Robinson v. The Queen, docket 97-640-IT-I (Informal Procedure)

Date: 19980526

Docket: 97-640-IT-I

BETWEEN:

DEBORAH ROBINSON,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Judgment

Rowe, D.J.T.C.C.

[1] The appellant appeals from assessments of income tax for her 1994 and 1995 taxation years. The appellant, in her income tax return for the 1994 taxation year, sought to include, as a medical expense, an amount of $11,800 paid by her for the cost of tuition fees so her children could attend at Choice Learning Centre for Exceptional Children (Choice) and, in her income tax return for the 1995 taxation year, sought to include an amount of $25,000 paid by her to Choice in tuition fees for her children and, in each taxation year, sought to deduct a tax credit in respect of the amount paid in computing her income tax payable.

[2] The Minister of National Revenue (the "Minister") issued assessments disallowing, in each taxation year, the tax credit, as claimed, in respect of tuition paid to Choice on the basis the fees paid were not an allowable medical expense under subsection 118.2(2) of the Income Tax Act and, therefore, the appellant was not entitled to a medical expense credit under subsection 118.2(1) of the Act.

[3] The Minister conceded Choice was an educational institution and admitted the appellant's children had attended during 1994 and 1995 and that tuition had been paid in the amounts claimed. However, the Minister's position is that the appellant's children, although exceptionally gifted in intellectual ability, were not mentally or physically handicapped.

[4] Joan Pinkus testified she is a psychologist carrying on practice in Vancouver, British Columbia and is a member of the College of Psychologists of British Columbia as well as the British Columbia Psychological Association. She obtained her Ph.D. in psychology from the University of Toronto 21 years ago and has been a practising psychologist for 23 years. Dr. Pinkus testified she interviewed Geoffrey Robinson at the request of his mother and father, the appellant and her husband, Dr. Robinson. Geoffrey was born April 4, 1987 and was seen by her on July 8 and July 14, 1993 when he was 6 years and 3 months. She stated she met with the appellant and her husband and was told Geoffrey had a lot of emotional difficulty and was, at times, suicidal. She conducted a series of tests, the results of which indicated Geoffrey's intellectual abilities placed him in the 99th percentile overall and he was within the segment of the population described as gifted. Dr. Pinkus stated Geoffrey was exasperated and totally frustrated in his classroom at the public school and a co-ordinator employed by the school district had recommended to the Robinsons that Geoffrey be assessed by her. Earlier, he had been in kindergarten but was able to function at a Grade 3 level and was not surrounded by intellectual peers. Dr. Pinkus explained the frustration experienced by Geoffrey by offering this analogy, "a 5-foot person in a room with 6-foot ceilings is comfortable but a 6-foot person in a 5-foot room will soon learn to stoop". Dr. Pinkus stated she found Geoffrey to be highly gifted, fragile and intensely emotional. As a result of conducting interviews and administering a variety of tests, she recommended the Robinsons consider Choice as an appropriate school where Geoffrey would be with other gifted chronologically-aged peers and could participate in enriched and accelerated learning programs. She stated she saw Geoffrey after he had been attending Choice and he was happy and seem to "thrive" in that environment. She stated she saw him several weeks ago after he had been attending a class in the public school system and it seemed to her as though he was "slipping again". He was 10 years old and was "acting out" to the point where he was again in therapy in an effort to deal with his behaviour which included issuing some threatening remarks concerning himself. In her opinion, Geoffrey did not suffer from Oppositional Defiant Disorder (ODD), Attention Deficit Disorder (ADD), Attention Deficit Hyperactive Disorder (ADHD) or any other disorder. Dr. Pinkus found him to be suffering from depression caused by a learning environment where - due to his exceptionally high Intelligence Quotient (IQ) - he felt restricted.

[5] Dr. Pinkus testified she also interviewed Michael Robinson, another child of the appellant, born November 15, 1985. The appellant had related to Dr. Pinkus that Michael had become withdrawn, was not very productive at school and had stopped talking. Dr. Pinkus stated she saw Michael on several occasions and administered the usual battery of recognized tests used in her profession to measure intellectual ability. She discovered Michael scored at a level - for his age - which identified him, statistically, as 1 out of 9,000 children. In conversations with Michael, she found he was hesitant to attend Choice but he advised her that his brother, Geoffrey, wanted him to attend. Michael decided to attend Choice and Dr. Pinkus stated she saw him afterwards and found him to be content without any of the demeanour of a troubled child. Currently, Michael - age 12 - is back in the public school system in Richmond, British Columbia, where there are programs for gifted children on a "hit and miss" basis so that a particular student - depending on the level of funding available to that school - may be entitled to be gifted once or twice a week between the hours of 9:00 a.m. and 10:00 a.m. but Michael is not enrolled in any such program. In her opinion, many administrators and educators are not able to identify gifted children who comprise 4% of the overall population but often are not noticed unless they are high-achievers within the structure of the system. As a result, many gifted children begin to believe there is something wrong with them.

[6] Dr. Pinkus also interviewed Stephen Robinson, another child of the appellant, when he was four years old and he fit the description, "cute as a button - smart as a whip". Stephen - born April 27, 1989 - was surprised to discover pre-school programs were so basic. He had two older, extremely intelligent brothers and, when the usual battery of tests was given to Stephen, he obtained scores which placed him at the 99.1th percentile. Since he was already a pre-school dropout and there was no kindergarten class at Choice, Stephen did not begin to attend Choice until 1995 and did so on her recommendation that he was "probably at risk" in view of his exceptional intellectual capacity and the structure of the public system which his brothers had already experienced. Dr. Pinkus explained that at the other end of the spectrum, a child who is retarded intellectually is recognized as a person who cannot move through the system at the same pace as other students. Yet, this consideration is not extended to gifted children. In her opinion, the majority of gifted children cannot cope in an average school environment. She explained there are many more programs available for teenagers than for students at the elementary level but nearly all accelerated learning programs within the public schools do not commence until Grade 8. In addition, there are some private schools which offer programs to meet the needs of gifted children.

[7] In cross-examination, Dr. Pinkus was referred to a letter dated August 14, 1996 directed to Ms. Denise Hartman, Appeals Division, Revenue Canada (Exhibit R-1) concerning the three Robinson children, Michael, Geoffrey and Stephen and the reason for recommending the children, at various times, attend Choice. Dr. Pinkus agreed that many children suffering from depression are treated without medication and stated the decision to medicate would be made by a psychiatrist. As noted in her letter to Ms. Hartman, Dr. Pinkus reiterated her view that the severe emotional problems experienced by Geoffrey were due to lack of opportunity in the school environment and that Choice could provide programs to meet his superior ability. In her opinion, children with an IQ between 145 and 160 (the average range is between 90 and 109 with a mean of 100) can suffer from a disability due to emotional instability such as that experienced by both Geoffrey and Michael. Stephen did not have any emotional problems at the time she tested him. Studies done in the United States indicated the level of success attained by gifted persons throughout their lives was, to a large extent, dependent on a supportive environment composed of family members or friends. The study also indicated some individuals - like some members of Mensa, the society for gifted people - hold menial jobs involving simple, repetitive tasks and work only to earn money so as to be able to use the remainder of their time to indulge in a particular passion. Dr. Pinkus stated some provinces in Canada have a system which permits "streaming" which is a method of permitting students to accelerate study of particular subjects. She commented that learning difficulties are usually noticed in kindergarten or Grade 1. In her opinion, it is sometimes difficult to distinguish between a child affected by ADD or ADHD and a gifted child who is simply bored and, for that reason, certain diagnostic criteria have to be met based upon the administration and interpretation of a battery of tests. Only then, is any diagnosis made.

[8] The appellant, Deborah Robinson, testified she is the mother of Michael, Geoffrey and Stephen all of whom attended Choice in 1995 at a total cost of $25,000 and, in 1994, the tuition for Michael and Geoffrey was $11,800. The appellant - who had been present during the testimony of Lorraine Ford and Christopher Carroll when they testified in the appeals of Patricia M. Collins v. Her Majesty The Queen - 97-648(IT)I and 97-2169(IT)I - heard together - requested the evidence, as it related to the structure, staffing and operation of Choice and the programs offered, where relevant, apply to her appeal. Counsel for the respondent consented. The appellant stated she resides in Richmond, British Columbia and is an academic administrator. She advised she was aware that not all gifted children would qualify under the particular provision of the Act pertaining to allowable medical expenses but her son, Geoffrey had severe emotional problems. As a five year old in 1992, he was eager and delighted to attend kindergarten for one-half day sessions but after one month he was requesting work books and would complete them by working from 9:00 a.m. until noon before attending kindergarten in the afternoon. The teacher told him to put away his books because, otherwise, he would be too far ahead of the rest of the class. Soon afterwards, Geoffrey started to wet his pants and began complaining about going to class. He was interviewed by Ms. McDermott, a resource consultant employed by the Richmond School Board to work with gifted students and those with learning disorders. She formed the opinion he was a gifted child and should be moved into a higher grade. As a result, Geoffrey began attending a combined kindergarten/Grade 1 class. The appellant stated the Ministry of Education for the Province of British Columbia had not completed, until 1994, the Manual pertaining to special needs children. Unfortunately, by that time Geoffrey had begun to stand on the edge of the roof of the Robinson home saying, "Why was I born - teachers don't like me". This type of behaviour was not manifest in the classroom and when the appellant informed Ms. McDermott of this type of conduct she had hoped officials at the school would develop a program suitable for her son. However, this was not done and even in the mixed kindergarten/Grade 1 class, he still only attended one-half day - finishing at 11:30 a.m.- but had no books or desk assigned to him. He was not permitted to have any notebooks with lined paper as those items were only handed out to full-time Grade 1 students. The appellant stated Geoffrey knew he did not fit in the system. When meeting with the Principal of the school, he advised her of the current administrative policy by stating "Mrs. Robinson, teachers are not criticized by parents in this school". In the course of meeting with Geoffrey and the appellant, Ms. McDermott had recommended the child see Dr. Joan Pinkus. The appellant stated she discovered there was a three-month waiting period for an appointment and Geoffrey, now 6, was still in kindergarten and his behaviour was distressing. He would climb out onto the roof and stand on the eavestrough where he would be crying. In July, 1993 she was able to have Dr. Pinkus see Geoffrey and she undertook 8 hours of testing and issued a report - Exhibit A-1 - which indicated he had an IQ of 160. She discussed, with Dr. Pinkus, various schools that might be available and then met with Mr. Bearisto, the Director of Learning Resources for the Richmond School District. When informed of the conclusions drawn by Dr. Pinkus following the administration of several tests to Geoffrey, as related in her report, his response was, "You can always buy results". He then informed the appellant and her husband that the Richmond public school system did not have any policy concerning gifted children but indicated Geoffrey could be admitted to the regular Grade 1 class at the local school but could not transfer to another school even though it was within the same geographical boundary. The appellant stated she decided, in 1993, to send Geoffrey to school at Choice. He was 6 and shortly after starting at Choice began doing work at Grade 2 and then Grade 3 level. Initially, he was unsure, reluctant to take off his jacket, often cried, and refused to eat his lunch. However, his teacher, Mrs. Haines, would phone him every Sunday to say, "I am looking forward to seeing you tomorrow". At the end of the school term, Geoffrey was doing work at Grade 3 and 4 level, having decided, around Christmas, 1993, that Choice was a good place for him to attend. After that, there were no more "roof-top episodes " and he was eager to go to school. While attending public school at Richmond, he seemed to feel as though he was not valued and was usually angry at his parents. The appellant stated Geoffrey attended Choice from 1993 through 1997 but is now back in public school - in Grade 7 - which is two years ahead of his chronological age. However, he is also in therapy under the care of Dr. Pinkus.

[9] The appellant stated she and her husband moved to British Columbia in 1992. Michael, born November 15, 1985, was 17 months older than Geoffrey, and had been in a French Immersion program in his former school which had combined kindergarten and Grade 1. In Richmond public school, he was placed in a Learning Assistance Program in Grade 2 - for some reason never explained to her - but was taken out of that program in December and he had a successful school year thereafter. After the fall term had commenced in 1993, Michael's teacher had phoned her to advise Michael had withdrawn to the point he would draw a picture - rather than talk - when he wished to communicate. The appellant stated she took Michael to see Dr. Pinkus who administered tests and reported he was in the 99th percentile but no written report was prepared. Dr. Pinkus was concerned about Michael's lethargy and, following some discussions, the appellant decided - in January 1994 - Michael should attend Choice. He went into Grade 3 and soon was talking, almost non-stop. In accordance with the individualized program designed for him, he was moving at his own level in various subjects in a class with other gifted 8-year old children. He continued to attend Choice until June 30, 1997. Currently, he is a student in a local public school - in Grade 7 - which is correct for his chronological age even though he had already completed some work at the Grade 8 level while at Choice. In the public school, his classroom has 55 students and various teachers instruct on different subjects. In the opinion of the appellant, many of those teachers are very good but, overall, there is no room within that system for the gifted child.

