Date: 20010906
Docket: 2001-482-IT-I
BETWEEN:
JANICE S. BISHOFF,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
O'Connor, J.T.C.C.
[1]
This appeal pursuant to the Informal Procedure was heard on July
27, 2001 at Edmonton, Alberta.
Issues
[2]
The issues are:
(a)
Whether in the 1998 taxation year the Appellant is entitled to
deduct certain homeopathic expenses as medical expenses as
defined in subsection 118.2(2) of the Income Tax Act
("Act") and Regulation 5700 of the Income Tax
Regulations ("Regulations") in calculating
her medical tax credits in the computation of her
non-refundable tax credits for that year; and
(b)
Whether the Appellant is liable to pay interest for the 1998
taxation year pursuant to subsection 161(1) of the
Act.
[3]
The Reply to the Notice of Appeal except as noted below,
accurately describes the facts as follows:
3.
In computing her tax liability for the 1998 Taxation Year, the
Appellant claimed, in the computation of her non-refundable
tax credits and tax payable, an amount of $4,013.20 as medical
expenses as described below:
|
Description
|
Amount Paid
|
|
|
|
|
Medical travel mileage
|
$ 319.50
|
|
Medical travel meals
|
63.05
|
|
Ana's Herbal Tree
|
377.84
|
|
Ana's Herbal Tree
|
1,248.33
|
|
Ana's Herbal Tree
|
172.76
|
|
Health 4 U
|
761.13
|
|
Mutual Group
|
864.29
|
|
Great West Life
|
206.30
|
|
|
$4,013.20
|
4.
By means of Notice of Reassessment dated
February 16, 2000, the Minister of National Revenue
(the "Minister") reduced the amount of medical expenses
referred to in paragraph 3 above from $4,013.20 to $1,453.14
detailed as follows:
|
Description
|
Amount Paid
|
|
|
|
|
Medical travel mileage
|
$ 319.50
|
|
Medical travel meals
|
63.05
|
|
Mutual Group
|
864.29
|
|
Great West Life
|
206.30
|
|
|
$1,453.14
|
5.
The Appellant filed a Notice of Objection to the reassessment,
postmarked May 13, 2000.
6.
The Minister confirmed the reassessment by means of a Notice of
Confirmation dated October 20, 2000.
7.
In so reassessing the Appellant, the Minister made the following
assumptions of fact:
(a)
...
(b)
the Appellant claimed $2,560.06 as a Homeopathic medical expense
(the "Homeopathic expenses");
(c)
the Homeopathic expenses were not purchased for use by the
Appellant as prescribed by a medical practitioner or dentist and
as recorded by a pharmacist; and
(d)
the Homeopathic expenses were not considered medical
expenses;
(e)
the income tax return for the 1998 Taxation Year was required to
be filed on April 30, 1999;
(f)
the federal tax payable by the Appellant for the
1998 Taxation Year which was unpaid on
April 30, 1999 amounted to $442.56 (the
"Excess"); and
(g)
prescribed interest on the Excess from May 1, 1999 to the date of
the reassessment amounts to $53.90.
[4]
The Appellant through her agent and husband, James W. Bishoff,
agrees with all of the facts with the exception of
paragraphs 7(c) and 7(d).
[5]
The Appellant submits that Dr. Maria Zanoaga qualifies as a
medical practitioner and that the expenses should qualify
notwithstanding the fact the products were purchased at health
food stores and were not recorded by a pharmacist.
[6]
The Appellant's agent produced a Bulletin from Health Canada,
which reads as follows:
Natural health products (NHPs) have become an extremely
important part of our self-care decisions. Over 50% of Canadians
now consume natural health products in the form of traditional
herbal products, vitamins and mineral supplements, traditional
Chinese, Ayurvedic and other medicines and homeopathic
preparations.
Canadians from all walks of life have made it clear that they
want freedom of choice in making health decisions. They want
enhanced access and choice to a full range of natural health
products, along with an assurance of safety and quality.
In 1997, Health Canada responded to these concerns by
establishing an advisory panel to provide direction and advice.
In November 1997, Health Minister Allan Rock asked the Standing
Committee on Health to conduct a full public review and provide
recommendations on the regulation of natural health products.
The establishment of the Office of Natural Health Products
(ONHP) is based on the 53 recommendations contained in the
Standing Committee on Health's report "Natural Health
Products: A New Vision". The recommendations respond to the
concerns of Canadian consumers, health care providers and
industry. They call for a new Office and regulatory framework for
natural health products to be set up within Health Canada.
On March 26, 1999, Health Minister Allan Rock accepted the
recommendations of the Standing Committee. In announcing the
establishment of the Office of Natural Health Products, he set a
new course for the way natural health products will be regulated
in Canada.
"The creation of the new Office of Natural Health
Products is a major step forward for consumers," Mr. Rock
said. "For the first time, there will be a dedicated group
of professional experts who will treat the evaluation of health
products with the distinctiveness and flexibility it
deserves."
He added that the new Office will provide Canadian consumers
with the assurance of safety while enhancing consumer access and
choice to a full range of natural health products.
In this and subsequent statements, the Minister also set in
motion the elements needed to bring about a fresh approach to the
regulation of such products. $7 million is being allocated over
the next 3 years to establish the new Office. An additional $3
million over 3 years will be allocated to fund natural health
product research.
The Office will be a new regulatory authority, separate from
the Therapeutic Products Programme and Food Directorate,
reporting to the Assistant Deputy Minister, Health Protection
Branch. It will be staffed with a small core of those with
expertise and experience in natural health products. It will draw
further expertise from an Expert Advisory Committee and other
external groups in order to develop and maintain a new regulatory
framework.
Health Canada will consult regularly with Canadians as the new
Office moves to implement the recommendations of the
Parliamentary Standing Committee on Health. Natural health
products will continue to be regulated either as foods or drugs
until the new regulatory framework is established.
[7]
The agent for the Appellant also refers to Interpretation
Bulletin IT-519R2, which states among other things that a
"medical practitioner" encompasses a broad range of
individuals in a medical profession and refers to
paragraph 4 of the Bulletin, which reads as follows:
4.
For purposes of the medical expense and disability tax credits
under sections 118.2 and 118.3, subsection 118.4(2)
provides that a reference to a medical practitioner, dentist,
pharmacist, nurse or optometrist means a person who is authorized
to practice as such according to the following laws: ...
(b)
for a certificate issued for an individual, the laws of the
jurisdiction in which the individual resides or of a province;
and
...
Medical practitioners authorized to practice in accordance
with the above laws can include (depending on the applicable
province or jurisdiction, as the case may be) the following:
...
(iii) a
naturopath;
Analysis
[8]
Paragraph 118.2(2)(n) of the Act provides that only
expenses incurred for drugs, medicaments and other preparations
or substances purchased for use by the patient as prescribed by a
medical practitioner and as recorded by a pharmacist can be
claimed.
[9]
Counsel for the Respondent submits that firstly Dr. Zanoaga does
not qualify as a medical practitioner under the laws of the
province of Alberta. In this regard he refers to the Health
Disciplines Act R.S.A. 1980 c. H-3.5 and the schedule thereto
which enumerates the Designated Health Disciplines. Counsel
points out that none of the disciplines refer to a herbalist or
iridologist, which are the qualifications of Dr. Zanoaga. He
states further that the jurisdiction in question is Alberta and
that the Act and Schedule apply and since Dr.
Zanoaga is not listed in the designated disciplines and further
since she possesses no licence from the province of Alberta to
practice (although she does have a business licence from the City
of Edmonton) for that reason alone the Appellant cannot succeed.
He adds that since the vitamins, herbs and other things that the
Appellant took were not recorded by a pharmacist, for that reason
also the Appellant cannot succeed.
[10] Counsel
for the Respondent also referred to several decisions including
Banman v. Canada, [2001] T.C.J. No. 111 (T.C.C.) where
Bowman, T.C.J., as he then was, stated:
4.
I have great sympathy for the appellant. I think she has very
intelligently gone to an alternative method of treatment and has
successfully treated medical conditions of her husband, herself
and her daughter. Nonetheless, the herbal preparations, the
vitamins and other things that she takes that she purchases from
Natural Lifestyle are not prescribed by a medical practitioner or
dentist and are not recorded by a pharmacist. That is the key
condition and unfortunately it is not met. I have to take the law
as I find it. I would like to be able to help them, but I merely
interpret the law. Counsel referred me to a couple of cases.
Mongillo v. The Queen, 95 D.T.C. 199, and
Williams v. R., [1998] 1 C.T.C. 2813.
[11] I echo
the above comments of Bowman, T.C.J. Regrettably, for the reasons
set forth in Banman, the Appellant in this appeal cannot
succeed. Firstly, it has not been established that Dr. Zanoaga is
a medical practitioner within the definitions discussed above and
moreover it is clear that the items purchased were not recorded
by a pharmacist.
[12] The law
may well change in the future to give further recognition to
natural health products such as herbal products, vitamins and
mineral supplements and other homeopathic preparations but I am
obliged to enforce the law as it existed in 1998. Consequently
the appeal must be dismissed. I would add that on the issue of
interest, this Court has no jurisdiction to alter the interest
charged and consequently the appeal on that issue must also be
dismissed. There shall be no costs.
Signed at Ottawa, Canada, this 6th day of September, 2001.
"T. O'Connor"
J.T.C.C.
COURT FILE
NO.:
2001-482(IT)I
STYLE OF
CAUSE:
Janice S. Bishoff v. The Queen
PLACE OF
HEARING:
Edmonton, Alberta
DATE OF
HEARING:
July 27, 2001
REASONS FOR JUDGMENT BY: The
Honourable Judge Terrence O'Connor
DATE OF
JUDGMENT:
September 6, 2001
APPEARANCES:
Agent for the
Appellant:
James W. Bishoff
Counsel for the
Respondent:
R. Scott McDougall
COUNSEL OF RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-482(IT)I
BETWEEN:
JANICE S. BISHOFF,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on July 27, 2001 at Edmonton,
Alberta by
the Honourable Judge Terrence O'Connor
Appearances
Agent for the
Appellant:
James W.
Bishoff
Counsel for the
Respondent:
R. Scott McDougall
JUDGMENT
The
appeal from the reassessment made under the Income Tax Act
for the 1998 taxation year is dismissed, without costs, in
accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 6th day of
September, 2001.
J.T.C.C.
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