Citation: 2013 TCC 28
Date: 20130128
Docket: 2012-639(GST)I
BETWEEN:
LYN WILLIAMS-KEELER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Woods J.
[1]
This appeal concerns whether trauma
therapy services provided by the appellant, Lyn Williams‑Keeler, are
exempt from goods and services tax (GST). Ms. Williams-Keeler has been assessed
under the Excise Tax Act on the basis that the services are taxable
except to the extent that they are covered by provincial health insurance.
[2]
The position of Ms. Williams‑Keeler
is that the services are exempt supplies pursuant to the following provisions in
the health care exemptions contained in Part II of Schedule V of the Excise
Tax Act:
(a)
a supply by a medical
practitioner (section 5);
(b)
a supply by a
practitioner of a psychological service (section 7(j)); and
(c)
a supply of a health
care service made on the order of a medical practitioner or practitioner
(section 10).
[3]
The amount of GST at
issue is $3,029 for the reporting period ending December 31, 2005 and $3,871
for the reporting period ending 2006.
Background
[4]
Ms. Williams-Keeler is
an historian by way of educational background who specialized in the impact of
traumatic events. Her career took a turn in the early 1990s after she went to
the United States to interview Vietnam veterans who were suffering from post-traumatic
stress disorder (PTSD). She then decided that it was not sufficient to write about
the problem. She wanted to become a therapist.
[5]
Since Canada did not provide trauma therapy training at the time, Ms. Williams‑Keeler made an
arrangement to receive some training at a medical facility in the United States.
[6]
Ms. Williams‑Keeler
subsequently returned to Canada and worked as a researcher in mental health at
the Royal Ottawa Hospital. That experience enabled her to work closely with the
psychiatrists and psychologists at the hospital and to pursue her interest in PTSD.
After about seven years, Ms. Williams‑Keeler transitioned to private
practice as a trauma therapist.
[7]
Ms. Williams‑Keeler
has been trained in several techniques that help people manage the symptoms of
PTSD. Some of these are eye movement desensitization and reprocessing, EMDR,
sensory motor psychotherapy, cognitive processing therapy, emotionally focused
therapy, dialectical behaviour therapy, and accelerated attachment oriented
therapy (Transcript, p. 42-44).
[8]
Many of Ms. Williams‑Keeler’s
patients are referred to her by psychiatrists and family doctors and in most
cases the patients also require ongoing medical treatment. Ms. Williams‑Keeler
described her relationship with the patients’ doctors as highly collaborative.
[9]
If the therapy provided
by Ms. Williams‑Keeler is funded by insurance or a government agency,
reports are required. Ms. Williams‑Keeler typically co-signs reports
with a doctor, with her signature being required as the treatment provider.
[10]
In the case of patients
who receive benefits as civil servants, a doctor must not only sign the report
but certify as having supervised Ms. Williams‑Keeler’s work.
[11]
At the relevant time,
there was no governmental requirement for certification to practice trauma
therapy in Canada. However, Ms. Williams‑Keeler does have
certification as a psychotherapist by the Ontario Association of Consultants,
Counsellors, Psychometrists and Psychotherapists.
[12]
Ms. Williams‑Keeler
considers her patients to be her own and she bills them directly.
Analysis
[13]
The Excise Tax Act provides
exempt status to a great many health care services listed in Part II of
Schedule V. Services by trauma therapists are not listed specifically, but
Ms. Williams‑Keeler submits that her services are encompassed by the
following exemptions:
(a)
a supply by a medical
practitioner (section 5);
(b)
a supply by a
practitioner of a psychological service (section 7(j)); and
(c)
a supply of a health
care service made on the order of a medical practitioner or practitioner
(section 10).
[14]
Despite the sympathetic
circumstances of this appeal, I have concluded that the services provided by
Ms. Williams‑Keeler are not encompassed by any of the above
exemptions. My reasons follow.
Medical
practitioner
[15]
Ms. Williams-Keeler
relies on an exemption for a service
provided by a medical practitioner. The relevant legislation is in section 5 of
Part II, and the definition of “medical practitioner” in section 1 of Part II.
5.
[Medical/dental service] – A supply made by a medical practitioner of a
consultative, diagnostic, treatment or other health care service rendered to an
individual (other than a surgical or dental service that is performed for
cosmetic purposes and not for medical or reconstructive purposes).
1. […] “medical
practitioner” means a person who is entitled under the laws of a province
to practice the profession of medicine or dentistry;
[16]
Ms. Williams‑Keeler is
not a medical practitioner as defined above, but she submits that her services
are encompassed by this provision in light of the close collaboration that she
has with psychiatrists and family doctors.
[17]
The relevant question may be put
this way: Are Ms. Williams‑Keeler’s services provided by a doctor?
[18]
Ms. Williams‑Keeler was
an impressive witness and I found her testimony to be detailed and
straightforward. I accept her testimony without reservation. I would conclude,
though, that Ms. Williams-Keeler’s services are not provided by medical
practitioners. Her services are separate supplies.
[19]
As Ms. Williams‑Keeler
described her practice, her relationship with patients was separate from the
relationship that her patients had with their doctors. Ms. Williams‑Keeler
had a contractual relationship with patients to provide trauma therapy and she
billed them for these services. The services were provided by Ms. Williams‑Keeler
– not the doctors.
[20]
Ms. Williams‑Keeler
receives many referrals from doctors but this does not mean that her services
are supplied by doctors. Referrals are commonly made by medical practitioners
which involve a separate arrangement between the patient and the other professional.
