Date: 20021216
Docket: A-99-02
Neutral citation: 2002 FCA 506
CORAM: ROTHSTEIN J.A.
PELLETIER J.A.
MALONE J.A.
BETWEEN:
GINNIE DUNN
Applicant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Vancouver, British Columbia, on December 16, 2002.
Judgment delivered from the Bench at Vancouver, British Columbia, on December 16, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: ROTHSTEIN J.A.
Date: 20021216
Docket: A-99-02
Neutral citation: 2002 FCA 506
CORAM: ROTHSTEIN J.A.
PELLETIER J.A.
MALONE J.A.
BETWEEN:
GINNIE DUNN
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia
on December 16, 2002.)
ROTHSTEIN J.A.
[1] The applicant was prescribed and provided with medications by her physician, dentist and naturopath. The Minister of National Revenue disallowed a portion of the applicant's claim for medical tax credits on the basis that the medications were not "recorded by a pharmacist", as required by paragraph 118.2(2)(n) of the Income Tax Act, R.S.C. 1985, c.1 (5th Supp.). Rowe D.J.T.C.C. dismissed the appellant's appeal.
[2] Despite the able argument of Mr. Boddez, we must also dismiss this judicial review from the decision of Rowe D.J.T.C.C.
[3] To be entitled to medical tax credits under paragraph 118.2(2)(n), among other things, an individual must have incurred medical expenses for drugs sold for use in the diagnosis, treatment or prevention of a disease, and which were prescribed by a medical practitioner or dentist and recorded by a pharmacist. Paragraph 118.2(2)(n) provides:
(2) For the purposes of subsection 118.2(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 118.2(2) (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 applicant says when her physician, dentist and naturopath dispensed medications to her, they were practising as pharmacists and that she meets the requirements of paragraph 118.2(2)(n). She says the provision should be read with compassion. We do not disagree that the provision should be read with compassion. However, it must be interpreted according to its words and the words of other related provisions.
[5] Paragraph 118.4(2)(a) provides in relevant part:
2. For the purposes of sections ... 118.2 ... a reference to an ... dentist, medical doctor, medical practitioner, ... pharmacist ... 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;
Pursuant to paragraph 118.4(2)(a), it is therefore necessary to have regard to the laws of British Columbia to determine if the physician, dentist or naturopath are authorized to practise as pharmacists. In this case the law that is relevant is the Pharmacists, Pharmacy Operations and Drug Scheduling Act, R.S.B.C. 1996, c. 363, as amended. Subsection 21(1) of that Act provides that
(1) No person may, unless registered as a pharmacist,
(a) practise as a pharmacist,
...
Paragraph75(a) of the Act provides that a practitioner, which includes a person authorized to practise medicine or dentistry, may directly dispense a drug to the practitioner's patient. Paragraph 75(a) provides:
75. Nothing in this Act, the drug schedules, the regulations, the bylaws or the rules prevents
(a) a practitioner from directly dispensing a drug to the practitioner's patient or, in the case of a veterinary drug, to the owner, or an agent of the owner, of an animal for which the drug has been prescribed,
...
However, paragraph 75(a) is an exception to the general rule that the dispensing of drugs may be done only by a pharmacist. A person authorized to practise medicine or dentistry may dispense a drug as part of the practice of medicine or dentistry. Paragraph 75(a) does not mean that a person authorized to practise medicine or dentistry is also authorized to practise as a pharmacist.
[6] Although we do not need to decide the point, it would appear that the requirement that medications be recorded by a pharmacist may be to limit the entitlement to payments for medications that are only available upon prescription as opposed to over the counter or other medications. In this case the Tax Court Judge found that the medications provided were not available through regular pharmacies or other medical supply sources and upon our review of the record, it is certainly not obvious that the medications prescribed were prescription drugs.
[7] The applicant does not meet the requirements of paragraph 118.2(2)(n) of the Income Tax Act in this case and her application will be dismissed.
(Sgd.) "Marshall E. Rothstein"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-99-02
STYLE OF CAUSE: Ginnie Dunn v. Her Majesty the Queen
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: December 16, 2002
REASONS FOR JUDGMENT BY: The Honourable Mr. Justice Rothstein
DATED: December 16, 2002
CONCURRED IN BY: The Honourable Mr. Justice Pelletier
The Honourable Mr. Justice Malone
APPEARANCES:
Mr. Thomas Boddez FOR APPLICANTS
Mr. Sergio Rodriguez
Mr. Victor Caux FOR RESPONDENT
Ms. Wendy Yoshida
SOLICITORS OF RECORD:
Thorsteinssons FOR APPLICANTS
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada