credit, especially when the treatments in
question reduced or even cured or eliminated the pain that
conventional medicine could not. However, it is not up to this
Court to resolve this issue. In Bley v. Canada,
No. 2000-3259(IT)I, April 5, 2001, [2001]
T.C.J. No. 206 (QL), Judge Margeson of the Tax Court of
Canada closed with the following words of sympathy for the
taxpayer:
17. The Court takes note
of the Appellant's arguments, and it has great sympathy for
her and realizes that she has spent a large amount of money in
trying to benefit herself and improve her condition but there is
no section of the Act or the Regulations which would allow the
Court to allow the appeal and grant the deductions which are
sought.
18. At the end of the day,
unfortunately and regretfully, the Court will confirm the
Minister's assessment and dismiss the appeal.
[30] For the above reasons, the appeal must
be dismissed.
Signed at Ottawa, Canada, this 6th day of December 2004.
Tardif J.
Translation certified true
on this 14th day of February 2005
Jacques Deschênes, Translator
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