It is no different in Ms. Williams‑Keeler’s case.
[21]
Ms. Williams‑Keeler’s
work is highly collaborative, but nevertheless she and the medical
practitioners provide separate services. Collaboration generally entailed discussions
between the professionals as to a patient’s diagnosis and treatment.
Occasionally, a patient had a joint session with Ms. Williams‑Keeler
and a psychiatrist where they had a patient in common. Even in these cases, it
appears that there was a separate relationship with each professional.
[22]
In what were
described as civil service situations, a doctor is required to supervise
Ms. Williams‑Keeler’s work and to certify as such in a report. The
evidence suggests that the supervisor did not generally provide trauma therapy
services in such cases except to approve the treatment that Ms. Williams‑Keeler
was providing. I am not satisfied that in such cases Ms. Williams‑Keeler’s
services were provided by the doctor.
[23]
For completeness, I
would also comment that Ms. Williams‑Keeler did not seek partial
relief and did not provide any breakdown of her services between referrals,
supervision or collaboration. Even if I were satisfied that some of her
services qualify, the evidence was not sufficient to enable partial relief to
be given.
Psychological
services
[24]
Section 7 provides an
exemption for specifically-listed health services, including psychological
services. The relevant provision is s. 7(j).
7. [Non-medical
health care] – A supply of any of the following services when rendered to
an individual where the supply is made by a practitioner of the service:
(a) optometric
services;
(b) chiropractic
services;
(c) physiotherapy
services;
(d) chiropodic
services;
(e) podiatric
services;
(f) osteopathic
services;
(g) audiological
services;
(h) speech
therapy services;
(i) occupational
therapy services; and
(j) psychological
services.
(Emphasis added)
[25]
It may be the case that
Ms. Williams‑Keeler’s services are properly described as
psychological in nature, however, that is not sufficient for the services to
qualify for this exemption. The exemption also requires that the services be
provided by a practitioner, as that term is defined in section 1.
1. […] “practitioner”,
in respect of a supply of optometric, chiropractic, physiotherapy, chiropodic,
podiatric, osteopathic, audiological, speech therapy, occupational therapy,
psychological or dietetic services, means a person who
(a) practises the
profession of optometry, chiropractic, physiotherapy, chiropody, podiatry,
osteopathy, audiology, speech therapy, occupational therapy, psychology or
dietetics, as the case may be,
(b) where the
person is required to be licensed or otherwise certified to practice the
profession in the province in which the service is supplied, is so licensed or
certified, and
(c) where the
person is not required to be licensed or otherwise certified to practice the
profession in that province, has the qualifications equivalent to those
necessary to be so licensed or otherwise certified in another province.
[26]
Ms. Williams‑Keeler
is not a practitioner, as defined, because no licensing or certification was required
to practice in the area of trauma therapy in any province during the period at
issue.
[27]
The representative for
Ms. Williams‑Keeler submits that she qualifies by virtue of her
certification by the Association of Consultants, Counsellors, Psychometrists
and Psychotherapists. He suggests that it is not necessary under the definition
of “practitioner” that certification be a requirement to practice. He submits
that the word “required” in paragraphs (b) and (c) above only applies to
licenses and not certifications.
[28]
I disagree with this
interpretation. In my view, the term “required” in the phrase “required to be licensed or otherwise certified to
practice the profession” is intended to apply to both licensing and
certification. It makes no sense for there to be a different test for licensing
and certification.
[29]
It remains to be
considered whether referrals and collaboration by a licensed psychologist are
sufficient to satisfy section 7. For the reasons discussed above relating to
medical practitioners, I would conclude that referrals and collaboration in the
case of Ms. Williams‑Keeler are not sufficient to qualify under
section 7.
Other health
care services
[30]
Ms. Williams‑Keeler
also relies on the exemption for other health care services in section 10 of
Part II. The provision, and related regulation, are reproduced below.
10. A supply
of a prescribed diagnostic, treatment or other health care service when
made on the order of a medical practitioner or practitioner.
Regulation
2. For the
purposes of section 10 of Part II of Schedule V to the Excise Tax Act,
the following services, other than services related to the provision of a
surgical or dental service that is performed for cosmetic purposes and not for
medical or reconstructive purposes, are prescribed:
(a) laboratory, radiological
or other diagnostic services generally available in a health care facility; and
(b) the
administration of drugs, biologicals or related preparations in conjunction
with the provision of services included in paragraph (a).
(Emphasis
added)
[31]
The representative for
Ms. Williams‑Keeler submits that the exemption in section 10 is not
restricted to services that are prescribed by regulation, but that it includes
“other health care services” where they have been ordered by a medical
practitioner or a practitioner. He submits that the term “prescribed” does not
modify “other health care service.”
[32]
I reject this interpretation
because it makes no sense to have a different test for diagnostic services and
other health care services. In addition, it seems unlikely that Parliament
intended to cast section 10 as broadly as suggested by this submission, given
the exhaustive list of exempt health care services in Part II.
Conclusion
[33]
I would conclude that
the exemptions relied on by Ms. Williams‑Keeler do not include the
trauma therapy services that she provides. Although there may be good policy
arguments in favour of exempting these services, this is a matter for
Parliament and not the courts. The appeal will be dismissed.
Signed at Toronto, Ontario this 28th day of January 2013.
“J. M. Woods”
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