Date: 20100119
Docket: A-157-09
Citation: 2010 FCA
17
CORAM: NADON J.A.
EVANS J.A.
STRATAS J.A.
BETWEEN:
RHONDA
RAY
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario, on January
19, 2010.
Judgment delivered from the
Bench at Toronto,
Ontario, on January
19, 2010.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS
J.A.
Date: 20100119
Docket: A-157-09
Citation: 2010 FCA 17
CORAM: NADON
J.A.
EVANS
J.A.
STRATAS
J.A.
BETWEEN:
RHONDA RAY
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Toronto, Ontario, on January 19,
2010)
EVANS J.A.
[1]
This is an
appeal by Rhonda Ray from a decision of the Tax Court of Canada (2009 TCC 140)
in which Justice V. A. Miller dismissed her appeal against the reassessments of
her 2001, 2002, and 2003 taxation years. In those reassessments, the Minister
of National Revenue disallowed Ms Ray’s claim for medical expense tax credits
(”METC”) for the cost of vitamins, herbs, natural foods and other substances,
on the ground that their purchase was not recorded by a pharmacist as required
by paragraph 118.2(2)(n) of the Income Tax Act, R.S.C. 1985, c. 1
(5th Supp.).
[2]
Ms Ray
suffers from fibromyalgia and other medical conditions which, she says,
disproportionately affect women. She states that the substances for which she
claimed METCs were prescribed by a medical practitioner, and purchased, to treat
these conditions. The Judge rejected Ms Ray’s argument that, because paragraph
118.2(2)(n) does not include the substances that she purchased for her
medical conditions, it violates her Charter rights: in particular, her rights
under section 7 and her rights under section 15 to equality and to freedom from
discrimination on grounds of gender and disability.
[3]
We are
all of the opinion that the Judge correctly dismissed Ms Ray’s appeal. It is
settled law in this Court that paragraph 118.2(2)(n) does not contravene
section 15 and that, in the absence of any distinguishing facts, the principles
established in Miller v. The Queen, 2002 FCA 370, 220 D.L.R. (4th)
149, provide no basis for departing from the Court’s prior jurisprudence. After
considering R. v Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, the Court in Tall
v. The Queen, 2009 FCA 342, rejected Mr Tall’s argument that paragraph
118.2(2)(n) violated his rights under paragraph 2(b) and section
15 of the Charter.
[4]
Counsel
for Ms Ray argued that in Kapp the Supreme Court of Canada implicitly
relieved section 15 claimants from the requirement, established in Auton
(Guardian ad litem of) v. British Columbia (Attorney General), 2004
SCC 78, [2004] 3 S.C.R. 657, that benefits sought by claimants must be provided
by law. In our view, this argument is more appropriately addressed in the
Supreme Court of Canada since it has already been rejected in this Court as a
basis for not following the decision in Ali v. The Queen, 2008 FCA 190,
holding that paragraph 118.2(2)(n) is not discriminatory in either
purpose or effect.
[5]
We note
that Ms Ray’s argument that the reassessments violated her rights under section
7 was also rejected in Ali on the basis of the decision of this Court
in Matthew v. Canada, 2003 FCA 371.
[6]
For these
reasons, the appeal will be dismissed with costs.
"John M. Evans"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-157-09
(APPEAL FROM A JUDGMENT OR ORDER OF
JUSTICE MILLER, OF THE TAX COURT OF CANADA, DATED MARCH 6, 2009, DOCKET NOS.
2004-2700 (IT) G AND 2006-432 (IT) G )
STYLE OF CAUSE: RHONDA
RAY v.
HER MAJESTY THE QUEEN
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 19, 2010
REASONS FOR JUDGMENT
OF THE COURT BY: (NADON, EVANS & STRATAS
JJ.A.)
DELIVERED FROM THE BENCH BY: EVANS J.A.
APPEARANCES:
|
Patricia A. Le
Febour
|
FOR THE APPELLANT
|
|
Brent Cuddy
Franco Calabrese
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Rochon Geneva LLP
Toronto, Ontario
|
FOR THE
APPELLANT
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
Toronto, Ontario
|
FOR THE
RESPONDENT
|
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