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Citation: 2003TCC356
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Date: 20030708
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Docket: 2002-15784(IT)I
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BETWEEN:
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PAUL MARSHALL,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Little, J.
A. FACTS
[1] The Appellant is the father of
twin sons, Ryan Marshall ("Ryan") and Christopher
Marshall ("Christopher"). Ryan and Christopher were
born on the 23rd day of December 1982.
[2] In the 2000 year Ryan and
Christopher attended The Robert Land Academy ("the
Academy") in Wellandport, Ontario. The Appellant paid
tuition fees, room and board to the Academy for Ryan and
Christopher.
[3] In computing his tax payable in
his return of income for the 2000 taxation year, the Appellant
claimed a medical expense credit in the amount of $42,662.00 as
tuition and room and board for his sons Ryan and Christopher.[1]
[4] The Minister of National Revenue
(the "Minister") disallowed the medical expense credit
claim made by the Appellant on the basis that there was no
indication in the documents submitted to the CCRA that Ryan or
Christopher suffered from a physical or mental handicap that
requires the special equipment, facilities or personnel of the
school, institution or place or that "the institute provides
special equipment, facilities or personnel for the care and
training of a person suffering from a physical or mental
handicap.
[5] By Notification of Confirmation
dated the 1st day of February 2002 the Minister stated that the
said $42,662.00 was not a medical expense under
paragraph 118.2(2)(e) of the Income Tax Act
(the "Act") and that the Appellant was therefore
not entitled to claim a medical expense credit under
subsection 118.2(1) of the Act.
B. ISSUE
[6] The issue is whether the Minister
properly disallowed the claim of a non-refundable medical
expense credit in respect of school tuition expenses in the
amount of $42,662.00 for the Appellant's 2000 taxation
year.
C. ANALYSIS
[7] During the hearing counsel for the
Appellant produced Dr. Anthony Richard Eldon Laws as an
expert witness. Counsel for the Appellant also filed a Report
prepared by Dr. Laws.
[8] Dr. Laws obtained a Degree in
Medicine from McMaster University in 1986 and did his specialty
training at Queen's University in the Department of
Pediatrics. Dr. Laws became a Clinical Teaching Fellow at
Queen's University and did a sub-specialty in behavioural and
development pediatrics.
[9] Dr. Laws explained that he centred
his training in children who have learning difficulties and
behavioural difficulties.
[10] Dr. Laws has carried on a medical
practice in Oakville, Ontario since 1991.
[11] Counsel for the Appellant asked Dr.
Laws to explain what pediatrics means and Dr. Laws replied as
follows:
A. The science and
art of caring for children.
Q. Children from
infancy to what age?
A. Generally from
birth to 16 or 18 and now a lot of children who have special
needs may not develop chronologically to adult age. I will look
at children who may be 18 or 19 or in their early 20's but
because of their neurological condition may be acting in an age
group much younger than they are.
(Transcript, pages 6-7.)
[12] In the Examination-in-Chief Dr. Laws
said the following:
A. I hereby certify,
for the purposes of paragraph 118.2(2)(e) of the Income
Tax Act, that Ryan Marshall is a person who, from January
2000 to date, by reason of physical or medical handicap, namely
Attention Deficit Disorder and related handicaps, has required,
and continues at present to require, the equipment, facilities
and personnel specially provided by The Robert Land Academy for
the care and training of teenage boys suffering from the
handicaps suffered by him.
(Transcript, p. 15.)
A. I hereby certify,
for the purposes of paragraph 118.2(2)(e) of the Income
Tax Act, that Chris Marshall is a person who, from January
2000 to date, by reason of a physical or medical handicap,
namely, Attention Deficit Disorder and related handicaps, has
required, and continues at present to require, the equipment,
facilities and personnel specially provided by The Robert Land
Academy for the care and training of teenage boys suffering from
the handicaps suffered by him.
(Transcript, p. 18.)
[13] Counsel for the Appellant asked the
following questions of Dr. Laws:
Q. Now, the last
question I have for you I'm not sure if we've already
asked it, but I just want to make sure I did, is are you able to
tell His Honour what specific equipment, facilities or personnel
are specially provided by this academy as opposed to any other
school or institution, that are specially provided for the care
or the care and training of children suffering from ADD? I think
we've already gone over that, but I just want to make sure we
have.
A. Foremost, it
would be is that they've got staff who are trained to
identify children with this condition and to be able to work with
them. The biggest certainly would be the staff, and I've
known the headmaster for a number of years and have had a number
of discussions with him and have provided information sessions
for some of this staff.
They also have equipment which would help children who are slow
learners so that they can process information, including from
current technology, computers, language labs. They also have, I
suppose, which is also very important, a philosophy of
identifying children that do have special needs that if you can
work on your challenges, that you can be successful.
And this is a unique school, and I'm a consultant to a number
of private schools, but this is one that certainly does have the
personnel, resources, the equipment, the discipline, the
philosophy of dealing with children with attention deficit
disorders and other behaviour and related problems.
Q. Thank you. Can
you finally confirm for the record that you are at arm's
length from the academy? You're not on their staff?
You're not paid by them?
A. Not at all. They
have referred several patients to me and I do get invited to some
of their functions. They have asked me to come in and talk, and I
have done that on a gratis basis because I have been impressed
with what the school has done for a number of students in the
past.
Q. Thank you. No
further questions, Your Honour.
(Transcript, pp. 19-21.)
[14] Counsel for the Respondent asked the
following questions of Dr. Laws:
Q. Specifically then
what sort of treatment did Robert Land Academy provide to Ryan
and Christopher?
A. The treatment
that they provided, first of all, is a disciplined environment
where, when the child or student or cadet attends there, they
learn very quickly that they have to develop a social behaviour,
and if they don't meet that behaviour code, then there will
be a consequence and the consequence will be consistent and
constant for them. And that's not only for these two
children, but for all the cadets that attend at that school.
(Transcript, p. 29.)
[15] His Honour asked the following
questions of Dr. Laws:
One final question. I gather from your comments that you put the
academy in a very high rating in terms of a private school with a
very good philosophy for people with -
Witness:
With this sort of condition, there are very few schools in Canada
that have the facilities, the resources and certainly the staff
that Robert Land does.
His Honour:
Just let me clarify one thing. The equipment and facilities and
the personnel that's provided by the academy assist people
that suffer from these handicaps?
Witness:
That's correct.
(Transcript, pp. 36-37.)
[16] Dr. Laws also testified that his case
load of patients at any one time is between 900 and 1,000, and
the majority of those, 60 to 70 per cent, will have an attention
deficit disorder. (Transcript. p. 35.)
[17] I also note that in a memo dated
November 13, 2001 Dr. B. Fogel referred to a meeting with Ryan
and Christopher on April 19, 2000 and said: "Both these
young men suffer from Attention Deficit Disorder".
[18] I was very impressed with the evidence
provided by Dr. Laws. From a careful analysis of the
testimony of Dr. Laws I have concluded as follows:
1. Ryan and Christopher
were dependents of the Appellant in the 2000 taxation year;
2. Ryan and Christopher
have each been certified by Dr. Laws to be a person who by reason
of a physical or mental handicap, required the equipment,
facilities and personnel specially provided by the Academy for
the care, or the care and training of individuals suffering from
the handicaps suffered by them;
3. The amount of
$42,662.00 that was paid by the Appellant in the 2000 taxation
year for the care and training of Ryan and Christopher was a
medical expense within the meaning of paragraph 118.2(2)(e) of
the Income Tax Act.
[19] Subsection 118.2(1) provides that a
taxpayer may deduct those medical expenses paid within any
12-month period ending in the year. The Appellant filed a Notice
of Appeal for the 2000 taxation year. I was unable to determine
from the information contained in Tabs 20, 21 and 22 of
Exhibit A-1 when the Appellant paid the fees to the Academy.
In order to obtain a deduction for the 2000 taxation year the
Appellant must satisfy officials of the CCRA how much he paid to
the Academy in the 2000 taxation year.
[20] The appeal for the 2000 taxation year
is allowed, without costs.
Signed at Vancouver, British Columbia, this 8th day of July
2003.
J.T.C.C.
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