Zack v. R., [1998] 1 CTC 2734

McArthur T.C.J.:

The Appellants are husband and wife and each claims a medical expense with respect to the musical therapy received by their daughter, Dena Zack. Dr. Zack’s appeal is in respect of the 1995 taxation year and Mrs. Zack’s appeal is in respect of the 1994 taxation year. The Minister of National Revenue (the “Minister”) has denied the medical expenses claimed by Appellants.

These appeals were heard on common evidence. The Appellants’ daughter suffers from Rett’s Syndrome. She was first diagnosed as having this handicapping neurological disorder in 1985, when she was examined by Dr. Andreas Rett, after whom the disorder is named. At that time, Dr. Rett prescribed musical therapy as a form of treatment for Dena’s handicap. More recently, musical therapy was again prescribed for Dena by Dr. Donlim Peacock, a medical practitioner in pediatrics, as a method of treating and managing her condition.

The Appellants produced an impressive amount of evidence on the topic of musical therapy and its benefits in the treatment of the mentally and physically disabled. The musical therapists that have treated Dena are highly skilled, university trained professionals. The disabling physical and mental effects of Rett’s Syndrome have left Dena with the inability to speak. She does, however, communicate and is stimulated through the extraordinary therapeutic medium of musical therapy. Dena’s attention span, motor co-ordination, emotional expression and communication skills have benefited from the musical therapy she has received.

The issue in this appeal is whether the Minister correctly disallowed the medical expense credit; and in particular, whether the music therapists were authorized by law to practice in British Columbia as medical practitioners.

In reassessing each of the Appellants, the Minister’s assumptions of fact included the following, as reproduced at page 2 in the Replies to the Notice of Appeal of both Dr. and Mrs. Zack:

(b) the music therapist is not recognized by federal or provincial statute as a medical practitioner and is not a medical practitioner;

(c) the music therapist used a piano and percussion pieces in treating the Patient;

(d) the music therapist did not provide medical services to the Patient.

The Respondent relies upon section 118.2 of the Income Tax Act,! [1] (the “Act’) in support of its submission that the Minister correctly disallowed the medical expense claim because the music therapists were not medical practitioners providing medical services.

The medical expense credit provides relief to taxpayers who sustain extraordinary medical expenses on their own account or on account of certain dependants. Subsection 118.2(1) provides the calculation for determining the amount of allowable medical expenses that a taxpayer is entitled to claim. Paragraphs 118.2(2)(a) to (g) specify the types of expenses that qualify for the purposes of the credit. Counsel for the Respondent referred me to paragraph 118.2(2)(a), which provides:

118.2 Medical Expense Credit

(2) Medical expenses — For the purposes of subsection (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 a dependant of the individual (within the meaning assigned by subsection 118(6)) in the taxation year in which the expense was incurred;

In addition, paragraph 118.4(2)(<a) provides that the references to a medical practitioner, dentist and nurse are references to persons authorized to practice as such pursuant to the laws of the jurisdiction in which the service is rendered:

118.4

(2) References to medical practitioners, etc. — For the purposes of sections 63, 118.2 and 118.3, a reference to a medical practitioner, dentist, pharmacist, nurse or optometrist is a reference to a person authorized to practice 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) where the reference is used in respect of a certificate issued by the person in respect of a taxpayer, pursuant to the laws of the jurisdiction in which the taxpayer resides or of a province; and...

The term “medical practitioner” is defined in s. 29 of the Interpretation Act of British Columbia as follows: [2]

“medical practitioner” means a person entitled to practise under the Medical Practitioners Act.

The relevant sections of the Medical Practitioners Act of British Columbia are sections 77, 78 and 80. [3] . The effect of s. 80 is that a person registered under the Medical Practitioners Act is entitled to practise medicine in British Columbia. Sections 77 and 78 provide for the publication of a list of registered persons and that this list is evidence in all courts that the persons listed are registered and entitled to practise and those not listed are not so entitled.

In my opinion, the provincial legislation is determinative of the matter with respect to the meaning of the term “medical practitioner” for the purposes of paragraph 118.2(2)(a). There is no evidence before the Court, such as the list published pursuant to s. 77 of the Medical Practitioners Act, establishing that the therapists that treated the Appellants’ daughter are “medical practitioners” within the meaning of that provision. Accordingly, the Appellants cannot succeed in these appeals on the grounds of the provisions of paragraph 118.2(2)(a) of the Act.

I do not believe, however, that my conclusion regarding paragraph 118.2(2)(a) is sufficient to dispose of the appeal. Paragraph 118.2(2)(e) provides:

(2) Medical expenses — For the purposes of subsection (1), a medical expense of an individual is an amount paid

(e) for the care, or the care and training, at a school, institution or other place of the patient, who has been certified by an appropriately qualified person to be a person who, by reason of a physical or mental handicap, requires the equipment, facilities or personnel specially provided by that school, institution or other place for the care, or the care and training, of individuals suffering from the handicap suffered by the patient;

The Minister’s position with regard to paragraph 118.2(2)(e) is found in Interpretation Bulletin “IT-519R: Medical expense and disability tax credits and attendant care expense deduction”:

