Date: 20010629
Docket: 2000-5023-IT-I
BETWEEN:
ANNA MAURO,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
__________________________________________________________________
For the Appellant: The Appellant herself
Counsel for the Respondent: Suzanne Bruce
__________________________________________________________________
Reasons for Judgment
(Delivered orally from the Bench at Toronto, Ontario, on
April 18, 2001)
Mogan J.
[1]
This is an appeal with respect to a reassessment for the 1998
taxation year. In that year, the Appellant deducted the aggregate
amount of $5,039 as a medical expense in connection with her
attendance at a weight loss clinic. She had had some difficulties
in her personal life and had lost confidence in herself. She
concluded that part of her loss of confidence was connected with
the fact that she was overweight by her own standards. She
attended the Healthy Lifestyles Weight Loss Clinic ("the
Clinic") and received counselling and nutritional
supplements which put her on a disciplined path which permitted
her to lose weight. She testified that by attending at this
Clinic and following the guidance and counselling given, she lost
approximately 50 pounds. The inference I draw is that she
regarded the whole program as a success.
[2]
There is a tax credit permitted in the Income Tax Act for
medical expenses. When the Appellant claimed that credit in 1998,
Revenue Canada disallowed the credit on the basis that it was not
with respect to a medical expense. The Appellant has come to
Court appealing from that assessment and has elected the informal
procedure.
[3]
The Appellant is a legal secretary. In 1997, she concluded that
she was overweight and so she attended at the Clinic in the Eaton
Centre in downtown Toronto. The Clinic was founded by a Dr.
B. Pich who has three similar clinics in Toronto and
suburban areas. The Appellant received counselling at the Clinic
and was advised to purchase certain nutritional supplements. She
attended the clinic two or three times a week over the calendar
years 1997 and 1998. Her total costs for attendance were
approximately $5,600 in 1997, an amount which she apparently
deducted in computing her income for 1997. According to counsel
for the Respondent, that deduction slipped through the cracks and
was not challenged by Revenue Canada. In 1998, the Appellant
incurred further costs of $5,039 which were challenged by Revenue
Canada. That amount is in issue in this appeal.
[4]
Certain documents were entered as exhibits by the Respondent and,
in particular, Exhibit R-4 is a letter to Canada Customs
and Revenue Agency from the Appellant dated June 26, 2000
stating:
Further to your letter of May 3, 2000, please find enclosed
further requested information required to permit the Appeals
Division to further consider and resolve my objection.
Should you have any further questions, please do not hesitate
to contact me.
Attached to that letter is a single-page document on the
letterhead of the Clinic which is addressed to the Appellant
which letter states in part as follows:
With regards to Ms. Mauro She has informed us that she
requires the following, and itemized account of fees disbursed
for 1998.
They are as
following:
Nutritional Counselling = $3,122.26
Nutritional supplements = $1,916.74
We also further wish to inform you that we are a medically
mandated clinic under the supervision of Dr. Pich.
The aggregate of those two amounts is $5,039 which is the
amount in issue.
[5]
Counsel for the Respondent relies on certain provisions of the
Income Tax Act to argue that the total amount of $5,039 is
not deductible. She relies on subsection 118.2(1), which is the
general formula for permitting the deduction of medical
expenses.
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
B
is the total of the individual's medical expenses that are
proven by filing receipts therefor with the Minister ...
Subsection 118.2(2) sets out the definition of "medical
expenses" as follows:
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 ...
[6]
The question, therefore, is whether the person who gave the
nutritional counselling can qualify as a medical practitioner or
similar person. The Appellant's evidence is that she never
did see Dr. Pich because he was only at the
Cloverdale Mall Clinic and the only person she saw was a
woman identified as Shaine Kanji-Lalani who apparently
is a nutritional counsellor or consultant. It is the position of
Revenue Canada that a nutritional consultant does not qualify
under the legislation. I turn to paragraph 118.4(2)(a) of
the Act which states:
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 or psychologist 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;
A reference to a medical doctor or a medical practitioner in
the context of this appeal is a reference to a person authorized
to practise as a medical practitioner pursuant to the laws of the
Province of Ontario because all of the services were rendered in
Ontario.
[7]
Counsel for the Respondent brought to my attention the
Regulated Health Professions Act of the Province of
Ontario. Schedule 1 of that statute lists the
self-governing health professions. I shall read the more
familiar: audiology and speech language pathology, chiropractic,
dentistry, dietetics, massage therapy, medicine, midwifery,
nursing, occupational therapy, optometry, pharmacy. The only
self-governing health profession that comes close to the one we
are concerned with in this appeal is dietetics under the
Dietetics Act passed in 1991. The Respondent's point
is that there is a difference between a nutritionist and a
dietician. A dietician is a person who belongs to the profession
of dietetics and is governed in the Province of Ontario by the
Dietetics Act. A nutritionist is not a dietician, does not
practice dietetics, and apparently is not a self-governing
health profession in Ontario. I do not know what qualifications a
person would need to be a nutritional counsellor, but that did
not come up in any way in this appeal.
[8]
In a case like this, it might have been helpful if someone from
the Clinic had testified as a witness for the Appellant,
particularly if the Appellant was told by persons at the Clinic
that its receipts would be acceptable as medical expenses for
income tax purposes. I should have thought that if the Appellant
was told that; and I believe the Appellant when she stated that
she was given such assurance, some person from the Clinic should
have been anxious to come to Court to support the Appellant and
explain what their qualifications were and whether nutritional
counselling could be considered part of a self-governing
health profession. We have no such evidence from the Clinic. I am
inclined to the view that a nutritionist is not practising under
the authority of any provincial statute. In that connection, I
again refer to the relevant words in paragraph 118.4(2)(a)
which state:
118.4(2)
For the purposes of sections ... 118.2 ..., a
reference to ..., medical practitioner, ... is a
reference to a person authorized to practise as such
(a)
..., pursuant to the laws of the jurisdiction in which the
service is rendered;
[9]
The above would apply to all the other professions such as nurse,
occupational therapist, optometrist, pharmacist or psychologist.
There is nothing in that paragraph about dieticians, dietetics,
nutritional counselling, nutritionist or a nutrition counsel.
Therefore, in my view, the amounts paid for nutritional
counselling cannot be brought under the umbrella of an amount
paid to a medical practitioner, a medical doctor, or any of the
other headings in subsection 118.4(2). The appeal fails with
respect to the amount of $3,122.26 paid for nutritional
counselling.
[10] I will
now consider whether the amounts paid for nutritional supplements
may be deducted. The Appellant's evidence was that she not
only attended this Clinic two or three times a week and received
counselling but they took her blood pressure; weighed her; took
her body measurements; suggested exercising to maintain the
weight loss; and also suggested that she purchase nutritional
supplements which they sold. It seems to me that the Clinic may
have had a conflict recommending that their clients buy products
which were sold only by the Clinic. That is a matter, however,
with which I am not concerned. The Appellant purchased certain
pills and nutritional supplements. In my opinion, the cost of
such pills and supplements could be deducted only if they were
either prescription drugs or analogous to prescription drugs.
Counsel for the Respondent referred to
paragraph 118.2(2)(n) of the Act which
states:
118.2(2)
For the purposes of subsection (1), a medical expense of an
individual is an amount paid
...
(n)
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;
[11] The
evidence in this appeal is clear that the nutritional supplements
were not prescribed by a medical practitioner nor was the use of
them recorded by a pharmacist. They were apparently purchased by
the Appellant at the Clinic in connection with her counselling
with this woman Shaine Kanji-Lalani, and basically sold to the
Appellant like any other product. They may have had what might be
called a health science purpose. They may have had the objective
of maintaining the weight loss or perhaps keeping the Appellant
from developing an appetite for excess foods, but if they can be
regarded as a drug at all (and I believe they cannot), they would
be simply an over-the-counter drug and not a
prescribed drug. There is always the chance that they are not
drugs but are something that supplements the nutrition which the
body needs in order to permit an individual to continue with the
normal activities of employment and recreation within a healthy
lifestyle.
[12] On the
evidence before me, I cannot find that the nutritional
supplements come even close to satisfying the definition of drugs
or medicaments in paragraph 118.2(2)(n) of the
Act. For that reason, the amount of $1,916.74 is not a
deductible amount because it does not qualify as a medical
expense. Therefore, the two amounts deducted by the Appellant (in
the aggregate $5,039) are not medical expenses and would not
qualify for a tax credit under section 118.2. It seems to me that
the Appellant is fortunate that she was not challenged for 1997
on similar deductions for which she made full disclosure to
Revenue Canada, and for which she apparently cannot now be
challenged.
[13] The
appeal is dismissed. As an aside, if I were the Appellant, I
would be very disappointed with the advice given at the Clinic as
to the tax deductibility of these amounts. People who operate a
clinic like the one in question are generally much more
sophisticated than the average client who comes into the clinic
seeking help. The client is much more vulnerable than the clinic.
I would expect clinics such as this, maintained in different
prominent commercial centres in Toronto, perhaps owned by one or
more doctors, to be more responsible in the information they give
to clients about the deductibility of costs connected with the
services rendered by the clinics. I make this last comment in
response to a statement made by the Appellant that she engaged in
the program because of the confidence she placed in the statement
that the costs would be tax deductible. She is not to be faulted
for that, but perhaps someone may be faulted for misleading her
based on the evidence I heard today.
Signed at Ottawa, Canada, this 29th day of June, 2001.
"M.A. Mogan"
J.T.C.C.
COURT FILE
NO.:
2000-5023(IT)I
STYLE OF
CAUSE:
Anna Mauro and Her Majesty the Queen
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
April 18, 2001
REASONS FOR JUDGMENT BY: The
Honourable Judge M.A. Mogan
DATE OF
JUDGMENT:
April 24, 2001
APPEARANCES:
For the
Appellant:
The Appellant herself
Counsel for the
Respondent:
Suzanne Bruce
COUNSEL OF RECORD:
For the
Appellant:
Name:
N/A
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
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