Date: 20010816
Docket: 2000-4291-IT-I
BETWEEN:
MARIA PAGNOTTA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on August 16, 2001 at Edmonton, Alberta, by
the Honourable Judge Campbell J. Miller
Appearances
Agent for the Appellant: Meluccia Di Marco
Counsel for the Respondent: R. Scott McDougall
Judgment
The appeal from the assessment made under the Income Tax Act for the 1998 taxation year is allowed on the basis that the expenses of $344.73 and $188.56 incurred by the Appellant at Nutrition Plus Pharmacy and Kripps Pharmacy Ltd. respectively qualify as medical expenses pursuant to paragraph 118.2(2)(n) of the Income Tax Act and the assessment is referred to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 27th day of August 2001.
|
"C. J. Miller" |
J.T.C.C.
Date: 20010827
Docket: 2000-4291(IT)I
BETWEEN:
MARIA PAGNOTTA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Miller, J.T.C.C.
[1] Maria Pagnotta has suffered with severe chronic pain for many years and has sought a variety of measures to alleviate that pain. Two such measures are massage therapy and the use of Chinese herbs, nutraceuticals and vitamins. Mrs. Pagnotta claimed $555.00 and $3,554.95 respectively for those items in her 1998 taxation year as medical expenses eligible for determining her 1998 medical expense credit under section 118.2 of the Income Tax Act ("Act"). The Minister of National Revenue ("Minister") disallowed such expenses as not falling within section 118.2 and Mrs. Pagnotta appeals that assessment by way of Informal Procedure.
[2] Mrs. Pagnotta was well represented by her daughter, Mrs. Di Marco, who lives with her mother. Mrs. Di Marco testified regarding her mother's health and treatment. The Appellant's health problems stem from a nerve root irritation which causes chronic low back pain. This condition was exacerbated in 1993 by a hip fracture. According to the testimony of her family doctor, Dr. Papp, she also suffers from fibromyalgia and osteoporosis. The Appellant has lost independence and is reliant on others for help with daily living activities. Throughout 1998 she received continual care in a variety of forms including regular series of acupuncture treatment by Dr. Steven Aung, taking Chinese herbs, nutraceuticals, and vitamins, regular massage therapy treatments from Tim McCarty, a certified rolfer, chelation treatment from Dr. Trethart, health supplements and prescription drugs.
[3] The cost of all these forms of treatment were claimed by Mrs. Pagnotta as medical expenses in 1998. The following list indicates the cost of those various treatments and also indicates what was not allowed by the Minister:
|
Description |
Amount |
|
Dr. Aung (acupuncture treatments) |
$1,330.00 |
|
Dr. Aung (Chinese herbs) |
1,028.31* |
|
Nutrition Plus Pharmacy (herbs and enzymes) |
344.73* |
|
Tim J. McCarty (massage therapy) |
550.00* |
|
Alberta Blue Cross premiums & disabled placard |
261.00 |
|
Dr. Trethart (chelation treatments) |
1,590.00 |
|
Dr. McLeod |
88.00 |
|
Glasses and eye examination |
350.00 |
|
Supplements & More (supplements) |
1,929.15* |
|
Self Heal Herbal Centre (iris diagnosis therapy) |
64.20* |
|
Nutrition Plus Pharmacy (prescriptions) |
350.63 |
|
London Drugs (prescriptions) |
141.59 |
|
Kripps Pharmacy Ltd. (soy capsules) |
188.56* |
|
Total Claimed |
$8,216.17 |
*disallowed by Minister
[4] There is no question Mrs. Pagnotta had and continues to have severe medical problems, which at times have caused her to be bed-ridden. It is also clear from both Dr. Papp and Dr. Aung that there is no one completely effective treatment for the type of debilitating pain suffered by Mrs. Pagnotta. The best that could be offered was a combination of therapies, including both western and alternative or complementary medicine. Traditional western treatments appear to have sapped Mrs. Pagnotta of her energy and complementary medicine and treatments were required to restore that energy.
[5] With respect to the massage therapy, Dr. Papp testified that he prescribed massage therapy for patients as a method of relieving pain. He indicated this aspect of health care has come a long way in the last few years and he considers it a good method of pain relief. Dr. Aung confirmed that massage therapy is a valuable treatment in conjunction with various other treatments, including acupuncture, herbs, nutritional treatment, exercise and pharmaceuticals. According to Mrs. Di Marco the Appellant's body at times was like a piece of wood and massage therapy was necessary to loosen her mother up and give some short term relief. The massage therapist the Appellant saw was a member of the Association of Massage Therapists and Holistic Practitioners.
[6] With respect to Chinese herbs, nutraceuticals and vitamins, Mrs. Pagnotta acquired these from a number of sources. She was referred to Dr. Aung by her family doctor, Dr. Papp. Dr. Aung is well qualified as both a western medical practitioner and a specialist in Chinese medicines. He described his practice as an integrated practice rather than either alternative or complementary. From Dr. Aung the Appellant bought $1,028.21 worth of Chinese herbs, listed on Schedule "A" attached. Receipts were provided to support all these payments. Dr. Aung testified that he prescribed these herbs and also dispensed them. He did so because it would then allow the patient to go to a herbalist, who in many cases might not speak English, and use the herbs acquired from Dr. Aung as a sample for future purposes. Dr. Aung did not make a profit on the distribution of these herbs, but simply sold them at his cost. These were prescribed to assist primarily in the treatment of bowel problems and hemorrhoids. The receipts from Dr. Aung's office did not indicate the allocation amongst the herbs although Dr. Aung indicated he kept a record of what was prescribed. Dr. Aung acknowledged how it would be difficult for a pharmacist to keep a record of Chinese herbs as they are simply not familiar with them, though he did suggest it would be appropriate for pharmacists to educate themselves in that regard.
[7] While no written prescription is required to acquire Chinese herbs, and a store requires no special licence to sell them, Dr. Aung does indicate to his patients the recommended dosage. As he sold the herbs from his office there was no external paper serving as any form of prescription. It was all handled internally.
[8] Dr. Trethart, in a letter dated April 22, 1999, listed the nutritional treatment for the Appellant in 1998 as follows:
|
Protein |
Pro-4 |
|
Definition |
Bromelain |
|
Ester C |
Co Enzyme Q10 |
|
Gingko |
Nutrizyme |
|
Ginseng |
Halibut Oil |
|
Super B Complex |
Vitamin E 800 IU |
|
Osteoprime |
Proanthozyme |
|
Chromezyme |
Plantzyme |
|
Cytolyse |
Total Body Flora |
|
Zinc Picolinate |
Multi-Enzyme |
|
Kava Kava |
Vitamin D 1000 IU |
|
Cell FX |
MVP |
|
Charcoal |
Glucosamine Sulfate |
|
Psyllium |
Caprylic Acid |
|
Bentonite |
Just before trial, at the Appellant's agent's request, Dr. Trethart wrote again TO WHOM IT MAY CONCERN regarding Mrs. Pagnotta as follows:
Although not achieving 100 percent relief she has had considerable benefit from her regimen while under full medical care and supervision and as prescribed by myself.
[9] In accordance with Dr. Trethart's recommendation, Mrs. Pagnotta acquired DHEA from Kripps Pharmacy at a cost of $188.56, enzymes and vitamins from Nutrition Plus Pharmacy at a cost of $344.77 and enzymes, vitamins, minerals and nutraceuticals from Supplements & More at a cost of $1,929.11. Supplements & More was located at the same address as Dr. Trethart, though there was no evidence he had any interest in the store.
[10] The only other contested bills were from Self Heal Herbal Centre totalling $64.20 for a consultation fee by Robert Rogers, a Master of Science, who had studied in herbal medicine.
[11] Mrs. Di Marco indicated that when she bought these items on her mother's behalf she would have a piece of paper from Dr. Trethart, though she was unable to produce a copy at trial. The employee at Supplements & More would discuss with Mrs. Di Marco any difference between what the doctor had recommended and what might appear on the bottle.
[12] Mrs. Pagnotta's health improved somewhat in 1998, though it was acknowledged by Dr. Papp that, given the vast array of drugs, medicines, herbs, vitamins and treatments, it was difficult to know what treatment had what effect. Dr. Papp testified that apart from Chinese herbs and vitamins, Mrs. Pagnotta was also taking at times throughout 1998 up to 10 different forms of prescription drugs.
[13] Dr. Papp expressed his views on prescribed versus recommended medicines, suggesting he could use these terms from a medical perspective interchangeably, but for what he considered the legal connotation of "prescription". Only "prescribed medicines" could be dispensed by a pharmacist so a prescription was required to obtain such medicines. He also commented that some medications can be viewed as foods and therefore not subject to stringent requirements as to what amounts to take and in what strength. He further advised that physicians cannot run pharmacies nor sell medications.
[14] Dr. Aung explained that the use of Chinese herbs and medicines was not regulated as were prescribed drugs. Chinese herbs could be taken in powder form (he referred to as ready-made) or through the longer more laborious process of starting with the natural ingredients and boiling and grinding to produce an acceptable digestible form. He believed that the herbalist who dispenses such herbs keeps records. He testified that anyone can go to a herbalist, who to date does not require a licence, and buy Chinese herbs, though without a medical practitioner's advice, a patient may not know the appropriate amount and strength of herbs to take.
[15] The overall impression left by Drs. Papp and Aung regarding the use of alternative medicines, otherwise known as complementary medicine, or as Dr. Aung would suggest, "integrated" medicine (a combination of western and Chinese methods) was that North American society is in a transition stage from non-acceptance of anything other than the traditional western methods of medical practice to an acceptance of a wide variety of alternative methods. This is especially so in patients who suffer long term chronic pain as does Mrs. Pagnotta. We have seen in recent years the growing trend of patients who turn to acupuncture, chelation, nutrition, massage and other non-traditional forms of treatment. The issue is whether the terms of the Income Tax Act, as they pertain to medical expenses, can be interpreted as written to accommodate this emerging form of health care, or whether the legislators must acknowledge what is occurring in the world of health care and make appropriate legislative changes.
[16] The Appellant's agent argued most capably and eloquently on her mother's behalf. I accept that her mother has suffered a great deal and has had to rely on a wide variety of treatments in attempting to bring some normalcy into her life. I also accept the two physicians' evidence that treatment of chronic pain is extremely difficult, at times with only limited success. The Appellant's argument is that use of the alternative forms of medicine should be treated no differently under the Income Tax Act than traditional western forms, and specifically:
1. regarding massage therapy, the cost falls within the scope of paragraph 118.2(2)(a) or in the alternative 118.2(2)(o). These paragraphs read:
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;
...
(o) for laboratory, radiological or other diagnostic procedures or services together with necessary interpretations, for maintaining health, preventing disease or assisting in the diagnosis or treatment of any injury, illness or disability, for the patient as prescribed by a medical practitioner or dentist;
2. regarding Chinese herbs, nutraceuticals and vitamins, the cost falls within the scope of paragraph 118.2(2)(n). This paragraph reads:
(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;
[17] The Appellant argues that the Chinese herbs, nutraceuticals and vitamins are medicaments or other preparations or substances, that they were prescribed by Dr. Aung and Dr. Trethart and, with respect to Nutrition Plus Pharmacy and Kripps Pharmacy, were recorded by a pharmacist. She relies on the recent case of Frank v. The Queen, [2001] T.C.J. 416 in support of this proposition. With respect to the herbs and vitamins acquired from Dr. Aung and from Supplements & More, the Appellant argues that the requirement for both prescribed by a medical practitioner and recorded by a pharmacist should be read disjunctively, not conjunctively, so that prescribed by a medical practitioner is sufficient, which she alleges has been met in this case. She relies on the decision of Lawlor v. The Queen, [1996] 2 C.T.C. 2005 in support of this proposition. The Appellant also urged the Court to deal with compassion and understanding in accordance with recent decisions such as Tanguay v. The Queen [1997] T.C.J. 617.
[18] In her pleadings the Appellant also raised a Charter argument though at trial she did not pursue this. It should be noted however that she had complied with section 57 of the Federal Court Act, and received responses that no agents would appear.
[19] The Respondent's position with respect to massage therapy is that in 1998 Tim McCarty was not a medical practitioner as required by paragraph 118.2(2)(a) and the cost of the treatment therefore did not qualify pursuant to the Act. With respect to the Chinese herbs, nutraceuticals and vitamins, the Respondent relied on a number of cases (Williams v. The Queen [1998] 1 C.T.C. 2813, Hryhor v. The Queen, [2000] 4 C.T.C. 2163 and Mongillo v. The Queen, [1994] T.C.J. No. 831) in suggesting that Chinese herbs and vitamins do not fall within the requirements of paragraph 118.2(2)(n). Respondent's counsel went through the various elements of this paragraph and questioned the eligibility of the Chinese herbs and vitamin supplements on a number of fronts: firstly, as not being drugs, medicaments or other substances manufactured, sold or represented for use in the treatment or prevention of disease; secondly, as not prescribed; thirdly, if prescribed not prescribed by a medical practitioner; and fourthly, as not recorded by a pharmacist.
[20] I will deal first with the cost of the massage therapy as claimed pursuant to paragraph 118.2(2)(a). The simple issue is whether Tim McCarty, a member of the Association of Massage Therapists and Holistic Practitioners, was in 1998 a "medical practitioner" providing "medical services". I find he was not a medical practitioner providing medical services. A common understanding of medical practitioner, as confirmed by the Canadian Oxford Dictionary, is a physician or surgeon. As Tim McCarty is not a physician or surgeon that should be the end of it. However, given the Respondent's reference to provincial legislation and the Appellant's request for a liberal, compassionate and understanding approach to interpretation I will explore this further.
[21] To determine if a massage therapist qualifies as a medical practitioner providing medical services I am directed by subsection 118.4(2) to review the laws of the jurisdiction in which the service is rendered, in this case, Alberta. Although Respondent's counsel referred me to the Health Disciplines Act of Alberta, Chapter H-3.5, I look first to the Medical Professions Act, Chapter M-12. Subsection 1(k) reads:
"registered practitioner" means a person registered in the Alberta Medical Register or who is temporarily registered under section 28;
Paragraphs 18(1)(a) and 18(2) read:
(1) The Registrar shall keep a register to be known as the "Alberta Medical Register", which shall be divided into two parts, namely,
(a) Part 1 which shall contain the name of every person authorized to practise as a medical practitioner under this Act and,
(b) Part 2 which shall contain the name of every person authorized to practise as a practitioner of osteopathy under this Act.
(2) Only those persons whose names are inscribed in the Register and who are not under suspension by the council are entitled to practice as hereinafter provided.
Section 21 reads:
An applicant for registration who has not previously been registered in Part 1 of the Alberta Medical Register is qualified to be registered if the applicant
(a) holds a certificate of registration from the Medical Council of Canada, and
(b) has met the education and training requirements set out in the by-laws.
There is no evidence that Tim McCarty was a registered practitioner in accordance with these provisions. As such he was not, in accordance with section 18, authorized to practice as a medical practitioner under the Medical Professions Act.
[22] Turning now to the Health Disciplines Act, it should be noted the Act does not refer to "medical practitioner" nor "medical services" but to "members of a designated health discipline" and "health services". Paragraph 1(d) reads:
"designated health discipline" means a health discipline listed in the Schedule;
Paragraph 1(f) reads:
"registered member" means a person registered under this Act as a member of a designated health discipline;
The schedule referred to lists the designated health disciplines: massage therapist does not appear on that list. Even if I found that a member of a designated health discipline providing health services falls, on a liberal interpretation, within the scope of a "medical practitioner providing medical services", I still cannot find that Tim McCarty as a massage therapist so qualifies. The cost of the massage therapy is not an expense as contemplated by paragraph 118.2(2)(a).
[23] In the alternative, the Appellant referred to paragraph 118.2(2)(o). The evidence was that the massage therapist provided some relief from pain as well as providing some freedom of movement. It was never suggested by the Appellant that massage therapy was in any way relied upon as a diagnostic tool. It is not therefore the type of expense contemplated by paragraph 118.2(2)(o).
[24] The majority of the disallowed medical expenses relate to Chinese herbs, nutraceuticals and vitamin supplements. There are a number of criterion to be met to fall within the scope of paragraph 118.2(2)(n). First, are these substances "drugs, medicaments or other preparations or substances". I find it particularly of note that this test is not limited to drugs, but is considerably more expansive. I do not accept any suggestion that this paragraph is limited to "prescribed drugs" as it is clear to me these opening words contemplate a much broader range of substances. I find that Chinese herbs and vitamin supplements come squarely within "other preparations or substances", and even "medicaments", which I take to mean substances used for medical treatment.
[25] The second criteria is that the substance be manufactured, sold or represented for use in a diagnosis, treatment or prevention of a disease, disorder, abnormal physical state or the symptoms thereof or in restoring, correcting or modifying an organic function. The Respondent argued that the evidence did not support a finding that the Chinese herbs and vitamins met this requirement. I fail to see his reasoning in this. The reasons these substances are on the market are to prevent disease, treat symptoms of disease or to modify an organic function. They belong in the category of therapeutic products, according to a publication provided by the Appellant from the Therapeutic Products Directorate of Health Canada. The evidence from Dr. Aung left no doubt that he viewed these substances as being available for the purposes set out in paragraph 118.2(2)(n). I agree with him.
[26] The Respondent relies on Judge Beaubier's finding in Hryhor that vitamins do not fall within paragraph (n) since they were not "manufactured, sold or represented for use in the diagnosis, treatment or prevention of a disease, disorder, etc. as stated therein. Rather they are a "food or dietary supplement". In the Hryhor case there is no list of the vitamins claimed for, but in this case the Appellant's doctor provided a summary of the vitamins and treatments recommended for this patient. Viewed as a whole, and given the reliance put upon these by a medical practitioner, I find they were sold for treatment purposes.
[27] The third criteria that they were purchased for use by the Appellant is easily met, as receipts were provided for all of these expenditures.
[28] The fourth criteria is that the substances were prescribed by a medical practitioner. There was considerable argument as to what was meant by "prescribed", to the extent that Respondent's counsel referred me to a criminal case of Regina v. Falconi (1976), 31 C.C.C. (2d) 144 in which dictionary definitions and definitions found in the Pharmacy Act, R.S.O. 1970, c. 348 and Narcotic Control Act, R.S.C. 1970, c. N-1 were referred to the judge. The judge determined,
... in my view, it appears that a prescription is a communication, written or oral, by a doctor to some person telling that person to prepare a medicine and indicating how the medicine is to be used. ...
[29] While I am mindful this approach is in a completely different environment, I find it helpful in that if I substitute "medicaments or other preparations or substances" for medicine, I am left with a definition that in its simplest terms means a doctor's direction to someone to dispense a substance to a patient in certain amounts. As Dr. Papp would have it, as much a recommendation as anything. He acknowledged that his use of the term "prescribed" was so that "prescribed drugs" could be obtained by a patient. Given that the paragraph 118.2(2)(n), as already indicated, goes well beyond just drugs, I accept that "prescribed" can be given a wider interpretation. This is in keeping with the direction of cases such as Tanguay and Lawlor which suggest it is appropriate in certain circumstances to not be governed solely in interpreting legislation by the main objective of the Act to levy taxes, but to consider the underlying social policy in interpreting particular sections. As there is no definition in the Act, and no definitive precedent from a higher authority for the interpretation of "prescribed", I find that Chinese herbs and vitamins and nutraceuticals can be prescribed. Further, Dr. Aung's evidence was that he prescribed the Chinese herbs and gave internal directions to the staff for the dispensement of those herbs. Dr. Trethart, in a letter of August 13, 2001, referred to the substances set forth in his letter of April 22, 1999 as having been "prescribed by myself". Respondent's counsel argued that the latter letter should be given little evidentiary weight as it followed from a request by the Appellant's agent. Given my approach to the interpretation of the term "prescribed", I am less influenced by Dr. Trethart's use of the term than I am by his clear direction to someone to supply the list of substances set forth in Schedule "A". I find that both Dr. Aung and Dr. Trethart "prescribed" substances which qualify under paragraph 118.2(2)(n). I also find that they did so as medical practitioners, notwithstanding Respondent counsel's suggestion that Dr. Aung was not wearing his medical practitioner's hat when he prescribed the Chinese herbs. He was a medical practitioner and he prescribed substances in the treatment of the Appellant, his patient.
