Chevalier v. The Queen

Chevalier v. The Queen
Court (s) Database
Tax Court of Canada Judgments
Date
2008-01-07
Neutral citation
2008 TCC 11
File numbers
2006-3169(IT)I
Judges and Taxing Officers
Paul Bédard
Subjects
Income Tax Act
Decision Content
Docket: 2006-3169(IT)I
BETWEEN:
MARIE ESTHER LOUISE CHEVALIER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on June 29, 2007, at Montreal, Quebec.
Before: The Honourable Justice Paul Bédard
Appearances:
Counsel for the Appellant:
Scott L. Simser
Counsel for the Respondent:
Jade Boucher and
Marie-Claude Boisvert, Student‑at‑Law
____________________________________________________________________
JUDGMENT
The appeal from the reassessment made under the Income Tax Act for the 2002 taxation year is allowed and the reassessment is referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the Partial Agreed Statement of Facts signed by the parties on July 19, 2007, and in which the Minister accepted medical expenses of $3,253.74. This results in a medical tax credit of $244 [($3,253 - 1,728) x 16%]; the interest shall be adjusted in consequence.
Signed at Ottawa, Canada, this 7th day of January, 2008.
"Paul Bédard"
Bédard J.
Citation: 2008TCC11
Date: 20080107
Docket: 2006-3169(IT)I
BETWEEN:
MARIE ESTHER LOUISE CHEVALIER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Bédard J.
I. INTRODUCTION
[1] This is an appeal under the informal procedure for the 2002 taxation year. The Appellant, Marie Esther Louise Chevalier claimed the medical expense tax credit for the cost of organic products and foods as well as for services provided by a naturopath and an osteopath. The Minister of National Revenue (“Minister”) disallowed the medical expenses so claimed on the ground that they did not fall within the scope of subsection 118.2(2) of the Income Tax Act (“Act”).[1] Consequently, the Appellant is challenging the constitutional validity of subsection 118.2(2) of the Act on the basis that it infringes subsection 15(1) of the Canadian Charter of Rights and Freedoms (“Charter”)[2].
II. FACTS
[2] The Appellant is 56 years of age and resides in Saint-Charles-Borromée in the province of Quebec. She served in the Canadian Forces (“Forces”) from 1973 until 1989 as an aerospace engineer.
[3] The Appellant testified that she started experiencing severe health problems in 1978. With the deterioration of her health, she was forced to leave the Forces in 1989. Consequently, she went through a period of financial hardship until 2000, when the Forces finally recognized the precarious state of her health and granted her a pension on a retroactive basis.
[4] The Appellant consulted a number of doctors and was diagnosed as suffering from chronic fatigue syndrome. Furthermore, she testified that she has severe sensitivities to food, drinks and even to clothing. She testified that she reacts severely to chemicals in food as well as to natural foods such as meat, conventional bread, potatoes and beets. In addition, she testified that she is intolerant to gluten and lactose. These sensitivities confine her diet to organic foods and she can only wear clothing made from 100% natural fibres, such as wool, cotton or silk. Furthermore, she must use a purifier for her water, both for drinking and for cooking. She also indicated at trial that she was sensitive to everyday household cleaning products and therefore uses natural substances such as borax and citric acid to clean her house.
[5] The Appellant testified that she reacts strongly to pharmaceutical products and consequently turned to natural remedies. Moreover, in an attempt to relax her muscles, she uses the services of a naturopath and an osteopath.
[6] The Appellant testified that due to her illness she is easily fatigued by performing any minor task, such as cooking, cleaning or simply writing a cheque. Furthermore, she testified that if she did not follow a strict natural diet her brain would become severely irritated, which would then incapacitate her physically and mentally. Although the Respondent accepted the fact that the Appellant suffers from chronic fatigue syndrome, no expert evidence was presented at trial as to the symptoms of that illness.
[7] The parties have partially agreed on certain facts. Among other things, they have agreed that, for the purpose of computing her medical expense tax credit for the taxation year at issue, the Appellant claimed medical expenses in the amount of $18,252.79. This includes expenses of $3,253.74 conceded to be medical expenses by the Minister. As indicated by the parties in the Partial Agreed Statement of Facts, the following items remain at issue:
Item
Total expenses claimed by the Appellant
($)
Less medical expenses
($)
Less insurance reimbursement
($)
118.2(3) ITA
Less expenses conceded by the Appellant ($)
Total in issue ($)
Therapists, water purification unit
5,380.66
3,253.74
461.08
6.34
1,659.50
Organic products and food
11,995.39
0
0
5,665.28
6,330.11
Products for personal and house hygiene
1,653.63
0
0
0
1,653.63
Natural supplements
799.19
0
0
0
799.19
TOTAL
10,442.43
The parties further explained the nature of the amounts claimed by the Appellant, and the expenses left to be decided by this Court are as follows:
(i) $990.00 in expenses paid for osteopathic treatments;
(ii) $375.00 in expenses paid for naturopathic treatments;
(iii) $294.50 in expenses paid for organic herbal products bought from a herbalist and naturopath.
(iv) $6,330.11 representing expenses paid with respect to the “incremental cost” of acquiring organic products and foods;
(v) $1,653.63 in expenses for personal and household hygiene products, and;
(vi) $799.19 in expenses for natural supplements.
III. ISSUES TO BE DECIDED
[8] The following questions have been raised by the parties and need to be answered by this Court:
1. Are the products and services costs claimed by the Appellant medical expenses under subsection 118.2(2) of the Act?
2. Does subsection 118.2(2) of the Act violate section 15 of the Charter by discriminating against the Appellant?
3. If subsection 118.2(2) of the Act violates section 15 of the Charter, is that subsection saved by section 1 of the Charter as demonstrably justifiable in a free and democratic society?
4. Does the Tax Court of Canada have jurisdiction to issue declarations and grant, under section 52 of the Constitution Act, 1982, remedies consisting in reading up, reading down or severing invalid legislation, specifically the impugned provision of the Act?
ISSUE 1
[9] Are the products and services costs claimed by the Appellant medical expenses under subsection 118.2(2) of the Act?
[10] Although the Appellant bases her argument on a Charter violation, it is nonetheless important to examine first whether or not any of the expenses at issue fall within the scope of subsection 118.2(2) as it read in 2002. If such proves to be the case, a Charter analysis will become futile. Furthermore, this issue was brought forward by the Respondent in her written arguments. In order to answer this first question, it is necessary to differentiate between the expenses incurred for medical services and those incurred for medication products. The latter will be examined next.
[11] Paragraph 118.2(2)(n) of the Act provides as follows:
(2) Medical expenses - For the purposes of subsection (1), a medical expense of an individual is an amount paid
(n) [drugs] - 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] [Emphasis added]
[12] This statutory provision enumerates three specific requirements to be met in order for medication or other therapeutic substances to qualify as medical expenses. Under these requirements the said products must:
(i) be manufactured, sold or represented for use either
a. in the diagnosis, treatment or prevention of a disease, disorder, abnormal physical state or the symptoms thereof, or
b. in restoring, correcting or modifying an organic function;
(ii) be prescribed by a medical practitioner;
(iii) be recorded by a pharmacist.
[13] This is not the first time that this Court has had to determine whether alternative medical products qualify as medical expenses under subsection 118.2(2) of the Act. On the contrary, the case law is quite extensive and dictates a clear and concise approach to the interpretation of this provision[4]. In the case at bar, the issue revolves around the third requirement of the test, namely whether the product was “recorded by a pharmacist”. In Ray v. R.[5], the Federal Court of Appeal unanimously clarified the meaning of the words “recorded by a pharmacist” by stating:
In my view, it is reasonable to infer that the recording requirement in paragraph 118.2(2)(n) is intended to ensure that tax relief is not available for the cost of medications purchased off the shelf. There are laws throughout Canada that govern the practice of pharmacy. Although the laws are not identical for each province and territory, they have common features. Generally, they prohibit a pharmacist from dispensing certain medications without a medical prescription, and they describe the records that a pharmacist is required to keep for medications dispensed by prescription, including information that identifies the prescribing person and the patient. There is no evidence that pharmacists anywhere in Canada are required to keep such records for the substances in issue in this case.
I cannot accept the suggestion that, in the case of a medication that is prescribed by a physician but is purchased at a pharmacy off the shelf, a sales slip or invoice from the pharmacist would be a sufficient "recording" to meet the statutory requirement. A record in that form cannot meet the apparent function of the recording requirement. There must be a record kept by the pharmacist in his or her capacity as pharmacist. That necessarily excludes substances, however useful or beneficial, that are purchased off the shelf.[6] [Emphasis added]
[14] As indicated by Associate Chief Justice Bowman (as he then was) in Herzig v. R.,[7] this requirement leads to the conclusion that only prescription medicines qualify. Herzig is a similar case to this one insofar as the taxpayer resorted to alternative medicines and products for valid health reasons. However, in light of the Ray decision, the Tax Court judge had no other choice than to dismiss the appeal. In addition, Ray was followed by the Federal Court of Appeal in a subsequent decision, Bekker v. R.[8]
[15] At trial, the Appellant acknowledged that the organic products and foods were not purchased at a pharmacy and were not recorded by a pharmacist. She testified that she bought them either directly from a farm or from a health food store. It is evident that the amount of $6,330.11 claimed as medical expenses for organic products and foods fails to meet the statutory requirements of subsection 118.2(2) of the Act. Furthermore, the expenses in the amount of $1,653.63 claimed for personal and household hygiene products are also disqualified. Some of these products were bought from a specialized store and not from a pharmacy. Although others were bought in a pharmacy, they were not recorded by a pharmacist as they were products that are available off the shelf and without a prescription. In addition, the Appellant testified that all of the natural supplements, for which she claimed $799.19, were bought at a health food store and not a pharmacy. As a result, these expenses cannot be claimed as medical expenses in accordance with subsection 118.2(2) of the Act. The same applies to the organic herbal products bought from a herbalist and naturopath, for which the Appellant claims $294.50. In summary, none of the expenses claimed by the Appellant for medical products meet the requirements set out in paragraph 118.2(2)(n) of the Act.
[16] I will now examine the amounts claimed for medical services, in particular, the expenses of $990.00 and $375.00 paid for osteopathic and naturopathic treatments respectively. Paragraph 118.2(2)(a) of the Act reads as follows:
(2) Medical expenses - For the purposes of subsection (1), a medical expense of an individual is an amount paid
(a) [medical and dental services] - 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 (in this subsection referred to as the “patient”) who is the individual, the individual’s spouse or common-law partner or a dependant of the individual (within the meaning assigned by subsection 118(6)) in the taxation year in which the expense was incurred.[9]
[17] Furthermore, subsection 118.4(2) defines a “medical practitioner” as:
(2) Reference to medical practitioners, etc. - 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, psychologist, or speech-language pathologist 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. . . [10]
[18] These provisions require the Appellant to show that the cost of the medical services has been paid to a medical practitioner authorized to practise his or her profession pursuant to the laws of Quebec. Under Quebec legislation, naturopaths and osteopaths are not recognized medical practitioners.[11] The Appellant testified that there was no discernible distinction between the osteopathic and physiotherapy treatments, which were provided by the same therapist, namely, Ms. Marie‑France Roy Gaudet. Thus, the Appellant argues that since physiotherapists are recognized medical practitioners in the province of Quebec, the $990.00 paid to Ms. Roy Gaudet for osteopathic treatments should be allowed. I disagree with this reasoning. The receipts for the $990.00 show that they were issued specifically for osteopathic treatments. As a result, the medical expenses claimed by the Appellant for osteopathic treatments provided by Marie-France Roy Gaudet fail to comply with the statutory provisions of the Act and must be disallowed. This is in accordance with previous decisions of this Court. For example, in Davar v. R.[12] the Appellant suffered from severe allergies and sought alternative treatments, including the services from a naturopath. Justice Miller disallowed the appeal on the basis that the services did not meet the requirements of paragraph 118.4(2)(a) of the Act. He further commented regarding the medical expense tax credit provision:
. . . While this Court has interpreted these laws liberally and compassionately, the Court cannot turn a blind eye to the real and exact meaning of the law, no matter how unfair the taxpayer believes it to be. . .
Sometimes the law leads society in a certain direction, but often times societal behaviour leads the law. In the case of medical expenses, it is a matter of the law eventually catching up to society’s behaviour and I am hopeful the legislators will do that. . . .[13]
[19] Unfortunately, the law has not yet caught up to societal behaviour. Nevertheless, I too cannot turn a blind eye to the real meaning of the law. Since the Appellant’s expenses were not paid to a medical practitioner, they cannot be medical expenses. Thus, none of the expenses claimed – neither those for medical services nor medical products – qualify as medical expenses pursuant to subsection 118.2(2) of the Act. I will therefore move on to the second issue.
ISSUE 2
[20] Does subsection 118.2(2) of the Act violate section 15 of the Charter by discriminating against the Appellant?
[21] This is the crux of the Appellant’s argument and constitutes the main issue to be determined in the present appeal. The Appellant submits that subsection 118.2(2) of the Act, considered in its entirety, violates section 15 of the Charter. Section 15 of the Charter guarantees the Appellant’s right to equality and reads as follows:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.[14]
[22] Section 19.2 of the Tax Court of Canada Act[15] requires the claimant to serve notice on the Attorney General of Canada and the attorney general of each province at least ten days before the constitutional question is to be debated. This procedural requirement has been fulfilled by the Appellant and the constitutional question can therefore be examined by this Court.[16]
[23] The Appellant argues that subsection 118.2(2) of the Act was drafted in order to assist all persons with disabilities. Furthermore, she submits that, as presently drafted, subsection 118.2(2) fails to take into consideration her needs for a special diet, while reducing the tax burden of virtually all other disabled persons. In other words, she claims that she is being excluded from the medical expense tax credit scheme on the basis of her disability. Section 118.2 of the Act is reproduced in an appendix hereto along with section 5700 of the Income Tax Regulations, which pertains to certain devices and equipment qualifying under paragraph 118.2(2)(m).
[24] In Law v. Canada (Minister of Employment and Immigration),[17] the Supreme Court of Canada established a three‑part test to be used in a determination regarding a section 15 Charter violation. That Court stated:
. . . Accordingly, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries:
(A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?
(B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?
and
(C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?[18]
[25] It is important to keep in mind that the above test is to be seen only as a guideline for analysis. It goes without saying that the test should not be mechanically applied but, as indicated by the Supreme Court of Canada, the analysis must be purposive and contextual.[19] This was further emphasized by the Supreme Court of Canada in Auton (Guardian ad litem of) v. British Columbia (Attorney General),[20] a case in which that Court had to determine if the government of British Columbia had infringed subsection 15(1) of the Charter by failing to fund specific treatment for autistic children. It concluded that the benefit claimed – funding for all medically required treatment – is not provided by law and there exists no obligation for the provincial government to fund all medically required treatments. As a result, a violation of subsection 15(1) could not be found to exist. The analytical framework used in Auton can be of assistance in the case at bar. Accordingly, the first question to be determined is as follows:
Is the claim for a benefit provided by law?
[26] The Supreme Court in Auton explained, at paragraph 27:
In order to succeed, the claimants must show unequal treatment under the law — more specifically that they failed to receive a benefit that the law provided, or was saddled with a burden the law did not impose on someone else. The primary and oft-stated goal of s. 15(1) is to combat discrimination and ameliorate the position of disadvantaged groups within society. Its specific promise, however, is confined to benefits and burdens “of the law”. Combatting discrimination and ameliorating the position of members of disadvantaged groups is a formidable task and demands a multi-pronged response. Section 15(1) is part of that response. Section 15(2)’s exemption for affirmative action programs is another prong of the response. Beyond these lie a host of initiatives that governments, organizations and individuals can undertake to ameliorate the position of members of disadvantaged groups.[21] [Emphasis added]
[27] Before answering the question whether or not there is a benefit provided by law, it is necessary to establish what benefits the Appellant is claiming. The Appellant asks that the following medical products and services qualify for the medical tax credit:
. . . on behalf of the patient who has fibromyaglia [sic], chronic fatigue syndrome, or multiple chemical sensitivities,
VII. vitamins and natural supplements,
VIII. specialty personal hygiene, household cleaning, and skin care products that are free of synthetic chemicals,
IX. homeopathic products,
X. bottled and chemical-free water,
XI. naturopathic services, and
XII. the incremental cost of acquiring organic food products as compared to the cost of comparable non-organic food products,
if the patient has been certified in writing by a medical practitioner to be a person who, because of that disease, requires such items.[22]
[28] The Appellant submits that the benefit provided by law is established by the application of subsection 118.2(2) of the Act. The Appellant argues that subsection 118.2(2) is designed to cover all persons with disabilities. More precisely, the Appellant contends that the medical tax credit is “intended to alleviate the tax burden of an individual who incurs high medical expenses and otherwise incurs sufficient tax payable in order to benefit from the medical expense tax credit. Thus, there is a definite benefit provided to the individual since it lowers one’s tax payable, and can be a significant tax saving.”[23] In other words, the Appellant claims that all individuals who incur high medical expenses benefit from the tax credit, if their income is high enough. According to the Appellant, the unequal treatment lies in allowing the medical expense tax credit for individuals incurring high medical expenses, while denying it to individuals who suffer from fibromyalgia, chronic fatigue syndrome or multiple chemical sensitivities and who incur expenses for vitamins, osteopathy, organic food, specialty creams and soaps, supplements, and sanitary products.
[29] This raises the question of whether the legislative scheme created by the medical expense tax credit provision in fact allows an alleviation of the tax burden for all individuals who incur high medical expenses and otherwise incur sufficient tax payable. An examination of the scheme shows that it does not.
[30] The predecessor of the medical expense tax credit was first introduced in 1942 as a deduction in computing income for a limited number of medical expenses.[24] The purpose of the credit is to recognize the effect of above-average medical and disability-related expenses on an individual’s ability to pay tax.[25] In 1988, it became a deduction in computing tax payable.[26] At its inception, the claimable medical expenses were subject to a maximum amount. This cap was removed in 1961.[27] Furthermore, a taxpayer’s claim for the deduction has always been subject to a minimum threshold; in the 2002 taxation year, this threshold was the lesser of $1,728 and 3% of the individual’s income for the year.[28]
[31] The list of expenses that qualify for the tax credit is regularly reviewed and updated and, as a result, it has become a very lengthy and precise list. As indicated by the Department of Finance of Canada in The Budget Plan 2005:
The list of expenses eligible for the credit is regularly reviewed and updated in light of new technologies and other disability-specific or medically related developments.[29]
[32] The Appellant submits that this very lengthy list of allowable medical expenses “arguably shows the purpose of such legislation is to accommodate every disability” or at the very least “that the effect is that prima facie every disability is . . . accommodated”[30] (Emphasis added) by virtue of the medical expense tax credit provision. I do not agree that the legislative scheme of the medical expense tax credit is that broad. Although its purpose is to recognize the effect of above-average medical and disability-related expenses on an individual’s ability to pay tax, it is not meant to cover every health-related expense. On the contrary, the legislative scheme clearly demonstrates Parliament’s intention to limit the scope of subsection 118.2(2) of the Act in an attempt to address specific needs and expenses. This is in line with the decision rendered by this Court in Ali v. The Queen.[31], in which Justice Woods, after analyzing the purpose of subsection 118.2(2) of the Act, stated:
On the other hand, the decision to list specific qualifying expenses in s. 118.2(2) rather than making all medical expenses eligible has the result that some taxpayers will incur reasonable medical expenses that do not qualify. I think that this result is intended. Parliament has decided that it is not appropriate to allow tax relief for all medical expenses incurred either at the discretion of the taxpayer or even on the advice of a medical practitioner.[32]
[33] It should be noted that Ali is being appealed to the Federal Court of Appeal. Nonetheless, I agree with the analysis of Justice Woods. Thus, the benefit claimed by the Appellant – that every disability be accommodated by the medical tax credit – is not one that the Act confers on anyone else. Parliament intentionally limited the scope of subsection 118.2(2) of the Act; it was never intended to accommodate every disability.
[34] The case law shows that individuals who suffer from fibromyalgia, chronic fatigue syndrome or multiple chemical sensitivities are not the only taxpayers who need to buy vitamins, organic food, specialty creams and soaps, supplements, and sanitary products or who require osteopathic services for justifiable medical reasons. For example, in Herzig[33] described as a “most deserving case” by Associate Chief Justice Bowman (as he then was), the appellant’s spouse was suffering from breast cancer that proved to be fatal. The appellant was denied the medical expense tax credit for the cost of homeopathic medicine and nutrients and herbal supplements prescribed by the appellant’s wife's medical doctors, because these did not fall within the scope of subsection 118.2(2).[34] It becomes quite evident that the benefit sought by the Appellant in the present case – i.e., the alleviation of the tax burden for all individuals suffering from a disability and who incur high medical expenses and otherwise incur sufficient tax payable - is not a benefit that is provided by law.
[35] As indicated by the Supreme Court of Canada in Auton, the analysis does not end here. That Court explained:
. . . Courts should look to the reality of the situation to see whether the claimants have been denied benefits of the legislative scheme other than those they have raised. This brings up the broader issue of whether the legislative scheme is discriminatory, since it provides non-core services to some groups while denying funding for ABA/IBI therapy to autistic children. The allegation is that the scheme is itself discriminatory, by funding some non-core therapies while denying equally necessary ABA/IBI therapy.
This argument moves beyond the legislative definition of “benefit”. As pointed out in Hodge, supra, at para. 25:
. . . the legislative definition, being the subject matter of the equality rights challenge, is not the last word. Otherwise, a survivor’s pension restricted to white protestant males could be defended on the ground that all surviving white protestant males were being treated equally.
We must look behind the words and ask whether the statutory definition is itself a means of perpetrating inequality rather than alleviating it. Section 15(1) requires not merely formal equality, but substantive equality: Andrews, supra, at p. 166.[35]
[36] In other words, while Parliament is free to target the social programs it wishes to fund as a matter of public policy, it cannot enact a law whose policy objectives and provisions are discriminatory.[36] In Auton the Supreme Court of Canada further indicates that:
A statutory scheme may discriminate either directly, by adopting a discriminatory policy or purpose, or indirectly, by effect. Direct discrimination on the face of a statute or in its policy is readily identifiable and poses little difficulty. Discrimination by effect is more difficult to identify. Where stereotyping of persons belonging to a group is at issue, assessing whether a statutory definition that excludes a group is discriminatory, as opposed to being the legitimate exercise of legislative power in defining a benefit, involves consideration of the purpose of the legislative scheme which confers the benefit and the overall needs it seeks to meet. If a benefit program excludes a particular group in a way that undercuts the overall purpose of the program, then it is likely to be discriminatory: it amounts to an arbitrary exclusion of a particular group. If, on the other hand, the exclusion is consistent with the overarching purpose and scheme of the legislation, it is unlikely to be discriminatory. Thus, the question is whether the excluded benefit is one that falls within the general scheme of benefits and needs which the legislative scheme is intended to address.[37] [Emphasis added]
[37] As already mentioned, the legislative scheme in the case at bar does not imply that all medical expenses are to be accommodated by the medical expense tax credit. Furthermore, the medical expense tax credit benefit does not exclude individuals who suffer from fibromyalgia, chronic fatigue syndrome or multiple chemical sensitivities. The Appellant was allowed to claim medical expenses that fell within the scope of subsection 118.2(2) of the Act. In addition, a cancer patient who might benefit from osteopathic treatments and organic foods will not be allowed to claim such expenses for the purpose of the medical expense tax credit. In short, medical expenses qualify for the medical expense tax credit on the basis of the product or service purchased and not on the basis of the type of disability from which the taxpayer suffers. This is reiterated by Justice Woods in Ali where she emphasizes that “The line that Parliament has chosen to draw is between types of therapeutic substances and not physical characteristics of people”.[38]
[38] Accordingly, I conclude that the benefit claimed by the Appellant — accommodation under subsection 118.2(2) of the Act for all disabilities — is not a benefit provided by law. Thus, since the first branch of the equality test has not been met, subsection 118.2(2) of the Act does not infringe on the Appellant’s rights under subsection 15(1) of the Charter. However, since this case raises important issues, it is appropriate to consider whether the Appellant would have succeeded had she established that a credit for medical expenses for alternative medicine products and services for patients suffering from fibromyalgia, chronic fatigue syndrome or multiple chemical sensitivities is a benefit provided by law. The next element in this section 15 analysis consists in this Court's determining whether the relevant benefit was denied to the claimant while being granted to a comparator group alike. Thus, I will now turn to the second branch of the Law test.
Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?
[39] Disability is one of the enumerated grounds of discrimination in subsection 15(1) of the Charter. The Appellant alleges that she was denied the medical expense tax credit for the cost of medical products and services and thus she has been discriminated against on the basis of disability. This allegation requires the identification of the appropriate comparator group, with which the Appellant can then be compared in terms of benefits available under subsection 118.2(2) of the Act.
[40] The first step in this enquiry is to determine whether the group with which the claimant compares herself is the appropriate comparator group. This step is a crucial one, and the Supreme Court of Canada established guidelines in Hodge v. Canada (Minister of Human Resources Development),[39] which were later summarized in Auton, where, that Court stated:
The law pertaining to the choice of comparators is extensively discussed in Hodge, supra, and need not be repeated here. That discussion establishes the following propositions.
First, the choice of the correct comparator is crucial, since the comparison between the claimants and this group permeates every stage of the analysis. “[M]isidentification of the proper comparator group at the outset can doom the outcome of the whole s. 15(1) analysis”: Hodge, supra, at para. 18.
Second, while the starting point is the comparator chosen by the claimants, the Court must ensure that the comparator is appropriate and should substitute an appropriate comparator if the one chosen by the claimants is not appropriate: Hodge, supra, at para. 20.
Third, the comparator group should mirror the characteristics of the claimant or claimant group relevant to the benefit or advantage sought, except for the personal characteristic related to the enumerated or analogous ground raised as the basis for the discrimination: Hodge, supra, at para. 23. The comparator must align with both the benefit and the “universe of people potentially entitled” to it and the alleged ground of discrimination: Hodge, at paras. 25 and 31.
Fourth, a claimant relying on a personal characteristic related to the enumerated ground of disability may invite comparison with the treatment of those suffering a different type of disability, or a disability of greater severity: Hodge, supra, at paras. 28 and 32. Examples of the former include the differential treatment of those suffering mental disability from those suffering physical disability in Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, and the differential treatment of those suffering chronic pain from those suffering other workplace injuries in Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54. An example of the latter is the treatment of persons with temporary disabilities compared with those suffering permanent disabilities in Granovsky, supra.[40]
[41] The comparator group chosen by the Appellant is “all taxpayers who have other disabilities, yet are able to claim the medical expense tax credit in respect of their specific disabilities. Such persons have hearing, mobility, vision, and mental disabilities.”[41] The Appellant further suggests that no other class of disabilities requires organic food, natural supplements, personal and household hygiene products that are free of synthetic chemicals, and bottled water for valid health reasons.[42] Moreover, the Appellant argues:
. . . Different disabilities require different expenses. Hearing aids are required by the deaf and hard of hearing but not by many persons who are blind or low vision. Chemotherapy is required for cancer patients but not for many people with mobility impairments. It would be absurd for the Court to choose a comparator group that desires to claim organic food, natural supplements, personal and household hygienic products that are free of synthetic chemicals, and bottled water, since that would not be a “benefit” to persons with other disabilities in the medical sense.[43] [Emphasis added]
[42] I disagree with the Appellant for the following reasons. First, no evidence has been presented with regard to the statement made by the Appellant that only individuals suffering from fibromyalgia, chronic fatigue syndrome or multiple chemical sensitivities require the use of alternative medicine, such as natural products and services. Second, the case law indicates otherwise: there are several instances of very deserving cases, ones in which taxpayers with other disabilities requested the credit for similar health-related expenses and were denied.[44] The suggestion by the Appellant that a cancer patient, as in Herzig, cannot, medically speaking, “benefit” from alternative medicine is open to medical debate. Be that as it may on reading that case, one can conclude that Ms. Herzig was benefiting just as much from the natural treatment she received as the Appellant currently is from hers. Alternative medicine is not as narrow in terms of those whom it may benefit as the Appellant claims it to be; it cannot be compared with a hearing aid, which will, of course, serve its purpose only for individuals with a hearing impairment.
[43] When selecting the appropriate comparator group, the Court has to find the group that shares with the claimant all the characteristics that qualify for the benefit, other than a personal characteristic that is among, or analogous to, those listed in section 15 of the Charter. In the case at bar, the appropriate comparator group for the Appellant is persons who have a disability other than fibromyalgia, chronic fatigue syndrome or multiple chemical sensitivities and who seek the medical expense tax credit for organic food, natural supplements, and personal and household hygiene products that are free of synthetic chemicals. Such a comparator group meets the requirements set out by the Supreme Court of Canada in Hodge, since the members of that comparator group are identical to the claimant in all ways except for the characteristics relating to the alleged ground of discrimination, namely, that they do not suffer from fibromyalgia, chronic fatigue syndrome or multiple chemical sensitivities.
[44] Taking as a basis the appropriate comparator group, I will now compare the treatment given by law to the Appellant with the treatment given to the comparator group and determine if the claimant has been denied a benefit made available to the comparator group. It is important to keep in mind that differential treatment in comparison with the comparator group can be either direct or indirect. The former is established by showing an explicit distinction, and the latter, by showing that the effect of government actions amounts to singling out the claimant for less advantageous treatment on the basis of the alleged grounds of discrimination.[45]
[45] The Appellant alleges that she is being treated differently because she is not being allowed the medical expense tax credit for products and services that she requires in order to survive and