Date: 20021218
Docket: 2001-2931-IT-I
BETWEEN:
KEN BEKKER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
__________________________________________________________________
Counsel for the Appellant: David S. Green
Counsel for the Respondent: Dominique Gallant
____________________________________________________________________
Reasons for Judgment
(Delivered orally from the Bench at Halifax, Nova Scotia,
on Thursday, July 11, 2002 and revised as to style and syntax at
Ottawa, Canada on December 18, 2002)
Margeson, J.T.C.C.
[1] The matter before the Court for decision at this time is that of Ken Bekker and Her Majesty the Queen, 2001-2931(IT)I, under the Informal Procedure of the Income Tax Act ("Act").
[2] I have dealt with this situation before and other judges of this Court have dealt with this issue as well. Three of them indicate that the words, "as prescribed by a pharmacist" are a part of the legislation and must be given meaning.
[3] On the facts of the case today, the Court is satisfied that the supplements and organic foods that the Appellant purchased were prescribed by a doctor or a dentist. The Court does have a problem with the words "recorded by a pharmacist". They clearly were not recorded by a pharmacist.
[4] It is argued that the words "recorded by a pharmacist" have no meaning, are imprecise and impossible to interpret and the Court should follow the decision of Teskey J. in Frank v. R.[1] In that case the learned trial judge considered the question of vitamins and supplements and found that they were prescribed by a physician. He then found that there was some doubt in what was meant by the words, "recorded by a pharmacist", and ultimately he allowed the deduction. That was a case where the Court was apparently satisfied that the items were purchased at a pharmacy.
[5] This issue was considered by Bowman A.C.J. in Banman v. R.,[2] where in spite of having great sympathy for the Appellant the learned trial judge found they were not recorded by a pharmacist and did not allow the deduction.
[6] In Dunn v. R.,[3] Deputy Judge Rowe said:
The Appellant presented a capable and cogent argument and there is substance in her position but I take the approach that any modification to the relevant specific, comprehensible provision must be undertaken by the legislative branch.
[7] In Pagnotta v. R.,[4] at paragraph 30, Miller J. said:
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.
[8] In the case of Melnychuk v. R.,[5] McArthur J. was faced with the same issue. He had some problem with it and he raised the question as to where you draw the line. He was not able to answer that question. But in that particular case, it was acknowledged that the vitamins were not purchased at a pharmacy and were not recorded by a pharmacist. He said at paragraph 13:
The Appellant is a very good example of a person who has used alternative methods successfully. I am sorry that I cannot give him relief, . . .
That conclusion must have been based on the conclusion that the words are there and they must be given some meaning.
[9] The Court refers back to the legislation itself, which is paragraph (n), and it says:
[drugs] - for drugs, medicaments or other preparations or substances (which are what these are) (other than those described in paragraph (k)) (which is not applicable here) 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, modifying an organic function, purchased for use by the patient as prescribed by a medical practitioner or dentist and as recorded by a pharmacist;
(Italics are mine)
[10] As hard as the Court tries, and as sympathetic as the Court is to the plea for the relief sought, this Court, as in the three cases referred to above, considers itself bound by the legislation.
[11] Parliament is supreme. They make the legislation and the Court's job is not to make new legislation but rather to interpret the legislation as it is there. It seems clear that the prescriptions have to be recorded by a pharmacist. Whatever that accomplishes, I do not know, but the legislation is clear that they must be recorded by a pharmacist. Like Bowman J., I conclude that it does seem very unfair that just because they were not recorded by a pharmacist, they are not deductible, because they are obviously very necessary for this person's well-being. I find that they were necessary for her to sustain her life in any meaningful way. The Court is satisfied that the amounts that she claimed were, indeed, expended and the Court is satisfied that the amounts that were expended were as a result of being prescribed by a doctor. But unfortunately, the Court cannot conclude that the Appellant has met the second requirement.
[12] Consequently, the appeal is dismissed and the Minister's assessment is confirmed.
Signed at Ottawa, Canada this 18th day of December 2002.
|
"T.E. Margeson" |
J.T.C.C.
COURT FILE NO.: 2001-2931(IT)I
STYLE OF CAUSE: Ken Bekker and
Her Majesty The Queen
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: July 11, 2002
REASONS FOR JUDGMENT BY: The Honourable T.E. Margeson
DATE OF REASONS FOR JUDGMENT: December 18, 2002
APPEARANCES:
Counsel for the Appellant: David S. Green
Counsel for the Respondent: Dominique Gallant
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada