Date: 20020606

Docket: 2001-3973-IT-I

BETWEEN:

MARK MURDOCH,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

For the Appellant: The Appellant himself

Counsel for the Respondent: George Boyd Aitken

Reasonsfor Judgment

(Delivered orally from the Bench on April 25, 2002 at Kitchener, Ontario)

McArthur J.

[1]            The issue in this appeal is whether the amount of $9,266 claimed by the Appellant as a medical expense in 1999 was an amount paid within the meaning of paragraph 118.2(2)(e) of the Income Tax Act which reads as follows:

118.2(2)                   For the purposes of sub-section (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."

Facts

[2]            The Appellant is the father of Andrew Murdoch, born June 19, 1987. The $9,266 disallowed was tuition fees for Andrew made by the Appellant to St. Jude's Special Education School. I accept that Andrew was certified as having a medical handicap by Dr. Tom Ruttan, psychologist. In a letter placed in evidence dated May 11, 1998, Dr. Ruttan stated: "Andrew presents with a significant learning disability." and he added: "significant deficits in word recognition, spelling, and written expression skills ... will require continued assistance through special education support". I accept in its entirety the confidential psychoeducational assessment of May 11, 1998 submitted by John Tafts, B.Sc., D.C.S., psychometrist, and Dr. Tom Ruttan, psychologist. It was uncontested.

[3]            The Appellant was the only witness. He testified that in April 1998, Andrew took a battery of tests conducted by John Tafts and Dr. Ruttan. The qualifications of these professionals are not in question. This assessment revealed Andrew's performance in basic reading in the 12 percentile of his age group; spelling in the bottom 10 percentile and short-term auditory memory and visual scanning at 9 percentile. The professionals concluded that Andrew needed special educational assistance. He received that at St. Judes's and now the Appellant seeks to deduct the cost. This special education was not available in the public school system. Andrew blossomed during his year at St. Jude's. He is now back in the public school system and doing well.

Analysis

[4]            I accept the entire evidence of the Appellant. I appreciate the fair and competent presentation by counsel for the Respondent. The critera that emerge from a reading of Collins v. The Queen, [1998] 3 C.T.C. 2980, provided by counsel for the Respondent, include the following:

(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 especially provide to the patients suffering from the handicap equipment, facilities or personnel for the care or the care and training of persons suffering from the handicap;

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

From my findings of fact referred to earlier, it is clear that (1) and (2) have been satisfied and I accept Dr. Ruttan's letter of May 11, 1998 which satisfies the fourth requirement. With respect to number (3), we have the evidence of the Appellant. St. Jude's Special Education School had a very low student/teacher ratio with teachers trained in the learning needs of children with learning disabilities. The public school system could not fulfil Andrew's special needs. St. Jude's could. Andrew is a success story. He now performs well in the Ontario public school system. I agree with the Appellant's summary set out in a letter dated August 23, 2001 to Canada Customs and Revenue Agency that reads in part:

In summary, a qualified person, Dr. Ruttan, has diagnosed Andrew with a mental handicap, by virtue of his 'significant learning disability'. The doctor has recommended 'continued assistance through special education support' and has made twenty specific recommendations for 'facilities' required for Andrew to have success. St. Jude's Special Education School is a place that has specialized personnel and is able to satisfy the facilities required for Andrew.

I agree with the Respondent that the word "facilities" used in section 118 means an institution and St. Jude's is such a facility. While the certificate letter of May 11, 1998 does not refer to St. Jude's specifically, I am satisfied that it meets the requirements of the Act. Andrew needed "an appropriately qualified person", Dr. Ruttan, who certified that he suffered from a mental handicap. The facilities and personnel for the training he required was provided by St. Jude's. I believe the Appellant's position meets the object and spirit of the legislation. The appeal is allowed, with costs, if any, and the matter is referred back to the Minister for reconsideration and reassessment on the basis that the Appellant is entitled to the medical expense deduction of $9,266 for the 1999 taxation year on the basis that Andrew was a patient as described in paragraph 118.2(2)(e).

Signed at Ottawa, Canada, this 6th day of June 2002.

"C.H. McArthur"

J.T.C.C.

COURT FILE NO.:                                                 2001-3973(IT)I

STYLE OF CAUSE:                                               Mark Murdoch and Her Majesty the Queen

PLACE OF HEARING:                                         Kitchener, Ontario

DATE OF HEARING:                                           April 23, 2002

REASONS FOR JUDGMENT BY:      The Honourable Judge C.H. McArthur

DATE OF JUDGMENT:                                       April 30, 2002

APPEARANCES:

For the Appellant:                                                 The Appellant himself

Counsel for the Respondent:              George Boyd Aitken

COUNSEL OF RECORD:

For the Appellant:                

Name:                                N/A

Firm:                  N/A

For the Respondent:                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                                Ottawa, Canada