organizational issues with attendant
adjustment and behavioural problems. This had a domino effect because of his
inability to organize himself and focus on essential school tasks which translated
to suspensions of varying lengths from school. Medication was prescribed for
the obsessive compulsive behaviours, but the side effects were severe.
When the Appellant
first heard about Rothesay Collegiate, now known as Rothesay Netherwood, she
obtained feedback on this school from teachers, other parents and students, as
well as Dr. Mitchell Zelman, Matthew’s pediatrician. She was informed that the
school had some successes with other individuals with disabilities similar to
Matthew’s. She investigated other schools in Prince Edward Island, but found only two private schools which
had religious affiliations, that could not offer support programs for Matthew’s
behavioural and social issues.
The Appellant’s
evidence was that Rothesay provided smaller class size and therefore smaller
student/teacher ratios. In fact, when Matthew attended Grade 8 at Rothesay
there were only seven other students in his classroom. This provided increased
daily supervision. There were daily meetings with an advisor as well. Matthew
was assisted both socially and academically at the school. He resided in a
residence where teachers were available almost constantly. His homework was
supervised nightly. According to the Appellant, this environment provided the
essential structure and control over his behaviour within which Matthew could
progress both socially and academically.
Dr. Mitchell Zelman
is Matthew’s pediatrician. He was qualified as an expert witness. He sees
approximately 20 families weekly who have children with attention deficit
disorders, plus behavioural problems. When he initially diagnosed Matthew with
attention deficit disorder, he also suspected other disabilities and
behavioural problems. He suggested that Matthew also see the school’s
psychologist. In addition to the attention deficit disorder and auditory
processing disorder, Matthew suffers from obsessive compulsive disorder, as
well as associated behavioural issues.
Dr. Zelman described
attention deficit disorder as basically being able to hear the information, but
the inability to then understand and process it, or to know what to do with it.
He stated that this presents particular problems for such individuals in the
regular classroom setting but that there are schools that deal with this type
of learning disability and that one such school in 2002 was Rothesay. His
evidence was that he discussed the possibility of Rothesay with the Appellant
because he recognized that such individuals can benefit from this type of
academic setting.
Dr. Zelman was aware
that Rothesay provided a unique setting prior to his discussions with the
Appellant as he had knowledge of the school’s reputation from conferences he
attended, discussions with other doctors and discussions with other parents who
had enrolled their children there. According to his evidence it was not only
the small classroom setting (which could also be offered at other private
schools) but the constant tracking and monitoring of students by advisors, for
example, in respect to medication trials, that was the advantage of such a
school. This method facilitated continuing contact and monitoring between the
outside doctor and the school advisor.
The third and final
witness was Paul Kitchen, the head of the school at Rothesay. He referred
to Rothesay as an independent school with charitable status but not a private
school. He testified that Rothesay can accommodate students with a variety of,
as he put it, “learning styles”. He gave the example of a former student who
was accommodated in writing exams where it took him up to eight hours to
complete. This student is now an engineering graduate. It is not specifically
a specialized school for the learning disabled but he stated that the programs
offered at Rothesay do help those with such issues. Teachers were not required
to have specialized training to deal with individuals with learning
disabilities but they are exposed to training through speakers and they are
given assistance to set up better programs for such students.
In addition, house
parents are located in each of the four residences. They are generally
teachers who reside on campus. In 2002 Matthew’s house parent was also a
registered nurse. They all have basic medical background in first aid and
emergency training. Classroom size is kept small and each student also has an
assigned supervisor who is generally an older Grade 12 student. They act as a “cheerleader”
and mentor to the student and meet regularly with the teachers to discuss their
student’s progress and to initiate and implement new plans and programs for
that student.
And finally there
was a personal homework coach for each student in residence. He explained that
faculty continually, as he called it, did loops around the residence floors and
rooms in the evenings to ensure that students were working on homework
assignments.
Mr. Kitchen also
testified that the school was asked by the Appellant to assist with
professional testing of Matthew. Ultimately this testing required a doctor’s
request to complete as the school would not act upon the parents’ request
alone. The surveys and tests required teacher participation and were completed
over a six to eight week period. If I understand his evidence correctly, the
testing of Matthew occurred on two separate occasions and involved
approximately seven to eight teachers.
Now I turn to my
analysis in this appeal. There is only one issue to be decided and that is
whether the Appellant is entitled to claim as a deduction a medical expense,
being the cost of the tuition paid to Rothesay in 2002, pursuant to paragraph
118.2(2)(e) of the Act. That paragraph states the following, and
I quote:
“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;”
Respondent counsel
referred me to the case of Collins v. The Queen, [1998] T.C.J. No. 396,
where at paragraph 20 the Court set out the four criteria to be met under this
provision. Respondent counsel advised me that only the third and fourth
factors were at issue and I therefore conclude that the implication is that the
Appellant satisfied the first two requirements. That is, she had paid an
amount for the care or care and training at the school and that Matthew does,
indeed, suffer from a mental handicap.
The third criteria
states and I quote from that case:
“The school … must specially provide to the patient
suffering from the handicap, equipment, facilities or personnel for the care or
care and training of other persons suffering from the same handicap”.
Respondent counsel
argued that Mr. Kitchen’s evidence supported that Rothesay did not provide
special training to its staff to deal with students with learning disabilities
and that it did not provide facilities or programs specific to their needs
other than the same programs it provided to every other student.
I disagree with the
Respondent’s interpretation of Mr. Kitchen’s evidence. Rothesay was a school
that did not happen to enrol Matthew by accident. They were aware of his
special needs and in fact, Rothesay was set up to accommodate such students, as
Mr. Kitchen put it and I quote “with different learning styles”. His evidence
was that Rothesay was not a school exclusively for the learning disabled but
the school’s programs were able to adapt to and accommodate such individuals
and in the end Rothesay had a track record of assisting them. As Dr. Zelman
put it and I quote, “Rothesay had a history of dealing with them very nicely”.
To the school’s credit their philosophy of students committing to do their best
within their capabilities encouraged the more challenged students to integrate
with the academically gifted students. This was clearly exhibited in the
student mentor program where older students acted as cheerleaders. Although
the programs were not specifically designed for students such as Matthew, they
were progressive and forward enough thinking that they could accommodate those
with attention deficit disorder and those struggling with other learning and
organizational disabilities.
According to Mr.
Kitchen’s evidence and the examples of the past successes within the school,
students evolve academically and socially within their own set of limitations.
This was particularly true for Matthew, who according to his mother, was given
the essential structure, discipline and guidance to progress to the point both
socially and academically, where he has just recently as of yesterday, graduated
from Grade 12.
According to Mr.
Kitchen’s evidence there was continuous monitoring of Matthew’s homework, his
progress, new programs were created and implemented for him through
consultation between his teachers and individual advisor and finally, testing,
specifically tailored to Matthew, was completed by teachers under the guidance
of Matthew’s outside physician. As Mr. Kitchen stated, this testing involved
and I quote “an incredible number of hours” and Mr. Kitchen’s evidence
indicated that Matthew was not the only student for whom they had completed
testing for an outside physician.
In addition, the
staff did receive some training through speakers and seminars which Mr. Kitchen
likened to professional development. He did not provide me with a great deal
of specifics but I am satisfied that the staff did receive training in order to
be in a position to deal with special needs students that Rothesay was in the
habit of accepting into its programs.
Certainly the school
took charge of this young boy and provided care to him in a residence setting
on a 24/7 basis over the academic school year. Teachers lived in the
residences and the evidence supports that such students were given a great deal
of individual attention and monitoring.
Although the programs
were not specifically designed for special needs students, they were certainly
capable of successfully adapting to their needs. It was unclear from the
evidence why or just how these programs are successful at accommodating all
types of students but successful they are. It may be a combination of the
daily structured aspect, the constant supervision and involvement of older
students as well as staff with the students and the philosophy of the school of
working under the guidance of outside physicians. The school had a reputation
for taking on the challenge of these students where the regular school system
had failed them.
I am satisfied
therefore that Rothesay provided Matthew with the facilities, programs and
personnel for both his care and training requirements as well as the care and
training of persons suffering from similar mental handicaps.
The fourth
requirement, which the Respondent counsel contends has not been satisfied,
states as follows and I quote again from the Collins case:
“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.”
The issue here is
whether Dr. Zelman certified Matthew as requiring the special training offered
at Rothesay. There is no requirement under paragraph 118.2(2)(e) that
this certification be in writing or any other special format. In fact, I had
the benefit of hearing Dr. Zelman’s evidence rather than reading a form he
completed and submitted into evidence or a brief letter he composed in the run
of a busy day. I had the unique benefit of having Dr. Zelman before me. In
addition, the Appellant offered Dr. Zelman as an expert witness in the area of
pediatrics and learning disabilities and with the consent of Respondent counsel
he was accepted as such.
Dr. Zelman had prior
knowledge of Rothesay as a destination for individuals with learning and
behavioural problems. His knowledge was gained at medical conferences and from
discussions with other doctors and parents. It is clear from his evidence that
he endorsed Rothesay as an appropriate learning centre with the capabilities to
adequately address and assist with Matthew’s problems and mental handicaps.
He confirmed his
diagnosis of attention deficit disorder and associated behavioural issues and
according to his expert testimony he considered that Matthew could benefit from
this type of structured setting. He stated that Rothesay had a reputation in
the medical community for assisting and dealing with individuals with learning
disabilities and on this basis he recommended it to the Appellant.
In this vein, I
believe he was certifying or representing this school to the Appellant or
vouching that this school could benefit Matthew based on the school’s track
record in the medical community. Of course, I do not believe he could
guarantee it as an absolute cure all to the Appellant any more than he could
recommend another program at another school or medication that would guarantee
a resolution to Matthew’s issues.
I believe we have to
be practical here. I do not believe the provision was meant to be interpreted
as restrictively as Respondent counsel perhaps submits. If it were, there
would be very few, if any, programs in any school that would fit the bill in
cases such as this one so as to allow the deduction.
Contrary to
submissions that allowing the appeal may open the floodgates to others, I
believe that each case must be decided on its merits as attention deficit disorders
are not all alike in severity and not all of them may necessarily constitute
and qualify as a medical handicap.
In any event, I am
simply concerned with this appeal and the facts in this appeal. I am satisfied
that this fourth criteria has also been met. I accept the expert evidence of
Dr. Zelman and conclude that his recommendation of Rothesay to the Appellant
qualified as his certification of the school as a positive potential for
assisting in, not curing, Matthew’s disabilities to enable him to develop the
social and academic skills to be, as Mr. Kitchen stated, the best he can be
within those limitations.
Accordingly, the
appeal is allowed to entitle Mrs. Scott, the Appellant, to claim the cost of
the tuition fees paid to Rothesay in the 2002 taxation year pursuant to
paragraph 118.2(2)(e) of the Act.
(MATTER CONCLUDES)
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