Guy
Tremblay:—This
case
was
heard
at
Ottawa,
Ontario,
on
December
4,
1978.
1.
Point
at
Issue
The
point
is
to
know
whether
the
appellant
is
entitled
to
claim
an
amount
of
$3,114.74
as
medical
expenses
and
college
fees
paid
for
his
son,
Andrew,
for
the
1976
taxation
year.
2.
Burden
of
Proof
The
burden
is
on
the
appellant
to
show
that
the
respondent’s
assessment
is
incorrect.
This
burden
of
proof
derives
not
from
one
particular
section
of
the
Income
Tax
Act,
but
from
a
number
of
judicial
decisions,
including
the
judgment
delivered
by
the
Supreme
Court
of
Canada
in
R
W
S
Johnston
v
MNR,
[1948]
CTC
195;
3
DTC
1182.
3.
The
Facts
3.01
Andrew
Somers
is
the
minor
son
of
the
appellant.
3.02
After
attending
Rockliffe
Public
School
for
some
years,
Andrew
Somers
was
placed
in
Ashbury
College,
a
private
boys’
school
in
Rockliffe,
Ontario.
3.03
The
psychologist
of
the
Ottawa
Board
of
Education
refers
to
Andrew
Somers
as
a
“boy
of
high
average
intelligence
experienced
(sic)
learning
difficulties
in
the
regular
school
system,
primarily
due
to
his
poor
concentration
abilities
and
hyperactivity”.
He
recommended
a
tightly
structured
educational
environment
for
Andrew
(paragraph
3.02).
3.04
Therefore,
the
appellant
placed
Andrew
in
the
Ashbury
College
because
that
school
was
more
suitable
to
his
son’s
temperament.
3.05
Evidence
given
by
the
headmaster
of
Ashbury
College
confirms
the
fact
of
the
tightly
structured
educational
environment
but
established
clearly
that
it
was
not
an
institution
especially
for
the
mentally
or
physically
handicapped
pupils
or
students
with
behavioral
problems.
The
Ashbury
College
brochure
was
filed
as
exhibit
R-1.
3.06
In
his
appeal,
the
appelland
claimed
the
sum
of
$3,114.74
incurred
for
Andrew
as
follows:
|
Fees
and
expenses,
Ashbury
College,
including
books,
lunches,
|
|
|
insurance,
etc.
|
$2,845.23
|
|
Private
French
lessons
|
81.62
|
|
Clothes
for
Ashbury
College
|
187.89
|
|
$3,114.74
|
3.07
At
the
beginning
of
the
hearing,
the
appellant
withdrew
his
claims
concerning
French
lessons
and
clothing.
3.08
The
assessment
refusing
the
above-mentioned
expenses
was
issued
by
the
respondent
on
June
28,
1977.
3.09
To
the
notice
of
objection
filed
on
September
26,
1977,
the
Minister
answered
on
January
5,
1978,
confirming
the
assessment.
3.10
An
appeal
was
lodged
with
the
Tax
Review
Board
on
March
23,
1978.
4.
Law—Comments
4.1
Law
The
subparagraph
of
the
new
Act
involved
in
the
present
case
Is
110(1)(c)(vi):
110.(1)
For
the
purpose
of
computing
the
taxable
income
of
a
taxpayer
for
a
taxation
year,
there
may
be
deducted
from
his
income
for
the
year
such
of
the
following
amounts
as
are
applicable:
(c)
an
amount
equal
to
that
portion
of
medical
expenses
in
excess
of
3%
of
the
taxpayer’s
income
for
the
year
paid
either
by
the
taxpayer
or
his
legal
representatives
(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.
4.2
Comments
The
evidence
showed
that
Andrew
Somers
had
behavioral
problems
in
the
public
schools
system
but
not
that
he
had
physical
or
mental
handicaps.
It
also
showed
that
Ashbury
College
was
not
an
institution
as
the
one
provided
for
in
subparagraph
110(1
)(c)(vi)
quoted
above.
Paragraph
22
of
Interpretation
Bulletin
No.
225
cited
by
the
appellant
cannot
be
construed
against
the
above-mentioned
section
of
the
new
Act.
Since
the
appellant
has
not
reversed
the
burden
of
proof,
the
appeal
is
therefore
dismissed.
5.
Conclusion
The
appeal
is
dismissed
in
accordance
with
the
above
Reasons
for
Judgment.
Appeal
dismissed.
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