Collins v. The Queen, docket 97-2169-IT-I (Informal Procedure)

Date: 19980514

Dockets: 97-648-IT-I; 97-2169-IT-I

BETWEEN:

PATRICIA M. COLLINS,

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 the 1993 (97-648(IT)I) and 1995 (97-2169(IT)I) taxation years. The parties agreed the two appeals would be heard together. In computing income for the 1993 and 1995 taxation years, the appellant claimed tuition fees in the sums of $2,520 and $9,700, respectively, paid to Choice Learning Centre for Exceptional Children Society (Choice) as a medical expense eligible for a tax credit pursuant to the provisions of section 118.2 of the Income Tax Act (the "Act"). In each taxation year, the Minister of National Revenue (the "Minister") disallowed the claim for the tax credit on the basis the fees were not an allowable medical expense pursuant to paragraph 118.2(2) of the Act.

[2] Pursuant to a Request to Admit, the respondent responded and admitted the following facts:

1. Nicholas Collins is the son of the appellant;

2. Joan Pinkus, Ph.D. and Dr. Gabrielle Weiss are appropriately qualified persons within the meaning of paragraph 118.2(2)(e);

3. Nicholas Collins has been diagnosed as having severe Attention Deficit Hyperactive Disorder (ADHD);

[3] However, the respondent did not admit that Nicholas Collins had been certified to be a person who, by reason of a physical or mental handicap, requires the equipment, facilities or personnel specially provided by Choice Learning Centre or other institution or place for the care, or the care and training, of individuals suffering from the handicap suffered by Nicholas Collins. Further, the respondent did not admit that Nicholas Collins has, and always had, Attention Deficit Disorder (ADD) and Oppositional Defiance Disorder (ODD) and did not admit that ADHD was a mental handicap or that it had been certified as such.

[4] The following points are in issue in the appeals:

1. Does Nicholas Collins suffer from a mental handicap?

2. If he does, has he been properly certified by a qualified person to be someone who should attend at Choice because of having been diagnosed as a person suffering from ADHD.

3. Does Choice specially provide equipment, facilities or personnel for the care or the care and training of individuals suffering from ADHD.

[5] It is agreed that Choice is a school or institution within the meaning of the relevant provision of the Act, even though the Reply to Notice of Appeal filed with respect to each appeal had relied, inter alia, on Choice not having been an educational institution. Further, it is agreed the relevant provisions of the Act are the same for both taxation years.

[6] Patricia Collins testified she is employed as an Office Manager and lives in North Vancouver, British Columbia. She is the mother of Nicholas Collins, born on February 8, 1986. The appellant identified her T1 General for the 1993 taxation year - Exhibit A-1 - in which she reported employment income in the sum of $28,261.50. She claimed medical expenses in the sum of $2,520, representing tuition fees paid to enrol Nicholas for part of the school year, at Choice, and sought the appropriate medical expense credit. She explained that Nicholas had attended a home day care beginning at age 16 months, and remained there until age three. The operator of the day care had reported to the appellant that Nicholas was not joining in with other children during play and was argumentative, explosive emotionally and needed time alone from the group. Between age three and four, he went to North Shore Discovery House, a licensed day care facility, and the teachers complained regularly to the appellant about the conduct of Nicholas. According to the day care staff, he did not follow instructions, was prone to lashing out physically at the instructors and appeared to be fixated on building structures and playing with blocks and when so occupied was displeased when interrupted or prevented from continuing with his particular project of the moment. The appellant took Nicholas to a Public Health Nurse who undertook an assessment and recommended that additional medical opinions be obtained. Following a six-month wait, the appellant was able to take Nicholas - now aged four - to Nancy Luce, Ph.D., a child psychologist, who advised that she suspected Nicholas was suffering from ADHD. Dr. Luce saw Nicholas on several occasions but no written report was prepared and Dr. Luce has since left Vancouver. At age four and one half, Nicholas attended North Shore Children's House - a private day care - and, although previous difficulties re-appeared, the facility had additional physical space, more staff and a flexible schedule resulting in a better response by Nicholas to that environment. The appellant stated that Nicholas, at age five, attended Capilano Elementary - a public school - which offered a one-half day kindergarten program and he continued to spend the other one-half day at the North Shore day care. There were 18 children in the kindergarten program and the appellant stated she received numerous complaints from the teachers about the poor social skills exhibited by Nicholas who did not function well in groups. No advice was forthcoming from the teaching staff other than to warn the appellant that "this behaviour would not be tolerated in Grade One". At this point, the appellant was still seeking help from Dr. Luce but was becoming increasingly frustrated in her search for a solution to her son's problems. Upon Nicholas reaching his sixth birthday, he attended Capilano Elementary and was placed in a Grade One/Two split class. Now, in a more controlled environment, seated behind a desk with stricter scheduling, Nicholas was bored, restless, and identified as having a behavioural problem despite scoring well in mathematics and reading. The appellant stated she spoke to the teachers who suggested counselling and who then advised Nicholas had been seeing - without her knowledge or permission - a school counsellor for about two months but no notes of those sessions appeared to have been made or, if made, were never produced to her. The appellant, Collins, testified she realized her child had serious problems. He was unpopular, disruptive and she had been requested to withdraw him from an after-school care facility. In the fall of 1992, at Capilano Elementary, she heard about Choice from an individual who gave her the telephone number for the school. The appellant called the number at Choice Learning Centre and spoke with Hélène Giroux, the Director, and learned of an Open House which was being held in December and another in February. During the spring of 1993, the school year was drawing to a close and the appellant decided Choice would be helpful as she had learned that Choice featured small classes, individualized programs and was staffed with teachers who were specifically trained to deal with children identified as having "special needs". However, the appellant was advised that an academic assessment was required and a particular skill level had to be attained in order for the admission process to continue. As a result, the appellant consulted Joan Pinkus, Ph.D. and they discussed the history of Nicholas as it pertained to behavioural issues. Following four separate sessions, including interviews with Nicholas, Dr. Pinkus recommended Nicholas attend Choice. The appellant stated she could not afford to pay for a written report and it was not necessary for admission provided the results of the assessment performed by Dr. Pinkus demonstrated the appropriate intellectual level had been attained by Nicholas. Filed as Exhibit A-2, was a summary dated January 19, 1996, issued by Dr. Pinkus concerning the results of the assessment of Nicholas done in March, 1993. The appellant, upon confirmation of the intellectual ability of Nicholas and then receiving certain advice and recommendations from Dr. Pinkus, decided to enrol Nicholas at Choice beginning September 1, 1993 and paid the sum of $2,520 in tuition fees for the period ending December 31, 1993. Nicholas, now aged 7, was in a class with Ms. Davey as his primary teacher and was doing schoolwork mostly at a Grade 3 level. Notwithstanding his scholastic ability, Nicholas was still restless, reluctant to follow instructions and appeared to be frightened of school and was aware he did not fit in with the rest of the students. The teachers at Choice devoted a lot of time and attention in order to ensure Nicholas was provided with work geared to his abilities. In September, 1994 Nicholas was in a class under the supervision of Mrs. Clare Dhillon. By this time, his behaviour had improved but he still had emotional outbursts and problems relating to other students on a social level. The appellant explained she met - on many occasions - with the teachers and administrative staff at Choice and was aware the teachers used a daily planner to keep Nicholas on track and paid special attention to him by offering support, thereby improving his self-esteem. At age 9, in September, 1995, Nicholas was in a class under Ms. Pesch and he was trying to cope but there were still physical manifestations of his emotional outbursts. Dr. Nancy Luce, during one of the interviews with the appellant, had recommended Nicholas be seen by Dr. Gabrielle Weiss, a psychiatrist specializing in children. In the spring of 1995, Dr. Weiss interviewed Nicholas together with the appellant and suggested she should see him again after the new school year had begun in the fall. Dr. Weiss saw Nicholas in September and in October, 1995 prescribed the medication, Ritalin, in order to treat the ongoing difficulties stemming from an inability to accept instruction and his inadequate social skills. Dr. Weiss provided a report - Exhibit A-4 - concerning Nicholas in which she stated Nicholas was a child who had superior intelligence with high level of creativity, severe ADHD and Oppositional Defiant Disorder (ODD). In that letter, Dr. Weiss had stated it was her opinion a school such as Choice was the only facility available where Nicholas could be maintained properly even with medication. The appellant stated she had requested the letter from Dr. Weiss in order to provide it to Revenue Canada in support of her position that the tuition fees paid to Choice should be regarded as a qualifying medical expense. The appellant also requested Dr. Weiss correspond with Ms. Bell, counsel for the respondent, and Dr. Weiss complied by sending the letter dated December 23, 1997 - Exhibit A-5 - in which she referred to her diagnosis of ADHD Combined Type, referring to the presence of ODD, and reported Nicholas functioned at a level indicating his intelligence was superior to 99% of other children and explaining the reasons for recommending Choice as a school specially set up for gifted children. In September, 1996, Nicholas was 10 years old and Christopher Carroll was his main teacher. The appellant explained her son seemed to feel safer attending school and he participated in daily discussions with Mr. Carroll and, as a consequence of the extent of the personal communication, his behaviour was mellowing. However, at home, Nicholas was still a behaviour problem and exhibited the kind of conduct which had been the constant source of complaint by many teachers and/or caregivers over the years. The appellant referred to a letter dated January 31, 1989 - Exhibit A-6 - written by Dr. Joan Pinkus to Hélène Giroux, Director at Choice, and stated she had submitted a copy of it with her income tax return for 1993. She had been provided - along with her tuition receipt - with a copy of the letter dated April 15, 1994 sent by Dr. Joan Pinkus to Ms. Giroux. The appellant identified her 1995 tax return - Exhibit A-8 - in which she had reported employment income in the sum of $32,780 and had claimed the sum of $9,700 - the amount of tuition paid to Choice - as a medical expense. The appellant identified a receipt for tuition - Exhibit A-9 - and explained the tuition was in the sum of $3,430 if paid in two instalments or $6,270 if paid in one sum. Her total payment also covered tuition until the end of the school year in 1996. The appellant stated the school, Choice, was located in Richmond, a 45-minute drive, each way, from her residence and, in 1995, when Nicholas could not tolerate a full day, she had to reduce her hours of work by 25% in order to pick him up at Choice and then take him to a day care for supervision during the remainder of her working day. The commuting was extremely time-consuming and the appellant attempted to re-locate Nicholas to a public school in the North Shore district but was advised by the Head of Student Services that the prognosis for an ADHD student finishing highschool was "dismal". The appellant researched other schools, both private and public, which accepted students who had special needs. One of these institutions was Fraser Academy at Vancouver but the yearly tuition was $13,000. Taking various factors into account, including time and expense of commuting to Choice, the appellant decided to send Nicholas to public school so he could have the opportunity to develop friends. The appellant had received a letter from Choice - dated September 4, 1996 - Exhibit A-10 - containing therein material pertaining to students with severe learning disabilities including information relating to ADHD and the relationship of that disorder to exceptional intellectual ability or, as it is sometimes referred, giftedness. However, the appellant stated she was unable, despite her efforts, to find a public school which would be suitable for her son's education and, as a result, Nicholas continued to attend Choice and is still a student there.

