Date: 20010629
Docket: 2000-5023-IT-I
BETWEEN:
ANNA MAURO,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
__________________________________________________________________
For the Appellant: The Appellant herself
Counsel for the Respondent: Suzanne Bruce
__________________________________________________________________
Reasons for Judgment
(Delivered orally from the Bench at Toronto, Ontario, on April 18, 2001)
Mogan J.
[1] This is an appeal with respect to a reassessment for the 1998 taxation year. In that year, the Appellant deducted the aggregate amount of $5,039 as a medical expense in connection with her attendance at a weight loss clinic. She had had some difficulties in her personal life and had lost confidence in herself. She concluded that part of her loss of confidence was connected with the fact that she was overweight by her own standards. She attended the Healthy Lifestyles Weight Loss Clinic ("the Clinic") and received counselling and nutritional supplements which put her on a disciplined path which permitted her to lose weight. She testified that by attending at this Clinic and following the guidance and counselling given, she lost approximately 50 pounds. The inference I draw is that she regarded the whole program as a success.
[2] There is a tax credit permitted in the Income Tax Act for medical expenses. When the Appellant claimed that credit in 1998, Revenue Canada disallowed the credit on the basis that it was not with respect to a medical expense. The Appellant has come to Court appealing from that assessment and has elected the informal procedure.
[3] The Appellant is a legal secretary. In 1997, she concluded that she was overweight and so she attended at the Clinic in the Eaton Centre in downtown Toronto. The Clinic was founded by a Dr. B. Pich who has three similar clinics in Toronto and suburban areas. The Appellant received counselling at the Clinic and was advised to purchase certain nutritional supplements. She attended the clinic two or three times a week over the calendar years 1997 and 1998. Her total costs for attendance were approximately $5,600 in 1997, an amount which she apparently deducted in computing her income for 1997. According to counsel for the Respondent, that deduction slipped through the cracks and was not challenged by Revenue Canada. In 1998, the Appellant incurred further costs of $5,039 which were challenged by Revenue Canada. That amount is in issue in this appeal.
[4] Certain documents were entered as exhibits by the Respondent and, in particular, Exhibit R-4 is a letter to Canada Customs and Revenue Agency from the Appellant dated June 26, 2000 stating:
Further to your letter of May 3, 2000, please find enclosed further requested information required to permit the Appeals Division to further consider and resolve my objection.
Should you have any further questions, please do not hesitate to contact me.
Attached to that letter is a single-page document on the letterhead of the Clinic which is addressed to the Appellant which letter states in part as follows:
With regards to Ms. Mauro She has informed us that she requires the following, and itemized account of fees disbursed for 1998.
They are as following: Nutritional Counselling = $3,122.26
Nutritional supplements = $1,916.74
We also further wish to inform you that we are a medically mandated clinic under the supervision of Dr. Pich.
The aggregate of those two amounts is $5,039 which is the amount in issue.
[5] Counsel for the Respondent relies on certain provisions of the Income Tax Act to argue that the total amount of $5,039 is not deductible. She relies on subsection 118.2(1), which is the general formula for permitting the deduction of medical expenses.
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
B is the total of the individual's medical expenses that are proven by filing receipts therefor with the Minister ...
Subsection 118.2(2) sets out the definition of "medical expenses" as follows:
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 ...
[6] The question, therefore, is whether the person who gave the nutritional counselling can qualify as a medical practitioner or similar person. The Appellant's evidence is that she never did see Dr. Pich because he was only at the Cloverdale Mall Clinic and the only person she saw was a woman identified as Shaine Kanji-Lalani who apparently is a nutritional counsellor or consultant. It is the position of Revenue Canada that a nutritional consultant does not qualify under the legislation. I turn to paragraph 118.4(2)(a) of the Act which states:
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 or psychologist 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;
A reference to a medical doctor or a medical practitioner in the context of this appeal is a reference to a person authorized to practise as a medical practitioner pursuant to the laws of the Province of Ontario because all of the services were rendered in Ontario.
[7] Counsel for the Respondent brought to my attention the Regulated Health Professions Act of the Province of Ontario. Schedule 1 of that statute lists the self-governing health professions. I shall read the more familiar: audiology and speech language pathology, chiropractic, dentistry, dietetics, massage therapy, medicine, midwifery, nursing, occupational therapy, optometry, pharmacy. The only self-governing health profession that comes close to the one we are concerned with in this appeal is dietetics under the Dietetics Act passed in 1991. The Respondent's point is that there is a difference between a nutritionist and a dietician. A dietician is a person who belongs to the profession of dietetics and is governed in the Province of Ontario by the Dietetics Act. A nutritionist is not a dietician, does not practice dietetics, and apparently is not a self-governing health profession in Ontario. I do not know what qualifications a person would need to be a nutritional counsellor, but that did not come up in any way in this appeal.