[10] The appellant stated that Stephen - born April 27, 1989 - was nearly five years old when she took him to see Dr. Pinkus who administered the appropriate tests for a child of his age. After learning that he had scored in the 99th percentile, she enrolled him at Choice as soon as he had completed kindergarten. He remained at Choice for two years and is now back in public school in a combined Grade5/6 class where he is three years younger - on average - than his fellow students. The appellant referred to a letter - Exhibit A-2 - dated April 17, 1996 she had received from Revenue Canada in which the author, P.J. Murphy, Section Chief Income Tax Appeals at the Surrey Tax Centre, had set forth the position of the Minister - as it related to the tuition fees paid by her to Choice for her three children - which was to disallow the expenditure as a medical expense on the basis none of her children had a mental handicap, as diagnosed by a qualified medical practitioner, such that special equipment or facilities or specially trained personnel were required which were not available within the public school system. Further, the position of the Minister was that it had not been accepted that Choice was a school equipped to handle the mental handicap, even if it had existed. The appellant conceded that - as a result of her experience with the older boys - Michael and Geoffrey - she did not wait for any emotional difficulties to develop with Stephen and, instead, sent him to Choice as soon as possible as a preventative measure.

[11] Counsel for the respondent did not cross-examine the appellant.

[12] John Robinson testified he is the husband of the appellant and the father of the three children referred to in the within appeal. He is employed as a Professor in a post-secondary institution. In his opinion, Dr. Pinkus was reluctant to use the term, "mental handicap" when describing the difficulties experienced by his sons and that it was extremely obvious Michael did much better when he was attending at Choice.

[13] Counsel for the respondent did not cross-examine.

[14] The evidence of Christopher Carroll - taken during the Collins appeal, referred to earlier, as it is relevant to the within appeal, is included in the subsequent text.

[15] Christopher Carroll testified he resides in Langley, British Columbia and is a teacher at Choice. He has obtained a Bachelor of Arts and Bachelor of Education and a Master of Arts in Philosophy of Education. In 1979, he also undertook studies in alternative education. He has worked in organizations devoted to dealing with troubled teenagers and, from 1986-1996, was a teacher at schools within the North Vancouver School District. He taught Grades 4-7 within the public system and was responsible for teaching classes comprised, in part, of children with special needs including ADHD, autism and young children with emotional problems stemming from troubled family situations. Carroll stated his own brother - during the 1950's - had exhibited symptoms that are now known to be consistent with a diagnosis of ADHD. During the course of professional development, Carroll explained he had attended conferences where ADHD, and other learning disorders, had been the topic of discussion and the subject of lectures delivered by psychiatrists and psychologists specializing in emotional and learning problems of children. During his tenure at the North Vancouver School District, he would receive, at the beginning of the school term, a class list and thereafter an attempt would be made to assign particular students with an identifiable problem of ADHD to the classroom of a teacher with some specialized training in learning disorders or behavioural difficulties. However, there was always a problem in terms of large class size which was not conducive to dealing with students having a learning disorder. At Choice, the child had an individual educational plan which had been specially formulated in order to meet the specific needs and problems of that student. The policy of the school was not to exceed a teacher-student ratio of 1:15. The teachers are non-union - without any collective agreement - and there is flexibility to deal with problems and to assign teachers to various duties whereas, in the public system, the administrators are often restricted by the collective agreement in terms of scheduling, assignment of duties and the size and composition of classes. Carroll stated that, within the public system, the average class would have 27 students of which 5 to 7 would have special needs. In order for a student to attend Choice, he or she had to fall within the 95th percentile on various psychological tests.

[16] In cross-examination, Carroll agreed small class size is a benefit to any child if the teacher is willing to devote time to needs of the students. In his opinion, ADHD is an ongoing problem and his primary function is to educate children by teaching the approved curriculum and assisting them in achieving personal growth. When he was teaching in the public system - in 1995 - his class had been assigned a full-time aide who worked with a child suffering from a special type of autism and the administration designed an individualized program for the student. However, there is a complex formula for determining class size in accordance with the collective agreement and there are certain funding policies within school administration which can be restrictive. In his view, there are problems dealing with intellectually gifted students apart from any learning disabilities or emotional problems.

