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Citation: 2004TCC687
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Date: 20041022
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Docket: 2003-3877(IT)I
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BETWEEN:
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KATHRYN E. NODDIN,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Bowie J.
[1] These appeals are from income tax
assessments for the 2001 and 2002 taxation years. At issue is the
Appellant's claim to include her expenses for massage therapy
treatment in computing her medical expense tax credits under
section 118.2 of the Income Tax Act (the Act). She
challenges the validity of sections 118.2, 118.3 and 118.4,
arguing that they do not conform to the requirement of equality
under the law found in section 15 of the Canadian Charter of
Rights and Freedoms. She has served notice that she proposed
to make this challenge to the validity of the legislation on the
Attorneys General of Canada and of the provinces and territories
as section 19.2 of the Tax Court of Canada Act requires.
The Attorney General of Canada, of course, appears for the
Respondent. None of the other Attorneys General appeared.
[2] The relevant parts of sections
118.2, 118.3 and 118.4 of the Act read:
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)
...
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 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)
...
118.3(1) Where
(a) an
individual has a severe and prolonged mental or physical
impairment,
(a.1) the effects of the
impairment are such that the individual's ability to perform
a basic activity of daily living is markedly restricted or would
be markedly restricted but for therapy that
(i) is
essential to sustain a vital function of the individual,
(ii) is required to
be administered at least three times each week for a total
duration averaging not less than 14 hours a week, and
(iii) cannot reasonably be
expected to be of significant benefit to persons who are not so
impaired,
(a.2) in the case of
(i) a sight
impairment, a medical doctor or an optometrist,
(i.1) a speech impairment, a
medical doctor or a speech-language pathologist,
(ii) a hearing
impairment, a medical doctor or an audiologist,
(iii) an impairment with
respect to an individual's ability in feeding or dressing
themself, or in walking, a medical doctor or an occupational
therapist,
(iv) an impairment with
respect to an individual's ability in perceiving, thinking
and remembering, a medical doctor or a psychologist, and
(v) an impairment
not referred to in any of subparagraphs (i) to (iv), a medical
doctor
has certified in prescribed form that the impairment is a
severe and prolonged mental or physical impairment the effects of
which are such that the individual's ability to perform a
basic activity of daily living is markedly restricted or would be
markedly restricted but for therapy referred to in paragraph
(a.1),
(b)
...
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;
(b) where the
reference is used in respect of a certificate issued by the
person in respect of a taxpayer, pursuant to the laws of the
jurisdiction in which the taxpayer resides or of a province;
and
(c) where the
reference is used in respect of a prescription issued by the
person for property to be provided to or for the use of a
taxpayer, pursuant to the laws of the jurisdiction in which the
taxpayer resides, of a province or of the jurisdiction in which
the property is provided.
Subsection 15(1) of the Charter reads:
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
[3] The facts are not in dispute. The
Appellant suffers severe chronic pain. It is not necessary to go
into the specifics of it. It is sufficient to say that the pain
is not readily controlled, that her physician has prescribed
massage therapy treatment for it, and that that treatment has
provided her with some measure of relief. She has undertaken
massage therapy treatment regularly for some years now, including
the two taxation years in question. Ms. Noddin received her
treatments at Advanced Therapeutic Treatment Centre in
Fredericton, New Brunswick.
[4] Angela Brown is the therapist who
administered these treatments to her in 2001 and 2002. She is a
member of the College of Massage Therapists of Ontario, and is
qualified to practice massage therapy under the Massage
Therapy Act, 1991[1] and the Regulated Health Professions
Act, 1991,[2]
of that province. The Appellant contends that this brings her
within the meaning of the expression "medical
practitioner" found in subsection 118.4(2) of the
Act. The Respondent admits this in paragraph 5 of the
Amended Reply, which reads in part:
He admits that Ms. Angela Brown, MT, qualifies as a medical
practitioner in the province of Ontario and that amounts paid to
a registered massage therapist in the provinces of Ontario and
British Columbia qualify as medical expenses as stated in
paragraph 5 of the Notice of the Appeal filed October 2,
2003.
An examination of the relevant Ontario and British Columbia
legislation leads me to doubt that this is correct.[3] However, the appeals
were argued before me on that basis and so I shall assume for
purposes of my decision that Ms. Brown is a medical practitioner
duly qualified under the laws of the province of Ontario.
[5] The laws of the province of New
Brunswick do not recognize massage therapy as a profession. There
is an Association of Massage Therapists within the province, and
Angela Brown is a member of it. Her skill and experience are no
doubt the same whether she practices her profession in Ontario or
New Brunswick, and the beneficial effects on her patients the
same as well. But she is not authorized to practice in New
Brunswick pursuant to the laws of New Brunswick, because New
Brunswick laws do not address the authorization of massage
therapists to practice there; no one is authorized by law to
practice massage therapy in New Brunswick, and so the Act
does not permit a tax credit based on the cost of massage therapy
received there.
[6] Ms. Noddin says that the Income
Tax Act must treat everyone equally throughout Canada, as it
is federal legislation. Section 15 of the Charter mandates
this, she says. There cannot be equality if people in different
provinces are treated differently in respect of the same
treatments received from therapists having the same
qualifications. She argues that Parliament has the necessary
authority to define those services whose cost enables a tax
credit in a way that is universal across the country and not
dependent on provincial laws, and that it should do so.
[7] The question for me to decide,
however, is not whether there is a better policy alternative open
to Parliament than the one it has chosen, but whether the one it
has chosen is unconstitutional. In considering this, I must be
guided by the principles that the Supreme Court of Canada
enunciated in Law v. Canada.[4] The three elements that are required
to render legislation unconstitutional under section 15 of the
Charter are found there at paragraph [39]:
In my view, the proper approach to analyzing a claim of
discrimination under s. 15(1) of the Charter involves a synthesis
of these various articulations. Following upon the
analysis in Andrews, supra, and the two-step framework set
out in Egan, supra, and Miron, supra, among other
cases, a court that is called upon to determine a discrimination
claim under s. 15(1) should make the following three broad
inquiries. First, 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? If so, there is
differential treatment for the purpose of s. 15(1). Second, was
the claimant subject to differential treatment on the basis of
one or more of the enumerated and analogous grounds? And third,
does the differential treatment discriminate in a substantive
sense, bringing into play the purpose of s. 15(1) of the Charter
in remedying such ills as prejudice, stereotyping, and historical
disadvantage? The second and third inquiries are
concerned with whether the differential treatment constitutes
discrimination in the substantive sense intended by s. 15(1).
How, then, do the impugned provisions of the Income Tax
Act fare under this test?
[8] The Appellant says that she is
discriminated against on the basis of her province of residence.
The governing words in subsection 118.4(2) of the Act
refer to "... the laws of the jurisdiction in which the
service is rendered;". The criterion is not province of
residence, although that will often govern the place of
treatment, at least in cases such as this where the treatment is
ongoing for a considerable period. Clearly the policy objective
is that the credit is to be available only where there is some
legislated assurance of competence of the person administering
the service. Differentiation on that basis (absent any evidence
of systemic discriminatory result) does not offend section 15.
There simply is no basis to say that different treatment under
these sections of the Act is based on some personal
characteristic of the person receiving the service and incurring
the expense.
[9] Province of residence (even if it
were considered the basis of differentiation) is not an
enumerated ground under section 15, nor is there any basis to
consider it an analogous ground to those enumerated. Similar
arguments have been advanced by way of constitutional attack on
other statutes of Canada, and have been unsuccessful. In R. v.
Turpin,[5] the
Supreme Court held that a provision of the Criminal Code
permitting trial by judge alone in Alberta, but not in the other
provinces, was not offensive to section 15 of the Charter.
Similarly, the absence of an alternative measures program under
the Young Offenders Act in Ontario, although implemented
in other provinces, was not unconstitutional.[6] It was held that Parliament may
create a regime of criminal procedure applying to young offenders
that permits different provinces to implement different
procedures according to their perceived needs and objectives.
[10] Even if the Appellant were able to
satisfy the first two requirements of the test in Law v.
Canada, she could not succeed. To deny a tax credit to
someone who takes treatment from a therapist on the basis that
the therapist practices in a province where there is no
legislated scheme of licensing could not be said to have the
effect of treating that person as less worthy of concern or
respect, or in a way that offends her human dignity. It simply is
not discrimination of the kind with which section 15 is
concerned.
[11] Ms. Noddin referred me to the decision
of the New Brunswick Court of Appeal in Axa Insurance Company
v. Rolfe.[7] In
that case the Court had to determine whether massage therapy,
when prescribed by a physician, fell within the meaning of the
expression "medical services" as it is used in New
Brunswick's Standard Automobile Policy of Insurance. The
Court found that it did, for reasons that I need not dwell on.
This case is of no assistance to the Appellant, however, because
subsections 118.2(2) and 118.4(2) together define very precisely
what is a "medical expense" for purposes of the credit
that subsection 118.2(1) provides. The payment must be made
"to a medical practitioner, dentist or nurse or a ...
hospital in respect of medical or dental services ...".
Where the expense relates to a service rendered, as it does here,
the payment must have been made to a person authorized to
practice pursuant to the laws of the place where that service was
rendered. It is that precise language that must be satisfied if
the Appellant is to succeed, not the less stringent requirement
of the no-fault insurance policy. The decision in Axa
Insurance Company has no application.
[12] The Appellant no doubt genuinely feels
that she is financially disadvantaged with respect to her claim
for medical expense tax credits, as compared to other Canadians
living in other provinces. However, the cause of her
dissatisfaction is a legitimate policy choice that Parliament has
made, and is entitled to make. It does not warrant any judicial
intervention.
[13] The appeals are dismissed.
Signed at Ottawa, Canada, this 22nd day of October, 2004.
Bowie J.
APPENDIX
ONTARIO
Interpretation Act, R.S.O. 1990, Chapter l.11
29(1) In every Act, unless the context otherwise
requires,
...
"legally qualified medical practitioner", "duly
qualified medical practitioner", or any words importing
legal recognition of a person as a medical practitioner or member
of the medical profession, means a member of the College of
Physicians and Surgeons of Ontario; ("médecin
dûment qualifié", "médecin
dûment qualifié pour exercer sa
profession")
Prior to 1998, this definition read:
"legally qualified medical practitioner", "duly
qualified medical practitioner", or any words importing
legal recognition of a person as a medical practitioner or member
of the medical profession, means a person licensed under Part III
of the Health Disciplines Act; ("médecin
dûment qualifié", "médecin
dûment qualifié pour exercer sa
profession")
BRITISH COLUMBIA
Interpretation Act, R.S.B.C., c. 238
29 In an enactment:
...
"medical practitioner" means a person entitled to
practise under the Medical Practitioners Act;
Medical Practitioners Act, R.S.B.C., c. 285,
34(1) A person is entitled to be registered under this
Act if the person does all of the following:
(a) produces a diploma of
qualification issued to the person by a college or school of
medicine that at the time the person graduated from it was
approved by the council;
(b) produces satisfactory
evidence of identification, experience, good professional conduct
and good character as a citizen;
(c) passes before a board
of examiners appointed or approved by the council an examination
touching the person's fitness and capacity to practise as a
physician and surgeon;
(d) pays the fee set by the
council for registration.
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