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Citation: 2003TCC105
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Date: 20030403
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Docket: 2002-2581(IT)I
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BETWEEN:
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MICHAEL LAURIE,
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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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____________________________________________________________________
For the Appellant: The Appellant himself
Counsel for the Respondent: Ifeanyi
Nwachukwu
____________________________________________________________________
REASONS FOR JUDGMENT
(Delivered orally from the Bench, on
February 13, 2003, at Halifax, Nova Scotia)
McArthur J.
[1] The Appellant appealed the
Minister of National Revenue's reassessment of his 2000
taxation year, disallowing the deduction of medical expenses
claimed in relation to massage therapy pursuant to subsections
118.2(1) and (2) of the Income Tax Act. These subsections,
as well as 118.4(2), read as follows:
118.2(1)
For the purpose of computing the tax payable under this Part by
an individual for a taxation year, there may be deducted an
amount determined by the formula
...
118.2(2)
For the purposes of subsection 118.2(1), a medical expense of an
individual is an amount paid
(a) to a
medical practitioner, dentist or nurse or a public or licensed
private hospital in respect of medical or dental services
provided to a person (in this subsection referred to as the
"patient") who is the individual, the individual's spouse or
common-law partner or a dependant of the individual (within the
meaning assigned by subsection 118(6)) in the taxation year in
which the expense was incurred;
(b)
...
118.4(2)
For the purposes of sections 63, 118.2, 118.3 and 118.6, a
reference to an audiologist, dentist, medical doctor, medical
practitioner, nurse, occupational therapist, optometrist,
pharmacist, psychologist or speech-language pathologist is a
reference to a person authorized to practise as such,
(a) where the
reference is used in respect of a service rendered to a taxpayer,
pursuant to the laws of the jurisdiction in which the service is
rendered;
(b)
...
[2] The focus in this appeal is
whether a massage therapist in Nova Scotia comes within the
definition of medical practitioner. Paragraph 7(1)(d) of
the Interpretation Act, R.S.N.S., ch. 235, provides as
follows:
7(1) In this Act and in
any other enactment,
(d)
"duly qualified medical practitioner", "legally
qualified medical practitioner" or any other words or
expressions importing legal recognition of a person as a medical
practitioner or member of the medical profession means a person
registered under the Medical Act;
The Medical Act of Nova Scotia (ch. 10) and in
particular, paragraph 2(s) and section 3 define medical
practitioner as follows:
2
In this Act, unless the context otherwise requires,
(s)
"medical practitioner" means a person who is registered
in the Medical Register, Defined Register, Temporary Register or
Medical Education Register;
3
The words "duly qualified medical practitioner",
"duly qualified practitioner", "legally qualified
medical practitioner", "legally qualified
physician", "physician" or any like words or
expressions implying a person recognized by law as a medical
practitioner or member of the medical profession in the Province,
when used in any regulation, rule, order or by-law made pursuant
to an Act of the Legislature enacted or made before, at or
after the coming into force of this Act, or when used in
any public document, includes a person registered in the Medical
Register, Temporary Register, Defined Register or the Medical
Education Register who holds a licence.
[3] It is common ground that the two
massage therapists in question for whose services the Appellant
claims a deduction are not registered as medical practitioners in
the Province of Nova Scotia. The Appellant made two basic
submissions, firstly, that common sense, fairness and economics
dictate that his massage therapy costs should be deductible and
second, his rights under the Charter of Rights and
Freedoms are violated. In this regard, he stated that had he
been living in British Columbia or Ontario, his massage therapist
costs would be deductible.
[4] The facts are not in dispute and
include the following taken from the Appellant's Notice of
Appeal. After a severe accident in 1996, the Appellant was
injured and he states:
... The whiplash caused problems with my back and neck
that left me with permanent partial disability and work
limitations. Through a combination of massage therapy and
chiropractic care, I was able to be maintained in a manner that
helped reduce pain and the frequency and severity of relapse
episodes.
For four years, my Section B insurer paid my massage therapy
costs. ... In 2000, I began to pay for chiropractic and
massage therapy costs myself. ...
All of the therapist's patients are referred by doctors. I
have no doubt that they are qualified. The Appellant continued in
his Notice of Appeal:
In July 2000, ... my condition deteriorated. ...
The pain was intense. ... I was immobile for two weeks. My
family doctor recommended continued and more frequent massage
therapy and chiropractic. This is evidence of a medical doctor in
Nova Scotia prescribing massage therapy in the treatment of an
acute medical condition.
The massage therapy sessions that I received were somewhat
painful and not enjoyable. If my doctor and I ever felt that I
was not deriving a medical benefit from them, then they would
have been ended immediately. There would be no purpose for me
spending the time, travel, cost and session fees in 2000 for
massage therapy if it did not provide medical relief.
The Appellant submitted a letter written by his medical
doctor, Dr. Fay, with reference to the massage therapy. Dr. Fay
wrote, in part:
He was referred Mr. Dusan Moravcik, Metro Massage Therapy
Clinic, Bedford, Nova Scotia. ...
Mr. Laurie has benefited greatly from the massage therapy. It
has enhanced the therapeutic benefits of the chiropractic and has
reduced the frequency of chiropractic sessions. ...
There is evidence that the massage therapy is working.
...
Without this therapy, he would not be able to perform his job
properly and would suffer consequences.
