Date: 19990812
Docket: 98-299-IT-I
BETWEEN:
PIERRETTE MONGEAU MANTHA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Lamarre Proulx, J.T.C.C.
[1] This is an appeal concerning the 1996 taxation year. The
point at issue is whether the cost of food specific to a
gluten-free diet qualifies for the medical expense credit
pursuant to paragraph 118.2(2)(n) of the Income
Tax Act (the "Act").
[2] That paragraph reads as follows:
118.2(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.
[3] The facts on which the Minister of National Revenue (the
"Minister") relied in assessing the appellant are set
out in paragraph 7 of the Reply to the Notice of Appeal (the
"Reply") as follows:
[TRANSLATION]
(a) the appellant suffers from celiac disease;
(b) the appellant must follow a gluten-free diet;
(c) during the year in issue, the appellant laid in a stock of
gluten-free foods at a total cost of $1,083;
(d) the appellant paid annual membership dues of $30 to the
Quebec Celiac Foundation;
(e) the appellant claimed the cost of the gluten-free foods
and the annual dues paid to the Quebec Celiac Foundation as
medical expenses;
(f) the claim was disallowed because the Minister ruled that
the foods purchased by the appellant had nutritional value, that
the treatment or alleviation of a disease was not their only use
and that they had not been prescribed by a medical
practitioner.
[4] The appellant testified and paragraphs 7(a) to (e) of
the Reply were admitted.
[5] Counsel for the appellant stated that the appellant was no
longer pressing her claim in respect of the annual dues.
[6] The appellant filed as Exhibit A-1 a
certificate from her attending physician which reads as
follows:
[TRANSLATION]
September 22, 1998
RX- Celiac disease was discovered in this patient,
Pierrette Mongeau, in 1994.
The only treatment prescribed for this disease is a
gluten-free diet, to which the patient must strictly adhere for
her entire life in order to treat and alleviate the disease and
prevent other diseases.
Corticosteroid therapy is not indicated at this time.
X- (Signed)
Dr. GILLES MICHAUD, gastroenterologist
Hôpital du Sacré-Coeur,
Montréal.
[7] The appellant explained that gluten-free foods are sold in
stores specializing in foods for persons suffering from food
allergies. In her case, the store is 20 minutes away from
her residence by car. However, she was not concerned with the
transportation cost, but with the cost of the foods. All the
foods are more expensive than those purchased in grocery stores.
A loaf of bread, for example, costs $9. Pasta, rice, potato and
corn flours and the other ingredients necessary for basic
cooking, in fact everything related to grains, must be purchased
at a store specializing in food allergies to avoid any gluten
contamination.
[8] Counsel for the appellant argued that the foods necessary
to a gluten-free diet were prescribed by the appellant's
physician and that they are not registered by a pharmacist
because they are not sold in a pharmacy.
[9] Counsel for the respondent contended that
paragraph 118.2(2)(n) of the Act requires that drugs
be prescribed by a medical practitioner. There can be no
prescription unless the drugs are recorded by a pharmacist. He
submitted that there
is no such prescription for gluten-free foods because they are
not recorded by a pharmacist.
Conclusion
[10] I readily believe the appellant's statement that the
foods necessary to a gluten-free diet are more expensive than
those sold in a non-specialized grocery store. Subsection
118.2(2) of the Act is a statutory provision which describes the
medical expenses which are eligible for the tax credit provided
for by subsection 118.2(1) of the Act. As drafted, this
provision is exhaustive. If the purpose of the expense incurred
for therapeutic purposes is not described in
paragraph 118.2(2)(n) of the Act, that expense is not
included in medical expenses. This paragraph includes as medical
expenses only the cost of drugs, medicaments or other
preparations or substances manufactured, sold or represented for
use in the diagnosis, treatment or prevention of a disease,
disorder or abnormal physical state, purchased for use by the
patient as prescribed by a medical practitioner and as recorded
by a pharmacist.
[11] Can a medical practitioner issue a prescription for drugs
not recorded by a pharmacist? Counsel for the respondent argues
that he cannot; counsel for the appellant affirms the contrary.
Some drugs will certainly be sold in pharmacies solely as
prescribed by a medical practitioner. However, must a
prescription be limited to those drugs? I do not believe I need
to rule on this question in order to decide this case as there is
a final essential condition for the application of
paragraph 118.2(2)(n) of the Act: the drugs,
medicaments or other preparations or substances must be recorded
by a pharmacist. Now, both parties admitted that the foods
specific to a gluten-free diet, in respect of the costs of which
the appellant claims a medical expense credit, are not recorded
by a pharmacist. Allowing the appeal would thus be tantamount to
legislating the removal of one of the conditions for the
application of paragraph 118.2(2)(n) of the Act, and,
as it is for Parliament alone to legislate, the appeal must
accordingly be dismissed.
Signed at Ottawa, Canada, this 12th day of August 1999.
"Louise Lamarre Proulx"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
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