Date: 19980522
Docket: 97-721-IT-I
BETWEEN:
GORDON GIRODAY,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Rowe, D.J.T.C.C.
[1] The appellant appeals from an assessment of income tax for
his 1993 taxation year. In filing his income tax return the
appellant sought to include, as a medical expense, an amount of
$9,571.00 paid by him to Choice Learning Centre for Exceptional
Children Society (Choice), a school, in payment of tuition fees
covering the cost of attendance for his son during the 1993
taxation year and sought a tax credit in respect of such amount
in computing his income tax payable for the year. The Minister of
National Revenue (the "Minister") disallowed such tax
credit on the basis the fees paid to Choice were not an allowable
medical expense under subsection 118.2(2) of the Income
Tax Act (the "Act") and, therefore, the
appellant was not entitled to the relevant tax credit under
subsection 118.2(1) of the Act.
[2] The appellant, Giroday, testified his son Michael - born
on March 30, 1982 - had been a student at a school - St Joseph
The Worker - during Grades 4 and 5. The appellant stated
Michael had been described by his teachers as "the smartest
boy in the class". However, the appellant noticed Michael
had become disenchanted with school. As a result, he contacted
the Surrey School Board to discuss the situation and someone at
the office suggested he inquire about a school called Choice. The
appellant explained he followed up on the suggestion and called
Choice and was told by a member of the administration that
psychological testing was required to demonstrate that Michael
was ranked in the top 5% of the population, in terms of
intellectual ability. Choice provided the appellant with a list
of 10 psychologists in private practice who were capable of
carrying out the required testing. The alternative would have
been to wait for six months, or more, in order that a
publicly-funded psychologist could be available to do the
testing. The appellant stated he chose Dr. Gwyn Gilliland,
M.A.(Psych) M.Ed. to interview Michael and undertake a series of
tests. Dr. Gilliland prepared a report - Exhibit A-1 - which
indicated Michael - at age 11 - had completed 11 subtests of the
Weschler Intelligence Scale for Children (WISC III), the Peabody
Picture Vocabulary Test (PPVT) Form L and the Raven Progressive
Matrices. On the verbal subtests, Michael scored at the 99.5th
percentile for children his age and performance subtests were at
the 99.7th percentile. The Full Scale Score was 144, placing him
at the 99.8th percentile overall. On other tests, Michael scored
above the 95th percentile and Dr. Gilliland suggested he would
benefit from a considerably more challenging program than he was
receiving in Grade 5 at his present school. Dr.Gilliland had gone
on to recommend Choice on the basis it had small classes and an
individualized academic program with a wide range of enrichment
activities and Michael would be placed with other very bright
young children. As a consequence of Michael having tested above
the 95th percentile - a pre-requisite for admission to Choice -
he was then able to register there and began attending classes,
which he enjoyed, and he was soon advanced one grade. The
appellant stated that, in his view, Michael was handicapped by
his mental ability because the school system did not allow him to
operate at his potential. He stated Michael was now attending
public school in Richmond, British Columbia, in a program,
unfortunately, not designed for gifted students. There had been
another public school which had special programs for students
with superior intellectual abilities but that institution was
located across a geographical boundary and Michael was not
eligible to attend. The appellant stated Michael is now in
Grade 11 and is a well-behaved child without any particular
problems.
[3] Counsel for the respondent did not cross-examine.
[4] The appellant was aware there had been an appeal heard
earlier in the week involving a student at Choice and that there
were other appeals scheduled later on which also pertained to the
issue of tuition fees as a medical expense. I indicated to the
appellant I had reserved decision in the matter of Patricia M.
Collins and Her Majesty The Queen - 97-648(IT)I and
97-2169(IT)I - two appeals heard together - and that I would be
issuing formal reasons.
[5] I have issued Reasons for Judgment, dated May 14, 1998, in
Collins and undertook an analysis of the various
components of paragraph 118.2(2)(e) - the relevant
provision of the Act - which must be satisfied in order
for an appellant to be successful. I informed the appellant at
the hearing of his appeal that I would attach a copy of the
Collins decision to these reasons so he could have the
opportunity to understand the criteria which had to be met and to
be provided with definitions of the various terms within the
paragraph together with a review of the relevant jurisprudence on
the issue of expenditures which qualified as medical expenses
eligible for a tax credit.
[6] On the facts in the within appeal, it is apparent Michael
did not suffer from a mental handicap and had not been so
certified by any qualified professional. The failure of the
public school system - within the appellant's district - to
provide proper programs for students as gifted as Michael is
detrimental to his academic progress and to the process of
realizing his full potential. However, it cannot be said that
Michael is suffering from a mental handicap merely because of his
superior intellectual ability. A superbly gifted athlete may
contemplate moving to a new municipality in order to find
adequate training facilities or to participate in meaningful
competitions but the absence of such cannot be regarded as a
physical handicap suffered by that gifted person.
[7] The appellant has been unable to demonstrate the
assessment is incorrect and the appeal is hereby dismissed.
Signed at Sidney, British Columbia, this 22nd day of May
1998
"D.W. Rowe"
D.J.T.C.C.
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