[30] The fifth criteria is something of a stumbling block for the Appellant and that is the requirement that the substances prescribed be "recorded by a pharmacist". The Appellant urged that I follow the Lawlor and Tanguay decisions and find that the "and" in the phrase "prescribed by a medical practitioner and as recorded by a pharmacist" be read disjunctively and not conjunctively. The expression read disjunctively in those cases is in a context quite different from the one before me. To suggest that I can ignore the requirement of a pharmacist recording goes beyond compassionate interpretation and renders the legislation completely meaningless. There is no ambiguity that there is a requirement for the pharmacist to do something; there is perhaps some ambiguity in what is meant by recorded. I am not however prepared to ignore the requirement of a pharmacist. The Appellant relied heavily on the recent decision of Judge Teskey in the Frank case, where he asked the same question. He did not ignore the words either, but instead, having found substances had been prescribed by a medical practitioner, found that "recorded" could be the pharmacist's purchase or sales slip. This is a broad interpretation of the requirement and can only be justified by circumstances which cry out for a compassionate approach. I find the Appellant's situation is just that. Three doctors agree that a combination of treatments was the only way the Appellant could garner some relief. That some substances in this treatment acquired from a pharmacist can be eligible medical expenses and some not is too strict an interpretation on this paragraph. However, the substances must still be acquired through a pharmacist. There is simply no way around that requirement. Until the Government of Canada, through initiatives such as the development of a regulatory frame-work for natural health products, makes the necessary legislative changes, I must apply, albeit liberally, the requirement that substances be recorded by a pharmacist. As Chinese herbs, nutraceuticals and vitamins become regulated, it is easy to foresee that our tax laws will be amended accordingly. Until then, I can only find that those substances acquired from a pharmacy can fall within the meaning of paragraph 118.2(2)(n). Under no interpretation can I find that the herbs, vitamins and nutraceuticals supplied by Dr. Aung directly and by Supplements & More qualify as being recorded by a pharmacist. The expenses incurred of $344.73 at Nutrition Plus Pharmacy and $188.56 at Kripps Pharmacy Ltd. do however qualify for the reasons I have given and I allow the appeal to that extent. I wish to be clear that this is not intended to be an open invitation to taxpayers whose lifestyle includes a regimen of vitamins to rely on paragraph 118.2(2)(n) for obtaining a credit on the basis that such costs constitute medical expenses. This is limited to the rare situation of a taxpayer suffering severe medical problems, attempting to relieve those problems through a variety of treatments recommended by a number of medical practitioners. In such a case as the one before me the objective of the paragraph appears to be met by a liberal interpretation.
[31] As the Appellant did not pursue her Charter argument at trial I do not intend to dwell on it, but as the Respondent addressed it briefly, I do make the following comments.
[32] Based on the Supreme Court of Canada decision in Law v. Canada, [1999] 1 S.C.R. 497 there are three guidelines to follow in determining whether subsection 15(1) of the Charter has been infringed:
1. Does the law in question, in this case paragraph 118.2(2)(n), impose differential treatment on the Appellant on the basis of the Appellant's personal characteristics or fail to take into account the Appellant's disadvantaged position in society, resulting in differential treatment on the basis of personal characteristics?
2. Is the Appellant subject to the differential treatment based on the prohibitive grounds enumerated in the Charter (race, national or ethnic origin, colour, religion, sex, age or mental or physical disability), or grounds which are analogous to those?
3. Does the differential treatment discriminate by imposing a burden or withholding a benefit which promotes (through stereotypes or otherwise) the view that the Appellant is an individual less capable or worthy of recognition or value as a human being ... equally deserving of concern, respect and consideration?
[33] I can find no differential treatment imposed by paragraph 118.2(2)(n) of the Act on the Appellant on the basis of personal characteristics. Even if I consider that the Appellant's poor health put her in a disadvantaged position, which I do not, this paragraph still does not in any way treat the Appellant differently. Every taxpayer is subjected to the same requirements for the qualification of medical expenses pursuant to this paragraph. The fact that a physician provides substances directly, rather than having the patient obtain them from a pharmacist, affords the Appellant no basis for a claim of discrimination.
[34] For these reasons I allow the appeal and refer the assessment back to the Minister on the basis that the expenses of $344.73 and $188.56 incurred by the Appellant at Nutrition Plus Pharmacy and Kripps Pharmacy Ltd. respectively qualify as medical expenses pursuant to paragraph 118.2(2)(n).
Signed at Ottawa, Canada, this 27th day of August 2001.
"C. J. Miller"
J.T.C.C.
Schedule "A"
Nin Jiom Pei Pa Koa Herbal Cough Syrup (300 ml)
Halyntam (36 Capsules)
Chinese Garlic Capsules No. 1 (36 Capsules)
Fare Bao (80 Pills)
Specially Prepared Chinese Hemorrhoid Pills - Special A Oral Formula (80 Capsules)
Cerebral Tonic Pills (300 Pills)
Golden Lu Bao Ling Zhi (100 Capsules)
Wuchaseng Tablet - Eleutherococcus Senticosus (100 Tablets)
Chinese Spur Relief (100 Tablets)
Gijie Nourishing Kidney Pills (50 Pills)
Crocodile Bile Pill for Asthma (100 Pills)
Ming Mu Di Huang Wan (40 gr)
Wuchi Pai Feng Wan (120 Pills)
Antler Tonic Capsules (30 Capsules)
Xiao Pang Mei (100 Tablets)
Memory Enhancing Tonic (200 Pills)
Ginseng, Rei Shi, Pearl & Pollen Tablets
Ton Bian
Special Natural Xiao Yan Ling (100 Tablets)
Ginseng Radix Polygoni Multiflori Mulli Plorium Capsules (80 Capsules)
Ginseng and Antler Horn Tonic (60 Capsules)
851 Ultra-Nutrient Pills (50 Capsules)
Fare Con Vitamin U Complex (50 Pills)
The King of Medicine (80 Capsules)
Ginseng Radix Polygoni Multiflori Capsules (80 Capsules)
COURT FILE NO.: 2000-4291(IT)I
STYLE OF CAUSE: Maria Pagnotta and The Queen
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: August 16, 2001
REASONS FOR JUDGMENT BY: The Honourable Judge C.J. Miller
DATE OF JUDGMENT: August 27, 2001
APPEARANCES:
Agent for the Appellant: Meluccia Di Marco
Counsel for the Respondent: R. Scott McDougall
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-1349(IT)I
BETWEEN:
EVELYN ELLEN WILSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on May 11, 2001 at Toronto, Ontario, by
the Honourable Judge T.E. Margeson
Appearances
Counsel for the Appellant: John David Buote
Counsel for the Respondent: Meghan Castle
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1996 taxation year is allowed and referred back to the Minister of National Revenue for reconsideration and reassessment in order for the Minister to reconsider any proper receipts in support of any allowable medical expenses in support of this claim when they are presented.
In all other respects, the appeal is dismissed and the Minister's assessment is confirmed, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 10th day of September 2001.
|
"T.E. Margeson" |
J.T.C.C.