Citation: 2010 TCC 492
Date: 20101006
Docket: 2009-3389(IT)I
BETWEEN:
MELANIE PIPER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Bowie J.
[1] During the taxation year 2006, the appellant paid
$11,600 for tuition fees and $300 for required course materials for her
daughter (whom I shall refer to as D) to attend Glenlyon Norfolk School (GNS).
In filing her income tax return for 2006 she claimed a tax credit based on this
amount under paragraph 118.2(2)(e) of the Income Tax Act (the Act). The
Minister of National Revenue has reassessed her to disallow that credit, and
she now appeals from that reassessment.
[2] The relevant
provisions of the Act read as follows:
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 the
amount determined by the formula
[not reproduced]
118.2(2) For the purposes of subsection 118.2(1), a
medical expense of an individual is an amount paid
(a) …
(e) for the
care, or the care and training, at a school, institution or other place of the
patient, who has been certified by an appropriately qualified person to be a
person who, by reason of a physical or mental handicap, requires the equipment,
facilities or personnel specially provided by that school, institution or other
place for the care, or the care and training, of individuals suffering from the
handicap suffered by the patient; …
[3] The issue before
me is whether the facts of the appellant’s case meet these requirements. For
the reasons that follow, I find that they do not.
[4] The appellant’s
husband appeared as her agent, and he was the only witness for the appellant.
He described their daughter as suffering from a learning disability,
specifically in relation to reading, reading comprehension and mathematics.
Exhibit A-1 is a document entitled psycho-educational
assessment report prepared in July 2006 by Dorothy Edgell, Ph.D.,
Registered Psychologist. Counsel for the respondent objected to the admission
of this document into evidence in the absence of its author. One requirement of
paragraph 118.2(2)(e) is that an appropriately qualified person
must have certified that the student is one who
… by reason of
a physical or mental handicap, requires the equipment, facilities, or personnel
specially provided by that school …
Dr.
Edgell’s status as an appropriately qualified person is not in dispute. Nor is
it disputed that she in fact examined D and wrote the report. Quite apart from
the correctness of her opinion, the fact of certification by her is a necessary
element of the test that paragraph 118.2(2)(e) establishes, and on that
basis I admitted her report into evidence, notwithstanding that she was not
available to be cross‑examined.
[5] Mr. Piper gave
evidence at some length about the difficulties that D was having in the public
school system and the need for her to have some special attention in order to
improve her performance. Dr. Edgell diagnosed a learning disability and
recommended to the Pipers that they consider GNS, and also one other private
school, as possible places where their daughter might be able to improve her
performance. D was enrolled in grade 9 at GNS, where she received special
attention from one teacher with whom she started and finished each school day.
She was equipped with a computer and a calculator, and during spare periods was
assigned to a quiet room for studying. She also had a special education plan
that was based on Dr. Edgell’s report and diagnosis.
[6] The respondent called Simon Bruce-Lockhart. He is the
Head of School for three GNS schools, each of which has students from junior
kindergarten to grade 12. The GNS schools are a not for profit
organization that takes day students, and a few boarders, in an academic
program that is designed to prepare the students for university. 95% or more of
the students at GNS in fact do go on to university, and one of the admission
criteria is that the students are capable of coping with the academic program.
He testified that D met the GNS school’s ordinary admission criteria and was
admitted to grade 9 on that basis, although it was known at the time of her
admission that she had a learning disability.
[7] Mr.
Bruce-Lockhart testified that the GNS schools do not provide a special program
for students with learning disabilities, but they do admit students, like D,
who have learning disabilities, and they do accommodate them within the normal
school program. The school has a special education teacher with a level 2
special education certification, and the learning disability children get some
one-on-one time with her. They also have a special education classroom equipped
with computers. The students who require it may have extra time to write exams,
and they can be assigned to a quiet room for exams, and in certain cases may
have a reader. The GNS schools do not promote themselves as being a special
needs school, and their program is not designed for children with learning
disabilities. When D was in grade 10 she had a spare period each day and she
spent that time in the learning assistance room with the learning assistance
teacher. During these periods there were other students in the learning
assistance room to do homework and assignments, and the learning assistance
teacher spent time helping all of them.
[8] It is not
necessary in this case to decide whether D’s learning disability amounted to a
mental handicap, as that expression is used in paragraph 118.2(2)(e).
The Federal Court of Appeal has held in Lister v. Canada, and again in Canada v.
Scott,
that paragraph 118.2(2)(e) creates a purpose test, which is to say
that for the taxpayer to be entitled to the credit that it provides, the
expense associated with a child attending the institution must be inextricably
tied to the specific needs of that child. In Scott, Trudel JA, speaking
for herself and Desjardins and Noël JJA, said this:
The fact that
some of the services offered to the general student body were beneficial to the
respondent’s son and other students with special needs is insufficient to bring
Rothesay within the ambit of the provision under study.
[9] Precisely the
same is true of the GNS in the present case. GNS is a not a school that has the
education of handicapped children, or children with learning disabilities, as a
dominant purpose. Mr. Bruce Lockhart in his evidence affirmed the accuracy of
the following statement which appears at pages 25-6 of Exhibit R-2:
Learning
Support
In order to
thrive at GNS, all students must have the potential to succeed in our program,
which has an explicit pre-university focus. However, such potential does not
preclude students from experiencing difficulties with the learning process due
to physical or learning disabilities. Adaptations can be made to the learning
process to allow students to complete our program. All teachers will readily
give extra assistance and the Learning Support Coordinator is available to
coordinate and advise. In grades 6 and 7 it is possible for remedial assistance
to be given as required. For students in Grades 8 to 12, parents must obtain a
full psychological educational assessment from a registered educational
psychologist to allow adaptations for internal exams and/or for the daily
program.
In
plain English, GNS is not a special school for handicapped or learning
disability children. It is an academic institution that prepares its students
for the rigour of a university education. It is, however, capable of
accommodating those children who meet its admission standards, but have
physical or learning disabilities. As such, it does not fall within the
requirements of paragraph 118.2(2)(e) of the Act.
[10] The appeal is
dismissed.
Signed at Ottawa, Canada, this 6th
day of October, 2010.
“E.A. Bowie”
Email this Content