[8] In a case like this, it might have been helpful if someone from the Clinic had testified as a witness for the Appellant, particularly if the Appellant was told by persons at the Clinic that its receipts would be acceptable as medical expenses for income tax purposes. I should have thought that if the Appellant was told that; and I believe the Appellant when she stated that she was given such assurance, some person from the Clinic should have been anxious to come to Court to support the Appellant and explain what their qualifications were and whether nutritional counselling could be considered part of a self-governing health profession. We have no such evidence from the Clinic. I am inclined to the view that a nutritionist is not practising under the authority of any provincial statute. In that connection, I again refer to the relevant words in paragraph 118.4(2)(a) which state:
118.4(2) For the purposes of sections ... 118.2 ..., a reference to ..., medical practitioner, ... is a reference to a person authorized to practise as such
(a) ..., pursuant to the laws of the jurisdiction in which the service is rendered;
[9] The above would apply to all the other professions such as nurse, occupational therapist, optometrist, pharmacist or psychologist. There is nothing in that paragraph about dieticians, dietetics, nutritional counselling, nutritionist or a nutrition counsel. Therefore, in my view, the amounts paid for nutritional counselling cannot be brought under the umbrella of an amount paid to a medical practitioner, a medical doctor, or any of the other headings in subsection 118.4(2). The appeal fails with respect to the amount of $3,122.26 paid for nutritional counselling.
[10] I will now consider whether the amounts paid for nutritional supplements may be deducted. The Appellant's evidence was that she not only attended this Clinic two or three times a week and received counselling but they took her blood pressure; weighed her; took her body measurements; suggested exercising to maintain the weight loss; and also suggested that she purchase nutritional supplements which they sold. It seems to me that the Clinic may have had a conflict recommending that their clients buy products which were sold only by the Clinic. That is a matter, however, with which I am not concerned. The Appellant purchased certain pills and nutritional supplements. In my opinion, the cost of such pills and supplements could be deducted only if they were either prescription drugs or analogous to prescription drugs. Counsel for the Respondent referred to paragraph 118.2(2)(n) of the Act which states:
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;
[11] The evidence in this appeal is clear that the nutritional supplements were not prescribed by a medical practitioner nor was the use of them recorded by a pharmacist. They were apparently purchased by the Appellant at the Clinic in connection with her counselling with this woman Shaine Kanji-Lalani, and basically sold to the Appellant like any other product. They may have had what might be called a health science purpose. They may have had the objective of maintaining the weight loss or perhaps keeping the Appellant from developing an appetite for excess foods, but if they can be regarded as a drug at all (and I believe they cannot), they would be simply an over-the-counter drug and not a prescribed drug. There is always the chance that they are not drugs but are something that supplements the nutrition which the body needs in order to permit an individual to continue with the normal activities of employment and recreation within a healthy lifestyle.
[12] On the evidence before me, I cannot find that the nutritional supplements come even close to satisfying the definition of drugs or medicaments in paragraph 118.2(2)(n) of the Act. For that reason, the amount of $1,916.74 is not a deductible amount because it does not qualify as a medical expense. Therefore, the two amounts deducted by the Appellant (in the aggregate $5,039) are not medical expenses and would not qualify for a tax credit under section 118.2. It seems to me that the Appellant is fortunate that she was not challenged for 1997 on similar deductions for which she made full disclosure to Revenue Canada, and for which she apparently cannot now be challenged.
[13] The appeal is dismissed. As an aside, if I were the Appellant, I would be very disappointed with the advice given at the Clinic as to the tax deductibility of these amounts. People who operate a clinic like the one in question are generally much more sophisticated than the average client who comes into the clinic seeking help. The client is much more vulnerable than the clinic. I would expect clinics such as this, maintained in different prominent commercial centres in Toronto, perhaps owned by one or more doctors, to be more responsible in the information they give to clients about the deductibility of costs connected with the services rendered by the clinics. I make this last comment in response to a statement made by the Appellant that she engaged in the program because of the confidence she placed in the statement that the costs would be tax deductible. She is not to be faulted for that, but perhaps someone may be faulted for misleading her based on the evidence I heard today.
Signed at Ottawa, Canada, this 29th day of June, 2001.
"M.A. Mogan"
J.T.C.C.
COURT FILE NO.: 2000-5023(IT)I
STYLE OF CAUSE: Anna Mauro and Her Majesty the Queen
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 18, 2001
REASONS FOR JUDGMENT BY: The Honourable Judge M.A. Mogan
DATE OF JUDGMENT: April 24, 2001
APPEARANCES:
For the Appellant: The Appellant herself
Counsel for the Respondent: Suzanne Bruce
COUNSEL OF RECORD:
For the Appellant:
Name: N/A
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada