BETWEEN:
DAVID PICKWOAD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
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Appeal heard on April 6, 2005 at Toronto, Ontario
By: The Honourable Justice Judith Woods
Appearances:
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JUDGMENT
The appeal in respect of an assessment made under the Income Tax Act for the 2002 taxation year is dismissed.
Signed at Ottawa, Canada, this 23rd day of June, 2005.
Docket: 2004-3799(IT)I
BETWEEN:
DAVID PICKWOAD
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
[1] This is an appeal by David Pickwoad in respect of an assessment made under the Income Tax Act, R.S.C. 1985, c.1 (5th Supp.), as amended, for the 2002 taxation year. Mr. Pickwoad claims a medical expense credit in respect of an amount paid to a social worker for counselling. The question to be determined is whether a registered social worker who provides counselling is a "medical practitioner" for purposes of the relevant statutory provision.
[2] The facts are not in dispute. On the advice of a doctor, the taxpayer's wife received counselling from Helen Walters, M.S.W., a registered social worker. During the taxation year at issue, an amount of $9,750 was paid for Ms. Walters' services and the taxpayer claimed this amount as a medical expense for purposes of the medical expense credit in subsection 118.2(1) of the Act.
[3] The taxpayer submits that the amount paid to Ms. Walters qualifies as a medical expense under paragraph 118.2(2)(a). This provision reads:
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 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;
(emphasis added)
[4] Subsection 118.4(2) of the Act is also relevant. It provides that a medical practitioner is "a person authorized to practise as such [...] pursuant to the laws of the jurisdiction in which the service is rendered."
[5] The taxpayer submits that the term "medical practitioner" includes a social worker who is registered under the OntarioSocial Work and Social Service Work Act, 1998. He submits that the counselling services provided to his wife are the same as those provided by other health professionals and submits that the regulation of social workers under this statute is analogous to the regulation of other health care workers in the Ontario Regulated Health Professions Act.
[6] Counsel for the Crown suggests that "medical practitioner" for purpose of this appeal means someone who is a member of the College of Physicians and Surgeons of Ontario and relies on the following provision in the Ontario Interpretations Act:
29(1) In every Act, unless the context otherwise requires,
[...]
"legally qualified medical practitioner", "duly qualified medical practitioner", or any words importing legal recognition of a person as a medical practitioner or member of the medical profession, means a member of the College of Physicians and Surgeons of Ontario;
[7] During argument, the taxpayer referred to administrative positions of the Canada Revenue Agency that provide that the medical expense credit can be claimed in respect of certain payments to social workers and suggested that these administrative positions should apply to him. In response to this argument, an official from the Agency who was present at the hearing agreed to consider whether the Agency should have applied its administrative policy and the appeal was adjourned for that purpose. Unfortunately for the taxpayer, the Agency subsequently determined that the taxpayer did not satisfy all the conditions of the administrative policy. The condition that was not satisfied was that Ms. Walters did not work in a recognized mental health clinic.
[8] This Court does not have authority to provide relief based on the Agency's administrative policies unless they are consistent with the legislation. Accordingly, the only question in this appeal is whether a social worker who is registered as such under provincial legislation is a medical practitioner for the purposes of paragraph 118.2(2)(a) of the Act.
Analysis
[9] For the reasons that follow, I am not able to agree with the taxpayer's position. The determination turns on whether Ms. Walters is authorized by the province of Ontario to practise as a medical practitioner. This is a two-part inquiry. The first part is to consider the meaning of medical practitioner and the second is to determine whether Ms. Walters is authorised to practise as such by the laws of Ontario.
[10] According to its ordinary meaning, "medical practitioner" refers to someone who practises medicine. The Canadian Oxford Dictionary (2001) defines the term as "a physician or surgeon." The same dictionary defines the word "medical" as "of or relating to the science of medicine in general." And "medicine" is defined as "the science or practice of the diagnosis, treatment, and prevention of disease [...]."
[11] The Ontario statutory scheme in respect of the practice of medicine is set out, in part, in the Medicine Act, 1991. Sections 3 and 4 are attached as an appendix to these reasons. In section 3, the scope of the practice of medicine is defined in much the same way as the dictionary definition above. In section 4, authorization to perform various medical acts is provided to a member of the College of Physicians and Surgeons of Ontario. In view of the general meaning of "medical practitioner," and because members of the College of Physicians and Surgeons of Ontario are authorized to perform medical acts, members of the College are medical practitioners for purposes of paragraph 118.2(2)(a).
[12] The taxpayer argued that registration under the Social Work and Social Service Work Act, 1998 is sufficient for Ms. Walters to qualify as a medical practitioner. I do not agree. Under subsection 118.4(2) of the Income Tax Act, a medical practitioner is someone who is authorized to practise as a medical practitioner. From my review of the legislation under which Ms. Walters is registered, it does not authorize her to practise as a "medical practitioner" within the ordinary meaning of that term.
[13] Although the result may seem harsh, Parliament has seen fit to limit the medical expense credit to payments to certain types of health professionals. It has not been established that Ms. Walters was one of these. Accordingly the appeal must be dismissed.
Signed at Ottawa, Canada, this 23rd day of June, 2005.
"J. Woods"
Woods J.
APPENDIX
Excerpt from Medicine Act, 1991, S.O. 1991, c. 30, as amended.
3. The practice of medicine is the assessment of the physical or mental condition of an individual and the diagnosis, treatment and prevention of any disease, disorder or dysfunction.
4. In the course of engaging in the practice of medicine, a member*is authorized, subject to the terms, conditions and limitations imposed on his or her certificate of registration, to perform the following:
1. Communicating a diagnosis identifying a disease or disorder as the cause of a person's symptoms.
2. Performing a procedure on tissue below the dermis, below the surface of a mucous membrane, in or below the surface of the cornea or in or below the surfaces of the teeth.
3. Setting or casting a fracture of a bone or a dislocation of a joint.
4. Moving the joints of the spine beyond a person's usual physiological range of motion using a fast, low amplitude thrust.
5. Administering a substance by injection or inhalation.
6. Putting an instrument, hand or finger,
i. beyond the external ear canal,
ii. beyond the point in the nasal passages where they normally narrow,
iii. beyond the larynx,
iv. beyond the opening of the urethra,
v. beyond the labia majora,
vi. beyond the anal verge, or
vii. into an artificial opening into the body.
7. Applying or ordering the application of a prescribed form of energy.
8. Prescribing, dispensing, selling or compounding a drug.
9. Prescribing or dispensing, for vision or eye problems, subnormal vision devices, contact lenses or eye glasses.
10. Prescribing a hearing aid for a hearing impaired person.
11. Managing labour or conducting the delivery of a baby.
12. Allergy challenge testing of a kind in which a positive result is a significant allergic response.
*"Member" is defined as a member of the Collegeof Physiciansand Surgeons of Ontario.
COURT FILE NO.: 2004-3799(IT)I
STYLE OF CAUSE: David Pickwoad v. Her Majesty the Queen
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 6, 2005
REASONS FOR JUDGMENT BY: The Honourable Justice Judith Woods
DATE OF JUDGMENT: June 23, 2005
APPEARANCES:
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For the Appellant: |
The Appellant himself
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Counsel for the Respondent: |
Kandia Aird |
COUNSEL OF RECORD:
Firm:
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario