Giroday v. R., [1998] 3 CTC 2756

Rowe D.J.T.C.:

The appellant appeals from an assessment of income tax for his 1993 taxation year. In filing his income tax return the appellant sought to include, as a medical expense, an amount of $9,571.00 paid by him to Choice Learning Centre for Exceptional Children Society (Choice), a school, in payment of tuition fees covering the cost of attendance for his son during the 1993 taxation year and sought a tax credit in respect of such amount in computing his income tax payable for the year. The Minister of National Revenue (the “Minister”) disallowed such tax credit on the basis the fees paid to Choice were not an allowable medical expense under subsection 118.2(2) of the Income Tax Act (the “Act*’) and, therefore, the appellant was not entitled to the relevant tax credit under subsection 118.2(1) of the Act.

The appellant, Giroday, testified his son Michael - born on March 30, 1982 - had been a student at a school - St Joseph The Worker - during Grades 4 and 5. The appellant stated Michael had been described by his teachers as “the smartest boy in the class”. However, the appellant noticed Michael had become disenchanted with school. As a result, he contacted the Surrey School Board to discuss the situation and someone at the office suggested he inquire about a school called Choice. The appellant explained he followed up on the suggestion and called Choice and was told by a member of the administration that psychological testing was required to demonstrate that Michael was ranked in the top 5% of the population, in terms of intellectual ability. Choice provided the appellant with a list of 10 psychologists in private practice who were capable of carrying out the required testing. The alternative would have been to wait for six months, or more, in order that a publicly-funded psychologist could be available to do the testing. The appellant stated he chose Dr. Gwyn Gilliland, M.A.(Psych) M.Ed. to interview Michael and undertake a series of tests. Dr. Gilliland prepared a report - Exhibit A-1 - which indicated Michael - at age 11 - had completed 11 subtests of the Weschler Intelligence Scale for Children (WISC III), the Peabody Picture Vocabulary Test (PPVT) Form L and the Raven Progressive Matrices. On the verbal subtests, Michael scored at the 99.5th percentile for children his age and performance subtests were at the 99.7th percentile. The Full Scale Score was 144, placing him at the 99.8th percentile overall. On other tests, Michael scored above the 95th percentile and Dr. Gilliland suggested he would benefit from a considerably more challenging program than he was receiving in Grade 5 at his present school. Dr. Gilliland had gone on to recommend Choice on the basis it had small classes and an individualized academic program with a wide range of enrichment activities and Michael would be placed with other very bright young children. As a consequence of Michael having tested above the 95th percentile - a pre-requisite for admission to Choice - he was then able to register there and began attending classes, which he enjoyed, and he was soon advanced one grade. The appellant stated that, in his view, Michael was handicapped by his mental ability because the school system did not allow him to operate at his potential. He stated Michael was now attending public school in Richmond, British Columbia, in a program, unfortunately, not designed for gifted students. There had been another public school which had special programs for students with superior intellectual abilities but that institution was located across a geographical boundary and Michael was not eligible to attend. The appellant stated Michael is now in Grade 11 and is a well-behaved child without any particular problems.

Counsel for the respondent did not cross-examine.

The appellant was aware there had been an appeal heard earlier in the week involving a student at Choice and that there were other appeals scheduled later on which also pertained to the issue of tuition fees as a medical expense. I indicated to the appellant I had reserved decision in the matter of Collins v. R. (May 14, 1998), Doc. 97-648(IT)I, 97-2169(IT)I (T.C.C.) - two appeals heard together - and that I would be issuing formal reasons.

I have issued Reasons for Judgment, dated May 14, 1998, in Collins and undertook an analysis of the various components of paragraph 118.2(2)(e) - the relevant provision of the Act - which must be satisfied in order for an appellant to be successful. I informed the appellant at the hearing of his appeal that I would attach a copy of the Collinsdecision to these reasons so he could have the opportunity to understand the criteria which had to be met and to be provided with definitions of the various terms within the paragraph together with a review of the relevant jurisprudence on the issue of expenditures which qualified as medical expenses eligible for a tax credit.

On the facts in the within appeal, it is apparent Michael did not suffer from a mental handicap and had not been so certified by any qualified professional. The failure of the public school system - within the appellant’s district - to provide proper programs for students as gifted as Michael is detrimental to his academic progress and to the process of realizing his full potential. However, it cannot be said that Michael is suffering from a mental handicap merely because of his superior intellectual ability. A superbly gifted athlete may contemplate moving to a new municipality in order to find adequate training facilities or to participate in meaningful competitions but the absence of such cannot be regarded as a physical handicap suffered by that gifted person.

The appellant has been unable to demonstrate the assessment is incorrect and the appeal is hereby dismissed.

Appeal dismissed.