http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/109215/index.do 
Leeper v. The Queen (April 16, 2015 – 2015 TCC 82, Paris J.).
Précis: Mr. Leeper’s wife was suffering from cancer. He claimed medical tax expense credits (“MTECs”) in respect of non-prescription (OTC) drugs and supplements purchased for his wife on the advice of a naturopathic physician. CRA denied the credits and he appealed to the Tax Court. He claimed, in part, that denying him credit for the OTC remedies deprived him of Charter rights since his wife’s illness was life threatening. The Tax Court held that the
Income Tax Act (the “Act”) was clear in denying credit for OTC remedies and that Charter rights under sections 15 and 7 were not infringed. The challenged provision touched on economic rights which were not protected by the Charter. The appeal was dismissed.
Decision: The facts of this case are not complex:
[3] The facts in this case are largely undisputed. As part of Ms. Leeper’s integrated cancer treatment, she saw Dr. Neil McKinney, a naturopathic physician in Victoria, B.C. Dr. McKinney prescribed natural health products to Ms. Leeper, largely to treat the side effects of her chemotherapy. Mr. Leeper testified that his spouse could not tolerate the prescription drugs available to treat those side effects. Most of the prescribed products were purchased by Mr. or Ms. Leeper directly from Dr. McKinney while the remainder were purchased from a health food store.
[4] One of the assumptions made by the Minister in assessing was that the products in issue could be purchased “over the counter” which I take to mean that the products could be acquired without a prescription. This assumption was not refuted by Mr. Leeper. He testified that most of the products could be purchased at a health food store, but that some were only available at Dr. McKinney’s office.
[5] Mr. Leeper produced a letter written by Dr. McKinney in which the doctor described the substances he prescribed to Ms. Leeper. He stated that “some are prescription drugs . . . dispensed by a pharmacist.” The cost of those drugs was included in the METC that was allowed to Mr. Leeper. Dr. McKinney also stated in his letter that “Other medications were Chinese herbal formulations . . . only dispensed through licensed practitioners” and “vitamins, restricted and general use botanicals, and other naturopathic medicines.” Only those substances are in issue in this appeal, and since Dr. McKinney distinguished between them and the prescription drugs dispensed by a pharmacist referred to previously, I infer from this statement that the herbal formulations, vitamins, botanicals and naturopathic medicines were not prescription drugs dispensed by a pharmacist. In any event, there is no evidence before me that would indicate that a prescription was required to obtain those substances lawfully.
Mr. Leeper’s position was that the Act did not operate to prohibit MTECs in the case of OTC remedies:
[6] Mr. Leeper submits that the definition of “drugs” in paragraph 118.2(2)(n) of the Act should be interpreted in a way that would include the natural health products prescribed by Dr. McKinney.
[7] First, he says that the condition set out in clause 118.2(2)(n)(B) (“clause (B)”) that the substance must be one “that can lawfully be acquired for use by the patient only if prescribed by a medical practitioner or dentist” simply requires that a medical practitioner be involved in the process by which the patient acquires the substance. He submits that this reading of clause (B) would exclude from METC eligibility any products purchased as a result of self‑diagnosis. He says that a medical practitioner’s involvement would ensure that the use of the substance by the patient would be medically responsible and therefore “lawful”.
The Tax Court did not agree:
[8] While I agree with Mr. Leeper that clause (B) requires the intervention of a medical practitioner in the acquisition process, clause (B) also requires that the prescribed substance only be legally obtainable with a prescription. This in my view is the plain and ordinary meaning of the wording of clause (B).
[9] Parliament added the requirement found in clause (B) to paragraph 118.2(2)(n) in 2008, in response to decisions of this Court which allowed METC claims for the cost of substances which had been prescribed by a doctor but which were legally obtainable without a prescription (Breger v. The Queen, 2007 TCC 254 and Norton v. The Queen, 2008 TCC 29). Therefore, it is also clear that the intention of Parliament was to limit the METC to medications lawfully obtainable only by prescription.
Likewise the Court rejected Mr. Leeper’s arguments under sections 15 and 7 of the Charter, respectively:
[16] Mr. Leeper argues that in this case his spouse’s cancer is a life-threatening disease, whereas the medical conditions of the taxpayers in Ali and Markel (fibromyalgia and chronic fatigue syndrome) were not. He referred to a Canada Revenue Agency administrative publication entitled “List of Eligible Medical Expenses” which included “cancer treatment” but which did not specifically include fibromyalgia or chronic fatigue syndrome, and to other administrative and statutory provisions dealing with serious or life-threatening medical conditions which refer to cancer but not to fibromyalgia or chronic fatigue syndrome.
[17] Mr. Leeper has not shown, though, how the relative seriousness of a disease or condition would affect the subsection 15(1) analysis undertaken by the Federal Court of Appeal in Ali and Markel, and in my view, the nature or seriousness of a taxpayer’s condition or disease does not impact that analysis. Also, if Mr. Leeper’s proposition were accepted, it would mean that a subsection 15(1) right to equality would not apply equally to all persons suffering from a serious disease, something that runs counter to the basic notion of equality rights.
…
[21] In the case before me, it has not been shown that there is a sufficient causal connection between paragraph 118.2(2)(n) of the Act and Ms. Leeper’s security of the person. While I have great sympathy for Ms. Leeper’s situation, I do not accept that paragraph 118.2(2)(n) imposes dangerous conditions upon her, since that provision does not prevent her from obtaining the natural products that she requires. At most, it imposes, indirectly, a higher cost to her of those substances and thereby creates an economic barrier to that course of medical treatment. This engages economic rights, which are not protected by section 7 of the Charter.
As a result the appeal was dismissed.