Citation: 2013 TCC 64
Date: 20130220
Docket: 2012-1929(IT)I
BETWEEN:
HARRY BAUSKIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Woods J.
[1]
Harry Bauskin’s son, who has
a disability, attended Crestwood Preparatory College (“Crestwood”) from 2006 to
2011. This appeal under the Income Tax Act concerns the disallowance of a
medical expense tax credit in respect of $15,840 in tuition fees paid to
Crestwood. The relevant taxation year is 2010.
Factual background
[2]
Crestwood is a private school
offering elementary and high school education that is designed to prepare
students for further education at university. It has a broad range of students
in its mainstream teaching program, as well as students with severe learning
disabilities in its Transition Program.
[3]
After having difficulty in the public
school system, a doctor diagnosed Mr. Bauskin’s son with attention deficit
hyperactivity disorder (ADHD). The doctor recommended that the child attend
Crestwood’s Transition Program. As a result, the child attended that Program
for grades 7 and 8.
[4]
Crestwood did not offer
the Transition Program after grade 8.
Accordingly, for grades 9, 10 and 11 the son attended Crestwood’s mainstream program. During this time, the son took regular classes with
students who did not have learning disabilities. However, Crestwood provided
the son with supplemental assistance such as extra time to write exams and
extra help with the class work. There were no extra charges for this
supplemental assistance.
[5]
During the taxation year at issue,
2010, the son was in the mainstream program at Crestwood.
Analysis
[6]
The issue is whether
the tuition fees paid to Crestwood for
the mainstream program in 2010 qualify as a medical expense for purposes of the
medical expense tax credit.
[7]
Mr. Bauskin submits that the
tuition fees qualify as a medical expense for purposes of the tax credit by
virtue of s. 118.2(2)(e) of the Act, which provides:
(2) Medical
expenses - For the purposes of subsection (1), a
medical expense of an individual is an amount paid
[…]
(e) [school,
institution, etc.] - 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;
[8]
The Crown submits that the
requirements of the above provision are not satisfied because the mainstream
program at Crestwood did not specially provide equipment, facilities or
personnel for students with disabilities and there was no certification
indicating that Mr. Bauskin’s son was required to be enrolled in the mainstream
program as a result of his learning disability.
[9]
For the reasons below, I agree
with the Crown’s second submission regarding the certification requirement. As
this conclusion is sufficient to dispose of the appeal, it is unnecessary that
I consider the first submission.
[10]
The certificate that is required
by s. 118.2(2)(e) must indicate that the person with the disability requires equipment,
facilities or personnel specially provided by the school. In order for this
requirement to make sense in the context of the medical expense tax credit, the
tuition fees at issue must relate to equipment, facilities or personnel that
the certificate has identified as being required.
[11]
As the Federal Court of Appeal
stated in The Queen v Scott, 2008 FCA 286, a link must exist between the disabled person’s need and the
relevant expense. Trudel J.A.
comments:
[11] To satisfy this
requirement, first of all, the respondent’s son must have a specific need.
Second, the expenses of Rothesay must be inextricably tied to this specific
need resulting from his disability: Lister v. Canada, 2006 FCA 331
at paragraph 15. Third, Rothesay must be an institution that is capable of
addressing the need of a group with disabilities similar to those of the
respondent’s son.
(Emphasis
added)
[12]
Mr. Bauskin provided two
letters in support of the certification requirement. The first letter is from a
Dr. Cohen dated December 19, 2007. Mr. Bauskin provided this letter to the
Canada Revenue Agency in support of a claim for the tax credit in 2006 when the
son was enrolled in the Transition Program. The problem that I have with this
letter is that it only addresses the facilities provided by the Transition
Program. Since it does not address equipment, facilities or personnel provided
by the mainstream program, I conclude that this letter does not satisfy the
certification requirement.
[13]
As noted in Scott:
[23] However there must be true certification: one which
specifies the mental or physical handicap from which the patient suffers, and
the equipment, facilities or personnel that the patient requires in order to
obtain the care or training needed to deal with that handicap: Title
Estate v. Canada [2001] F.C.J. No. 530 at paragraph 5.
[14]
The second letter is from the
Principal of Crestwood, Vincent Pagano, dated April 21, 2011. The letter
is reproduced in part below:
X
is a special education student at Crestwood Preparatory College and had been
assessed as requiring more accommodations than available in normal academic
high school programs. He was in our transition program from 2006 until 2008 and
continues to work within a modified program.
X’s
psychological assessment indicated his special needs. These accommodations
included smaller class sizes, extra time for the exams, assignments and more
classroom supervision.
[15]
In my view, this letter is not
satisfactory evidence that a proper certificate has been given. The letter itself
is not a certificate. Rather, it refers to a psychological assessment having
indicated special needs. The only assessment that was entered into evidence was
the 2007 assessment made by Dr. Cohen, which is insufficient to satisfy the
certification requirement for the taxation year at issue. The Principal’s
letter, by itself, is not satisfactory proof of an adequate certificate.
[16]
In light of my conclusion that the
certification requirement in s. 118.2(2)(e) has not been satisfied, the appeal
will be dismissed.
Signed at Ottawa, Ontario this 20th day of February
2013.
“J. M. Woods”
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