Date: 20020211
Docket: 2001-2232-IT-I
BETWEEN:
MICHAEL MELNYCHUK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Agent for the Appellant: Stella Melnychuk
Counsel for the Respondent: Brooke Sittler
____________________________________________________________________
Reasons for Judgment
(Delivered orally from the Bench on
January 10, 2002, at Edmonton, Alberta)
McArthur J.
[1] The issue in this appeal is whether the Appellant is entitled to claim the cost of vitamin, herb and metal supplements as a medical expense, as defined in paragraph 118.2(2)(n) of the Income Tax Act. In calculating his medical tax credit in the computation of his non-refundable tax credits for the 1999 taxation year, the amount of $1,073 was claimed by the Appellant. That amount was reduced to $973, the Respondent having acknowledged that $100 is allowable under paragraph 118.2(2)(o) of the Act.
[2] The Appellant was ably represented by his wife Stella. While present in Court, he was not well enough to testify. Dr. Kenneth Wiancko, the Appellant's highly qualified medical practitioner, testified and over 15 supporters of the Appellant attended the hearing as well.
[3] The Appellant's position is clearly set out in a letter by Dr. Wiancko dated December 5, 2001, which I quote in its entirety:
Mr. Melnychuk has been under my care in the Phoenix Chelation Clinic since September of 1999. Prior to this he had had a bypass operation and when seen three of the bypassed arteries were 70% occluded and one native vessel was 100% stenosed. His own consideration and that of his consultants was that repeat surgery was hazardous and potentially not of benefit.
Chelation therapy is a College of Physicians and Surgeons authorized therapy that removes heavy metals from a patient's body. These metals trigger free radical disease which includes hardening of the arteries. By removing these metals this process can be ameliorated.
A significant aspect of chelation therapy is the administration of a balanced vitamin/mineral supplementation. All persons taking a "civilized" diet becomes increasingly deficient in minerals, vitamins, essential fatty acids and other nutrients. As we age, and with illness, this deficiency becomes more pronounced. Drs. Schute in Ontario 50 years ago showed conclusively that taking vitamin E reduced the risk of heart disease. Dr. Linus Pauling, twice Nobel prize winner for his work on vitamin C proved that regularly taking this powerful antioxidant/anti free radical vitamin significantly reduced cancers, heart disease and many other illnesses that afflict mankind. Minerals are activators of vitamins. A vitamin or a mineral by itself is far less effective than the combination effect of a balanced prescribed regimen. The orthodox and holistic literature is replete with similar studies showing the effectiveness of supplementation in reducing the incidence of disease and healing benefits in disease.
This balanced supplement is recommended by the American College for the Advancement of Medicine, governing and training body for chelation. Chelation will not be given to any patient that will not take the supplements. These supplements are carried by the Phoenix Chelation Clinic because some pharmacies do not carry the correct balance even though all health food stores do.
I must reiterate that the vitamin/supplements are prescribed specifically for the purpose as outlined in Section 118.2(2)(n) of the Income Tax Act. Vitamins are not controlled under the Pharmacy Act nor are they a prescription item. If prescribed the cost to the patient is elevated by a prescription fee, an extra cost that must be borne by the patient.
It is unconscionable to penalize a patient for obtaining needed supplements outside the "system", vitamins that may be better and often less expensive outside the pharmacy. As the prescribing physician I know what the patient needs and if he gets them from the clinic or health food store, I know that he/she will get the proper ones. I have had on several occasions found a patient given ordinary Niacin (which causes severe flush reaction) or slow release Niacin (that can cause liver damage) by a pharmacist. These are just a couple of examples where pharmacies do not serve the best interests of patients. I have never experienced a patient being given the wrong supplement in my clinic or from a health food store.
The regular taking of supplements reduces the incidence of degenerative diseases. Two other examples out of many hundred of beneficial health food products might be sited: glucosamine/chondroitin have been shown by orthodox studies to improve arthritis without the side effects of anti inflammatories, echinacea improves immunity. Many other health food items have been shown to improve patients health and reduce their dependance on the health care system.
Reducing the cost of health care is a prime object in the Federal and Provincial budgets. If patients are willing to take responsibility for their health and purchase their health giving vitamins/supplements elsewhere than a pharmacy is it not contradictory and counterproductive to this aim to force them into using the health care system more?
Your favorable consideration of this patient's application would be of benefit to all patients and to reducing health care costs.
[4] The Appellant's Notice of Appeal, which was obviously prepared by his spouse, stated:
Alternative medicine should be allowed as a medical expense in my husband's case considering that a second, high-risk open-heart surgery would cost thousands of dollars under our Medicare system, with no guarantee of continuing quality of life. These vitamins have been prescribed by the chelating doctor, Dr. Ken Wiancko, of Phoenix Chelation Clinic in Edmonton.
