|
Docket: 2003-3877(IT)I |
|
BETWEEN: |
|
KATHRYN E. NODDIN, |
|
Appellant, |
|
and |
|
|
|
HER MAJESTY THE QUEEN, |
|
Respondent. |
____________________________________________________________________
Appeals heard on October 1, 2004, at Fredericton, New Brunswick
By: The Honourable Justice E.A. Bowie |
|
|
|
|
|
Appearances: |
|
|
|
|
|
For the Appellant: |
The Appellant herself |
|
|
|
|
Counsel for the Respondent: |
Peter J. Leslie |
____________________________________________________________________
JUDGMENT
The appeals from assessments of tax made under the Income Tax Act for the 2001 and 2002 taxation years are dismissed.
Signed at Ottawa, Canada, this 22nd day of October, 2004.
|
"E.A. Bowie" |
Bowie J.
|
Citation: 2004TCC687 |
|
Date: 20041022 |
|
Docket: 2003-3877(IT)I |
|
BETWEEN: |
|
KATHRYN E. NODDIN, |
|
Appellant, |
|
and |
|
|
|
HER MAJESTY THE QUEEN, |
|
Respondent. |
REASONS FOR JUDGMENT
Bowie J.
[1] These appeals are from income tax assessments for the 2001 and 2002 taxation years. At issue is the Appellant's claim to include her expenses for massage therapy treatment in computing her medical expense tax credits under section 118.2 of the Income Tax Act (the Act). She challenges the validity of sections 118.2, 118.3 and 118.4, arguing that they do not conform to the requirement of equality under the law found in section 15 of the Canadian Charter of Rights and Freedoms. She has served notice that she proposed to make this challenge to the validity of the legislation on the Attorneys General of Canada and of the provinces and territories as section 19.2 of the Tax Court of Canada Act requires. The Attorney General of Canada, of course, appears for the Respondent. None of the other Attorneys General appeared.
[2] The relevant parts of sections 118.2, 118.3 and 118.4 of the Act read:
118.2(1) For the purpose of computing the tax payable under this Part by an individual for a taxation year, there may be deducted an amount determined by the formula
A (B - C) - D
where
A is the appropriate percentage for the year;
B is the total of the individual's medical expenses that are proven by filing receipts therefor with the Minister, that were not included in determining an amount under this subsection or subsection 122.51(2) for a preceding taxation year and that were paid by either the individual or the individual's legal representative,
(a) ...
118.2(2) 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;
(b) ...
118.3(1) Where
(a) an individual has a severe and prolonged mental or physical impairment,
(a.1) the effects of the impairment are such that the individual's ability to perform a basic activity of daily living is markedly restricted or would be markedly restricted but for therapy that
(i) is essential to sustain a vital function of the individual,
(ii) is required to be administered at least three times each week for a total duration averaging not less than 14 hours a week, and
(iii) cannot reasonably be expected to be of significant benefit to persons who are not so impaired,
(a.2) in the case of
(i) a sight impairment, a medical doctor or an optometrist,
(i.1) a speech impairment, a medical doctor or a speech-language pathologist,
(ii) a hearing impairment, a medical doctor or an audiologist,
(iii) an impairment with respect to an individual's ability in feeding or dressing themself, or in walking, a medical doctor or an occupational therapist,
(iv) an impairment with respect to an individual's ability in perceiving, thinking and remembering, a medical doctor or a psychologist, and
(v) an impairment not referred to in any of subparagraphs (i) to (iv), a medical doctor
has certified in prescribed form that the impairment is a severe and prolonged mental or physical impairment the effects of which are such that the individual's ability to perform a basic activity of daily living is markedly restricted or would be markedly restricted but for therapy referred to in paragraph (a.1),
(b) ...
118.4(2) For the purposes of sections 63, 118.2, 118.3 and 118.6, a reference to an audiologist, dentist, medical doctor, medical practitioner, nurse, occupational therapist, optometrist, pharmacist, psychologist or speech-language pathologist 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;
(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
(c) where the reference is used in respect of a prescription issued by the person for property to be provided to or for the use of a taxpayer, pursuant to the laws of the jurisdiction in which the taxpayer resides, of a province or of the jurisdiction in which the property is provided.
Subsection 15(1) of the Charter reads:
15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability
[3] The facts are not in dispute. The Appellant suffers severe chronic pain. It is not necessary to go into the specifics of it. It is sufficient to say that the pain is not readily controlled, that her physician has prescribed massage therapy treatment for it, and that that treatment has provided her with some measure of relief. She has undertaken massage therapy treatment regularly for some years now, including the two taxation years in question. Ms. Noddin received her treatments at Advanced Therapeutic Treatment Centre in Fredericton, New Brunswick.
[4] Angela Brown is the therapist who administered these treatments to her in 2001 and 2002. She is a member of the College of Massage Therapists of Ontario, and is qualified to practice massage therapy under the Massage Therapy Act, 1991[1] and the Regulated Health Professions Act, 1991,[2] of that province. The Appellant contends that this brings her within the meaning of the expression "medical practitioner" found in subsection 118.4(2) of the Act. The Respondent admits this in paragraph 5 of the Amended Reply, which reads in part:
He admits that Ms. Angela Brown, MT, qualifies as a medical practitioner in the province of Ontario and that amounts paid to a registered massage therapist in the provinces of Ontario and British Columbia qualify as medical expenses as stated in paragraph 5 of the Notice of the Appeal filed October 2, 2003.
An examination of the relevant Ontario and British Columbia legislation leads me to doubt that this is correct.[3] However, the appeals were argued before me on that basis and so I shall assume for purposes of my decision that Ms. Brown is a medical practitioner duly qualified under the laws of the province of Ontario.
[5] The laws of the province of New Brunswick do not recognize massage therapy as a profession. There is an Association of Massage Therapists within the province, and Angela Brown is a member of it. Her skill and experience are no doubt the same whether she practices her profession in Ontario or New Brunswick, and the beneficial effects on her patients the same as well. But she is not authorized to practice in New Brunswick pursuant to the laws of New Brunswick, because New Brunswick laws do not address the authorization of massage therapists to practice there; no one is authorized by law to practice massage therapy in New Brunswick, and so the Act does not permit a tax credit based on the cost of massage therapy received there.
[6] Ms. Noddin says that the Income Tax Act must treat everyone equally throughout Canada, as it is federal legislation. Section 15 of the Charter mandates this, she says. There cannot be equality if people in different provinces are treated differently in respect of the same treatments received from therapists having the same qualifications. She argues that Parliament has the necessary authority to define those services whose cost enables a tax credit in a way that is universal across the country and not dependent on provincial laws, and that it should do so.
[7] The question for me to decide, however, is not whether there is a better policy alternative open to Parliament than the one it has chosen, but whether the one it has chosen is unconstitutional. In considering this, I must be guided by the principles that the Supreme Court of Canada enunciated in Law v. Canada.[4] The three elements that are required to render legislation unconstitutional under section 15 of the Charter are found there at paragraph [39]:
In my view, the proper approach to analyzing a claim of discrimination under s. 15(1) of the Charter involves a synthesis of these various articulations. Following upon the analysis in Andrews, supra, and the two-step framework set out in Egan, supra, and Miron, supra, among other cases, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries. First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds? And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage? The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).
How, then, do the impugned provisions of the Income Tax Act fare under this test?
[8] The Appellant says that she is discriminated against on the basis of her province of residence. The governing words in subsection 118.4(2) of the Act refer to "... the laws of the jurisdiction in which the service is rendered;". The criterion is not province of residence, although that will often govern the place of treatment, at least in cases such as this where the treatment is ongoing for a considerable period. Clearly the policy objective is that the credit is to be available only where there is some legislated assurance of competence of the person administering the service. Differentiation on that basis (absent any evidence of systemic discriminatory result) does not offend section 15. There simply is no basis to say that different treatment under these sections of the Act is based on some personal characteristic of the person receiving the service and incurring the expense.
[9] Province of residence (even if it were considered the basis of differentiation) is not an enumerated ground under section 15, nor is there any basis to consider it an analogous ground to those enumerated. Similar arguments have been advanced by way of constitutional attack on other statutes of Canada, and have been unsuccessful. In R. v. Turpin,[5] the Supreme Court held that a provision of the Criminal Code permitting trial by judge alone in Alberta, but not in the other provinces, was not offensive to section 15 of the Charter. Similarly, the absence of an alternative measures program under the Young Offenders Act in Ontario, although implemented in other provinces, was not unconstitutional.[6] It was held that Parliament may create a regime of criminal procedure applying to young offenders that permits different provinces to implement different procedures according to their perceived needs and objectives.
[10] Even if the Appellant were able to satisfy the first two requirements of the test in Law v. Canada, she could not succeed. To deny a tax credit to someone who takes treatment from a therapist on the basis that the therapist practices in a province where there is no legislated scheme of licensing could not be said to have the effect of treating that person as less worthy of concern or respect, or in a way that offends her human dignity. It simply is not discrimination of the kind with which section 15 is concerned.
[11] Ms. Noddin referred me to the decision of the New Brunswick Court of Appeal in Axa Insurance Company v. Rolfe.[7] In that case the Court had to determine whether massage therapy, when prescribed by a physician, fell within the meaning of the expression "medical services" as it is used in New Brunswick's Standard Automobile Policy of Insurance. The Court found that it did, for reasons that I need not dwell on. This case is of no assistance to the Appellant, however, because subsections 118.2(2) and 118.4(2) together define very precisely what is a "medical expense" for purposes of the credit that subsection 118.2(1) provides. The payment must be made "to a medical practitioner, dentist or nurse or a ... hospital in respect of medical or dental services ...". Where the expense relates to a service rendered, as it does here, the payment must have been made to a person authorized to practice pursuant to the laws of the place where that service was rendered. It is that precise language that must be satisfied if the Appellant is to succeed, not the less stringent requirement of the no-fault insurance policy. The decision in Axa Insurance Company has no application.
[12] The Appellant no doubt genuinely feels that she is financially disadvantaged with respect to her claim for medical expense tax credits, as compared to other Canadians living in other provinces. However, the cause of her dissatisfaction is a legitimate policy choice that Parliament has made, and is entitled to make. It does not warrant any judicial intervention.
[13] The appeals are dismissed.
Signed at Ottawa, Canada, this 22nd day of October, 2004.
|
"E.A. Bowie" |
Bowie J.
APPENDIX
ONTARIO
Interpretation Act, R.S.O. 1990, Chapter l.11
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; ("médecin dûment qualifié", "médecin dûment qualifié pour exercer sa profession")
Prior to 1998, this definition read:
"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 person licensed under Part III of the Health Disciplines Act; ("médecin dûment qualifié", "médecin dûment qualifié pour exercer sa profession")
BRITISH COLUMBIA
Interpretation Act, R.S.B.C., c. 238
29 In an enactment:
...
"medical practitioner" means a person entitled to practise under the Medical Practitioners Act;
Medical Practitioners Act, R.S.B.C., c. 285,
34(1) A person is entitled to be registered under this Act if the person does all of the following:
(a) produces a diploma of qualification issued to the person by a college or school of medicine that at the time the person graduated from it was approved by the council;
(b) produces satisfactory evidence of identification, experience, good professional conduct and good character as a citizen;
(c) passes before a board of examiners appointed or approved by the council an examination touching the person's fitness and capacity to practise as a physician and surgeon;
(d) pays the fee set by the council for registration.
|
CITATION: |
2004TCC687 |
|
COURT FILE NO.: |
2003-3877(IT)I |
|
|
|
|
|
|
STYLE OF CAUSE: |
Kathryn E. Noddin and Her Majesty the Queen |
|
|
PLACE OF HEARING |
Fredericton, New Brunswick |
|
DATE OF HEARING |
October 1, 2004 |
|
REASONS FOR JUDGMENT BY: |
The Honourable Justice E.A. Bowie |
|
DATE OF JUDGMENT |
October 22, 2004 |
|
APPEARANCES: |
|
For the Appellant: |
The Appellant herself |
|
Agent for the Respondent: |
Peter J. Leslie |
|
COUNSEL OF RECORD: |
|
For the Appellant: |
|
Name: |
N/A |
|
Firm: |
N/A |
|
For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |