Flower v. The Queen, 2003 TCC 216 (Informal Procedure)

Citation: 2003TCC216 Date: 20030521 Docket: 2002-418(IT)I

BETWEEN:

GREGORY J. FLOWER,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

(delivered orally from the Bench at

Calgary, Alberta, on February 26, 2003)

[1]      This appeal pursuant to the informal procedure was heard in Calgary, Alberta on February 26th, 2003. The Appellant's wife, Ms. Catherine O'Brien, testified and the Appellant called an expert psychologist, Dr. Brent MacDonald, who is also the Assistant Principal of Rundle Academy situated in Calgary, Alberta. The Respondent called Joyce Clayton, M. Special Ed., B.Ed., B.A., who is Education Manager, Special Programmes Branch, Alberta Learning, Government of Alberta.

    

[2]      The dispute between the parties is set out in paragraphs 2 to 9 inclusive of the Reply to the Notice of Appeal. They read:

2.          In computing his income tax liability for the 2000 taxation year, the Appellant claimed, in calculating the medical expense credit, medical expenses in the amount of $9,827.23.

3.          The original notice of assessment for the 2000 taxation year was dated and mailed to the Appellant on May 10, 2001.

4.          In reassessing the Appellant for the 2000 taxation year on September 24, 2001, the Minister of National Revenue (the "Minister") reduced the claim for medical expenses by $8,070.00, from $9,827.23 to $1,757.23. The amount of            $8,070.00 disallowed was paid to the Rundle College Academy (hereinafter the "College").

5.          In so reassessing the Appellant, the Minister made the following assumptions of fact:

(a)         the facts stated in paragraph 4 above;

(b)         the Appellant is the parent of two minor children, Zachary Flower, born July 26, 1988 ("Zachary") and Kelsey Flower, born July 12, 1990                 ("Kelsey");

(c)         the Appellant paid the amount of $8,070.00 to the College in the 2000 taxation year;

(d)       in respect of the amount paid to the College, $7,370.00 was paid on account of tuition fees for                       Zachary and Kelsey and $700.00 was paid on account of bus service for Zachary and Kelsey;

(e)         the College is a private school;

(f)        the Appellant's reason for enrolling both Zachary and Kelsey at the College is that both Zachary and Kelsey do not perform to their assessed intellectual                     abilities in certain areas;

(g)         the inability to perform to one's assessed intellectual abilities is not a handicap;

(h)       the College provides individualized programs and lower student-teacher ratios;

(i)        Zachary and Kelsey were both enrolled in regular academic programs provided by the College;

(j)        neither Zachary or Kelsey suffer from a mental or physical handicap; and

(k)       prior to their enrollment at the College, neither Zachary or Kelsey had been certified by an                           appropriately qualified person to be persons who, by reason of a physical or mental handicap,                      required the equipment, facilities or personnel specially provided by the College.

B. ISSUE TO BE DECIDED

6.          The issue to be decided is whether the Appellant is entitled to claim the amount of $8,070.00 paid to the College as a medical expense for the 2000 taxation year.

C. STATUTORY PROVISIONS, GROUNDS RELIED ON    

     AND RELIEF SOUGHT

7.        He relies on, inter alia, section 118.2 of the Income Tax Act, R.S.C. 1985 (5th Supp.) c.1, (the "Act") as amended for             the 2000 taxation year.

8.        He submits that the amount of $8,070.00 paid to College is not a medical expense within the meaning of subsection                  118.2(2) of the Act and, therefore, the Appellant is not entitled to claim the amount in calculating the medical expense credit in accordance with subsection 118.2(1) of the Act.

9.        He further submits that, if the Court should find that the Appellant is entitled to claim, as a medical expense, amounts paid to the College, which is not admitted but is denied, the                   Appellant is entitled to claim only amounts paid to the College totalling $7,370.00 as the amounts claimed in excess of $7,370.00, being $700.00, were in not in respect of care and training at the College, rather these amounts were in respect of transporting the Appellant's children to and from the College. Accordingly, these amounts are not medical expenses within the meaning of subsection 118.2(2) of the Act.

[3]      Assumptions 5(a), (b), (c), (d), (e), (h), and (i) were not refuted. While the remaining assumptions were in dispute, the Court finds that assumption 5(k) is the main obstacle to the Appellant's success. In particular, that arises as to 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.

[4]      Was Rundle Academy certified by the appropriately qualified person to be the school where Zachary and Kelsey required the facilities or personnel especially provided for their care and training?

[5]      The Appellant's only form of such a possible certificate is dated October 4, 2002 by the boys' family physician, Dr. Indira Fridhandler. It reads:

I am a duly qualified family practitioner licensed in the province of          Alberta. These two boys have been in my practice for the last eight years. I have reviewed ongoing psychological/learning           assessments performed by chartered psychologists as well as an assessment of Zachary completed by the behavioural development clinic at the Calgary General Hospital (see attached summary).

Based on these assessments, as well as my ongoing contact with Kelsey and Zachary, I feel that they clearly suffer from a            learning disability. As such, they do require the structure and specialized teaching offered by their current school (Rundle College Academy).

Kelsey and Zachary have shown continued academic progress in this setting. They are socially and behaviourally well adjusted.         Overall, this attests to the fact that the specialized schooling has been necessary in meeting their academic needs as well as           preventing the behavioural disorders that can commonly coincide with a learning disability.

In summary, it is my opinion that these two boys have a medically justified need for this specialized educational intervention to      facilitate normal development.

Yours truly,

Indira Fridhandler, M.D., C.C.F.P.

[6]      To the Court, this letter is dated too late. But even then, it does not go far enough since it fails to clearly state that the boys require the facilities and personnel specially provided by Rundle Academy for their care and training.

[7]      The evidence is not clear as to any of Dr. Fridhandler's special qualifications. However, the letter itself fails to meet the overall standards which were satisfied in Collins v. The Queen, (1998) 3 CTC 2980.

[8]      For these reasons the appeal is dismissed.

Signed at Ottawa, Canada, this 21st day of May 2003.

"D.W. Beaubier"

J.T.C.C.