Ashley J. Skiber v. Minister of National Revenue, [1987] 2 CTC 2044, 87 DTC 406

Taylor, T.CJ.:—This is an appeal against an income tax assessment, for the year 1985, heard in Calgary, Alberta, on April 29, 1987, in which the Minister of National Revenue disallowed a claim for tuition fees. During the taxation year in issue, Miss Skiber was 11 years old, and had independent income. She filed an income tax return and paid income tax. The notice of appeal read in part:

I am in full-time attendance at Strathcona-Tweedsmuir School south of Calgary, and last year was in Grade 6. It is a private school with grades from one to twelve and provides courses leading to a secondary school certificate or diploma that is a requirement for entrance to a college or university.

According to Section 60(f) subsection (iii) of the Income Tax Act, a student is allowed to deduct her tuition fees from her income if she attends "an educational institution in Canada that is a high school or secondary school providing courses leading to a secondary school certificate or diploma that is a requirement for entrance to a college or university.”

Not only do I feel that I have met the requirements as specifically stated in Section 60(f) subsection (iii), I also think that the intent of the government when writing that section is revealed in Section 60(f) subsection (ii) where a student in any grade in a government run school is allowed to deduct any fees incurred.

In response thereto, the Minister noted:

— the Appellant was a student enrolled in an elementary grade during the 1985 taxation year;

— the school the Appellant attended during the material time was a private school;

— the Appellant was not during the 1985 taxation year, a student enrolled at an educational institution in Canada that is a high school or secondary school providing courses leading to a secondary school certificate or diploma that is a requirement for entrance to a college or university.

Mr. Alfred J. Skiber served as representative for his daughter. With the agreement of counsel for the Minister, in view of the appellant's age, Mr. Skiber also provided the Court with some further basic information regarding the school, its curricula, professors, etc., as well as the particular participation of the appellant in the school activities. She was in grade six, in the year under appeal, and the educational circumstances for her then represented those of "elementary" school. There was no dispute between the parties that academic subjects regularly associated with “high school or secondary school” curricula were taught at Strathcona. But there was no specific geographical, physical or tutorial division or distinction evident which would define any certain portion or aspect of the institution as “high school or secondary school", in contrast with some other area of it, which might be described as "elementary". The school is a "private" institution, as contrasted with a “public” institution. Strathcona might be described as "an educational institution in Canada, that is a private school incorporating both "elementary and high school or secondary school" teaching.

The first question then to be answered, is whether that situation, makes Strathcona any less "a high school or secondary school". As I see it, it should not. In my view that which characterizes an institution as a “high school or secondary school" for purposes of this section of the Act, is simply whether it fulfills the educational role of a "high school or secondary school". To my knowledge Strathcona performs that function and appears to do so in a manner acceptable for receipt of a certificate or diploma for enrollment at colleges and universities. The fact that the "educational institute" is not solely a "high school or secondary school" — to the exclusion of any other related function, does not appear to me to be the proper interpretation of the relevant section.

The second hurdle for this taxpayer, is that even though (supra) the institution itself may be classified as a “high school or secondary school" for purposes of subparagraph 60(f)(iii) of the Act, the school curriculum followed by this taxpayer was not that which readily could be associated with the “high school or secondary school" aspect of Strathcona. But, while she was in 1985 taking academic subjects more readily associated with "elementary school" it should also be accepted that she was enrolled in a total program which would ultimately lead to an acceptable certificate or diploma. The words of the Act as I read them do not mandate the interpretation placed on them by the Minister. In summary, then, the educational institution at issue, qualifies as a "high school or secondary school", under subparagraph 60(f)(iii) of the Act, and this taxpayer was certainly enrolled therein.

The appeal is allowed and the matter referred back to the respondent for reconsideration and reassessment.

The appellant is entitled to party and party costs.

Appeal allowed.