Reasons for judgement
HIS HONOUR: I am going to give judgement now. It is not
going to be long and detailed, because I believe you want to know
where you stand and you would rather know today than two or three
weeks from today. So maybe a few words missing here and there and
so on. It is more important that you know where you stand.
My reasons for judgement are that the Appellant.... Before
I start, you are satisfied, Madam, that you did get your thirty
seven cents. Because obviously the drafter of this Reply, who is
not a lawyer and is not with Justice but with Revenue, in
essence, blew several paragraphs in the Reply. But as long as you
have got it then that is fine.
The Appellant, in her Notice of Appeal wherein she appealed her
reassessment for Income Tax for the year 1997 elected the
informal procedure. There are three issues before the court. They
are as follows:
Firstly, an amount of $702.73 paid for vitamin
supplements, which were prescribed by the Appellant's
physician but not recorded by a pharmacist.
Secondly, the amount of $511.32 paid for therapeutic touch
was not a medical expense paid to a medical practitioner in
respect to medical services provided to the Appellant.
Thirdly, an amount of $535.09 paid for miscellaneous items
which will be dealt with herein.
The evidence of the Appellant is unchallenged. The Appellant
suffers from HIV. Who annually, pays - in round figures -
$700 for vitamins and supplements, which she says she requires
because of her medical problems, since people that have this
disease lose the ability or the body loses the ability to
manufacturer these required vitamin. In order to maintain life,
various vitamins and supplements are required.
The provision of the Income Tax Act
(the " Act ") that deals with
this is found in Section 118.2(2)(n). The words that have to
be looked at are the last six words of that section. They are:
"as recorded by a pharmacist" .
For clarity, this who subsection reads,
"for drugs, medicaments or other preparations or substances
(other than those described in paragraph K) manufacture red sold
or represented for use in the diagnosis for treatment or
prevention of a disease, disorder, abnormal physical state of 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."
There has been one case referred to me and that is of my
colleague, Rip, and he did deal with vitamin and mineral
supplements. In that case reading his reasons, I cannot find
that the vitamins and supplements therein were prescribed by a
medical practitioner or dentist. He comes to the conclusion that
vitamins and supplements do not fit the statute. I am well aware
that a decision of a colleague deserves the highest respect and
should be followed. However, in this case we have the vitamins
and supplements prescribed by a physician and I have the evidence
before me that they are required to sustain the life of the
Appellant.
The Respondent takes the position that what the words,
"as recorded by a pharmacist", means that it has
to be a prescription drug that is a drug that requires a
prescription before it can be sold. The Appellant argues that if
that is what Parliament meant the subsection would simply read,
"for drugs prescribed by a medical practitioner or a dentist
as found on the list of prescribed drugs." The section
doesn't say that. It goes quite further, and is much
broader than that.
The question to me is can I ignore, "as recorded by a
pharmacist".
The evidence is that the Appellant buys her vitamins and
supplements through a process that can be done by phone, it is
more economical than going to a drug store or a health food
store, easier for her. She gave evidence that she talked to a
druggist and the druggist said oh yes I can record it. And what
does the statute mean by those words, "as recorded by a
pharmacist?" They must mean something broader than a
"prescription" drug. A pharmacist just making a
note of vitamins and supplements sold doesn't make
sense.
"Recorded" by a pharmacist could be the
pharmacist's purchase or sales slips. Both are recordings by
the pharmacist.
The late Mr. Justice Sopinka, of the Supreme Court of Canada, in
the Case that dealt with strike pay said that where the Act is
such that there is a doubt as to the meaning of the words, the
doubt has to be given to the taxpayer. Being convinced that
Parliament did not mean "prescribed prescription
drugs" when it enacted this entire subsection, it raises
a doubt in my mind as to what they meant by those last few words.
And since these vitamins and supplements are required for the
Appellant's health, well-being and actual life and
were prescribed by a medical physician, I am allowing the items
in number A to the amount of $702.73.
The second issue, the therapeutic touch. The Appellant attended
Orcas Island in Washington State. On staff there are several
medical doctors, nurses, doctors of nursing, doctors of
psychology and there where she attended for a week she received
treatment not only from medical doctors but from nurses, doctors
of psychology. The money that she spent there not only included
that but it also included room and board.
The question put to the Court is whether this type of expense
would be covered under Section 118.2(2)(e) which reads,
"For the care and training at a school, institution or other
place of the patient who has been certified by an appropriately
qualified person to be a person who, by reason of physical or
mental handicap requires the equipment, facilities or personnel
specifically provided by that school, institution or other place
for the care and training of individuals suffering from a
handicap suffered by the patient."
I believe it is my duty to interpret medical expense cases, as
well as medical disability cases in a broad manner. The Appellant
said that she could receive the same type of treatment here in
Victoria but not nearly the same quality.
Part of the $511.32 was the ferry to get there from Vancouver
Island. The receipts that are produced are US dollars. The
Respondent does not take issue of the amount. I believe under the
circumstances before me that the $511.32 does fall within that
provision.
The third and last issue, the Appellant purchased something to
carry her drugs and also something to keep them cold as the
majority of her drugs have to be kept cold. At the time she lived
in the islands and went to Vancouver for the treatment. She also
purchased periodicals that the Appellant subscribed to and for
books. This was to keep her abreast of all of the latest
developments that the periodicals could produce and to help her
understand her medical condition and the grieving process because
of the loss of her husband.
If the Appellant is to be successful I must look at the
provisions of 118.2(2)(m) which reads,
"For any device or equipment for use by the patient that i)
is a prescribed kind; ii) is prescribed by a medical
practitioner; iii) is not prescribed in any other paragraph of
this subsection; and iv) meets such conditions as our prescribed
to its use or the reasons for its acquisition to the extent the
amount so paid did not exceed the amount, if any, prescribed
respecting the device or equipment."
That brings us to Regulation 5700. Though I have a great deal of
sympathy for the Appellant and her desire to keep current, and I
accept her story that she heard about a test which even her
specialist in HIV wasn't aware of, I cannot find for the
Appellant under this category and therefore, would not allow the
personal carrying bag, the cooling containers, the periodicals
and the books.
There was an item that the Reply did not take into consideration
and it has been conceded by the Respondent that there should be
$32 additional no matter what, allowed to the Appellant for a
massage therapy which was ordered and received and paid for.
The Appellant also purchased a Braun toothbrush, which is an
expensive electric toothbrush in the neighbourhood of $90. It
does not, again, fall into the provisions of being prescribed by
a Doctor and in the regulations. As much as it may assist the
Appellant it is just not covered.
The appeal therefore for these reasons is allowed and the
assessment is referred back to the Minister for reconsideration
and reassessment on the basis that the Appellant is entitled to
additional medical expenses of $1245.73.
CERTIFIED CORRECT;
_______________________________________
Neil Miller
Court Reporter
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