Citation: 2003TCC105

Date: 20030403

Docket: 2002-2581(IT)I

BETWEEN:

MICHAEL LAURIE,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

____________________________________________________________________

For the Appellant: The Appellant himself

Counsel for the Respondent: Ifeanyi Nwachukwu

____________________________________________________________________

REASONS FOR JUDGMENT

(Delivered orally from the Bench, on

February 13, 2003, at Halifax, Nova Scotia)

McArthur J.

[1]      The Appellant appealed the Minister of National Revenue's reassessment of his 2000 taxation year, disallowing the deduction of medical expenses claimed in relation to massage therapy pursuant to subsections 118.2(1) and (2) of the Income Tax Act. These subsections, as well as 118.4(2), read as follows:

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

...

118.2(2)            For the purposes of subsection 118.2(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)         ...

118.4(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)         ...

[2]      The focus in this appeal is whether a massage therapist in Nova Scotia comes within the definition of medical practitioner. Paragraph 7(1)(d) of the Interpretation Act, R.S.N.S., ch. 235, provides as follows:

7(1)       In this Act and in any other enactment,

(d)         "duly qualified medical practitioner", "legally qualified medical practitioner" or any other words or expressions importing legal recognition of a person as a medical practitioner or member of the medical profession means a person registered under the Medical Act;

The Medical Act of Nova Scotia (ch. 10) and in particular, paragraph 2(s) and section 3 define medical practitioner as follows:

2           In this Act, unless the context otherwise requires,

(s)         "medical practitioner" means a person who is registered in the Medical Register, Defined Register, Temporary Register or Medical Education Register;

3           The words "duly qualified medical practitioner", "duly qualified practitioner", "legally qualified medical practitioner", "legally qualified physician", "physician" or any like words or expressions implying a person recognized by law as a medical practitioner or member of the medical profession in the Province, when used in any regulation, rule, order or by-law made pursuant to an Act of the Legislature enacted or made before, at or after the coming into force of this Act, or when used in any public document, includes a person registered in the Medical Register, Temporary Register, Defined Register or the Medical Education Register who holds a licence.

[3]      It is common ground that the two massage therapists in question for whose services the Appellant claims a deduction are not registered as medical practitioners in the Province of Nova Scotia. The Appellant made two basic submissions, firstly, that common sense, fairness and economics dictate that his massage therapy costs should be deductible and second, his rights under the Charter of Rights and Freedoms are violated. In this regard, he stated that had he been living in British Columbia or Ontario, his massage therapist costs would be deductible.

[4]      The facts are not in dispute and include the following taken from the Appellant's Notice of Appeal. After a severe accident in 1996, the Appellant was injured and he states:

... The whiplash caused problems with my back and neck that left me with permanent partial disability and work limitations. Through a combination of massage therapy and chiropractic care, I was able to be maintained in a manner that helped reduce pain and the frequency and severity of relapse episodes.

For four years, my Section B insurer paid my massage therapy costs. ... In 2000, I began to pay for chiropractic and massage therapy costs myself. ...

All of the therapist's patients are referred by doctors. I have no doubt that they are qualified. The Appellant continued in his Notice of Appeal:

In July 2000, ... my condition deteriorated. ... The pain was intense. ... I was immobile for two weeks. My family doctor recommended continued and more frequent massage therapy and chiropractic. This is evidence of a medical doctor in Nova Scotia prescribing massage therapy in the treatment of an acute medical condition.

The massage therapy sessions that I received were somewhat painful and not enjoyable. If my doctor and I ever felt that I was not deriving a medical benefit from them, then they would have been ended immediately. There would be no purpose for me spending the time, travel, cost and session fees in 2000 for massage therapy if it did not provide medical relief.

The Appellant submitted a letter written by his medical doctor, Dr. Fay, with reference to the massage therapy. Dr. Fay wrote, in part:

He was referred Mr. Dusan Moravcik, Metro Massage Therapy Clinic, Bedford, Nova Scotia. ...

Mr. Laurie has benefited greatly from the massage therapy. It has enhanced the therapeutic benefits of the chiropractic and has reduced the frequency of chiropractic sessions. ...

There is evidence that the massage therapy is working. ...

Without this therapy, he would not be able to perform his job properly and would suffer consequences.

[5]      It is obvious why the Appellant perseveres with this appeal. In the year 2000, he claimed about $8,000 in medical expense deductions, of which $1,600 was disallowed. Under analysis, counsel for the Respondent referred to Pagnotta v. Canada, [2001] T.C.J. No. 582 where Judge Miller, in dealing with a similar situation, stated the following:

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 McCarthy, 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 McCarthy is not a physician or surgeon, that should end 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. ...

Judge Miller then went on to review the relevant provincial legislation, as I did earlier in this judgment. He concluded:

There is no evidence that Tim McCarthy was a registered practitioner in accordance with these provisions. As such, he was not, in accordance with section 18, authorized to practise as a medical practitioner under the Medical Professions Act.

Section 18 was taken from the Alberta Medical Professions Act.

[6]      I find that the present situation is similar. In the Appellant's instance, the legislation obviously denies a worthy application. The Appellant's medical doctor has, in effect, prescribed massage therapy that has given the Appellant relief from his pain. While the Appellant may have a worthy appeal, I cannot change the legislation. Section 118.2 and subsection 118.4(2) are clear. To be successful, the massage therapist must be a medical practitioner authorized to practice as such in Nova Scotia being the jurisdiction in which the services were rendered.

[7]      The Appellant referred further to Pagnotta, where he believed that costs were allowed as deductible from his income for Chinese herbs, nutriceuticals and vitamins. I do not believe that is accurate. Judge Miller went on to say:

30         ... As Chinese herbs, nutriceuticals 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 herbs, vitamins and nutriceuticals supplied by Dr. Aung directly and by supplements and more qualify as being recorded by a pharmacist. ...

[8]      In any event, a recent Federal Court of Appeal decision (Dunn v. Canada, [2002] F.C.J. No. 1816) confirms that the cost of such medications not recorded by a pharmacist are not deductible under section 118.2 of the Act. Further, in Zack v. Canada, [1997] T.C.J. No. 1102, the taxpayer's appeal was denied under paragraph 118.2(2)(a), but allowed under paragraph 118.2(2)(e). The facts can easily be distinguished from those in the present case and it is paragraph 118.2(2)(a) that is relevant in the present situation.

[9]      I will now deal with the Appellant's Charter argument. Subsections 57(1) and (2) of the Federal Court Act provide as follows:

57(1)     Where the constitutional validity, applicability or operability of an Act of Parliament or of the Legislature of any province or of regulations thereunder is in question before the Court or a Federal Board, Commission or other tribunal other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be adjudged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the Attorney General of each province in accordance with subsection (2).

57(2)     ... the notice referred to in subsection (1) shall be served at least ten days before the day on which the constitutional question described in that subsection is to be argued.

And in the present instance, no such notice in accordance with subsection (2) has been given. Counsel for the Respondent referred to conflicting Federal Court of Appeal decisions with respect to the procedures to be taken in this regard. These cases are Canada v. Fisher, [1996] F.C.J. No. 427, Nelson v. Canada, [2000] F.C.J. No. 1613, and Langlois v. Canada, [1999] F.C.J. No. 911. In hearing this appeal, I followed the direction of Judge Marceau in Langlois, where he stated:

1           It was agreed at the outset of the hearing that if the Court reached the conclusion that the Constitutional challenge mounted by the appeal raised serious questions the matter would be adjourned to allow for full compliance with the mandatory provisions of Section 57 of the Federal Court Act as this Court could not give effect to a request of this nature without special notice of the proceedings first having been served on the Attorney General of each province. However, if the Court were unable to find some substance to the Appellant's argument, it would naturally have to dismiss the appeal outright.

The Appellant presented that his rights under section 1 of the Charter were violated because if he were living in British Columbia or Ontario, his payments would be deductible. In those provinces, massage therapists are regulated by the province. In Nova Scotia, they are not. The section of the Charter that may have application is section 15 which reads as follows:

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.

15(2)     Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

For the following reasons, I do not accept the Appellant's Charter position. The Supreme Court of Canada in Law v. Canada, [1999] 1 S.C.R. 497, the Court established guidelines for a section 15 analysis. The tests include to determine whether the law draws a formal distinction based on personal characteristics. Subsections 118.2(1) and (2) permit a deduction of an amount paid to a "medical practitioner", the definition of whom in Nova Scotia does not include a massage therapist. There is no differential treatment imposed upon the Appellant on the basis of his personal characteristics. Every taxpayer in Nova Scotia is subject to the same treatment. The Appellant has no basis for his claim of discrimination.

[10]     For the above reasons, the appeal is dismissed.

Signed at Ottawa, Canada, this 3rd day of April, 2003.

"Cameron H. McArthur"

J.T.C.C.

CITATION:

2003TCC105

COURT FILE NO.:

2002-2581(IT)I

STYLE OF CAUSE:

Michael Laurie and Her Majesty the Queen

PLACE OF HEARING:

Halifax, Nova Scotiaw

DATE OF HEARING:

February 13, 2003

REASONS FOR JUDGMENT BY:

The Honourable Judge C.H. McArthur

DATE OF JUDGMENT:

February 20, 2003

APPEARANCES:

For the Appellant:

The Appellant himself

Counsel for the Respondent:

Ifeanyichukwu Nwachukwu

COUNSEL OF RECORD:

For the Appellant:

Name:

N/A

Firm:

N/A

For the Respondent:

Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada