Burns v. The Queen, docket 97-2974-IT-I (Informal Procedure)

Date: 19980529

Dockets: 97-676-IT-I; 97-2974-IT-I; 97-675-IT-I

BETWEEN:

JANET M. BURNS, ROBERT V. BURNS,

Appellants,

and

HER MAJESTY THE QUEEN,

Respondent,

Reasons for Judgment

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

[1] The appellant appeals from an assessment of income tax for her 1993 taxation year (97-676(IT)I) and also from assessments of income tax for her 1994 and 1995 taxation years (97-2974(IT)I). The appellant and counsel for the respondent agreed her appeals would be heard together and all parties agreed the appeal of Robert V. Burns (97-675(IT)I) from an assessment of income tax for his 1992 taxation year would be heard at the same time on common evidence.

[2] At issue in the appeals of both appellants is whether or not the Minister of National Revenue (the "Minister") was correct in refusing to allow the appellant, Janet M. Burns, in 1993, 1994, and 1995, and her husband, Robert V. Burns, in 1992, to include certain amounts paid by them to Choice Learning Centre for Exceptional Children Society (Choice) as tuition in respect of their son, Jody Burns, on the basis the payments constituted - in the relevant year - an allowable medical expense within subsection 118.2(2) of the Income Tax Act (the "Act") which could be used in computing income tax payable for the particular taxation year by virtue of being eligible for a medical expense tax credit pursuant to subsection 118.2(1) of the Act.

[3] Counsel for the respondent advised the Minister had accepted that the amounts paid for tuition, as claimed, by one or other of the appellants in the relevant year, had been paid and the Minister admitted Choice was an educational institution.

[4] The appellant, Janet Burns testified she resides in Vancouver, British Columbia and is a Barrister and Solicitor. She stated her son, Jody, was born on May 19, 1986 and it soon became apparent he wanted to do things which were beyond his physical ability. In the fall of 1989 - at age 3 - he began pre-school where he had ample opportunity for active play such as construction with large blocks and drawing. It was also obvious that Jody "marched to a different drummer" but he was doing well and there was no cause for alarm. The appellant related Jody was verbalizing at an early age and expressed mature thoughts but, at times, appeared to be backward in activities such as tying shoelaces or grasping the concept of morning, mid-day and evening as linear time. In addition, Jody required an enormous amount of assistance in order to prepare him for daily activity such as eating breakfast, getting ready for school or leaving the house to go somewhere. The appellant explained it was not as though his behaviour was defiant but he seemed not able to understand the need for behaviour to be governed by time. As a result of Jody's conduct, the appellant stated she began to study the subject of gifted children and arranged for an appointment with Dr. Joan Pinkus, a psychologist specializing in assessments of young children. On October 31 and November 7, 1990 - when Jody was 4 years and 5 months and still in pre-school - he was assessed by Dr. Pinkus who prepared a written report (Exhibit A-1). The appellant stated Dr. Pinkus had concluded Jody had extremely highly-developed verbal skills with no relative strengths or weaknesses and overall function within at least 1% of the population and was considered to be a Gifted Learner. The report also noted that Jody's skills in the area of perceptual, spatial and certain visual-motor tasks fell within the above average to superior range but were significantly lower than his verbal abilities which Dr. Pinkus predicted would cause problems as he continued his education. The appellant stated the concerns expressed by Dr. Pinkus in relation to Jody's frustration with tasks involving motor skills were later proven to have been accurate. The appellant stated she and her husband had moved to the district of Kerrisdale in 1988 intending that their son would attend public school. However, after the assessment by Dr. Pinkus and upon being provided with information about gifted children and material pertaining to organizations and resources relating to parents of gifted children together with information concerning schools and academic options for Jody, the appellant and her husband, Robert Burns, decided their son should attend school at Choice. Dr. Pinkus had advised that Choice had an academic program with sufficient flexibility and instruction by patient, caring teachers capable of dealing with a child like Jody who had difficulty in carrying out certain learning activities involving motor tasks. The appellant stated she and her husband decided - in September, 1991 - to enrol Jody in the local kindergarten at McKechnie Elementary School, a standard class within the public school system. During the first month or so, things went well for Jody but after that his teacher began to complain about his behaviour. The appellant stated she met with Jody's teacher in October, mainly due to his teacher having noticed Jody's drawing and writing skills were far below his obvious intelligence level. The teacher advised it was apparent to Jody his skills in these areas were poor and he became angry and frustrated. The appellant stated she did not regard Jody's conduct as defiant, rather he simply "tuned out" and thereafter his failure to obey instruction could be seen as sullen and uncooperative behaviour. At school, Jody was unwilling to participate in play with other children and did not "fit in" and it was apparent the other students did not like him. Following her meeting with Jody's teacher and having given her a copy of the report of Dr. Pinkus, the appellant explained she began to accelerate her research into the subject of learning disabilities as it applied to gifted children. In November, 1991 Jody was 5 and could multiply numbers - aloud - up to 12 on the times table. He knew his alphabet up to the letter "S" and the appellant held another conference with his teacher. In the teacher's opinion, Jody was not a "risk-taker" but this did not accord with the behaviour observed at home when he often engaged in dangerous play such as walking along the top bar of the swing set. In school, the teacher reported he was full of fear, rage and often cried during class. The appellant stated she offered to volunteer as a teaching aide at McKechnie Elementary in order to be able to observe her son's behaviour. In that capacity, she noticed Jody was withdrawn and she and her husband decided - in January, 1992 - to enrol him at Choice where he was permitted to attend half-time and then - in March - began attending full time until the conclusion of the term at the end of June. The appellant explained Jody also had health problems, including ear and respiratory infections, headaches and stomach aches. In her view, the atmosphere at Choice was different from that at his former school. The appellant was aware the classes were smaller and there seemed to be a sense of freedom which her son appeared to enjoy. His teacher, Mrs. Haines, was extremely caring and Jody still had difficulty reading and he continued to have behaviour problems. He also had severe headaches and a physician examined his ears and looked into whether he was affected by certain allergies but it seemed stress was a significant factor in Jody's health. At Choice, Jody's teachers worked to develop special strategies to assist him in dealing with his learning disabilities including individualized attention in subjects such as mathematics. During Grade 1 at Choice, Jody was still easily distracted and it was difficult to have him focus on a task. As a result, a system of rewards was used to encourage completion of work instead of punishment or negative comments. When he was outside the classroom, Jody was impulsive and would dart into traffic, unaware of danger or, at home, he would jump off the garage roof onto the trampoline. Until Jody reached age 7, the appellant stated she had to hold onto him - in order to prevent him from doing something which could cause him harm - during activities away from the family home. In the classroom at Choice, Jody mixed with his fellow students and no longer seemed to believe he did not fit in. He still required additional physical space which served to reduce the level of his irritability. By April 1993, he was at the mid-Grade 2 level and continued to be talented in building things, taking them apart and understanding how certain devices worked and the reason behind their function. He had skills in origami but continued to struggle with reading and writing and was very sparse in written description whereas - on the same topic - he could talk for 10 minutes. As a result, his writing and reading skills placed him far behind other students. The teachers at Choice understood his problem and even at age 9 and 10 his teacher, Mrs. Dhillon - during her lunch hour - would act as his secretary in writing down his verbal responses on certain matters. Although his medical problems continued, he was happier and he was learning, especially his reading skills which developed to the point where he could read for his own enjoyment and, at present, is able to read at a level much higher than his chronological age. The appellant stated she expressed her gratitude to his teachers and believed that - without Choice - he would have been a sullen, resistant, virtual drop-out, averse to learning. There were other students at Choice who also had a large disparity between verbal and written abilities. Unfortunately, there were other events occurring which affected Jody_s life. Within two days, two of his grandparents died and, later in the same year, the appellant and her husband separated and he left the matrimonial home. The teachers at Choice continued to be supportive and the appellant contacted Dr. Pinkus and she and Jody participated in family separation and divorce counselling. A pediatrician had diagnosed Jody as a migraine sufferer and his allergies continued, one of which may have been caused by the spraying of certain chemicals on cranberry fields located near Choice. For a while, the farmer had co-operated by advising her, in advance, of his spraying schedule but he later discontinued that arrangement. The appellant stated she heard of West Point Grey Academy (Point Grey), a private school located in a large open space south of Jericho Beach where the air was clean. Choice had no gymnasium for active sports and games and Jody was a large, active child requiring regular exercise. Choice was located about a one-half hour drive from the appellant's residence and she made a total of 4 trips per day in order to take her son there in the morning and pick him up after school. The Academy was modelled on the English Public (meaning, for some curious reason, Private) school system and the "prep school" common to the United States. Jody began attending Point Grey in September, 1996 and is now in Grade 6. His performance in school is at a lower level and his behaviour has reverted to that evident during kindergarten in public school. He is in the 95th percentile in terms of height and weight. The teachers at Point Grey advised her they believed Jody was "lazy" and simply not trying hard enough. In a course on computers he was receiving marks of A or A- but in other subjects, where he had to use ordinary handwriting skills, he did not do as well because it took him several drafts in order to complete an assignment. The appellant referred to her son's most recent report card at Point Grey (Exhibit A-3).

[5] In cross-examination, the appellant stated the report of Dr. Pinkus - Exhibit A-1 - had been presented to Choice. She had transferred Jody to Choice in mid-year of kindergarten and believed she had spoken to Dr. Pinkus prior to so doing but, in any event, at the time of doing the assessment, Dr. Pinkus had recommended the school as an option to be considered. Following the testing of Jody in November, 1990, there were further consultations with Dr. Pinkus but not for the purpose of testing academic or intellectual skills. The appellant stated she and Robert Burns had joined - on September 28, 1990 - the Gifted Children's Association of British Columbia. The appellant stated she maintained records - which she kept in a binder - of Jody's medical condition and relevant school documents together with material she had collected in the course of her research into diverse subjects including allergies, migraines, and learning disabilities. She stated Jody was now in a grade at Point Grey which was standard for his age and, while there were pre-admission tests and an interview with the Headmaster, there were no specific tests administered to measure intellectual ability.

[6] Robert Burns testified he resides in North Vancouver and is a Barrister and Solicitor. He has appealed an assessment for his 1992 taxation year in respect of payment made to Choice for tuition so that his son, Jody, could attend at the school. He stated his wished to adopt the evidence of his wife, Janet Burns, who had given a thorough account of the problems encountered by Jody. He stated it was soon apparent the predictions made by Dr. Pinkus, after concluding her testing of Jody, were coming true while Jody was attending the kindergarten class which had two sessions, each one with 25 students. As for Jody's writing ability, he commented that - even on the computer - Jody was not committed to providing much detail and wrote almost in point form, as though it were painful to commit thoughts to paper or in some other written form. He stated Point Grey had begun in September, 1996 and was a co-educational school, in a fabulous setting, and he had known the Headmaster during that person's previous tenure as an Assistant-Headmaster at another private school in Vancouver. Robert Burns indicated it was clear to him, upon leaving the office of Dr. Pinkus following discussions concerning the results of testing, that Choice was a suitable school for their son and he also knew a couple who had a son, with a learning disability, who was attending Choice. He spoke to the couple and obtained information about Choice and the manner in which it operated from the perspective of the parent and the child. Prior to Christmas, he stated the decision had been made to send Jody to Choice and, in January, 1992, Jody was permitted to attend. Earlier, he and Janet Burns had met with the Director of Choice and had provided her with the report of Dr. Pinkus. They had been given a tour through the school, thought it was an ideal setting for their son's education and later considered themselves fortunate that, in March, Jody was able to attend class full time because a vacancy had arisen in the interim.

[7] In cross-examination, Robert Burns agreed there had been no further testing of Jody following the assessment by Dr. Pinkus.

[8] The appellants - 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 their appeals. Counsel for the respondent consented.

[9] 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.

[10] 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.

[11] The portion of the testimony of Lorraine Ford, Principal at Choice - given at the Collins appeal - pertinent to the within appeal - is reproduced 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 appeals. Also, the cross-examination of Ms. Ford is not relevant to the within appeals and has not been reproduced.

[12] 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.

[13] Counsel for the respondent admitted Dr. Joan Pinkus was qualified as a medical practitioner by reason of being a psychologist, carrying on practice in Vancouver, British Columbia, who was a member of the College of Psychologists of British Columbia as well as the British Columbia Psychological Association. Dr. Pinkus obtained her Ph.D. in psychology from the University of Toronto 21 years ago and has been a practising psychologist for 23 years.

[14] The appellant, Robert Burns conducted the examination-in-chief of Dr. Pinkus on his own behalf, and as agent for his wife, Janet Burns. Dr. Pinkus testified she had been asked by both appellants - the parents of Jody Burns - to see him for the purpose of conducting a psychological assessment. She stated the parents had expressed concerns about his behaviour and development and his conduct while attending a pre-school program. Jody had been expressing a lot of anger and was having difficulties interacting with other children. At the time of his first visit to her office, Jody was only 4 but was a large child and it was apparent he was advanced in terms of language development. Dr. Pinkus identified a report - Exhibit A-1 - dated November 15, 1990, she had prepared following completion of her assessment of Jody Burns. Referring to page 4 of her report, Dr. Pinkus explained Jody had displayed considerable dysynchrony - or asynchrony - which is the term used to describe the situation where not all of a child's development occurs equally or at the same time. As an example, Dr. Pinkus noted some children can run but are unable to speak well while others are able to speak but can barely move. Eventually, most of the "runners become talkers and the talkers become runners". In some children who have a significant asynchronous development or dysynchrony, one area develops much more rapidly than the other and that weaker area may actually be developing below age level expectations. This disparity creates a tremendous handicap for that child because he or she may be able to think quickly, use wonderful, expressive language, but is unable to write it down or assemble it and then they are aware that what they have put down on paper is not, in any way, an accurate reflection of what is in their head and what it was they had intended to express. With young children, that can lead to behaviour such as throwing crayons across the room because they are so frustrated and they will ask their mother to draw the picture that is inside the child's own mind. In such a situation, a temper tantrum will usually result. Dr. Pinkus indicated there is normal dysynchronous development and there is the kind that creates a handicap for the child. At the time she saw Jody, he was having a significant variation in his development. His language skills were in the top one per cent of the population whereas his fine motor skills, his visual motor, his copying skills, pencil grip, ability to form shapes and copy shapes - which would indicate writing would be difficult for him - were significantly below his language skills. In pencil skills, Jody was in the 16th percentile for his age meaning if she assigned the same task to Jody and 99 other children, 84 of the 100 would perform better than him but his language skills placed him in the 99.9th percentile. Dr. Pinkus stated that while Jody was only 4 years, 5 months old at the time of the assessment, there were valid reasons to assume his dysfunction was going to continue, although some children are able to catch up on their motor skills so as to narrow the gap. The disparity demonstrated by Jody in language and motor skills was so large that, in her opinion, it is extremely rare the gap is narrowed with the passage of time and, most often, becomes wider. One of the difficulties is that the child will deliberately avoid an area of weakness and it will become exacerbated so that it can be seen - dramatically - in academic output. Dr. Pinkus explained the learning process is tremendously thwarted because if the environment requires a measure of learning through written output then a child will produce minimally and learning is affected. In the course of her practice, Dr. Pinkus stated she has seen children - age 10 - who possess language skills of an 18-year old but have the visual motor copying skills of a 6-year old. The child becomes frustrated, is often encouraged by a teacher to do an assignment over and over until it is improved and eventually the child will refuse and, by then, has moved into an area of conduct which will be identified as a behavioural problem. The large disparity between language skills and motor skills will often occur within families and is more prevalent in males. Children having the dysfunction created by the disparity in skills will, generally, have less difficulty using a keyboard and screen as an interactive component than working with a pen or pencil. Dr. Pinkus stated she had read an article written by Dr. Mel Levine, an expert in the United States on the subject of this particular learning disability, and his view was that the disability or handicap was manifested by the pen being placed into the child's hand and all of the creative energies were directed towards it and one could observe the child tightening up so that very little of the thoughts were reproduced on paper. Dr. Pinkus stated the problem is that a teacher is expecting a significant amount of writing from the child who is exceptionally bright and the output does not match the intellectual ability and the child is aware of the disparity and this often leads to behavioural outbursts and emotional difficulties. Upon being asked to comment on the definition of the term "mental handicap" from her perspective as a professional psychologist, Dr. Pinkus stated she has difficulty defining what that means and in the Diagnostic and Statistical Manual of Mental Disorders (DSM) there is no such definition. There is reference to "mentally handicapped" and "mental disorder". As to the question whether or not Jody Burns had a handicap that interfered with his thinking processes relative to his exceptional abilities, Dr. Pinkus answered in the affirmative and added he also had a mild physical handicap in the sense his motor skill problems interfered in his ability to use his thinking processes to his potential. In terms of the DSM, when the term "mentally handicapped" is used, it is in relation to very low IQ levels and Dr. Pinkus noted it would be an oxymoron to define a person as "gifted" and also "mentally handicapped" but one can be gifted and suffer from a mental disorder which can include learning disabilities. Referring specifically to Jody Burns, Dr. Pinkus stated Jody Burns had a physical, mental or emotional condition that interfered with his normal functioning and she had discussed with both appellants - in detail - academic options as well as activities to encourage motor skills. In the course of the discussions, Choice was mentioned and so was the local public school. In her opinion - as stated to the appellants in the context of her report - Exhibit A-1 - Choice was an appropriate school for Jody on the basis it was designed to meet the needs of children whose abilities were beyond what the public system could readily address. Choice had small class sizes with a maximum of 15 children per class and the class Jody later attended had only 12 students. In that context, grouped according to his chronological age but with an opportunity to continue his very superior skills in language at whatever pace suited him, he was not expected to have motor output skills at the same level. As a result of the individualized nature of the educational program available at Choice, he would be able to develop his motor needs and still not be held back intellectually or verbally because of his relative weakness in that area. In her opinion, Choice had personnel to deal with learners having the type of problems experienced by Jody. His teacher, Sherry Haines was very appropriate for Jody as were his other teachers at other times. Dr. Pinkus stated she met with both appellants and with Jody in 1992, 1993 and 1994 pertaining to emotional problems affecting Jody that were not pertinent only to school but due to certain family dynamics. Dr. Pinkus indicated she had observed Jody after he had attended Choice and he was happy, although he had a level of discomfort due to his parents' marital situation. She stated she had become aware of Choice before it had opened and had met with Hélène Giroux, the founder and Director and had discussed with her the philosophy of a school for gifted learners. Dr. Pinkus stated she has never been a member of the Board of Directors at Choice nor has she ever consulted directly to the school. In the course of her professional practice, she will meet with teachers at the school concerning a specific child but only because she has been requested to do so by the parents. She has also conducted professional development courses for the staff in terms of identifying dual abilities, strengths and weaknesses and attempting to meet the individual needs of the child in the same manner as she has done for many different schools in the Lower Mainland. Dr. Pinkus stated her practice was completely devoted to children and she attempted to keep current with the literature on various subjects relevant to her practice. She referred to an article - Exhibit A-4 - written by Dr. Linda Silverman, known by her personally to be an expert in the field of gifted children and learning disabilities. She stated Dr. Silverman has conducted workshops in the Vancouver area several times in the last several years for various school boards. Dr. Pinkus commented that Choice had an educational program which develops confidence in children and they are better able to deal with a handicap because they have been provided strategies and opportunities to learn the most effective way to express their thoughts or to manage a disability. In her opinion, whether it is through different learning techniques, computer use or alternate formats for their projects at Choice, she was seeing more students there who were able to "own more of their abilities". Children with learning disabilities exhibit the same resistance to their handicap as children suffering from physical handicaps such as diabetes or epilepsy who often end up in hospital where emergency teams - of which she is a member - try to help children to cope physically and psychologically. In summary, Dr. Pinkus stated a mentally handicapped person is one that, for diagnostic purposes, will have an IQ below 70 and a gifted person cannot be mentally handicapped in that sense. However, in a practical sense, due to the vast difference between language and motor skills and the resultant interference with the ability to learn, a particular child may well have a handicap. Dr. Pinkus observed that the literature in the field - including the article by Dr. Silverman - and her own experience indicated that one-sixth of gifted children have some type of learning disability, usually undetected prior to the assessments. Gifted children with hidden learning disabilities are referred so as having dual exceptionality. In addition to learning disabilities, other gifted children suffered from Attention Deficit Disorder (ADD), Attention Deficit Hyperactive Disorder (ADHD), Oppositional Defiant Disorder (ODD), bi-polar disorder, schizophrenia and emotional fragility. The tendency is to look at gifted children - within the top 5% of the population in terms of intellectual ability - and to assume they do not have any problems. In addition, there is a difference between a gifted child with a 125 IQ and another with 160, the latter being in the 99.9th percentile.

[15] In cross-examination, counsel referred Dr. Pinkus to the portion of her report - Exhibit A-1 - concerning Jody Burns where she referred to the difficulty in stating, with certainty, the problems Jody might encounter later in his academic development. Dr. Pinkus stated there is a reluctance to "peg" a child of 4 and to state definitively that the child is headed in a certain direction. Dr. Pinkus was referred to an extract - Exhibit R-1 - taken from the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, (DSM-IV) as it pertained to disorders of written expression or dysgraphia and certain criteria relevant to a diagnosis. Dr. Pinkus stated one of the tests to be administered for a child, age 4, would be the Beery Test of Visual-Motor Integration which has two divisions so one is able to separate the visual and the motor component. Some of the writing and academic achievement tests are within the Weschler Individual Achievement Test. Since most of the tests involved in the process of diagnosing dysgraphia require that the child has had an opportunity to develop such skills, it is rare such diagnosis would be made in a 6 or 7-year old child. As a result, at age 4, no such diagnosis was made as it pertained to Jody Burns. Dr. Pinkus agreed she had not administered any of the specific writing tests when Jody was older and, when she was consulted later on by the appellants to assist Jody, it was not to deal with any lack of writing skills. As well, Dr. Pinkus stated she was not aware Jody had any sensory deficit as referred to in the extract. Referring to the article of Dr. Silverman - Exhibit A-4 - Dr. Pinkus stated the studies had revealed a mean discrepancy of 18.6 points between verbal and performance scores in gifted children which was nearly twice the difference of 9.7 found in normal children. The article also noted that learning disabled youngsters had a characteristic pattern of abilities and disabilities on a test known as WISC-R. Dr. Pinkus stated she conducted comparable tests on Jody - who was only 4 at the time - and that she calculated the disparity between Verbal and Performance to be 37, which was very high. Dr. Pinkus explained that Jody was at the 77th percentile in his performance skills which would translate to an IQ of 111 but his verbal skills were in the 99.9 plus percentile which would indicate his IQ was 148, creating a 37 point spread between the two. At age 4 and one-half, Jody had a significant variance between his verbal skills and motor skills but she was not prepared to state - one way or the other - whether he would or would not narrow the gap as he grew older. Dr. Pinkus indicated she had not reviewed Jody's school work and had not consulted with his teachers at Choice concerning his disability in writing but was satisfied they would have been addressing that problem by encouraging him to present projects and assignments and video presentations, oral, auditory, in physical ways rather than just expecting it to be handwritten. At the same time, many other students would be able to write beautifully and would be treated differently. In response to a question from the Bench, Dr. Pinkus stated that when she tested Jody Burns the variation between the verbal and the performance IQ would not then have constituted a learning disorder but it had the potential and she was prepared to say it was an incipient learning disorder that would probably be manifested as more learning was expected because a learning disability will not actually manifest itself until the child is in an academic environment. In response to another question from the Bench, Dr. Pinkus agreed that the recommendation Jody attend Choice had a strong prophylactic component to it and that gifted children, who are merely bored in school, may attain a level of frustration so extreme they will just lie on the floor or crawl under a desk and refuse to come out, at which point the behaviour becomes diagnosable. She related, as an example of frustration experienced by a gifted child, the comment by a Grade 1 pupil, who, after suffering through the teacher repeating how to spell "avec"- letter-by-letter- could not stand it any more, stood up from his desk and yelled, "get on with it, already!" The teacher expelled him from the class. In the opinion of Dr. Pinkus - supported by literature in her profession - perhaps 50% of gifted children who do not have any recognizable learning disorder may suffer from boredom, frustration and develop emotional fragility to the point where they will fit into one or other category recognized as diagnosable, such as mood disorders, clinical depression and acting out physically in the form of bullying. Dr. Pinkus also commented she believes any child with an IQ of 150 - without any recognized disorder - within a public school system that does not provide any specialized education for such students - is "equivalent to handicapped" because they do not relate to their peers or fit easily into the social system. As for the differential in the score exhibited by Jody in his tests, Dr. Pinkus stated she has never, in the course of her 23 years in practice, seen a gap of 37 points be reduced to an acceptable tolerance of 8-10 points or even to 18.6 points, the mean found by Dr. Silverman as stated in her article, simply due to the passage of time. Dr. Pinkus agreed she would have been more confident of the numeric discrepancy had she been able to test him again at age 8 or later. In her view, his school performance indicates there will continue to be a wide variation in the numbers and the children having high V's (Verbal) and low P's (Performance) scores have more difficulty in school than the children with Low V's and High P's because of the demands put on them by teachers to produce writing in an acceptable form in that teachers do not tend to value puzzle skills in an 8-year old as much as they do neat handwriting. On the other hand, children with lower verbal skills can often avoid occupations known as "talking professions" and utilize higher performance skills to go into mechanical professions such as engineering, mechanics or other similar endeavour.

[16] The submission made by Robert Burns on behalf of himself and Janet Burns was that the evidence disclosed their son, Jody, at all material times, was suffering from a mental handicap. He referred to the opinion of Dr. Pinkus, a qualified medical practitioner, that Choice was an appropriate school which could deal with Jody's problems as it had qualified personnel and the proper structure in terms of class size and individualized educational programs to deal with the particular difficulties encountered by their son. In addition, Robert Burns pointed out the evidence given by himself and Janet Burns - not challenged during cross-examination - pertaining to the ongoing learning problems experienced by Jody was consistent with what Dr. Pinkus had anticipated would be encountered once he was attending elementary school.

[17] Counsel for the respondent submitted the evidence did not disclose Jody Burns had been suffering from a mental handicap and had never been so certified by Dr. Pinkus who stated it had been too soon for any diagnosis to be made of a particular learning disorder. Counsel pointed out no further testing had been done by Dr. Pinkus and that Jody had continued in school at Choice - where he had not received any special care or care and training otherwise than in accordance with an educational program designed for gifted learners - and had continued his education at Point Grey where his recent report card indicated his overall average was 74% compared to the class average of 82%. Counsel submitted there must be some evidence of a disorder or learning disorder which can be said to constitute a mental handicap and while there is always a question of degree the testing of Jody Burns - at age 4 - did not indicate anything other than a potential problem and, even then, it was insufficient to determine whether a recognizable disorder would develop.

[18] 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;"

[19] 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.

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

[21] Second, the question to be answered is this: did Jody Burns 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."

[22] 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.

[23] 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."

[24] 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."

[25] 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."

[26] I turn now to the evidence of Dr. Joan Pinkus which, examined overall, indicates she agreed Jody Burns - as a gifted child with a superior intellect - could not, on that basis alone, be described as "mentally handicapped". I point out the relevant paragraph of the Act does not require the person be mentally handicapped only that the individual be someone who was properly certified to be suffering from a mental handicap. Dr. Pinkus testified someone can be gifted and suffer from mental disorders and many gifted persons would meet diagnostic criteria for disorders and learning disabilities. She stated it was difficult for her to respond to the term "mental handicap" as it was not one with which she was familiar in the course of her profession or as defined by the appropriate diagnostic manuals. Her evidence was that Jody Burns had a handicap that interfered with his thinking processes relative to his exceptional abilities as revealed by his score on the verbal language skills component of the tests. In addition, it was her opinion that Jody had a relatively mild physical handicap as it related to his ability to utilize motor skills sufficiently to transform his thoughts into concrete form. In her opinion, Jody had a physical, mental or emotional condition which interfered with his normal functioning and the proper manner to treat this deficiency was to enrol him at Choice where the teachers had special training, there was a small class size and an individualized education program able to assist him in dealing with his handicap. At the conclusion of her cross-examination, I put this question to Dr. Pinkus:

"Now, would the extent - the variation - between the verbal and the performance IQ you observed at the tender age of Jody, at that particular point, is it your evidence that it then constituted ...a learning disorder."

[27] Dr. Pinkus answered as follows:

"It certainly had the potential for that."

[28] Dr. Pinkus adopted the term "incipient disorder" I had suggested to her might fit the circumstances and went on to say she viewed Jody's test results as revealing his incipient disorder which would probably be manifested as more learning would be expected in the course of his education. She also agreed she would be more confident with the reliability of the variation in verbal and performance IQ had she re-tested him at age 8 but, in view of the anecdotal information available to her from the appellants and the report card from Point Grey, she suspected the gap between his verbal and performance scores would not have narrowed significantly. She is also familiar with that school and the teachers and stated they were not particularly trained to deal with learning disorders. It is apparent from the evidence of Dr. Pinkus that she regards any gifted child - especially with an IQ placing them in the 97th percentile and above - who is attending the public school system at the elementary level as "equivalent to handicapped".

[29] The evidence does not satisfy me that Jody Burns was suffering from a mental handicap, although he did have certain learning difficulties which have to be examined within the context of what was transpiring in his life as a result of certain unhappy events occurring in his family and in the context of a gifted child who had exceptionally high verbal skills and lesser ability in performance skills - at age 4 year, 5 months. There is no evidence he was treated in any special manner at Choice other than to recognize his giftedness was particular to him as an individual who had demonstrated difficulties in certain motor skills as it pertained to writing. In my view, it is not possible to consider him as a "patient" while attending Choice. He was not receiving any further testing or therapy in the context of the anticipated learning disability and there is nothing upon which to find it had ripened into a disorder capable of constituting a mental handicap. Any parent is free to anticipate problems or to make life smoother for a child by undertaking a pro-active course of action but tax relief may not necessarily follow since the relevant provision of the Act does not recognize expenditure based on clairvoyance, reasonable apprehension or even educated opinion falling short of a reasonably certain conclusion - capable of being regarded as certification - recognized by the particular discipline within the medical community. If parents choose to forego timely re-testing when the results could permit a diagnosis to be made, perhaps confirming preliminary opinions, they may find themselves in the position where there is a lack of proof concerning certain of the criteria contained in the relevant paragraph of the Act. 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."

[30] Earlier, I had heard the appeals of Patricia M. Collins v. Her Majesty The Queen, above - and, in another appeal - Deborah Robinson v. Her Majesty the Queen - 97-640(IT)I - also involving attendance of the taxpayer's children at Choice - at pages 17 and 18 - I stated:

"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.

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."

[31] In the within appeals, I am not able to find Dr. Pinkus had certified - in the sense of stating authoritatively - that Jody Burns, at the material time, was suffering from a mental handicap, although she did recommend to the appellants - on the basis of her assessment - that he would be better served by attending at Choice and, armed with the knowledge of his tests and having been informed about the special needs of gifted children, they should monitor his situation closely.

[32] It is apparent from the decisions in Collins, Giroday, Robinson, and from the within appeals, that decisions dealing with gifted children and the presence or absence of mental handicaps - found to have been properly certified at the relevant time - will continue to depend on the facts which will dictate where, on the continuum, a particular appellant will be situated once all the evidence has been heard.

[33] It is worthwhile quoting from the concluding paragraph of an article (Exhibit A-4) written by Dr. Linda Silverman, Director of the Gifted Child Development Center in Denver, Colorado entitled Invisible Gifts, Invisible Handicaps, Roeper Review, Volume 12, No.1. where she stated:

"We are now in an era where the words "handicapped accessible" are emblazoned on the consciousness of most Americans. But we have still not made gifted education "handicapped accessible." Gifted children with learning disabilities are systematically kept out of gifted programs all over the world. Restrictive entrance requirements based upon budgetary concerns rather than concerns for the welfare of the children have made it very difficult for us to recognize and ameliorate this situation. Instead of allowing learning-disabled gifted children to fall through the cracks, it is time to begin looking under the floorboards and providing the types of intervention sorely needed for this population. This is the challenge of the next decade."

[34] It is obvious - having heard four separate appeals of taxpayers with gifted children attending Choice - that the situation today in the Lower Mainland and, I suspect, almost everywhere else in Canada, is not much different than the one commented on by Dr. Silverman. As a result, there will be more gifted children who will become "lost souls" as a result of the inadequacy within the existing education system to recognize their special needs as students occupying the other end of the spectrum. It is not logical that a gifted child be compelled to remain in the system and to attempt to play by the rules until the child becomes sufficiently frustrated, bored and angry that resultant behaviour develops into a full-blown mental disorder which then can be pigeon-holed and recognized as a mental handicap. The solution, as with many issues which reach this Court, does not lie in expanding the jurisprudence but in obtaining appropriate facilities and programs from the level of government constitutionally responsible for educating children.

[35] The appeals of both appellants are hereby dismissed.

Signed at Vancouver, British Columbia, this 29th day of May 1998.

"D.W. Rowe"

D.J.T.C.C.