[17] The portion of the testimony of Lorraine Ford, Principal at Choice - given at the Collins appeal - pertinent to the within appeal is included in the subsequent text. To avoid any confusion to the reader, the exhibit numbers referred to were part of the Collins appeal and do not form any part of the within appeal. Also, the cross-examination of Ms. Ford is not relevant to the within appeal and has not been reproduced.

[18] Lorraine Ford testified she has been the Principal at Choice for the past four years and before that was a teacher and Vice-Principal at the school. As Principal, she still teaches approximately 20% of the time. She holds a Bachelor of Applied Arts and a Bachelor of Education degree from the University of British Columbia and is currently working towards her Master of Education. She has also obtained 30 extra credits in behavioural disorder, instructional language disabilities, special learning disabilities and remedial reading. Each of these courses assist in understanding ADHD. Currently, there are 113 students at Choice, with 12 teachers, herself as Principal and one administrative assistant. The classes range from kindergarten to Grade 10. There are 8 classrooms together with a music and activity room, computer room equipped with 15 personal computers, science laboratory, library and, outside the building, a playground and soccer field. Ford explained that, prior to admission at Choice, a student has to be tested by a clinical psychologist and the results of the examinations must be submitted to Hélène Giroux, Director who is in charge of admissions. She identified a document - Exhibit A-11 - dated February 25, 1992, issued by the Inspector of Independent Schools, employed by the Independent Schools Branch of the Ministry of Education for the Province of British Columbia certifying that Choice was entitled to operate as an independent school for the period extending to June 30, 1996. Ford explained the Ministry of Education undertakes a thorough audit of the school and accreditation must be renewed every two years. Once an independent school is approved, then it is eligible to receive funding from the Ministry equal to 50% of the amount, per pupil, paid to a public school and there is also a formula for obtaining additional funding for children with special needs and, to that end, she submits reports together with applications to the Ministry for funding. Ford explained the policy of Choice is to develop an Individualized Education Program (IEP) for each student after she, as Principal, has held discussions with the student, parent(s) and teachers with a view to meeting academic, social and emotional needs in order to meet short-term and long-term goals. Before being hired at Choice, the teachers are subjected to a rigorous interview and must be seen as nurturing, caring and compassionate and are subject to review every two years. In addition, there is flexibility in environment at Choice with emphasis on small class size and one-on-one attention, as required. There is a policy of maintaining constant rapport with parents and reports and notes are sent on a regular basis concerning the student and the school. There is an accelerated program for teaching the mandatory curriculum which utilizes only 60% of the available time and leaves 40% to work on emotional needs of a child. In her opinion, special attention is required to be given to gifted children. Ford referred to the Certificate of Incorporation - Exhibit A-12 - of Choice Learning Center For Exceptional Children Society, dated April 30, 1985, issued pursuant to The Society Act of British Columbia and referred to the constitution of Choice - Exhibit A-13 - and one of the purposes - as set forth in paragraph 2 - which was to enable children of exceptional intellectual ability to obtain an education that allows them to develop to their fullest capacity and to provide specialized programs for that purpose. Ford pointed out that, even though a child has a handicap or learning disorder, he or she cannot be admitted to Choice unless the child possesses exceptional intellectual ability. Currently, within the student population of 113, there are five children suffering from ADHD and 28 others with various forms of dyslexia. During the period from 1993 to 1995, there were 7 students at Choice with ADHD. In order to be employed as a teacher at Choice, a person must have, at least, a Bachelor of Education and are requested to attend seminars and to otherwise learn about ADHD at courses made available by universities or school districts and also are encouraged to receive instruction on the subject of teaching gifted children. Although there is no union agreement, each teacher at Choice must be a member of the British Columbia College of Teachers. Ford referred to a Manual of Policies, Procedures and Guidelines - Exhibit A-14 - issued by the Special Programs Branch of the Ministry of Education, Skills and Training of the Province of British Columbia and stated Choice must follow the policies set forth therein in order to retain accreditation. In Exhibit A-14, at Section E-1, there is reference to ADHD and other conditions and syndromes which impact on the educational needs of students. At page E-11 of the Manual, there is a definition of Learning Disabilities which includes ADHD, referred to therein as AD/HD, the Ministry's choice of an acronym for Attention Deficit/Hyperactivity Disorder. Ford stated that, as Principal of Choice, she ensures all teachers are familiar with the information contained in the Manual and copies are distributed and various topics contained therein are the subject of staff meetings. At such meetings, each student's file is reviewed and most have a personal record which, in some cases, includes material provided by a public school previously attended by that child. Ford referred to the letter dated September 4, 1996 - Exhibit A-10 - issued by Ms. Giroux, Founder and Executive Director of Choice, and stated she agreed with the statements contained therein and is satisfied Choice meets all the requirements of the Ministry of Education.

