Mahaffy v. The Queen, 2003 TCC 455 (Informal Procedure)

REASONS FOR JUDGMENT

(delivered orally from the bench at

St. Catharines, Ontario on January 28, 2003)

Bell, J.T.C.C.

[1]      It is of some assistance to you that the Justice Department determined that "medical practitioner" for its practice would include a naturopath. I'm personally aware of a number of alternative medical processes and techniques that have been of extraordinary assistance to people when what is described as "regular medical treatment" was of little or no use, and in those circumstances, the conventional medical practitioners were not terribly charitable to the person who was seeking alternative aid. These include naturopathic care, craniosacral care and a number of things like that. They include, I suppose, biofeedback, hypnotic procedures and a number of other things.

[2]      Unfortunately, legislation lags behind social change and social change includes much more attention by an individual to that individual without almost -- thoughtlessly submitting oneself to the care of someone who has had a number of years of instruction in one method of dealing with physical problems.

[3]      I don't mean to vilify or berate or denigrate the regular medical practice but it does, in my experience, have an ability to close its eyes to suggestions that other things might be of assistance, other procedures and techniques.

[4]      Unfortunately, the lagging legislation has not yet paid attention to the facts that you have presented, Ms. Mahaffy, and that may assist in your case, and I am unable to assist you with what you request because of the strict language in the Income Tax Act. And I can't interpret "prescribed" to mean and include "recommended" because there's a traditional meaning to be attached to the word "prescribed."

[5]      I feel that cases like yours are terribly important. They're important because you have the opportunity of expressing something that you have achieved. It is not your naturopath. You have achieved this yourself with his suggestion and recommendation and you chose to ignore prescription. And I think the more of those cases that are made public and the results of them made public, the more the growing attention towards alternative care in our society will steamroll. And it is people like you who are to be commended for advancing the cause of people having the same type of financial assistance in a tax fashion that other people who go to regular and traditional medical practitioners receive.

[6]      Now, I know nothing about whether lobbies continue to influence the legislation in this regard or not. When I say "continue," there are obviously lobbies that deal with alteration of the Income Tax Act to the satisfaction of their industry or their pursuit. And it's very frustrating for me to hear of a case like yours. I have, and I'll say this, believed in alternative medical procedures for years and years and years and I've watched what some people would call "miracles" happen as a result of the pursuit of those procedures with non-traditional medicine intervening.

[7]      I think that the only way that this can change is if examples such as yours, Ms. Mahaffy, are made known to the legislative process, to Members of Parliament because it is federal legislation. And if the societies and groups of people who practice in these different areas are able to combine with people like you to advance that, we'll have some alteration.

[8]      I'm delighted to see a little break-through with the Department of Justice's attitude respecting the term "medical practitioner."

[9]      Now, having said all that, I am not in a position to change legislation and I am not in a position to use discretion to make these words jump around and rearrange themselves and say something that they don't say. They are as they are. This is the rule book and my attempting to interpret some of these words and subsections to your benefit would only result in you being in another forum called the Federal Court of Appeal repeating yourself and wondering what you were doing, because I think you've made your point very articulately, very forthrightly, and extremely well.

[10]     Having said all that, I can't help you. I think you have come to the equivalent of a medical practitioner by walking in here asking for the assistance you'd like, and I am limited by the system and by rules in being able to assist you. If I could make the rules, this case would have a different result today. But that is what I am bound to do, given the profession that I have chosen.

[11]     So thank you for coming here. Good luck. You are a good envoy and ambassador for the very cause that you have pursued.

[12]     The appeal will be allowed to the extent only that $1,177.24 paid by the Appellant to Dr. Prytulla is deductible.

Signed at Ottawa, Canada this 8th day of July, 2003.

J.T.C.C.