32. The costs paid for the care, or the care and training, of a patient at a school, institution or other place will qualify under paragraph 118.2(2)(e) as a medical expense when an appropriately qualified person has certified that patient to be a person Who, by reason of a physical or mental impairment, requires the equipment, facilities or personnel specially provided by that place. For purposes of paragraph 118.2(2)(e), “other place” includes an out-patient clinic and also includes a nursing home (see 33 below). An “appropriately qualified person” includes a medical practitioner as well as any other person who has been given the required certification powers under provincial or federal law. A patient (e.g., a dependant) suffering from a behavioral problem arising out of a mental or physical impairment or suffering from a learning disability, including dyslexia, who attends a school that specializes in the care and training of persons who have the same type of problem or disability is considered to qualify under paragraph 118.2(2)(e), and the expenses paid for the patient are qualifying medical expenses even though some part of the expenses could be construed as being tuition fees (see Rannelli v. MNR, 91 DTC 816, [1991] 2 CTC 2040, (TCC)). A patient suffering from an addiction to drugs or alcohol can also qualify under paragraph 118.2(2)(e). Consequently, when all the conditions of that paragraph, as discussed above, are met, the expenses paid for the care of the patient in a detoxification clinic qualify as medical expenses.

Fees paid for a stop-smoking course or program are not considered to qualify as medical expenses under paragraph 118.2(2)(e) unless, in an exceptional case, such a course or program is part of a patient’s medical treatment that is required because of a serious health deterioration problem and that is both prescribed and monitored by a medical practitioner.

33. There is no requirement that a nursing home or a detoxification clinic be a public or licensed private hospital. The fact that the name of a residential establishment sometimes includes the word “school” or “nursery” will not affect the determination of whether it qualifies as a nursing home. While the care need not be full time, it must be stressed that equipment, facilities or personnel specially provided by the nursing home (or other place described in 32 above) must be specifically tailored for the care of persons suffering from the physical or mental impairment in question and that the other conditions set out in 32 above must be met, for the fees to qualify as medical expenses under paragraph 118.2(2)(e). However, if a claim is made for nursing home care under paragraph 118.2(2)(e), see 29 above.

The Act does not define the terms found in paragraph 118.2(2)(e). In determining who is an “appropriately qualified person” to make the certification required by the provision, I do not think that s. 118.4(2), reproduced above, is of assistance. The wording of s. 118.4(2) clearly applies only in respect of references to “medical practitioners”. Paragraph 118.2(2)(e) does not include such a reference, and so the restriction found in s. 118.4(2), in my opinion, should not apply. The Shorter Oxford English Dictionary defines “qualified” to mean: [4]

2. Endowed with qualities, or possessed of accomplishments, which fit one for a certain end, office, or function;... 3. Legally, properly or by custom, capable of doing or being something specified or implied.

“Certify” is defined in The Shorter Oxford English Dictionary to mean: [5]

I. To make (a thing) certain; to guarantee as certain; to give certain information of. 2. To declare or attest by a formal or legal certificate.

In my opinion if a certification as required by the paragraph is shown by the Appellants to have been provided before the 1994 taxation year, they will qualify for the medical expenses credit, pursuant to paragraph 118.2(2)(e). The evidence before me is that in 1985, Dr. Rett first prescribed musical therapy as treatment for Dena’s physical and mental handicap. I am satisfied that Dr. Rett’s prescription constituted certification and that he was qualified to do so. Dena’s personal physician, Dr. Donlim Peacock, also endorsed musical therapy and wrote the following in a letter dated December 14, 1995:

Dena has a syndrome called Rett syndrome.

One of her ways of communication is through music therapy and this has been prescribed by myself as part of her medical treatment and management.

Dena attended, with the assistance of her sister, over one half of the 2 '/2 hour trial. From my observations of her in the courtroom she is obviously seriously handicapped. It was encouraging to see her positive response to music therapy in a video recording demonstration presented by one of her therapists.

In Somers v. Minister of National Revenue (1978), 79 D.T.C. 21 (T.R.B.), at 21, deductions were not allowed as medical expenses because although the child had a behavioural problem this was not a “physical or mental handicap”, nor was the school an “institution especially for the mentally or physically handicapped pupils or students with behavioral problems.” In Johnston v. Minister of National Revenue (1988), 88 D.T.C. 1300 (T.C.C.), Goetz, J., concluded that the “considerable extra effort, attention, care and consideration by the teachers” given to the taxpayer’s legally blind son at an ordinary private school were insufficient to meet the provision’s requirement of ‘“personnel specially provided by that school, institution or other place’”. In Rannelli v. Minister of National Revenue (1991), 91 D.T.C. 816 (T.C.C.), Sobier, J. allowed the appeal, finding that the school in question admitted only students suffering from dyslexia. He held that the word “care” encompassed “solicitous, nurturing, sympathetic or empathic” treatment, and that a “words in total context” approach is preferable to too narrow an interpretation of the word.

In the present circumstances I am satisfied that the expenses incurred by the Appellants for the purposes of Dena’s music therapy were medical expenses pursuant to paragraph 118.2(2)(e) of the Act. By prescribing music therapy as an appropriate treatment of Dena’s condition Dr. Rett certainly recognized that by reason of her handicap she required the equipment, facilities and personnel that a place offering such therapy would provide. The school that Dena attended accommodated the needs of her music therapy by providing special facilities for the purposes of permitting her to participate in the therapy. These facilities were provided for the care of individuals, who like Dena, suffered from a handicap that responded well to such treatment. The fact that these facilities were not used on a full-time basis to provide musical therapy does not, in my opinion, disentitle the Appellants to the relief provided by the provision. Nor does the fact that Dena was the sole Rett’s Syndrome child to receive treatment at the school.

For these reasons these appeals are allowed and the assessments are referred back to the Minister for reassessment.

Appeal allowed.