Date:
20021218
Docket:
2001-2931-IT-I
BETWEEN:
KEN
BEKKER,
Appellant,
and
HER MAJESTY
THE QUEEN,
Respondent.
__________________________________________________________________
Counsel for the
Appellant:
David S. Green
Counsel for the
Respondent:
Dominique Gallant
____________________________________________________________________
Reasons
for Judgment
(Delivered
orally from the Bench at Halifax, Nova Scotia,
on Thursday,
July 11, 2002 and revised as to style and syntax at
Ottawa,
Canada on December 18, 2002)
Margeson, J.T.C.C.
[1]
The matter before the Court for
decision at this time is that of Ken Bekker and Her Majesty
the Queen, 2001-2931(IT)I, under the Informal Procedure of the
Income Tax Act ("Act").
[2]
I have dealt with this situation before and other judges of this
Court have dealt with this issue as well. Three of them indicate
that the words, "as prescribed by a pharmacist" are a
part of the legislation and must be given meaning.
[3]
On the facts of the case today, the Court is satisfied that the
supplements and organic foods that the Appellant purchased were
prescribed by a doctor or a dentist. The Court does have a
problem with the words "recorded by a pharmacist". They
clearly were not recorded by a pharmacist.
[4]
It is argued that the words "recorded by a pharmacist"
have no meaning, are imprecise and impossible to interpret and
the Court should follow the decision of Teskey J. in Frank v.
R. In that case the
learned trial judge considered the question of vitamins and
supplements and found that they were prescribed by a physician.
He then found that there was some doubt in what was meant by the
words, "recorded by a pharmacist", and ultimately he
allowed the deduction. That was a case where the Court was
apparently satisfied that the items were purchased at a
pharmacy.
[5]
This issue was considered by Bowman A.C.J. in Banman v.
R., where in spite of
having great sympathy for the Appellant the learned trial judge
found they were not recorded by a pharmacist and did not allow
the deduction.
[6]
In Dunn v. R., Deputy Judge Rowe
said:
The Appellant
presented a capable and cogent argument and there is substance in
her position but I take the approach that any modification to the
relevant specific, comprehensible provision must be undertaken by
the legislative branch.
[7]
In Pagnotta v. R., at paragraph 30, Miller
J. said:
There is
no ambiguity that there is a requirement for the pharmacist to do
something; there is perhaps some ambiguity in what is meant by
recorded. I am not however prepared to ignore the requirement of
a pharmacist.
[8]
In the case of Melnychuk v. R., McArthur J. was
faced with the same issue. He had some problem with it and he
raised the question as to where you draw the line. He was not
able to answer that question. But in that particular case, it was
acknowledged that the vitamins were not purchased at a pharmacy
and were not recorded by a pharmacist. He said at paragraph
13:
The Appellant is
a very good example of a person who has used alternative methods
successfully. I am sorry that I cannot give him relief, . .
.
That
conclusion must have been based on the conclusion that the words
are there and they must be given some meaning.
[9]
The Court refers back to the legislation itself, which is
paragraph (n), and it says:
[drugs] - for drugs, medicaments or other
preparations or substances (which are what these are)
(other than those described in paragraph (k)) (which is
not applicable here) 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, modifying an organic function, purchased
for use by the patient as prescribed by a medical
practitioner or dentist and as recorded by a
pharmacist;
(Italics
are mine)
[10] As hard as
the Court tries, and as sympathetic as the Court is to the plea
for the relief sought, this Court, as in the three cases referred
to above, considers itself bound by the legislation.
[11] Parliament
is supreme. They make the legislation and the Court's job is
not to make new legislation but rather to interpret the
legislation as it is there. It seems clear that the prescriptions
have to be recorded by a pharmacist. Whatever that accomplishes,
I do not know, but the legislation is clear that they must be
recorded by a pharmacist. Like Bowman J., I conclude that it does
seem very unfair that just because they were not recorded by a
pharmacist, they are not deductible, because they are obviously
very necessary for this person's well-being. I find
that they were necessary for her to sustain her life in any
meaningful way. The Court is satisfied that the amounts that she
claimed were, indeed, expended and the Court is satisfied that
the amounts that were expended were as a result of being
prescribed by a doctor. But unfortunately, the Court cannot
conclude that the Appellant has met the second
requirement.
[12]
Consequently, the appeal is dismissed and the Minister's
assessment is confirmed.
Signed at
Ottawa, Canada this 18th day of December 2002.
J.T.C.C.
COURT FILE
NO.:
2001-2931(IT)I
STYLE OF
CAUSE:
Ken Bekker and
Her Majesty The Queen
PLACE OF
HEARING:
Halifax, Nova Scotia
DATE OF
HEARING:
July 11, 2002
REASONS FOR
JUDGMENT BY: The Honourable T.E.
Margeson
DATE OF REASONS
FOR JUDGMENT:
December 18, 2002
APPEARANCES:
Counsel for the
Appellant:
David S. Green
Counsel for the
Respondent:
Dominique Gallant
COUNSEL OF
RECORD:
For the
Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
Email this Content