For the 1999 taxation year and future years, we appeal to the Tax Court of Canada to allow my husband to use receipts for vitamins and herbal remedies as valid medical expenses whether they are purchased through the Phoenix Chelation Clinic (who carry the correct "strength" of vitamins required by chelating patients) or through a health food store. Following investigation of various pharmacies in our area, we have been unable to find the appropriate "strength" of vitamin prescribed by Dr. Ken Wiancko, the chelating doctor, although in most instances, these can be found in the local health food stores.
[5] The facts as contained in Dr. Wiancko's letter and in the Appellant's Notice of Appeal are not in dispute.
[6] Paragraph 118.2(2)(n) of the Act 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 ... 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;
The Respondent contends that all criteria in paragraph (n) have been satisfied by the Appellant but for the words "as recorded by a pharmacist". The Appellant admits that the vitamins in question do not meet this condition but asks the Court to use fairness and disregard the condition.
[7] The Appellant referred to the decision of Frank v. The Queen, [2001] 3 C.T.C. 2596, wherein the Appellant purchased vitamins and supplements from a pharmacy or health food store. Judge Teskey of this Court, observed in paragraphs 11 and 12 of that decision:
"Recorded" by a pharmacist could be the pharmacist's purchase or sales slips. Both are recordings by the pharmacist.
The late Mr. Justice Sopinka, of the Supreme Court of Canada, in the Case that dealt with strike pay said that where the Act is such that there is a doubt as to the meaning of the words, the doubt has to be given to the taxpayer. ...
The Frank case gives a liberal meaning to the words "recorded by a pharmacist". The evidence in this case is that the vitamins at issue were not recorded by a pharmacist and not purchased in a pharmacy. There were no pharmacist's purchase or sales slips as was the case in Frank.
[8] A further case which refers to the decision in Frank is Pagnotta v The Queen, [2001] 4 C.T.C. 2613. Judge Miller of this Court, concluded in paragraph 30:
... That some substances in this treatment acquired from a pharmacist can be eligible for medical expenses and some not is too strict an interpretation on this paragraph. However, the substances must still be acquired through a pharmacist. There is simply no way around that requirement. ... Until then I can only find that those substances acquired from a pharmacy can fall within the meaning of paragraph 118.2(2)(n). ...
[9] In this appeal, the Appellant acknowledges that the vitamins were not purchased at a pharmacy and were not recorded by a pharmacist. This is a requirement I cannot ignore. Respondent's counsel stated that because of the imposed government controls on some drugs that can only be purchased through a qualified pharmacist, these drugs are often much more expensive than the vitamins purchased in a health food store and other locations. She explained that this may be the reason why there is no goods and services tax on one but there is GST imposed on the other.
[10] In this case, the vitamins were prescribed by a distinguished medical doctor, highly qualified in the field of chelation. His treatment of the Appellant has been successful to date, preventing a second bypass operation. The Appellant purchased the specially designated drugs or vitamins through Dr. Wiancko's clinic. The clinic is recognized with approval by his peers, the Medical Association of Alberta.
[11] It would be common sense to permit the deductions claimed and I understand the Appellant's frustration. It is admitted that the vitamins were not recorded by a pharmacist. I take this to mean that the Appellant did not attend a pharmacist with a doctor's prescription and the pharmacist did not issue the drugs. As far as including other products sold in a pharmacy within the ambit of the phrase, I am somewhat doubtful. Where do you draw the line? Are diet aides, cosmetics and grooming products to be included? I think not.
[12] My feelings in this appeal are better stated by Judge Bowman in Banman v. The Queen, [2001] 2 C.T.C. 2111, where in an instance somewhat similar to the present facts, Judge Bowman stated at paragraphs 5 and 6:
I might just add one further point. I am aware from what the Appellant tells me and I am aware generally that alternative medicines and homeopathic treatment are making great progress these days. I can well understand why in paragraph (n) the government requires that certain medications be prescribed by a medical practitioner, because there is as yet not very much control in the labeling or the sale of alternative medicines and that needs to be done.
Sooner or later, however, I think the government is going to have to face the fact that homeopathic medicines, alternative forms of treatment, herbs, natural healing, that sort of thing are so prevalent it should consider an amendment to the Income Tax Act that would permit a tax credit in respect of these things. ...
[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, but I do commend him for his courage in coming to Court. For the above reasons, the appeal is dismissed.
Signed at Ottawa, Canada, this 11th day of February, 2002.
|
"C.H. McArthur" |
J.T.C.C.
COURT FILE NO.: 2001-2232(IT)I
STYLE OF CAUSE: Michael Melnychuk and
Her Majesty the Queen
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: January 7, 2002
REASONS FOR JUDGMENT BY: The Honourable Judge C.H. McArthur
DATE OF JUDGMENT: January 15, 2002
APPEARANCES:
Agent for the Appellant: Stella Melnychuk
Counsel for the Respondent: Brooke Sittler
COUNSEL OF RECORD:
For the Appellant:
Name: N/A
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada