Date: 20010522
Docket: 2000-3586-IT-I
BETWEEN:
PEGGY (MARGARET) FRANK
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
TAX COURT OF CANADA
IN RE: THE INCOME TAX ACT
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Held before His Honour Judge Teskey at the Maritime Museum of British Columbia, 28 Bastion Square, Victoria, BC, on Monday, April 30, 2001.
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APPEARANCES:
Ms. Peggy Frank Appearing on his own behalf
Ms. Kristy Foreman Gear Appearing for the Respondent
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THE REGISTRAR: Ms Vickie Miller
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Key West Reporting
8017 Chemainus Road
Chemainus, BC V0R 1K0
per: Neil Miller
Reasons for judgement
HIS HONOUR: I am going to give judgement now. It is not going to be long and detailed, because I believe you want to know where you stand and you would rather know today than two or three weeks from today. So maybe a few words missing here and there and so on. It is more important that you know where you stand.
My reasons for judgement are that the Appellant.... Before I start, you are satisfied, Madam, that you did get your thirty seven cents. Because obviously the drafter of this Reply, who is not a lawyer and is not with Justice but with Revenue, in essence, blew several paragraphs in the Reply. But as long as you have got it then that is fine.
The Appellant, in her Notice of Appeal wherein she appealed her reassessment for Income Tax for the year 1997 elected the informal procedure. There are three issues before the court. They are as follows:
Firstly, an amount of $702.73 paid for vitamin supplements, which were prescribed by the Appellant's physician but not recorded by a pharmacist.
Secondly, the amount of $511.32 paid for therapeutic touch was not a medical expense paid to a medical practitioner in respect to medical services provided to the Appellant.
Thirdly, an amount of $535.09 paid for miscellaneous items which will be dealt with herein.
The evidence of the Appellant is unchallenged. The Appellant suffers from HIV. Who annually, pays - in round figures - $700 for vitamins and supplements, which she says she requires because of her medical problems, since people that have this disease lose the ability or the body loses the ability to manufacturer these required vitamin. In order to maintain life, various vitamins and supplements are required.
The provision of the Income Tax Act (the " Act ") that deals with this is found in Section 118.2(2)(n). The words that have to be looked at are the last six words of that section. They are: "as recorded by a pharmacist" .
For clarity, this who subsection reads,
"for drugs, medicaments or other preparations or substances (other than those described in paragraph K) manufacture red sold or represented for use in the diagnosis for treatment or prevention of a disease, disorder, abnormal physical state of 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."
There has been one case referred to me and that is of my colleague, Rip, and he did deal with vitamin and mineral supplements. In that case reading his reasons, I cannot find that the vitamins and supplements therein were prescribed by a medical practitioner or dentist. He comes to the conclusion that vitamins and supplements do not fit the statute. I am well aware that a decision of a colleague deserves the highest respect and should be followed. However, in this case we have the vitamins and supplements prescribed by a physician and I have the evidence before me that they are required to sustain the life of the Appellant.
The Respondent takes the position that what the words, "as recorded by a pharmacist", means that it has to be a prescription drug that is a drug that requires a prescription before it can be sold. The Appellant argues that if that is what Parliament meant the subsection would simply read, "for drugs prescribed by a medical practitioner or a dentist as found on the list of prescribed drugs." The section doesn't say that. It goes quite further, and is much broader than that.
The question to me is can I ignore, "as recorded by a pharmacist".
The evidence is that the Appellant buys her vitamins and supplements through a process that can be done by phone, it is more economical than going to a drug store or a health food store, easier for her. She gave evidence that she talked to a druggist and the druggist said oh yes I can record it. And what does the statute mean by those words, "as recorded by a pharmacist?" They must mean something broader than a "prescription" drug. A pharmacist just making a note of vitamins and supplements sold doesn't make sense.
"Recorded" by a pharmacist could be the pharmacist's purchase or sales slips. Both are recordings by the pharmacist.
The late Mr. Justice Sopinka, of the Supreme Court of Canada, in the Case that dealt with strike pay said that where the Act is such that there is a doubt as to the meaning of the words, the doubt has to be given to the taxpayer. Being convinced that Parliament did not mean "prescribed prescription drugs" when it enacted this entire subsection, it raises a doubt in my mind as to what they meant by those last few words. And since these vitamins and supplements are required for the Appellant's health, well-being and actual life and were prescribed by a medical physician, I am allowing the items in number A to the amount of $702.73.
The second issue, the therapeutic touch. The Appellant attended Orcas Island in Washington State. On staff there are several medical doctors, nurses, doctors of nursing, doctors of psychology and there where she attended for a week she received treatment not only from medical doctors but from nurses, doctors of psychology. The money that she spent there not only included that but it also included room and board.
The question put to the Court is whether this type of expense would be covered under Section 118.2(2)(e) which reads,
"For 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 physical or mental handicap requires the equipment, facilities or personnel specifically provided by that school, institution or other place for the care and training of individuals suffering from a handicap suffered by the patient."
I believe it is my duty to interpret medical expense cases, as well as medical disability cases in a broad manner. The Appellant said that she could receive the same type of treatment here in Victoria but not nearly the same quality.
Part of the $511.32 was the ferry to get there from Vancouver Island. The receipts that are produced are US dollars. The Respondent does not take issue of the amount. I believe under the circumstances before me that the $511.32 does fall within that provision.
The third and last issue, the Appellant purchased something to carry her drugs and also something to keep them cold as the majority of her drugs have to be kept cold. At the time she lived in the islands and went to Vancouver for the treatment. She also purchased periodicals that the Appellant subscribed to and for books. This was to keep her abreast of all of the latest developments that the periodicals could produce and to help her understand her medical condition and the grieving process because of the loss of her husband.
If the Appellant is to be successful I must look at the provisions of 118.2(2)(m) which reads,
"For any device or equipment for use by the patient that i) is a prescribed kind; ii) is prescribed by a medical practitioner; iii) is not prescribed in any other paragraph of this subsection; and iv) meets such conditions as our prescribed to its use or the reasons for its acquisition to the extent the amount so paid did not exceed the amount, if any, prescribed respecting the device or equipment."
That brings us to Regulation 5700. Though I have a great deal of sympathy for the Appellant and her desire to keep current, and I accept her story that she heard about a test which even her specialist in HIV wasn't aware of, I cannot find for the Appellant under this category and therefore, would not allow the personal carrying bag, the cooling containers, the periodicals and the books.
There was an item that the Reply did not take into consideration and it has been conceded by the Respondent that there should be $32 additional no matter what, allowed to the Appellant for a massage therapy which was ordered and received and paid for.
The Appellant also purchased a Braun toothbrush, which is an expensive electric toothbrush in the neighbourhood of $90. It does not, again, fall into the provisions of being prescribed by a Doctor and in the regulations. As much as it may assist the Appellant it is just not covered.
The appeal therefore for these reasons is allowed and the assessment is referred back to the Minister for reconsideration and reassessment on the basis that the Appellant is entitled to additional medical expenses of $1245.73.
CERTIFIED CORRECT;
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Neil Miller Court Reporter