Orval Johnston v. Minister of National Revenue, [1988] 1 CTC 2476

Goetz, T.C.J.: —This is an appeal by the appellant seeking to claim in his deductions tuition fees as being medical expenses in filing his tax returns for the years 1982, 1983 and 1984.

Paragraph 3 of the reply to notice of appeal covers the way the Minister calculated these expenses and disallowed them. Said paragraph reads as follows:

3. The appellant in filing his returns of income for the 1982, 1983 and 1984 taxation years sought to deduct the following amounts as medical expenses in computing taxable income:

	1982	1983	1984
Tuition Fees	$5,368.70	$10,438.50	$10,924.04
Other Medical Expenses	—	71.70	398.64
Total Medical Expenses	$5,368.70	$10,510.20	$11,322.68
Less 3% of Appellant's
Income	1,425.92	1,506.25	1,616.94
Amount Sought to Be
Deducted as Medical
Expenses	$3,942.78	$9,003.95	$9,705.74

The appellant’s son David was legally blind since childhood and was certified as such and was under the care of highly qualified ophthalmologist, Dr. Dickson. He could not see colours and suffered from severe myopia and astigmatism and he could discern shadows and could read if what he was reading was in clear black and white, if he placed the papers within five inches of his eyes. He had a difficult time in school up to Grade 8, which he failed and had to repeat.

As I said, the appellant’s son was under the constant care of Dr. Dickson who, realizing what was happening to the boy, recommended that his parents send him to a private school where David could receive special attention and care. The parents, after checking out a number of schools, selected Appleby College which is an academic school and one that is expensive to attend. He thrived in that environment. His average on graduation was 75 per cent, becoming an Honours student, and is now attending Sir Wilfrid Laurier University. But for this assistance at Appleby, he would have been a drop-out. The assistance at Appleby consisted of the teachers emphasizing more oral lectures rather than using the blackboard all the time, and if they did use the blackboard, they would provide David with photocopies of the teachers' notes. He had access to the Art studio, where other students did not, in order to give him extra time. Living in residence, he had tutorial assistance from the teachers, and altogether the school, as indicated by the Headmaster giving evidence, gave him every bit of care and attention to assist him to graduate with Honours.

To claim these expenses as medical expenses, the appellant must come squarely under the provisions of subparagraph 110(1)(c)(vi) of the Income Tax Act. Section 110 is headed “Medical Expenses" and relates to a previous deduction provision. Subparagraph (vi) reads as follows:

(vi) for the care, or the care and training, at a school, institution or other place of the taxpayer, his spouse or any such dependant, who has been certified by an appropriately qualified person to be an individual 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 that individual,

Appleby was an expensive private school and it was at a great sacrifice on the part of the father, who had a modest income, to enroll David there.

I accept Dr. Dickson's certification of David as being blind and it would apply to all relevant times because, as Mr. Saltman pointed out, the certification was given at a time when the appellant would prepare his 1982 tax return.

The relevant provisions of the Act refer to the words "personnel specially provided by that school, institution or other place". As I see it, there was considerable extra effort, attention, care and consideration by the teachers shown to David. He gained access to facilities at a time when other students could not have them. In other words, the teachers did everything they could to accommodate David's handicap.

I am faced with the decision of my brother Judge Bonner in Avery v. Her Majesty the Queen (unreported) and that was a case involving a child with a hearing impairment, and Judge Bonner states quite clearly in his judgment and I quote:

Mr. Avery relied in his argument on the intention of Parliament. I must say that I strongly suspect that had a case such as this been brought to the attention of Parliament when section 110 was amended,

and, as you know, counsel, you both explained to me the progression of this section in being amended —

following I am sure among other things the decision of this Board, in Lawson and the Minister, Parliament would probably have changed the wording of the Act. I strongly suspect that they would have done that. However, what Parliament might have done is not for me to give effect to. The only thing I can give effect to is the wording of the statute. I must derive Parliament's intention from the words actually used by the Legislature when enacting the section.

I have agonized over this decision and feel that I am bound by the wording of the statute, as I interpret it, and that there clearly is a gap here that does not provide for this situation, as it would and should apply to a person with a solid hearing defect.

It is with very great regret then that I am forced to the conclusion that under the circumstances of this case I must dismiss the appeal and, in so doing, I would think that it is appropriate for the Court to suggest to the Minister that, with regard to the facts of this case, having regard to the ambiguity of the section, that there should be some consideration for a remission of the tax under the Financial Administration Act, R.S.C. 1970, c. F-10.

Appeal dismissed.