[5] It is obvious why the Appellant
perseveres with this appeal. In the year 2000, he claimed about
$8,000 in medical expense deductions, of which $1,600 was
disallowed. Under analysis, counsel for the Respondent referred
to Pagnotta v. Canada, [2001] T.C.J. No. 582 where Judge
Miller, in dealing with a similar situation, stated the
following:
20 I will deal first
with the cost of the massage therapy as claimed pursuant to
paragraph 118.2(2)(a). The simple issue is whether Tim
McCarthy, a member of the Association of Massage Therapists and
Holistic Practitioners, was, in 1998, a medical practitioner
providing medical services. I find he was not a medical
practitioner providing medical services. A common understanding
of medical practitioner as confirmed by the Canadian Oxford
Dictionary, is a physician or surgeon. As Tim McCarthy is not a
physician or surgeon, that should end it. However, given the
respondent's reference to provincial legislation and the
appellant's request for a liberal, compassionate and
understanding approach to interpretation, I will explore this
further.
21 To determine if a
massage therapist qualifies as a medical practitioner providing
medical services, I am directed by subsection 118.4(2) to review
the laws of the jurisdiction in which the service is rendered, in
this case, Alberta. ...
Judge Miller then went on to review the relevant provincial
legislation, as I did earlier in this judgment. He concluded:
There is no evidence that Tim McCarthy was a registered
practitioner in accordance with these provisions. As such, he was
not, in accordance with section 18, authorized to practise
as a medical practitioner under the Medical Professions
Act.
Section 18 was taken from the Alberta Medical Professions
Act.
[6] I find that the present situation
is similar. In the Appellant's instance, the legislation
obviously denies a worthy application. The Appellant's
medical doctor has, in effect, prescribed massage therapy that
has given the Appellant relief from his pain. While the Appellant
may have a worthy appeal, I cannot change the legislation.
Section 118.2 and subsection 118.4(2) are clear. To be
successful, the massage therapist must be a medical practitioner
authorized to practice as such in Nova Scotia being the
jurisdiction in which the services were rendered.
[7] The Appellant referred further to
Pagnotta, where he believed that costs were allowed as
deductible from his income for Chinese herbs, nutriceuticals and
vitamins. I do not believe that is accurate. Judge Miller went on
to say:
30 ... As
Chinese herbs, nutriceuticals and vitamins become regulated, it
is easy to foresee that our tax laws will be amended accordingly.
Until then, I can only find that those substances acquired from a
pharmacy can fall within the meaning of paragraph
118.2(2)(n). Under no interpretation can I find that
herbs, vitamins and nutriceuticals supplied by Dr. Aung directly
and by supplements and more qualify as being recorded by a
pharmacist. ...
[8] In any event, a recent Federal
Court of Appeal decision (Dunn v. Canada, [2002] F.C.J.
No. 1816) confirms that the cost of such medications not recorded
by a pharmacist are not deductible under section 118.2 of the
Act. Further, in Zack v. Canada, [1997] T.C.J. No.
1102, the taxpayer's appeal was denied under paragraph
118.2(2)(a), but allowed under paragraph
118.2(2)(e). The facts can easily be distinguished from
those in the present case and it is
paragraph 118.2(2)(a) that is relevant in the present
situation.
[9] I will now deal with the
Appellant's Charter argument. Subsections 57(1) and
(2) of the Federal Court Act provide as follows:
57(1) Where the constitutional validity,
applicability or operability of an Act of Parliament or of
the Legislature of any province or of regulations thereunder is
in question before the Court or a Federal Board, Commission or
other tribunal other than a service tribunal within the meaning
of the National Defence Act, the Act or regulation
shall not be adjudged to be invalid, inapplicable or inoperable
unless notice has been served on the Attorney General of Canada
and the Attorney General of each province in accordance with
subsection (2).
57(2) ... the notice referred to in
subsection (1) shall be served at least ten days before the day
on which the constitutional question described in that subsection
is to be argued.
And in the present instance, no such notice in accordance with
subsection (2) has been given. Counsel for the Respondent
referred to conflicting Federal Court of Appeal decisions with
respect to the procedures to be taken in this regard. These cases
are Canada v. Fisher, [1996] F.C.J. No. 427, Nelson
v. Canada, [2000] F.C.J. No. 1613, and Langlois v.
Canada, [1999] F.C.J. No. 911. In hearing this appeal, I
followed the direction of Judge Marceau in Langlois, where
he stated:
1 It was
agreed at the outset of the hearing that if the Court reached the
conclusion that the Constitutional challenge mounted by the
appeal raised serious questions the matter would be adjourned to
allow for full compliance with the mandatory provisions of
Section 57 of the Federal Court Act as this Court could
not give effect to a request of this nature without special
notice of the proceedings first having been served on the
Attorney General of each province. However, if the Court were
unable to find some substance to the Appellant's argument, it
would naturally have to dismiss the appeal outright.
The Appellant presented that his rights under section 1 of the
Charter were violated because if he were living in British
Columbia or Ontario, his payments would be deductible. In those
provinces, massage therapists are regulated by the province. In
Nova Scotia, they are not. The section of the Charter that
may have application is section 15 which reads as follows:
15(1) 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.
15(2) Subsection (1) does not preclude any
law, program or activity that has as its object the amelioration
of conditions of disadvantaged individuals or groups including
those that are disadvantaged because of race, national or ethnic
origin, colour, religion, sex, age or mental or physical
disability.
For the following reasons, I do not accept the Appellant's
Charter position. The Supreme Court of Canada in Law v.
Canada, [1999] 1 S.C.R. 497, the Court established guidelines
for a section 15 analysis. The tests include to determine whether
the law draws a formal distinction based on personal
characteristics. Subsections 118.2(1) and (2) permit a deduction
of an amount paid to a "medical practitioner", the definition of
whom in Nova Scotia does not include a massage therapist. There
is no differential treatment imposed upon the Appellant on the
basis of his personal characteristics. Every taxpayer in Nova
Scotia is subject to the same treatment. The Appellant has no
basis for his claim of discrimination.
[10] For the above reasons, the appeal is
dismissed.
Signed at Ottawa, Canada, this 3rd day of April, 2003.
J.T.C.C.
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