[7] In cross-examination, the appellant stated Dr. Nancy Luce moved away from Vancouver in 1996. There had been a recognition by Dr. Luce that Nicholas had problems which had to be dealt with "on all fronts" referring to home, school and social situations. The advice received from Dr. Luce was to forego treatment by medication at such an early age and, in any event, Dr. Luce was not a medical doctor able to prescribe drugs. It was Dr. Weiss, in 1995, who prescribed Ritalin for Nicholas. Ms. Collins explained that it was as a result of meeting a parent at an after-school day care who had a child, attending Choice, with many of the same problems as Nicholas, that she came to look into the suitability of the school. The appellant stated she soon became aware Choice was restricted to gifted children and that an academic pre-requisite had to be satisfied prior to admission. She had known that Nicholas had intellectual ability but was not able to use it properly due to his emotional problems. At age 7, Nicholas was saying, "I don't know why I was born - nobody likes me - I might as well die". Even in Grade 1, Nicholas stopped learning. The appellant took her son to see Dr. Joan Pinkus and during the first visit Dr. Pinkus indicated Choice might not be an appropriate school for Nicholas. However, after several other interviews and discussions, she did recommend Nicholas attend Choice. The appellant stated she did not attend upon Dr. Pinkus seeking confirmation of the suspected disorder, ADHD, but to determine his academic abilities or potential which appeared to be very substantial. At Choice, the appellant discovered the school had an Individual Education Plan (IEP) tailored for each child, relating to academic ability and also to behaviour. Unlike the situation at the public schools, the staff and teachers were very accessible. Dr. Luce had spoken to Mrs. Dhillon and Ms. Pesch about Nicholas, especially concerning his behavioural problems and his need for extra space. The appellant identified a letter dated April 17, 1996 - Exhibit R-1 - which she had directed to Revenue Canada. In that correspondence, she had attempted to explain the unavailability of schools within her district to deal with the special needs of Nicholas. In addition, the appellant explained that, due to overcrowding in other districts, she had been unable to obtain permission to transfer Nicholas to a school out of the North Vancouver district. After starting to take the medication, Ritalin, Nicholas became more agitated and hyperactive - which is normal during the initial stages of the treatment - and Choice asked the appellant to take Nicholas out of school until his behaviour became more stable. Later, when the medication began to take effect, he started to improve but still needed all the other aspects of special care and attention in order to cope with his problems. Nicholas saw Dr. Weiss, for the first time, in the spring of 1995. Prior to attending upon Dr. Weiss, the appellant had been made aware of the opinion of Dr. Luce which was that Nicholas was suffering from ADHD. During the summers - when school was not in session - the appellant had to place Nicholas in child-care programs and his behaviour led to expulsion from those classes. His life deteriorated when not attending school regularly. Because Nicholas was a large child, his angry outbursts at other, smaller, children were a cause of concern for persons in charge of any child-care facility.

[8] 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. Carroll stated he was in his second year teaching Nicholas Collins. At first, he noticed Nicholas was isolated socially, pursued his own agenda and was tremendously creative but, unfortunately, often not in relation to an assigned task. He explained it was difficult to deal with a non-compliant student and attempted to discover ways to allow Nicholas some flexibility. There were times when Nicholas would face the wall and refuse to talk and, other times, he was extremely argumentative concerning trivial matters. In Carroll's view, many persons who are exceptionally gifted with intellectual capacity are eccentric and Nicholas, as an individual, was unique and the ADHD contributed to his personality. By way of illustration, Carroll described the ability Nicholas possessed to design cities or to create cut-away drawings and lay-out of an underground sewer system. Yet, Nicholas had difficulty working with other students. Carroll stated he attempts to get to know a child and to identify any special needs and then makes an effort to deal with immaturity and to teach the reason behind compliance with societal rules. As for Nicholas, Carroll remarked, "he will always march to his own drummer". In Carroll's opinion, the only way to deal with Nicholas is to allow him some space and to continue to work on getting him to accept the rules which govern "the game of life" While it is often possible to use standard techniques to deal with ADHD children, some variations are necessary and, with Nicholas, humour was used as a tool in order to instruct or modify behaviour. At Choice, the complaint of a parent concerning teaching methods would result in a meeting between the parent, the teacher and Mrs. Ford, the Principal. Within the public system, teachers generally have the right to teach a particular class in accordance with a preferred method of instruction. In 1998, there are 114 students at Choice and, because of the maximum 1:15 teacher-student ratio, a student has the ability to be heard within the classroom and in that sense it becomes a sanctuary for some troubled youth. Carroll explained he is the parent of a child - now enrolled in Choice - who had previously attended the public system in Langley.

[9] 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.

[10] 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. In 1993, she met with Nicholas Collins and each year thereafter reviewed his file which included observations concerning his social and emotional behaviour and there was an ongoing attempt to match a teacher to a particular classroom in which certain pupils had been placed. For the first three or four months after Nicholas attended Choice, he would not greet her in a warm fashion and appeared to be angry and fearful. She tried different strategies to deal with Nicholas and, after some "ups and downs", he began to understand himself and she encouraged a policy of providing him with additional space and the use of tactile diversions such as working in clay. In her view, each child with ADHD is different. Ford stated she knew Dr. Joan Pinkus in her capacity as a child psychologist who administered tests of intellectual ability and as a parent who had a child enrolled at Choice. She also had spoken, by telephone, to Dr. Gabrielle Weiss about Nicholas and the effect of ADHD on his education.

[11] In cross-examination, Lorraine Ford re-iterated that each student with special needs must have an IEP in accordance with policy established in 1985 and as required by the Ministry of Education since 1994. At page A-6 of the Manual - Exhibit A-14 - the purpose of the IEP is explained and, in the case of Nicholas Collins, certain goals were set and revisions undertaken after consultation with his mother and teachers. Ford stated she was not certain whether Capilano Elementary had forwarded, to Choice, his student record. Upon being referred to Exhibit A-2 - the report of Dr. Pinkus - Ford commented that it was in the usual format following the required testing by a psychologist or psychiatrist and a report may, on occasion, be accompanied by further notes if requested by the parent or deemed necessary by the consulting professional. The minimum requirement for admission to Choice is such that a prospective student must score - in terms of intellectual ability - in the 97th percentile. Prior to the admission of Nicholas to Choice, Ford stated she had only seen page 1 of the Pinkus Report - Exhibit A-2 - and the hand-written material - at page 2 - had been added later. Initially, there had been nothing in the report concerning the intellectual testing to indicate Nicholas had any learning disorder. In 1995 the administration and teachers at Choice learned Nicholas had received a diagnosis of ADHD but that disorder had been suspected for some time by the teachers. Since his admission to Choice, he had always been treated by teachers and staff as though he had ADHD and his IEP had been designed on that premise. Ms. Davey had special training in primary education and learning disabilities and Mrs. Dhillon had received her education in England and had been certified by the British Columbia College of Teachers as someone qualified in secondary education. Mrs. Dhillon had taught school in an area of London where many students were emotionally troubled and underprivileged but she did not have any special or formal training in ADHD. Ford commented that all ADHD children are restless and, although a computer stimulates them, at the same time, it has the effect of focusing attention, thereby producing a calming effect. In accordance with the philosophy for teaching gifted children, the approved teacher-student ratio is set at a maximum of 1:15. There had been no special application to the Ministry of Education for additional funding for Nicholas. Ford identified a document entitled Mission Statement - Exhibit R-2 - as it pertained to Choice and stated the mission of the school has remained constant since its foundation. The school was structured to accord with the age and ability of a student in particular subjects not unlike the program used in the Prairie Provinces during the era of the one-room schoolhouse prior to the 1950's. An informational package - Exhibit R-3 - had been produced by Choice and Ford agreed it did not contain any reference to teaching children with learning disorders.

[12] In re-examination, Ford stated Nicholas, and the IEP prepared for him, had always been premised on the probability he suffered from ADHD. She explained the Ministry of Education allows additional funding for no more than two students - out of the total population of 113 - and the application by Choice is then reserved for the most extreme cases of special needs. Ford stated Choice has not refused admission to any student with a learning disability provided they meet the requirement of extremely high intellectual ability. The application form - part of Exhibit R-3 - provides space in which information can be provided by a parent concerning: Special Needs or under the category: Medical Information.

[13] Joan Pinkus testified she is a psychologist carrying on a 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 has a Ph.D. in psychology from the University of Toronto and has been practising as a psychologist for 23 years. Currently, she stated she sees children, adolescents, families and adults in therapy and performs assessments of children. She specializes in long-term pyschodynamic psychotherapy with children. The assessments focus on the cognitive and intellectual skills and abilities of children and she stated she has experience with learning disabilities. Dr. Pinkus stated Nicholas became a patient in March, 1993 and Patricia Collins, his mother, had become concerned due to academic and behavioural problems and she was seeking an assessment. At that time, in view of the shortage of time and the limited funds available, Dr. Pinkus administered her standard battery of tests which included looking at his receptive vocabulary skills in English and the Peabody Picture Vocabulary Test. She also administered the Raven's Progressive Matrices which is a visual pattern problem-solving task. In addition, she administered the full Wexler Intelligence Scale for Children, Third Edition, referred to commonly as WISC-3, which is the standard test of intelligence (IQ) used in North America for testing children aged between 6 and 16. Certain academic measures were also used and until the data was analyzed she was not in a position to recommend Choice - or any other school - to the appellant. However, Dr. Pinkus agreed she had mentioned to Patricia Collins that Choice might be a suitable school for Nicholas if he met the admission criteria. Even though one has to look at the whole child and the needs of the child and what a school could offer, when it came to admission to Choice, he or she had to meet the initial requirements for admission. After analzying the test results, Dr. Pinkus stated she recommended Choice as a suitable school for Nicholas because he met the intellectual requirement and he had emotional and social and behavioural difficulties which could be addressed at Choice. She explained Nicholas was a very angry child having difficulty socializing with other children, did not control his temper, was easily distracted with tasks that were not of a particular visual nature and had trouble listening to directions. These facets of his behaviour were obvious during his attendance at her office and he was seen to be impulsive, distracted, agitated and anxious to a point beyond that experienced by most children during an assessment. Dr. Pinkus stated she had been made aware Nicholas had been seeing Dr. Nancy Luce, a registered psychologist, and was continuing with therapy but there was no need to consult with Dr. Luce unless there had been a problem in arriving at a diagnostic assessment. Dr. Pinkus explained the disorder, known as ADHD, had been recognized for many years and children exhibiting the usual symptoms had been previously referred to as being affected by minimal brain dysfunction or as being hyperkinetic. Dr. Pinkus stated she will undertake an assessment of a child but if specific treatment is required thereafter for ADHD she will refer the patient to a psychiatrist or psychologist who would specialize in that disorder and any medication used for treatment would have to be prescribed by a physician. However, she added that many children visiting her in her office meet the diagnostic criteria of Attention Deficit Disorder (ADD) or ADHD as set forth in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), often referred to by professionals practising in that area as the "bible of psychiatric/psychological disorders". The diagnostic criteria for ADHD requires hyperactivity in the form of impulsivity which must have persisted for at least six months to a degree that is maladaptive and inconsistent with developmental level and is in accordance with the symptoms of inattention as set out in the extract from the DSM-IV as reproduced on a sheet issued by the British Columbia Children's Hospital (Exhibit A-15). A child suffering from ADHD will be fidgeting with feet, have difficulty remaining seated, is easily distracted by external stimuli, has difficulty awaiting turns in group or game situations and will blurt out answers to questions before they are completed. The child will also have difficulty sustaining attention in tasks or play activity and will shift from one uncompleted activity to another, often talks excessively and does not play quietly. In addition, the child will often interrupt or intrude on others and does not seem to listen to what is being said to them, will lose items needed for tasks or activities and will often engage in physically dangerous activities without considering possible consequences as in the case of a child who will run into the street and does not realize there is traffic. A diagnosis of ADHD is dependent on a series of behaviours and it is on a continuum. As a disorder, Dr. Pinkus stated ADHD has the effect of making progress difficult and it creates a disadvantage that makes it difficult to achieve success. There are a variety of manuals outlining how to manage ADHD children and medication is sometimes considered appropriate. Generally, the child needs a small, structured environment and can benefit from doing tasks in small "chunks" rather than long open-ended tasks so everything has to be broken down into small tasks with lots of individualized feedback with immediate consequences if the behaviour is inappropriate. In her view, it is better to be as proactive as possible - rather than reactive - to the behaviour and to recognize that the child is not acting intentionally. Parents should take courses in how to parent a child with ADHD and teachers should be nurturing, caring, have understanding about individual needs and be able to break down tasks for the child so the ADHD student can obtain the maximum benefit from his or her abilities. Children who meet the diagnostic criteria for ADHD should be placed in small group settings. They will have problems with an open-ended classroom where there are two or three teachers teaching in a large space to different grades at the same time. The ADHD children cannot focus and are out of their seats most of the time not knowing to which teacher they should be listening. Dr. Pinkus stated, to the best of her knowledge, there are no schools in British Columbia - and probably not in Canada - that exist exclusively to educate ADHD children, although there are some in the United States. She commented that, usually, when a child is brought to her for an assessment there have been ongoing difficulties with several different schools and, while there are several schools that can deal with learning disorders, she is not aware of any school - other than Choice - that is appropriate for the gifted child - in the extremely high intellectual range - who is also suffering from ADHD. Dr. Pinkus identified the first page of Exhibit A-2 as being a document completed by her - in 1993 - and provided to Patricia Collins and the second page was written - in 1996 - summarizing the earlier interviews and testing performed together with a comment that various school and emotional issues had been discussed. Dr. Pinkus stated it was never her policy to recommend only one school but preferred that the parent made a choice after having made some visits to various schools and having held meetings with the administration of a facility. A lengthy report was not prepared for the appellant because she was short of funds. Dr. Pinkus stated she was familiar with the policies and programs at Choice, such as small class sizes, proper teacher- student ratio and the opportunity for individual programming of education which included structure and daily routine to reduce distractions and impulsivity. Also, at Choice, children were permitted to explore areas of particular interest and could participate in a program called Passions which allowed the child to work on something about which they had an intense interest. As for Nicholas, Choice could provide a place for him to put some of his energy and he could feel he was productive rather than merely "spinning his wheels". Dr. Pinkus identified Exhibit A-6 as a letter - dated January 31, 1989, - she wrote to Ms. Giroux, Director at Choice. The letter had been requested by Ms. Giroux because Dr. Pinkus was a psychologist who saw many gifted children and while the letter does not refer specifically to ADHD, it does refer to "special needs". Her letter - Exhibit A-7 - dated April 15, 1994 to Ms.Giroux, was sent in response to a request for a more recent opinion concerning gifted children and it again made reference to "special needs". Dr. Pinkus indicated she was familiar with Fraser Academy, a private school in Vancouver, and she has assessed children who were then admitted to that facility. Fraser Academy had a teacher-student ratio of 1:4 but the tuition was double that charged by Choice and Fraser Academy had been started with somewhat of a "boot camp" mentality and, although it has changed, would not have been appropriate for children who were emotionally vulnerable. In order to be admitted to Fraser Academy, a child must have been diagnosed with a learning disability such as dyslexia, dysgraphia or other similar problem. In order to meet the diagnostic criteria for ADHD, the symptoms should have been present prior to age seven.

[14] In cross-examination, Dr. Pinkus stated she discussed, with the appellant, what other public schools were available in the district but there were none which could deal with the particular problems encountered by Nicholas because there were no programs available to deal with a child who was both gifted and suffering from ADHD although there were some private schools capable of doing so, one of which was Choice. She stated she had been aware Nicholas was being treated by Dr. Luce and that he was presenting behaviours which would be consistent with a diagnosis of ADHD. Dr. Pinkus was referred to her letter of January 31, 1989 - Exhibit A-6 - written to Ms. Giroux - Director of Choice - and was requested to review the second paragraph and the reference to the "social and emotional difficulties" often associated with the gifted child. She was asked whether any of the behaviours exhibited by Nicholas would be similar to that of any gifted child. Dr. Pinkus responded by explaining Nicholas was exhibiting behaviours that one would see with individuals who had been identified as gifted but he also had significant behavioural problems. She added that not all gifted learners exhibit such degree of emotional and social difficulties. Until the appropriate battery of tests has been administered, it is not possible to determine the IQ of a child and for admission to Choice or to gifted programs in public schools a student must score 125 or above on the standard IQ test in one of three categories because there are children whose verbal skills are very high but who have dysgraphia and fine motor difficulties which impair performance in another category. An IQ of 125 and above places one in the 95th percentile. Dr. Pinkus stated her name is on many lists maintained by agencies and hospitals as a professional specializing in assessing children and while any registered psychologist would be entitled to administer tests or conduct assessments most professionals, pursuant to a code of ethical conduct, would not do so unless they were interpreting assessments on a regular basis.

[15] Dr. Gabrielle Weiss testified she is a psychiatrist practising in West Vancouver. She is a member of the College of Physicians and Surgeons of British Columbia and is a Professor of Psychiatry at the University of British Columbia. She works at the ADHD Clinic in Children's Hospital, and at the North Shore Health Clinic as well as conducting a private practice. The ADHD Clinic performs assessments and consultations but does not provide active treatment. The Clinic is composed of multi-disciplinary personnel with an occupational therapist, nurse, psychologist and psychiatrist. Dr. Weiss stated she has seen at least 1,000 adults and children with ADHD during her professional career and has written, since 1964, 130 papers on the subject and two textbooks - one on adult ADHD. In 1995, as a result of a referral from Dr. Nancy Luce, she saw Nicholas Collins. She had spoken earlier to Nancy Luce about the behavioural problems associated with Nicholas, including inattentiveness, defiance and fighting. Dr. Weiss identified a letter - Exhibit A-4 - as having been written by her concerning Nicholas in which she stated he was a child who had a superior intelligence with high level of creativity, severe ADHD, and Oppositional Defiant Disorder. She went on to say that, "in my opinion, a school such as Choice is the only facility available where he could be maintained as well as learning as well as possible". Dr. Weiss stated she used the Diagnostic and Statistical Manual of Psychiatric Disorders, III, (DSM-3) in order to diagnose Nicholas as having severe ADHD. Nicholas met 8 out of 8 criteria although only three have to be present in order to justify a diagnosis. Dr. Weiss stated she thought optimal schooling was required together with assisting the appellant in coping in her role as parent because, if untreated, ADHD often leads to criminal misconduct and incarceration. She noted ADHD rarely requires special equipment in order to be treated but special personnel are needed and facilities should have a high ratio of qualified teachers to students within a small setting which offers some options in curriculum. Within the public system, a teaching aide is assigned only to severely learning disabled children. Dr. Weiss stated Nicholas had already been enrolled in Choice when she first met him but with his history she would have recommended Choice had she been able to interview him in 1992. The majority of children treated by her attend public school so she is familiar with the programs available within that system. Some of those schools severely discipline children, some do not approve of students being placed on certain medications and others have different policies and all of them attempt to cope with a lack of funding. Dr. Weiss explained that while one patient was able to cease taking medication after attending Choice, with Nicholas the course of treatment was "a thorny road" and, even with the medication, he was nearly expelled due to his behaviour but was allowed to continue attending on a half-time basis. Dr. Weiss stated ADHD can start at age three or four and, by definition, certain symptoms must be present at age 7 in order for there to be a proper diagnosis of ADHD. She explained she rarely prescribed medication for pre-schoolers and, in any event, Dr. Luce had been treating Nicholas as though he were an ADHD child in the sense his progress was impeded. She stated ADHD is usually linked to another disorder. While approximately 4% of the population is within the gifted category, in the course of her practice over 35 years, Dr.Weiss commented she had never seen a child, with ADHD, as intellectually gifted as Nicholas. He was a mathematical rarity in that 4% of the population is affected with ADHD and - within that 4% - only another 4% would be gifted. Nicholas is able to write, talk, and manipulate people to the extent he is suited to a possible career as a politician. Dr. Weiss stated she is not able to predict how Nicholas would perform in a gifted program within the public school system.

[16] In cross-examination, Dr. Weiss stated the diagnosis of ADHD is not an easy one to make and it was once believed children merely outgrew the disorder but studies have shown only 50% did so. Adolescence is the worst time and the cause of ADHD is not known except it is a neurotransmitter disorder and Ritalin, a stimulant, while enhancing the neurotransmitter system reduces impulsivity which makes the child more reflective. In situations where ADHD severely impairs function, she will prescribe medication and Ritalin is most often given to children between the ages of 10 and 12. Dr. Weiss stated ADHD IQ scores are probably lower than those of the general population but gifted ADHD children appear at the same frequency - 4%. Dr. Weiss commented that "getting an education is a terribly hard thing for these kids". Management of the disorder is critical and, on average, the education level completed by ADHD children is two years less than other children. Dr.Weiss stated Ritalin is sometimes effective in improving ODD and 80% of children with ODD also have ADHD. She noted that one of her colleagues had completed a study in which it was found there were no children - within the study group - who had only ODD and that it was always coupled with another disorder. Nicholas Collins is still a patient and Dr. Weiss stated she had referred him to a psychologist as it may help to have a new person assist in his treatment. Dr. Weiss explained she had heard of Choice after moving, in 1993, to Vancouver from Montreal where she had been Director of Psychiatry at the Montreal Children's Hospital. She stated ADHD had received more attention from the lay press than any other disorder and that ADHD is defined - within her profession - as a mental disorder and a mental handicap.

[17] Counsel for the appellant pointed out the amounts paid by the appellant to Choice for tuition were not in issue and that it had been accepted Choice was a school. In addition, he stated the wording of paragraph 118.2(2)(e) was the same for both taxation years under appeal. Counsel submitted that a perusal of subsection 118.2(2) and the following paragraphs and subparagraphs indicated there are different standards which are to be met in order for an expenditure to qualify as a medical expense. He reviewed the development of the relevant provisions of the Act since 1972 - when the legislation was changed to expand the existing list of deductible medical expenses to include payments to a school or other institution for the care and training of mentally or physically disabled persons - noting the section had remained virtually unchanged since 1974 except that it was re-numbered as a result of tax reform, in 1987, which introduced the system of tax credits in section 118.2. Counsel stated paragraph 118.2(2)(e) requires the satisfaction of a number of criteria, some of which have been admitted by the respondent. Counsel submitted the evidence established that Nicholas Collins was a person who had a mental handicap as a result of suffering from the combined disorders ADHD and ODD and had been certified as such by qualified persons, Dr. Weiss and Dr. Pinkus, and that the Income Tax Act, since 1991, did not require the certification to be in any prescribed form. Counsel also submitted Choice was a school which specially provided personnel for the care or care and training of persons who suffered from the mental handicap affecting the appellant's son. Counsel urged that a narrow construction of the relevant provisions of the Act would defeat the purpose of the section in light of the history of the legislation and the wording of the applicable paragraph.

[18] Counsel for the respondent agreed it was no longer necessary that a school be exclusively for students who were mentally or physically handicapped and stated there was no longer any need for a certification by a qualified professional to be in any prescribed form. However, counsel submitted there had been nothing done - in 1993 - by Dr. Pinkus which could be seen as a certification that Nicholas Collins suffered from a mental handicap as the evidence disclosed there had been no diagnosis, at that time, of ADHD or any other disorder. In fact, counsel pointed out, the ADHD diagnosis was not made until October, 1995, by Dr. Weiss at which time the requisite certification was complete as it applied to the 1995 taxation year. Counsel submitted the evidence did not support a finding that Choice was a school which specially provided care or care and training for individuals who were certified as suffering from ADHD and/or ODD even if these learning disorders could be regarded as constituting a mental handicap as contemplated by the language of the relevant provision.

[19] 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;"

[20] 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.

[21] 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.

[22] Second, the question to be answered is this: does Nicholas Collins have a mental handicap? 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."

[23] 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.

[24] 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."

[25] 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."

[26] The evidence of Dr. Joan Pinkus and Dr. Gabrielle Weiss confirmed Nicholas Collins was, at all times material, suffering from ADHD and ODD. Counsel for the respondent was not convinced that these disorders - in view of his extremely high intellectual ability - could be seen as a mental handicap within the wording of the section even though they created problems for the appellant's son and were a disadvantage in relation to his schooling. The New Collins Concise Dictionary of the English Language (Collins) offers these definitions:

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

mental defiency: a condition of low intellectual development requiring special education and employment. Also called: mental handicap."

[27] The evidence of Dr. Gabrielle Weiss was very clear. In her opinion, ADHD was a mental disorder and a mental handicap. It was also normal for ODD to be coupled with another disorder and Nicholas suffered from both. While its cause is not known, it is accepted that it is a disorder involving neurotransmitters in the brain. It is also apparent from the evidence of Dr. Pinkus and Dr. Weiss that the ADHD/ODD disorders created a distinct disadvantage in terms of Nicholas being able to obtain an education. In view of the foregoing, I am satisfied Nicholas Collins suffered from a mental handicap.

[28] Third, I must deal with the issue as to whether the school, Choice, was a school that specially provided to Nicholas - a person whom I have found to be suffering from a mental handicap - equipment, facilities or personnel for the care or care and training of persons suffering from the same handicap.

[29] In the case of Ranelli v. M.N.R., 91 DTC 816, Sobier, T.C.J. dealt with the issue of tuition fees paid to Fraser Academy and whether they were properly deductible under subparagraph 110(1)(c)(vi) of the Income Tax Act, the provision then applicable. (The wording is identical to the provision relevant to the within appeal.) In the Ranelli case, the evidence was the child was suffering from dyslexia which was a medical problem for which the only treatment - at that time - was of the type provided by the Fraser Academy. At p. 817 of his judgment, Sobier, T.C.J. stated:

"At the Fraser Academy, the emphasis is on treating and dealing with the whole child. The child's problem, while having as a foundation a learning disability, may also included severe low self-esteem, expectation of failure and in some instances, suicidal tendencies."

[30] Further on page 817, Judge Sobier stated:

"There is a close and empathic relationship fostered between the tutor and the child. The tutor is constantly with the child endeavouring to instil this self-confidence as well as overcoming the learning disability."

[31] Then, Judge Sobier proceeded with an analysis of one of the requirements of the subparagraph as follows:

"[Analysis]

The Court is satisfied that all of the requirements, but one set forth in subparagraph 110(1)(c)(vi), have been met. The only area in issue is whether the payments to the school were paid by the Appellant for the care, or the care and training of the children, at the Fraser Academy.

The Respondent's position is that there must be either care, or care and training, but not care or training. If it were "care or training", there would be no issue since it was conceded that training was provided.

The Minister's position on care is that care should be read and interpreted by other uses of that word in section 110 which have a residential or custodial flavour such as "full-time care in a nursing home", or full-time attendant for a "cared-for-person".

At the outset, it must be remembered that each of the matters set out in paragraph 110(1)(c) is a definition of a medical expense which, if not for its inclusion, might not be readily recognized as a medical expense; such as travel and lodging expenses of an individual who is required to live away from home because of attendance at a school where blind or deaf persons are trained to handle dogs to assist them. Therefore, each of the subparagraphs of paragraph 110(1)(c) must be examined individually.

In the cases on this subparagraph and its predecessors such as: Stewart v. M.N.R., 72 DTC 1092 (T.R.B.); Somers v. M.N.R., 79 DTC 21 (T.R.B.) and Lawson v. M.N.R., 71 DTC 572 (T.A.B.) the Board was struggling to give relief to taxpayers under the former paragraph 27(1)(c) of the Act whereby to qualify for the deduction the payment must have been paid to a "licensed private hospital". Whereas, in the cases above cited, the payments were made to schools which were not themselves "licensed private hospitals" nor part of a hospital and the effort was made to notionally convert them into "licensed private hospitals". For the most part the taxpayers were unsuccessful.

Yet, with the enactment of the present subparagraph 110(1)(c)(vi), the concept of a school has been introduced hopefully for the purpose of overcoming those earlier decisions under paragraph 27(1)(c).

Cases dealing with the interpretation of the new subparagraph such as Johnston v. M.N.R., 88 DTC 1300 (T.C.C.) and Avery v. M.N.R. (unreported) (T.R.B.) taxpayers' appeals were also disallowed since payments were to ordinary private schools and not to ones which provided equipment facilities or personnel for the training of individuals with handicaps. In the present instance, the Fraser Academy is a school which qualifies in all respects if the "care and training" hurdle can be overcome.

[Jurisprudence]

Recent developments in the interpretation of taxing statutes such as Lor-Wes Contracting Ltd. v. The Queen, 85 DTC 5310 (F.C.A.) and The Queen v. McClurg, 91 DTC 5001 (S.C.C.) emanated from Stubart v. The Queen [84 DTC 6305], [1984] 1 S.C.R. 536 (S.C.C.). The Courts have made it clear that they were "wedded neither to the rule of 'strict construction' nor to an all encompassing test of 'independent business purpose'". (Queen v. McClurg, supra, at 5010).

These cases also included the "object and spirit" test of Estey, J. in Stubart at page 576 whereby he said:

It seems more appropriate to turn an interpretation test which would provide a means of applying the Act so as to affect only the conduct of a taxpayer which has the designed effect of defeating the expressed intention of Parliament. In short, the tax statute, by this interpretation technique, is extended to reach conduct of the taxpayer which clearly falls within the "object and spirit" of the taxing provisions.

In McClurg, Dickson, C.J.C. went on to say at page 5011:

Estey, J. expanded upon this test of "object and spirit" in his majority judgment in The Queen v. Golden, 86 DTC 6138, [1986] 1 S.C.R. 209:

...the law is not confined to a literal and virtually meaningless interpretation of the Act where the words will support on a broader construction a conclusion which is workable and in harmony with the evident purposes of the Act in question. Strict construction in the historic sense no longer finds a place in the canons of interpretation applicable to taxation statutes in an era such as the present (at pp. 214-15)...

More recently, in Bronfman Trust v. The Queen, 87 DTC 5059 [1987] 1 S.C.R. 32, I described the approach in terms of the need to discern the commercial reality of a taxpayer's transaction:

I acknowledge, however, that just as there has been a recent trend away from strict construction of taxation statutes ... so too has the recent trend in tax cases been towards attempting to ascertain the true commercial and practical nature of the taxpayer's transactions. There has been, in this country and elsewhere, a movement away from tests based on the form of transactions and towards tests based on ... a common sense appreciation of all the guiding features of the events in question ...

This is, I believe, a laudable trend provided it is consistent with the text and purposes of the taxation statute.

In Lor-Wes, Macguigan, J. referred to Estey, J. in Stubart in quoting him when he stated at page 5312:

Professor Willis accurately forecast the demise of the strict interpretation rule for the construction of taxing statutes. Gradually, the role of the tax statute in the community changed, as we have seen, and the application of strict construction to it receded. Courts today apply to this statute the plain meaning rule, but in a substantive sense so that if a taxpayer is within the spirit of the charge, he may be held liable ...

While not directing his observations exclusively to taxing statutes, the learned author of "Construction of Statutes", 2nd ed., (1983) at p. 87, E.A. Dreidger, [sic] put the modern rule succinctly:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

It seems clear from these cases that older authorities are no longer to be absolutely relied upon. The only principle of interpretation now recognized is a words-in-total-context approach with a view to determining the object and spirit of the taxing provisions.

Section 12 of the Interpretation Act R.S.C., c. I-23 states as follows:

Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

The enactment of subparagraph 110(1)(c)(vi) was remedial in that it broadened the scope of medical deductions to include payments to certain types of schools and institutions. The evidence of Mr. Kuypers and Dr. Kline made it clear that for the treatment to be successful, care, in its broadest sense, was absolutely necessary. This care was not custodial but of a nurturing or solicitous nature.

It is too narrow an interpretation of the word to limit it to a structured type of care. Care in a custodial sense, or a structured sense, is not the only meaning in which the word is capable of having [sic]. Applying The Queen v. Golden (supra) the word care "will support on a broader construction a conclusion which is workable and in harmony with the evident proposes [purposes] of the Act in question."

Using the "words-in-a-total context" or "object and spirit" approach an interpretation of "care" in a solicitous, nurturing, sympathetic or empathic sense is not out of the question but it is indeed the proper interpretation to be applied. It is that type of care which the Fraser Academy provides to its students.

[Decision]

Accordingly, the appeals are allowed, with costs, and the matter referred back to the Minister for reconsideration and reassessment on the basis that the Appellant was entitled to the deductions for medical expenses in the 1986 and 1987 taxation years under subparagraph 110(1)(c)(vi) of $23,780 in 1986 and $8,314.50 in 1987."

[32] In the case of G Anka v. The Queen [1996] E.T.C. 7, Bonner T.C.J. dismissed the appeal of the taxpayer who was claiming tuition fees paid to a nursery school and the cost of ballet and swimming lessons for a child with severe language and speech problems on the basis there was no evidence the child received any "care or training." At p. 2 of his judgment, Judge Bonner noted:

"Nothing in the evidence suggests that the child received as a patient either at the nursery school or at elementary school anything remotely resembling either care or care and training or that any amount was paid for any such thing. What was paid to the nursery school was tuition. What was received at all schools was education, albeit education tailored to fit the child's special needs."

[33] In the case of Somers v. M.N.R., 79 DTC 21, Mr. Guy Tremblay (as he then was) of the Tax Review Board was not able to find the behavioural problems of the taxpayer's child constituted a mental handicap and also held the educational institution was not one especially for the mentally or physically handicapped students with behavioural problems.

[34] Counsel for the respondent conceded, as a result of the decision of Judge McArthur, Tax Court of Canada, in Zack v. The Queen, 97-495(IT)I issued October 15, 1997, it was not necessary that Choice be a school that exclusively provided for the care or care and training of persons suffering from the same mental handicap as Nicholas Collins merely that - as a school of mixed function - it was still capable of satisfying the requirement of the subparagraph.

[35] In Johnston v. M.N.R.,88 DTC 1300, Judge Goetz, Tax Court of Canada, dismissed the appeal of the taxpayer as it related to tuition paid for his blind son at a private school. At p. 1301, Judge Goetz stated:

"I accept Dr. Dickson's certification of David as being blind and it would apply to all relevant times...

The relevant provisions of the Act refer to the words "personnel specially provided by that school, institution or other place". As I see it, there was considerable extra effort, attention, care and consideration by the teachers shown to David. He gained access to facilities at a time when other students could not have them. In other words, the teachers did everything they could to accommodate David's handicap."

[36] In the within appeal, there is ample evidence from the appellant, Lorraine Ford - the Principal of Choice - Christopher Carroll, Dr. Joan Pinkus and Dr. Gabrielle Weiss that Choice was a school that had personnel who were specially trained and provided to deal with gifted students who were also suffering from learning disorders sufficiently serious to constitute a mental handicap. No special equipment is needed but the key is small class size with a great deal of individualized attention in accordance with the appropriate program designed for a particular student. At Choice, the teachers and staff always treated Nicholas Collins as though he were a child suffering from ADHD, despite not having been advised of any official diagnosis until October, 1995 when Dr. Weiss declared Nicholas to be suffering from a combination of ADHD and ODD. Certainly, Dr. Pinkus was well aware of the problems encountered by Nicholas in his early schooling and recommended Choice on the basis the physical structure of the small classes and the absence of open-ended large classrooms provided an environment in which a child, like Nicholas, could feel secure and could begin to function at a higher level despite a severe handicap. The evidence disclosed there was training given to Nicholas and to other students in the school who were suffering from ADHD or other learning disorders. In a student population of 113, 7 students had ADHD and 28 others had various forms of dyslexia, a learning disorder. The Manual - Exhibit A-14 issued by the Ministry of Education of the Province of British Columbia recognized that ADHD children have a learning disability and must receive special attention, an example of which is to provide an educational plan which builds on their strengths while compensating or alleviating their area of disability. The teachers and administration at Choice were well-educated and undertook additional training in the area of teaching children with learning disorders and were familiar with the difficulties posed by ADHD. It would be surprising for most parents to discover that a school - whether public or private - did not provide "care" for their children when in attendance at a particular institution. Certainly, the school has the care or is in charge of a student during the school day and the legislation governing the operation of all schools places certain responsibility on teachers and staff in recognition they stand in loco parentis. In the ordinary sense of the word, to provide "care" is to "care for", "take charge of", "look after", or "have regard for". These meanings are within ordinary, daily usage in the English language. The Shorter Oxford English Dictionary on Historical Principles Third Edition - has this definition:

"care: Charge; oversight with a view to protection, preservation or guidance."

[37] I am satisfied on the evidence that Choice, through the teachers and administration, provided a facility - in the form of classrooms designed with small student population and with open space - which was suitable for the student suffering from ADHD, alone or in combination with ODD. In addition, there were personnel specially trained, through a combination of formal education and experience, capable of providing individualized attention to Nicholas Collins and other students suffering from a similar mental handicap. The care was evident in providing a safe environment in which the ADHD child, albeit gifted, had to be treated specially - not merely because of the giftedness - but because that disorder, sufficient to constitute a mental handicap, was intrexicably bound up with the rest of the individual and it was necessary to care for and to provide training to the whole child. The configuration within a classroom, having a small number of students, can be seen as a facility specially provided if it is done with the view to allowing additional space or flexibility to a student who otherwise has great difficulty in coping with ordinary instructional techniques because of being affected by ADHD. If it is not logical to demand a facility and its personnel be devoted, exclusively, to the care or care and training of physically or mentally handicapped individuals then it does not make sense for the handicapped individual to be 100% - or nearly so - handicapped in all aspects, almost all of the time, in order to satisfy the criteria within the provision. To do so is to confuse the issue in the within appeal with the egregiously restrictive requirements to be met in order to qualify for a disability tax credit under another provision of the Act. While all the expenses covered by paragraph 118.2(2) relate - in some manner - to treatment, care, therapy, services, products and so on, the whole provision is so elaborate it would not be correct - in my view - to rely too heavily on the medical connotation in the usual, historical sense. The concept of a qualifying medical expense has definitely grown since 1971 when it was restricted only to amounts paid for the full-time care of a dependent person in a nursing home provided, however, other criteria have been satisfied. Part of the growth can be attributable to technology but some of it is the result of a different attitude within the general public, as reflected by amended legislation, public policy and recent jurisprudence to recognize certain disorders, syndromes and diseases as constituting a mental or physical handicap. In one sense, it may seem inappropriate to regard Nicholas Collins as a "patient" but he was in fact a person who was "under medical care". At all times material, either Dr. Nancy Luce, Dr. Joan Pinkus, or Dr. Gabrielle Weiss - all qualified medical practitioners - were providing treatment to Nicholas in relation to his ongoing difficulties which, at all times, were suspected to have been caused by ADHD. It must be kept in mind the ADHD diagnosis is dependent on sufficient diagnostic criteria having been met when the child is age seven. As Dr. Pinkus and Dr.Weiss indicated, when a child is very young, the proper course is to deal with behavioural problems day-by-day, in small "chunks" and to only make the conclusive diagnosis once the child has attained the proper age. It does not seem reasonable that a final diagnosis of a particular physical or mental handicap must be made in order to satisfy the language of the provision provided the evidence establishes it was reasonable to have proceeded on the basis the particular handicap was probably present and, thereafter, it could be shown the probability had matured to the degree of certainty recognized by that particular discipline within the medical profession certifying the ultimate diagnosis. Again, with children, especially at an early age, it must be better to undertake remedial action on a reasonable basis rather than wait for some definitive label to be affixed and then be forced to scramble to discover a course of treatment. One has to be practical and take into consideration the long waiting lists to see child specialists. That was made clear by the evidence of the appellant in relation to having Nicholas seen by Dr. Luce and/or Dr. Weiss.

[38] I conclude that Choice was a school which specially provided - to Nicholas Collins - both facilities and personnel for the care or the care and training of persons suffering from the same mental handicap - ADHD - although only one or other is required to meet the language of the provision.

[39] The last matter to be addressed is the issue of "certification." There is no issue whether Dr. Pinkus and Dr. Weiss are persons qualified to issue such a certification. The question is: did they do so. As earlier noted, there is no longer any special form of certification and there is no requirement the certification - in whatever form - has to be communicated to the Minister of National Revenue. Counsel referred to various dictionaries and the definitions provided included:

"Webster's Ninth New Collegiate Dictionary: certify - to attest authoritatively

The New Shorter Oxford English Dictionary: certify - Make (a thing) certain; guarantee as certain; give certain information of.

Black's Law Dictionary - Sixth Edition - certify - To authenticate or vouch for a thing in writing. To attest as being true or as represented."

[40] In 1993, prior to the admission of Nicholas to Choice, Dr. Pinkus conducted an assessment which confirmed, inter alia, his superior intelligence beyond that required to be admitted to the school. In addition, she recognized Nicholas was probably affected by ADHD and had been treated on that basis by Dr. Luce. It was clear to the appellant her son was exhibiting behaviour completely consistent with ADHD but she understood a final diagnosis would have to be made at a later age, which was done by Dr. Gabrielle Weiss in 1995. As far as the appellant was concerned, Dr. Pinkus attested to her - authoritatively in the sense she was an expert in the field of conducting assessments and was a qualified psychologist specializing in children - that Nicholas should be educated at a school which could provide proper care or care and training for someone suffering from ADHD. The position of counsel for the respondent, as it pertained to the 1993 taxation year, was that certification, in some manner, must be undertaken at the time the expense (payment of tuition) was incurred or, at least, in that taxation year and that Dr. Pinkus had not made any diagnosis of any mental handicap at that time. It is clear on the evidence that Dr. Pinkus - while reluctant to affix a label of ADHD to Nicholas pending confirmation by a psychiatrist specializing in children - clearly regarded him as having a mental handicap despite his impressive IQ. In her expert opinion, Choice was an appropriate school to assist in treating that disorder and otherwise dealing with the mental handicap. It is not as though there was no reason whatsoever to proceed on the basis Nicholas would probably be officially diagnosed - at a later date - with ADHD, alone or in combination with another learning disorder. There was a plethora of evidence to suggest that such a diagnosis was almost inevitable and the appellant, Dr. Luce, the teachers and staff at Choice - at all times - treated Nicholas as a child suffering from ADHD.

[41] In the case of Regina v . Lines, 27 C.C.C. (3d) 377, the Northwest Territories Court of Appeal considered the meaning of the word "certify" as it appeared in the Canada Evidence Act. At p. 380, Laycraft, C.J. N.W.T. stated:

"Certify" has the connotation of "attestation in an authoritative manner" though it is, of course, a word of wide import which may also refer merely to a formal or legal certificate.

[42] Clearly, if the Minister wanted to rely on a special certificate in a prescribed form being provided at a particular time or in conjuction with the tax return being filed then the Minister should have taken steps to ensure the requirement for a certificate in prescribed form was not taken out of the Act during revision. In the case of Revusky v. Canada a decision of Judge Bell, Tax Court of Canada, [1996] T.C.J. No. 1754, held that a certification by a medical practitioner that the taxpayer was incapable of travel without the assistance of an attendant could also be made following the completion of the patient's travel. Judge Bell noted at page 6:

"The medical expenses provision must have rules, as it does have. However, those rules must be interpreted to make sense in situations which don't fit the norm and where relief is intended."

[43] In the case of Kushnir et al v. M.N.R., 86 DTC 1381, Christie A.C.J.T.C. found that none of the taxpayers' children had been properly "certified" as required by the relevant provision of the Act, subparagraph 110(1)(c)(vi) - the wording of which is identical to the one in the within appeal - on the basis the certificates were signed shortly before the hearing of the appeal and also that the words used therein were incapable of identifying the existence of a mental handicap.

[44] In my opinion, section 118.2 of the Act was not drafted in a manner which would invite restrictive interpretation despite the careful crafting of subparagraphs, clauses and subclauses covering everything from vehicle mileage to dog food. It was apparent from the submissions of counsel for the respondent that the Minister is fearful every parent with a gifted child - falling within that 4% segment of the general population - will be seeking a deduction for private school tuition. That is no concern of mine nor should it be. My duty is to consider the evidence, review the submissions of counsel, refer to relevant jurisprudence, undertake an analysis of the facts and law and then arrive at a decision. Each case will still have to be heard on its merits as ADHD symptoms fall within a continuum and may not always constitute a mental handicap. In each case - whether involving ADHD, ODD, or certain learning disorders - the appellant will have the burden of proving the requirements of the provision have been met and the evidence, including that of the qualified professionals, will have to be sufficient to carry the day.

[45] The appeals of the appellant for the 1993 and 1995 taxation years are allowed - with costs on the basis the appeals were heard together - and the assessment for each taxation year is referred back to the Minister for reconsideration and reassessment on the basis the amounts paid to Choice in 1993 and 1995 are qualifying medical expenses within subsection 118.2(2) of the Act.

Signed at Toronto, Ontario, this 14th day of May 1998.

"D.W. Rowe"

D.J.T.C.C.