[1] The applicant seeks judicial review of a decision of a judge of the Tax Court of Canada (Tax Court) rendered on July 11, 2002, whereby he dismissed the applicant's appeal and confirmed the Minister of National Revenue's (Minister) assessment for the 1998 and 1999 taxation years. The Minister refused the medical expense credit claimed by the applicant pursuant to section 118.2 and paragraph 118.2(2)(n) of the Income Tax Act (Act). The paragraph, which is the relevant provision in this case, reads:

118.2 (2) Medical expenses. For the purposes of sub-section (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;

118.2 (2) Frais médicaux - Pour l'application du paragraphe (1), les frais médicaux d'un particulier sont les frais payés :

[...]

n) [médicaments] - pour les médicaments, les produits pharmaceutiques et les autres préparations ou substances - sauf s'ils sont déjà visés à l'alinéa k) - qui sont, d'une part, fabriqués, vendus ou offerts pour servir au diagnostic, au traitement ou à la prévention d'une maladie, d'une affection, d'un état physique anormal ou de leurs symptômes ou en vue de rétablir, de corriger ou de modifier une fonction organique et, d'autre part, achetés afin d'être utilisés par le particulier, par son conjoint ou par une personne à charge visée à l'alinéa a), sur ordonnance d'un médecin ou d'un dentiste, et enregistrés par un pharmacien;

(My emphasis)

[2] The issue before the Tax Court related to the deductibility of expenses incurred by the applicant for the acquisition of preparations or substances (i.e. supplements and organic foods) prescribed to his spouse by the family physician and an environmental medicine specialist. The Minister refused the applicant's claim for the medical expense credit because, although prescribed to and used by the applicant's wife, the items bought were not "recorded by a pharmacist" as required by paragraph 118.2(2)(n) of the Act.

[3] Although the judge expressed great sympathy for the applicant's plea for the relief sought, he ruled that he could not ignore the words enacted by Parliament and that he had to give effect to them. As there was no evidence that the prescriptions were recorded by a pharmacist, he concluded that this statutory requirement for a credit was not met. The applicant challenges that finding on two grounds.

[4] First, he submits that the judge erred in his interpretation of the impugned words and that he should have given a liberal interpretation to paragraph 118.2(2)(n) as some of his colleagues on the Tax Court had done.

[5] Second, he contends that the paragraph violates section 15 of the Charter of Rights and Freedoms (Charter) in that it discriminates against his wife on the basis of physical disability and against all other persons who are unable to take pharmacist-recorded medications. He requests that the words "as recorded by a pharmacist" be read out of the paragraph or declared to be inoperative.

[6] In a decision rendered by our Court on January 5, 2004, Her Majesty the Queen v. Ray, 2004 FCA 1, Sharlow J.A., for a unanimous court, ruled that this statutory requirement has to be met before expenses qualify as "medical expenses" for the purpose of the tax credit under paragraph 118.2(2)(n). This decision of our Court disposes of the first ground of review raised by the applicant.

[7] The second ground of review was strenuously opposed by counsel for the respondent because no Notice of a constitutional question (Notice) had been given pursuant to section 57 of the Federal Courts Act and the issue had not been raised before the Tax Court. I believe the respondent's objection is well founded.

[8] This Court will not entertain a constitutional challenge in the absence of a Notice being served on the Attorney General of Canada and on each Attorney General of the Provinces: see Gitxsan Treaty Society v. Hospital Employees Union et al. (1999), 238 N.R. 73 (F.C.A.); Giagnocavo v. M.N.R. (1995), 95 D.T.C. 5618, where this Court said that it was without jurisdiction to hear the issue. Such Notice is not a mere formality or technicality that can be ignored or that the Court can relieve a party of the obligation to comply with: see The Queen v. Fisher (1996), 96 D.T.C. 6291, where this Court ruled that the Notice must be given in every case in which the constitutional validity or applicability of a law is brought in question in the manner described in section 57, including proceedings before the Tax Court governed by the Informal Procedure. Indeed, a judge cannot, proprio motu, raise a constitutional issue without giving a notice to the Attorney General: see Reference re Remuneration of Judges of Provincial Courts, [1997] 3 S.C.R. 3.

[9] The Notice serves a useful and essential purpose. The Attorney General, whether for Canada or for a province, bears the responsibility of enforcing legislation and defending the constitutionality of the laws enacted by Parliament or provincial Legislatures, as the case may be. The Notice enables them to discharge that duty: on the duty, see Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138, at page 146; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, at paragraph 28; Miron v. Trudel, [1995] 2 S.C.R. 418. It also alerts the provincial Attorneys General to challenges made to federal laws that may have an impact on their provinces although the duty to sustain the constitutionality of these laws is not theirs. This is why the Notice has to provide its recipients with adequate and sufficient information in terms of the material facts giving rise to the constitutional question and the legal basis for that question, otherwise it will be found insufficient and the Court will assume that there is no serious question to be addressed: see Gitxsan Treaty Society v. Hospital Employees Union et al., previously cited. Finally, it ensures that no injustice is created to the elected representatives who enacted the law and to the people that they represent: see Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, at pages 264-65 per Sopinka J.

[10] At the hearing, the applicant sought an adjournment to enable him to serve Notice as well as leave to argue the issue for the first time before us. With respect, I do not think that it is possible or advisable.

[11] Judicial review proceedings are limited in scope. They are not trial de novo proceedings whereby determination of new issues can be made on the basis of freshly adduced evidence. As Rothstein J.A. said in Gitxsan Treaty Society v. Hospital Employees' Union, [2000] 1 F.C. 135, at paragraph 15, "the essential purpose of judicial review is the review of decisions" and, I would add, to merely ascertain their legality: see also Offshore Logistics Inc. v. Intl. Longshoremen's Assoc. 269 (2000), 257 N.R. 338 (F.C.A.). This is the reason why, barring exceptional circumstances such as bias or jurisdictional questions, which may not appear on the record, the reviewing Court is bound by and limited to the record that was before the judge or the Board. Fairness to the parties and the court or tribunal under review dictates such a limitation. Thus, the very nature of the judicial review proceeding, in itself, precludes a granting of the applicant's request. In addition, there are other reasons, just as compelling, to refuse the applicant's request.

[12] It is a serious matter to invoke the Charter to challenge the validity of legislation enacted by Parliament. Such challenges normally require an evidential foundation. Constitutional issues cannot and should not be decided in a factual vacuum. As Cory J. said in MacKay v. Manitoba, [1989] 2 S.C.R. 357 at pages 361-62:

Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues... Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.

[13] These concerns are very relevant to challenges under section 15, where the jurisprudence mandates a complex, multi-factored, contextual inquiry by the reviewing court into whether the impugned legislation not only creates differential treatment, but also is discriminatory in the constitutional sense: see, for example, Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429; Front commun des personnes assistées sociales du Québec v. Canada (Canadian Radio-Television and Telecommunications Commission), 2003 CAF 394; Canada (Attorney General) v. Lesiuk, [2003] 2 F.C. 697 (F.C.A.); Lovelace v. Ontario, [2000] 1 S.C.R. 950; Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703; Falkiner v. Ontario (Ministry of Community and Social Services), 59 O.R. (3d) 481 (C.A.). In other words, all these cases stress the need for a contextual inquiry and analysis to establish whether a distinction conflicts with the purpose of section 15 of the Charter.

[14] The evidence required for this purpose may include social science and statistical data; cross-examination may also be necessary. Evidence in rebuttal may be filed by the respondent, who may also adduce evidence in an attempt to establish that, if the legislation infringes section 15, it can nonetheless be upheld under section 1 as a reasonable limit that is demonstratively justifiable in a free and democratic society.

[15] The applicant has so far filed no evidence to support his allegation that the provision in paragraph 118.2(2)(n) violates his wife's constitutional right to equality without discrimination on the ground of physical disability. However, in view of the essentially appellate nature of the functions of this Court, it would be inappropriate and impractical for it to attempt to tackle the extensive evidence, both documentary and oral, likely to be adduced by both sides.

[16] For these reasons, I have concluded that, despite my sympathy for the applicant's position, the constitutional validity of the impugned provision should not be litigated for the first time in this Court. It may provide some solace to the applicant that the same constitutional issue is currently being litigated in another case which is scheduled to be heard by the Tax Court on October 25, 2004. In addition, in view of the inconsistences in the jurisprudence on the interpretation of paragraph 118.2(2)(n) prior to Ray, and all the circumstances of the case, I would not award costs against the applicant.

[17] Consequently, for the reasons that I have given, I would dismiss the application for judicial review without costs.

"Gilles Létourneau"

J.A.

"I agree

A.J. Stone J.A."

"I agree

John M. Evans J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-486-02

STYLE OF CAUSE: Ken Bekker v. Her Majesty the Queen

PLACE OF HEARING: Halifax, Nova Scotia

DATE OF HEARING: April 27, 2004

REASONS FOR JUDGMENT: LÉTOURNEAU J.A.

CONCURRED IN BY: STONE J.A.

EVANS J.A.

DATED: May 7, 2004

APPEARANCES:

David Green - Martha Mann

FOR THE APPLICANT

Cecil Woon - Peter Leslie

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Goldberg Thompson

Halifax, NS

FOR THE APPLICANT

Deputy Attorney General of Canada

Halifax, NS

FOR THE RESPONDENT

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