Date: 19990812
Docket: 98-299-IT-I
BETWEEN:
PIERRETTE MONGEAU MANTHA,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Lamarre Proulx, J.T.C.C.
[1] This is an appeal concerning the 1996 taxation year. The point at issue is whether the cost of food specific to a gluten-free diet qualifies for the medical expense credit pursuant to paragraph 118.2(2)(n) of the Income Tax Act (the "Act").
[2] That paragraph reads as follows:
118.2(2) For the purposes of subsection (1), a medical expense of an individual is an amount paid
. . .
(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.
[3] The facts on which the Minister of National Revenue (the "Minister") relied in assessing the appellant are set out in paragraph 7 of the Reply to the Notice of Appeal (the "Reply") as follows:
[TRANSLATION]
(a) the appellant suffers from celiac disease;
(b) the appellant must follow a gluten-free diet;
(c) during the year in issue, the appellant laid in a stock of gluten-free foods at a total cost of $1,083;
(d) the appellant paid annual membership dues of $30 to the Quebec Celiac Foundation;
(e) the appellant claimed the cost of the gluten-free foods and the annual dues paid to the Quebec Celiac Foundation as medical expenses;
(f) the claim was disallowed because the Minister ruled that the foods purchased by the appellant had nutritional value, that the treatment or alleviation of a disease was not their only use and that they had not been prescribed by a medical practitioner.
[4] The appellant testified and paragraphs 7(a) to (e) of the Reply were admitted.
[5] Counsel for the appellant stated that the appellant was no longer pressing her claim in respect of the annual dues.
[6] The appellant filed as Exhibit A-1 a certificate from her attending physician which reads as follows:
[TRANSLATION]
September 22, 1998
RX- Celiac disease was discovered in this patient, Pierrette Mongeau, in 1994.
The only treatment prescribed for this disease is a gluten-free diet, to which the patient must strictly adhere for her entire life in order to treat and alleviate the disease and prevent other diseases.
Corticosteroid therapy is not indicated at this time.
X- (Signed)
Dr. GILLES MICHAUD, gastroenterologist
Hôpital du Sacré-Coeur, Montréal.
[7] The appellant explained that gluten-free foods are sold in stores specializing in foods for persons suffering from food allergies. In her case, the store is 20 minutes away from her residence by car. However, she was not concerned with the transportation cost, but with the cost of the foods. All the foods are more expensive than those purchased in grocery stores. A loaf of bread, for example, costs $9. Pasta, rice, potato and corn flours and the other ingredients necessary for basic cooking, in fact everything related to grains, must be purchased at a store specializing in food allergies to avoid any gluten contamination.
[8] Counsel for the appellant argued that the foods necessary to a gluten-free diet were prescribed by the appellant's physician and that they are not registered by a pharmacist because they are not sold in a pharmacy.
[9] Counsel for the respondent contended that paragraph 118.2(2)(n) of the Act requires that drugs be prescribed by a medical practitioner. There can be no prescription unless the drugs are recorded by a pharmacist. He submitted that there
is no such prescription for gluten-free foods because they are not recorded by a pharmacist.
Conclusion
[10] I readily believe the appellant's statement that the foods necessary to a gluten-free diet are more expensive than those sold in a non-specialized grocery store. Subsection 118.2(2) of the Act is a statutory provision which describes the medical expenses which are eligible for the tax credit provided for by subsection 118.2(1) of the Act. As drafted, this provision is exhaustive. If the purpose of the expense incurred for therapeutic purposes is not described in paragraph 118.2(2)(n) of the Act, that expense is not included in medical expenses. This paragraph includes as medical expenses only the cost of drugs, medicaments or other preparations or substances manufactured, sold or represented for use in the diagnosis, treatment or prevention of a disease, disorder or abnormal physical state, purchased for use by the patient as prescribed by a medical practitioner and as recorded by a pharmacist.
[11] Can a medical practitioner issue a prescription for drugs not recorded by a pharmacist? Counsel for the respondent argues that he cannot; counsel for the appellant affirms the contrary. Some drugs will certainly be sold in pharmacies solely as prescribed by a medical practitioner. However, must a prescription be limited to those drugs? I do not believe I need to rule on this question in order to decide this case as there is a final essential condition for the application of paragraph 118.2(2)(n) of the Act: the drugs, medicaments or other preparations or substances must be recorded by a pharmacist. Now, both parties admitted that the foods specific to a gluten-free diet, in respect of the costs of which the appellant claims a medical expense credit, are not recorded by a pharmacist. Allowing the appeal would thus be tantamount to legislating the removal of one of the conditions for the application of paragraph 118.2(2)(n) of the Act, and, as it is for Parliament alone to legislate, the appeal must accordingly be dismissed.
Signed at Ottawa, Canada, this 12th day of August 1999.
"Louise Lamarre Proulx"
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]