Date: 20010906
Docket: 2001-482-IT-I
BETWEEN:
JANICE S. BISHOFF,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
O'Connor, J.T.C.C.
[1] This appeal pursuant to the Informal Procedure was heard on July 27, 2001 at Edmonton, Alberta.
Issues
[2] The issues are:
(a) Whether in the 1998 taxation year the Appellant is entitled to deduct certain homeopathic expenses as medical expenses as defined in subsection 118.2(2) of the Income Tax Act ("Act") and Regulation 5700 of the Income Tax Regulations ("Regulations") in calculating her medical tax credits in the computation of her non-refundable tax credits for that year; and
(b) Whether the Appellant is liable to pay interest for the 1998 taxation year pursuant to subsection 161(1) of the Act.
[3] The Reply to the Notice of Appeal except as noted below, accurately describes the facts as follows:
3. In computing her tax liability for the 1998 Taxation Year, the Appellant claimed, in the computation of her non-refundable tax credits and tax payable, an amount of $4,013.20 as medical expenses as described below:
|
Description |
Amount Paid |
|
Medical travel mileage |
$ 319.50 |
|
Medical travel meals |
63.05 |
|
Ana's Herbal Tree |
377.84 |
|
Ana's Herbal Tree |
1,248.33 |
|
Ana's Herbal Tree |
172.76 |
|
Health 4 U |
761.13 |
|
Mutual Group |
864.29 |
|
Great West Life |
206.30 |
|
$4,013.20 |
4. By means of Notice of Reassessment dated February 16, 2000, the Minister of National Revenue (the "Minister") reduced the amount of medical expenses referred to in paragraph 3 above from $4,013.20 to $1,453.14 detailed as follows:
|
Description |
Amount Paid |
|
Medical travel mileage |
$ 319.50 |
|
Medical travel meals |
63.05 |
|
Mutual Group |
864.29 |
|
Great West Life |
206.30 |
|
$1,453.14 |
5. The Appellant filed a Notice of Objection to the reassessment, postmarked May 13, 2000.
6. The Minister confirmed the reassessment by means of a Notice of Confirmation dated October 20, 2000.
7. In so reassessing the Appellant, the Minister made the following assumptions of fact:
(a) ...
(b) the Appellant claimed $2,560.06 as a Homeopathic medical expense (the "Homeopathic expenses");
(c) the Homeopathic expenses were not purchased for use by the Appellant as prescribed by a medical practitioner or dentist and as recorded by a pharmacist; and
(d) the Homeopathic expenses were not considered medical expenses;
(e) the income tax return for the 1998 Taxation Year was required to be filed on April 30, 1999;
(f) the federal tax payable by the Appellant for the 1998 Taxation Year which was unpaid on April 30, 1999 amounted to $442.56 (the "Excess"); and
(g) prescribed interest on the Excess from May 1, 1999 to the date of the reassessment amounts to $53.90.
[4] The Appellant through her agent and husband, James W. Bishoff, agrees with all of the facts with the exception of paragraphs 7(c) and 7(d).
[5] The Appellant submits that Dr. Maria Zanoaga qualifies as a medical practitioner and that the expenses should qualify notwithstanding the fact the products were purchased at health food stores and were not recorded by a pharmacist.
[6] The Appellant's agent produced a Bulletin from Health Canada, which reads as follows:
Natural health products (NHPs) have become an extremely important part of our self-care decisions. Over 50% of Canadians now consume natural health products in the form of traditional herbal products, vitamins and mineral supplements, traditional Chinese, Ayurvedic and other medicines and homeopathic preparations.
Canadians from all walks of life have made it clear that they want freedom of choice in making health decisions. They want enhanced access and choice to a full range of natural health products, along with an assurance of safety and quality.
In 1997, Health Canada responded to these concerns by establishing an advisory panel to provide direction and advice. In November 1997, Health Minister Allan Rock asked the Standing Committee on Health to conduct a full public review and provide recommendations on the regulation of natural health products.
The establishment of the Office of Natural Health Products (ONHP) is based on the 53 recommendations contained in the Standing Committee on Health's report "Natural Health Products: A New Vision". The recommendations respond to the concerns of Canadian consumers, health care providers and industry. They call for a new Office and regulatory framework for natural health products to be set up within Health Canada.
On March 26, 1999, Health Minister Allan Rock accepted the recommendations of the Standing Committee. In announcing the establishment of the Office of Natural Health Products, he set a new course for the way natural health products will be regulated in Canada.
"The creation of the new Office of Natural Health Products is a major step forward for consumers," Mr. Rock said. "For the first time, there will be a dedicated group of professional experts who will treat the evaluation of health products with the distinctiveness and flexibility it deserves."
He added that the new Office will provide Canadian consumers with the assurance of safety while enhancing consumer access and choice to a full range of natural health products.
In this and subsequent statements, the Minister also set in motion the elements needed to bring about a fresh approach to the regulation of such products. $7 million is being allocated over the next 3 years to establish the new Office. An additional $3 million over 3 years will be allocated to fund natural health product research.
The Office will be a new regulatory authority, separate from the Therapeutic Products Programme and Food Directorate, reporting to the Assistant Deputy Minister, Health Protection Branch. It will be staffed with a small core of those with expertise and experience in natural health products. It will draw further expertise from an Expert Advisory Committee and other external groups in order to develop and maintain a new regulatory framework.
Health Canada will consult regularly with Canadians as the new Office moves to implement the recommendations of the Parliamentary Standing Committee on Health. Natural health products will continue to be regulated either as foods or drugs until the new regulatory framework is established.
[7] The agent for the Appellant also refers to Interpretation Bulletin IT-519R2, which states among other things that a "medical practitioner" encompasses a broad range of individuals in a medical profession and refers to paragraph 4 of the Bulletin, which reads as follows:
4. For purposes of the medical expense and disability tax credits under sections 118.2 and 118.3, subsection 118.4(2) provides that a reference to a medical practitioner, dentist, pharmacist, nurse or optometrist means a person who is authorized to practice as such according to the following laws: ...
(b) for a certificate issued for an individual, the laws of the jurisdiction in which the individual resides or of a province; and
...
Medical practitioners authorized to practice in accordance with the above laws can include (depending on the applicable province or jurisdiction, as the case may be) the following:
...
(iii) a naturopath;
Analysis
[8] Paragraph 118.2(2)(n) of the Act provides that only expenses incurred for drugs, medicaments and other preparations or substances purchased for use by the patient as prescribed by a medical practitioner and as recorded by a pharmacist can be claimed.
[9] Counsel for the Respondent submits that firstly Dr. Zanoaga does not qualify as a medical practitioner under the laws of the province of Alberta. In this regard he refers to the Health Disciplines Act R.S.A. 1980 c. H-3.5 and the schedule thereto which enumerates the Designated Health Disciplines. Counsel points out that none of the disciplines refer to a herbalist or iridologist, which are the qualifications of Dr. Zanoaga. He states further that the jurisdiction in question is Alberta and that the Act and Schedule apply and since Dr. Zanoaga is not listed in the designated disciplines and further since she possesses no licence from the province of Alberta to practice (although she does have a business licence from the City of Edmonton) for that reason alone the Appellant cannot succeed. He adds that since the vitamins, herbs and other things that the Appellant took were not recorded by a pharmacist, for that reason also the Appellant cannot succeed.
[10] Counsel for the Respondent also referred to several decisions including Banman v. Canada, [2001] T.C.J. No. 111 (T.C.C.) where Bowman, T.C.J., as he then was, stated:
4. I have great sympathy for the appellant. I think she has very intelligently gone to an alternative method of treatment and has successfully treated medical conditions of her husband, herself and her daughter. Nonetheless, the herbal preparations, the vitamins and other things that she takes that she purchases from Natural Lifestyle are not prescribed by a medical practitioner or dentist and are not recorded by a pharmacist. That is the key condition and unfortunately it is not met. I have to take the law as I find it. I would like to be able to help them, but I merely interpret the law. Counsel referred me to a couple of cases. Mongillo v. The Queen, 95 D.T.C. 199, and Williams v. R., [1998] 1 C.T.C. 2813.
[11] I echo the above comments of Bowman, T.C.J. Regrettably, for the reasons set forth in Banman, the Appellant in this appeal cannot succeed. Firstly, it has not been established that Dr. Zanoaga is a medical practitioner within the definitions discussed above and moreover it is clear that the items purchased were not recorded by a pharmacist.
[12] The law may well change in the future to give further recognition to natural health products such as herbal products, vitamins and mineral supplements and other homeopathic preparations but I am obliged to enforce the law as it existed in 1998. Consequently the appeal must be dismissed. I would add that on the issue of interest, this Court has no jurisdiction to alter the interest charged and consequently the appeal on that issue must also be dismissed. There shall be no costs.
Signed at Ottawa, Canada, this 6th day of September, 2001.
"T. O'Connor"
J.T.C.C.
COURT FILE NO.: 2001-482(IT)I
STYLE OF CAUSE: Janice S. Bishoff v. The Queen
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: July 27, 2001
REASONS FOR JUDGMENT BY: The Honourable Judge Terrence O'Connor
DATE OF JUDGMENT: September 6, 2001
APPEARANCES:
Agent for the Appellant: James W. Bishoff
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
2001-482(IT)I
BETWEEN:
JANICE S. BISHOFF,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on July 27, 2001 at Edmonton, Alberta by
the Honourable Judge Terrence O'Connor
Appearances
Agent for the Appellant: James W. Bishoff
Counsel for the Respondent: R. Scott McDougall
JUDGMENT
The appeal from the reassessment made under the Income Tax Act for the 1998 taxation year is dismissed, without costs, in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 6th day of September, 2001.
|
"T. O'Connor" |
J.T.C.C.