[19] The position of the appellant is that Geoffrey and Michael had been experiencing difficulties within the public school system. In her view, most of the problems were due to their superior intellectual ability and they were frustrated and bored. In Geoffrey's situation, he was carrying out dangerous and highly disturbing behaviour. In that sense, the appellant submitted they were suffering from a mental handicap which, in the opinion of Dr. Pinkus, a qualified medical practitioner, required special treatment which could be provided by the teachers at Choice, who had special training in dealing with gifted children since a child had to be in the 95th percentile and above in order to be admitted as a student. In addition, Choice provided special academic programs which were designed to fit the particular student in a given area of study.

[20] Counsel for the respondent submitted the evidence did not disclose the requisite criteria had been satisfied. First, there was no mental handicap suffered by any of the Robinson children and there had been no certification that any such handicap existed. Second, there was nothing on the evidence to suggest any of the appellant's children were "patients" within the language of paragraph 118.2(2)(a) of the Act and the only service being provided by Choice to the Robinson children was a specialized education for gifted students which did not involve any care or care and training as contemplated by paragraph 118.2(2)(e) or as supported by any of the relevant jurisprudence.

[21] The revelant provision of the Act is paragraph 118.2(2)(e) which reads:

"(2) Medical expenses - For the purposes of subsection (1), a medical expense of an individual is an amount paid

...

(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;"

[22] A reading of the above provision makes it clear there are several criteria to be satisfied which are as follows:

1. The taxpayer must pay an amount for the care or care and training at a school, institution or other place.

2. The patient must suffer from a mental handicap.

3. The school, institution or other place must specially provide to the patient suffering from the handicap, equipment, facilities or personnel for the care or the care and training of other persons suffering from the same handicap.

4. An appropriately qualified person must certify the mental or physical handicap is the reason the patient requires that the school specially provide the equipment, facilities or personnel for the care or the care and training of individuals suffering from the same handicap.

[23] First, there is no dispute the tuition fees were paid in the amount claimed by the appellant or that the payments were made to Choice, a school, within the meaning of the provision.

[24] Second, the question to be answered is this: did any of the appellant's children suffer from a mental handicap at any time material to the within appeal? There is no definition in the Act or in any jurisprudence concerned with section 118.2 or the predecessor provision. Counsel for the parties provided me with various dictionary definitions of "handicap" including the following:

Webster's Third New International Dictionary :

"(b) - a disadvantage that makes achievement unusually difficult".

The New Collins Concise Dictionary Of The English Language:

"handicap:

1. something that hampers or hinders

2. a contest, esp. a race, in which competitors are given advantages or

disadvantages of weight, distance, etc. in an attempt to equalize their chances "

The Shorter Oxford English Dictionary devoted 48 lines of type to define the word - as noun and in verb form - as it pertained to sporting events, mainly horseracing and was not particularly helpful.

The Concise Oxford Dictionary of Current English:

"handicap - (fig., of circumstances) place (person) at disadvantage; (in p.p.) suffering from physical or mental disability."

The Merriam Webster Dictionary, New Edition:

"handicap: (2) a disadvantage that makes achievement unusually difficult."

Stedman's Medical Dictionary - 25th Edition (Williams & Wilkins) offers this definition:

"handicap - A physical, mental, or emotional condition that interferes with an individual's normal functioning. See also disability."

[25] Since the issue in the within appeal concerns the eligibility for a medical expense tax credit, and the history of the provision has been to expand deductibility for payments so that it now covers expenditures made for the care, transportation, purchase of equipment, devices or products, travelling costs, board and lodging and the cost of purchasing and caring for an animal specially trained to assist an impaired patient, I prefer the definition from Stedman's Medical Dictionary to those mainly concerned with the appropriate etiquette as it relates to activities such as golf, horseracing or lawn bowling.

[26] In the case of Speering v. North Bay (City) 7. M.P.L.R. (2d) 308, Bernstein, J. of the Ontario Court of Justice (General Division) in a judgment dated October 21, 1991, dealt with the question as to whether a saving provision in the Limitations Act would apply to a person who, due to an injury suffered from falling on an icy municipal sidewalk, was able to proceed with her legal action notwithstanding she had not served the requisite notice upon the City within the statutory 7-day period. While not finding any section of the Limitations Act to be of assistance to the plaintiff, Bernstein J. found the notice discriminated against persons who, because of their mental or physical disability, were unable to give notice of their injuries to the municipality and that section 15 of the Charter had been breached. At p. 314 of the judgment, Bernstein J. stated:

"At this stage of the proceedings, there is evidence before me that the injured plaintiff was unable to provide notice to the municipality because she was, at the relevant times, physically disabled. As far as I am aware, the case law relating to s. 15 has not defined the term "physical disability." David Lepofsky, in his article "Equality and Disabled Persons" (April 16, 1986), Department of Education, The Law Society of Upper Canada, p. A-3, characterizes a physically and mentally handicapped person as someone "with any identifiable physical characteristic or mental condition, however serious or minor, which can impair the ability to undertake a particular task." On questions of disability, human rights legislation has been construed to refer to a wide range of permanent and temporary characteristics, whether caused by congenital, accidental or disease-related factors."

[27] It is worthwhile to point out that the within appeal is not one involving the claim for a disability tax credit under section 118.3 of the Income Tax Act because in those cases the extremely high standard to be met arises out of the restrictive wording of the section and the definitions contained therein, none of which are particularly relevant in the within appeal. In the case of Congo v. Canada [1996] T.C.J. No. 671, the Honourable Judge Taylor, Tax Court of Canada, although dismissing the appeal, recognized that Attention Deficit Hyperactive Disorder (ADHD) was a handicap and stated at. p 2:

"...This lack of ability to concentrate, and remember even basic requirements seriously interfered with his life, and affected all around him, including family, friends, teachers, and extended to relations with the general public."

[28] The New Collins Concise Dictionary of the English Language (Collins) offers this definition of "mental handicap."

"mental: 1. of or involving the mind. 2. occurring only in the mind

mental deficiency: a condition of low intellectual development requiring

special education and employment. Also called: mental handicap."

[29] I turn now to the evidence of Dr. Joan Pinkus, as it relates to each of the appellant's children, beginning with Geoffrey. The oral testimony of Dr. Pinkus, together with an examination of her written report - Exhibit A-1 - and her letter to Ms. Hartman of Revenue Canada - Exhibit R-1 - indicates the result of her testing was to reveal that Geoffrey was an extremely intelligent child with abilities falling within the top 1% of the population. He was considered to be in the Highly Gifted Learner Range and had a wide variety of special needs which should be met in order to satisfy his intellect. The only element of her findings that can be seen to bear on the issue of mental handicap is her statement in the second paragraph of Exhibit R-1 where she writes:

"At that time, my clinical findings were also that Geoffrey was experiencing depressive emotions and saw himself as responsible for the lack of success in school. I met with Geoffrey for several more sessions and upon consultation with his parents, I recommended that they consider enrolling him in the Choice Learning Centre."

[30] The Psychological Report - Exhibit A-1 - prepared by Dr. Pinkus indicated she administered several psychodiagnostic measures seen to be fairly reliable indicators of Geoffrey's current abilities and skills and that he had performed at a very high level. Dr. Pinkus noted, "he was focused and attentive with many tasks, particularly perceptual/spatial/manipulative ones". She also commented, "When his skills and abilities were recognized and complimented, Geoffrey beamed with a wonderful expression of internal pleasure and validation". Among the conclusions drawn by Dr. Pinkus, one was that the data indicated he had academic skills beyond the expected Grade 1 placement and should be placed on an individualized educational program with flexible pacing. Dr. Pinkus went so far as to state in her report that this need for individualized programming was "imperative to Geoffrey's well-being". Dr. Pinkus also recommended the appellant and her husband become members of the Gifted Children's Association of British Columbia where they and Geoffrey could meet with other parents with similar concerns and interests as well as having the opportunity to attend conferences and presentations about the needs of gifted children. Dr. Pinkus also provided the appellant and Dr. Robinson with articles and reading lists on the subject of parenting gifted children.

[31] The evidence of the appellant as it related to Geoffrey was that, at age 6, he was very depressed, distressed and was indulging in frightening behaviour. Any parent can imagine the horror of standing on the lawn and attempting to coax a small, emotionally distraught child down from a precarious perch on the eavestrough at the extreme edge of the roof of the family home. Thereafter, having to wait 3 months for an appointment with a child specialist would serve to exacerbate the concern and being rebuffed by a school principal who flatly refused to make any attempt to develop an individualized program for Geoffrey would be maddening.

[32] The evidence relating to Michael demonstrated he was also an extremely gifted child scoring at a level which would place him in a category of intelligence occurring only once in 9,000 people. The appellant had related to Dr. Pinkus that Michael had become withdrawn, was unproductive in his schoolwork and had ceased talking. Dr. Pinkus did not prepare any written report concerning her testing of Michael but merely confirmed - orally during an interview with the appellant - that Michael's intellectual ability was sufficiently high to permit him to be enrolled at Choice which Michael agreed to attend, mainly to accommodate Geoffrey who wanted his big brother to go with him to the new school.

[33] The youngest child, Stephen is also very bright and this was confirmed by Dr. Pinkus. The only other diagnosis pertaining to this little boy was that he was "cute as a button and smart as a whip". The appellant conceded these attributes - coupled with a high IQ - do not constitute a mental handicap but, in light of the problems experienced by her two older boys in the Richmond public school system, she decided to enrol Stephen at Choice as a prophylactic measure.

[34] In the appeal of Gordon Giroday v. Her Majesty The Queen - 97-721(IT)I -concerning the taxpayer's son, Michael Giroday who also had attended Choice, I stated at p. 3:

"On the facts in the within appeal, it is apparent Michael did not suffer from a mental handicap and had not been so certified by any qualified professional. The failure of the public school system - within the appellant's district - to provide proper programs for students as gifted as Michael is detrimental to his academic progress and to the process of realizing his full potential. However, it cannot be said that Michael is suffering from a mental handicap merely because of his superior intellectual ability. A superbly gifted athlete may contemplate moving to a new municipality in order to find adequate training facilities or to participate in meaningful competitions but the absence of such cannot be regarded as a physical handicap suffered by that gifted person."

[35] Returning to the facts of the within appeal, I cannot find on the evidence that Geoffrey suffered from a mental handicap although it is recognized his behaviour - for the most part caused by frustration at being compelled to commence his education in a restrictive and stultifying environment unleavened by any ingenuity emanating from the policy-bound bureaucrats administering the public school system - was highly disconcerting to the appellant and her husband and, most importantly, to Geoffrey. To be head and shoulders above the crowd in terms of intellectual ability can often be irritating, frustrating, aggravating, boring or overwhelming depending on various coping skills possessed by that person but it is not, without more, a mental handicap. The milieu in which a gifted person is forced to function may not offer the appropriate opportunity to fully develop at an optimum rate within a less-than-perfect publicly-funded educational system but that is the fault of the system and cannot be visited upon the individual by defining that superior ability as a mental handicap from which the gifted person is said to be suffering. Conscientious parents will go to great lengths and expend large sums of money in an effort to provide a good education for their children in the context of an appropriate environment. Since the cost of doing so is often very high, it is natural to seek tax relief in some form since there is no adequate funding within the public system to provide individualized educational programming for gifted children at the elementary level. However, even though nearly every receipt of revenue is considered income by the taxing authority, not every expenditure in life is deductible.

[36] The evidence relating to Michael Robinson did not demonstrate he had a mental handicap and there was nothing issued by Dr. Pinkus - verbally or in written form - which could, in any way, be taken as a certification to that effect. In the case of Collins, supra, the taxpayer's child, although gifted, was suffering from ADHD which, under the circumstances special to his situation, constituted a mental handicap and had been so certified by Dr. Pinkus and by Dr. Weiss, a psychiatrist specializing in the treatment of children. In the Giroday case, the child was gifted and, fortunately, had not exhibited any behavioural problems other than to display boredom at being in a school which did not challenge his abilities. A review of the reasons given for judgment in those cases and, I anticipate, in future appeals involving attendance of gifted children at Choice, will illustrate that the facts in each case must be sufficient to have satisfied the criteria demanded by the relevant paragraph of the Act. The jurisdiction of this Court does not extend to making law by re-writing the Act on a case-by-case basis, or at all, in order to alleviate some perceived omission by the legislators despite recent decisions to that effect having been issued by other Courts in another context.

[37] The appeal of the appellant from the assessments of income tax for the 1994 and 1995 taxation years is hereby dismissed.

Signed at Vancouver, British Columbia, this 26th day of May 1998.

"D.W. Rowe"

D.J.T.C.C.