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Citation: 2004TCC237
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Date: 20040322
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Docket: 2003-2033(IT)I
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BETWEEN:
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BRYNA LEWIS,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Paris, J.
[1] The Appellant is appealing the
Minister's reduction of her medical expense tax credit by
$1,286.00 for her 2001 taxation year. The credit was reduced on
the basis that amounts she spent on certain hypoallergenic
vitamins and supplements were not medical expenses as defined in
the Income Tax Act.
[2] The Appellanttestified that she
suffers from multiple chemical sensitivities, fibromyalgia and
chronic fatigue syndrome. When she is exposed to certain common
chemicals she becomes extremely ill and may be confined to her
bed for long periods. This has had a profound impact on her life
and she has gone to great lengths to eliminate chemical
contamination in her environment. Her physician, who specializes
in the treatment of environmental illnesses, prescribed her the
hypoallergenic vitamins and mineral supplements in order to
bolster her immune system and build up her strength to enable her
to cope with her condition. These special vitamins and mineral
supplements were purchased by the Appellant at the clinic
operated by her physician (the Ottawa Environmental Health Clinic
Inc.).
[3] In order to qualify for the
medical expense tax credit, the amounts in issue would have to
meet the conditions set out in paragraph 118.2(2)(n) of
the Act which reads:
(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
...
[4] The Appellant admitted that the
vitamins and supplements were not recorded by a pharmacist, that
the Ottawa Environmental Health Clinic was not a pharmacy and
that the physician who prescribed the products was not a licensed
pharmacist.
[5] However, the Appellant's
representative asks that I interpret the term "medical
expenses", particularly as it relates to drugs and
medicaments, in a liberal fashion. She asserted that it was never
the intention of Parliament that the medical expense definition
be interpreted narrowly, and that other decisions of this Court
(most notably Ray v. The Queen [2002] 4 C.T.C. 2590)
support a reading of paragraph 118.2(2)(n) that would
favour the Appellant. She was aware that the Ray case had
recently been overturned by the Federal Court of Appeal, but she
believed that the original decision of this Court should
prevail.
[6] The Appellant's representative
also referred to a recent Supreme Court of Canada case, Nova
Scotia (Workers' Compensation Board) v. Martin 2003 SCC
54 in which certain workers' compensation legislation was
found to have violated section 15 of the Canadian Charter of
Rights and Freedoms. Although she said that she was not
alleging that paragraph 118.2(2)(n) infringed the
Appellant's Charter rights, her statement that the
provision "would be of no force or effect if it did not fit
within the Charter" indicates otherwise.
[7] Counsel for the Respondent
objected to the Appellant raising a Charter argument. She
noted that the Notice of Appeal does not raise the issue, nor has
the Appellant served notice on the provincial Attorneys General,
as required by section 57 of the Federal Court Act R.S.
1985 c. F-7, as amended.
[8] It is common in cases heard in the
informal procedure in this Court to have Charter arguments
raised without notice having been given under section 57.
In these cases the Court will ordinarily hear the argument and
if, upon initial consideration, it finds merit in it, will
adjourn the case to permit the Appellant to give the section 57
notice (see: Cavalier v. The Queen [2002] 1
C.T.C.2001).
[9] I am not satisfied that the
Appellant has made out the case that her right to equality under
section 15 of the Charter has been infringed by paragraph
118.2(2)(n)in the Income Tax Act.
[10] Subsection 15(1) of the Charter
reads:
Every individual is equal before and under the law and has the
right to the equal protection and equal benefit of the law
without discrimination and, in particular without discrimination
based on race, national or ethnic origin, colour, religion, sex,
age or mental or physical disability.
[11] In Law v. Canada (Minister of
Employment & Immigration) (1999), 1 S.C.R. 497 (S.C.C.),
the Supreme Court of Canada set out the following guidelines for
determining whether subsection 15(1) of the Charter has
been infringed:
1. Does the
law in question, impose differential treatment on the Appellant
on the basis of the Appellant's personal characteristics or
fail to take into account the Appellant's disadvantaged
position in society, resulting in differential treatment on the
basis of personal characteristics?
2. Is the
Appellant subject to the differential treatment based on the
prohibitive grounds enumerated in the Charter (race,
national or ethnic origin, colour, religion, sex, age or mental
or physical disability), or grounds which are analogous to
those?
3. Does the
differential treatment discriminate by imposing a burden or
withholding a benefit which promotes (through stereotypes or
otherwise) the view that the Appellant is an individual less
capable or worthy of recognition or value as a human being ...
equally deserving of concern, respect and consideration?
[12] Although it was not clearly stated, the
Appellant's position appeared to be that the basis of the
perceived discrimination in this case was her medical condition.
However, the section of the Act in issue does not draw any
distinction between the Appellant and others on that basis, but
only on the basis of what type of medication is purchased.
Medication that is, inter alia, recorded by a pharmacist
qualifies as a medical expense, while medication not so recorded
is not. The qualification is not based on a personal
characteristic of the Appellant; every taxpayer must meet the
same requirements in order for their expenses to qualify as
medical expenses. The Appellant therefore does not meet the
threshhold test for showing that paragraph 118.2(2)(n) of
the Act breaches her right to equality right under the
Charter.
[13] Furthermore, it is clear from the
decision of the Federal Court of Appeal in The Queen v.
Ray [2004] FCA 1 that effect must be given to the words
"recorded by a pharmacist" in applying the definition
of medical expenses found in paragraph 118.2(2)(n). The
Court there said:
In my view, it is reasonable to infer that the recording
requirement in paragraph 118.2(2)(n) is intended to ensure
that tax relief is not available for the cost of medications
purchased off the shelf. There are laws throughout Canada that
govern the practice of pharmacy. Although the laws are not
identical for each province and territory, they have common
features. Generally, they prohibit a pharmacist from dispensing
certain medications without a medical prescription, and they
describe the records that a pharmacist is required to keep for
medications dispensed by prescription, including information that
identifies the prescribing person and the patient. There is no
evidence that pharmacists anywhere in Canada are required to keep
such records for the substances in issue in this case.
...
Nor do I think it relevant to the interpretation of
paragraph 118.2(2)(n) that a physician may dispense
prescription medicines, and even sell them, without breaching any
legislation applicable to pharmacists. It appears that a patient
who purchases prescription medications from a physician may not
be entitled to a medical expense tax credit because there would
be no recording by a pharmacist: see Dunn (cited above).
Some may consider that to be an unfair or inappropriate result.
Perhaps it is, but that cannot justify an interpretation of
paragraph 118.2(2)(n) that ignores the words "as
recorded by a pharmacist".
[14] Unfortunately, the evidence in this
case shows that the vitamins and supplements that were prescribed
to the Appellant by her physician were not recorded by a
pharmacist. Therefore the amounts she spent on these items do not
qualify as medical expenses under the Income Tax Act and
this appeal must be dismissed.
Signed at Ottawa, Canada, on this 22nd day of March 2004
Paris, J.
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