Myer D Brody v. Minister of National Revenue, [1973] CTC 2206, 73 DTC 176

The Assistant Chairman:—These are the appeals of Myer D Brody from assessments of the appellant’s 1969 and 1970 taxation years in which amounts of $3,882.50 and $5,879.50 respectively, claimed. by the appellant as medical expenses in those yéars, were disallowed by the Minister on the grounds that these amounts were not medical expenses but tuition fees paid on behalf of the appellant’s son.

The appellant is the father of Mark Brody, an 18-year old boy, who is a severe dyslexic. In the years pertinent to these appeals Mark Brody was confined to the Vanguard School for which the appellant paid $3,882.50 in 1969 and $5,879.50 in 1970.

The appellant claims that these expenditures were for services necessary for the treatment and diagnosis of Mark Brody and that they are deductible expenditures within the meaning of section 27 of the Income Tax Act.

The respondent, on the other hand, claims that the Vanguard School is neither a nursing home nor a private hospital and that Mark Brody did not receive any laboratory, radiological or other diagnostic services while at school. The respondent holds that the Vanguard School is an educational institution which specializes in the teaching of children with severe handicaps and consequently the sums paid by the appellant are tuition fees and not medical expenses as described in section 27(1 ){c) of the Income Tax Act.

In order to determine the nature of the treatment provided to his son at the Vanguard school, the appellant was asked to obtain and forward to the Board the attending doctor’s report describing the precise treatments given his son during the years pertinent to this appeal. By letter dated April 4, 1973 the appellant stated that the required information would be submitted to the Board in May of 1973. The appellant, however, has failed to submit this report.

These appeals are identical with that of Donald M Lawson v MNR, [1971] Tax ABC 833; 71 DTC 572, which was heard by W O Davis, Esq, QC, then a Member of the Tax Appeal Board. Subsequently the present Chairman of the Board, K A Flanigan, Esq, QC was seized with the appeals of Donald M Lawson for the taxation years 1967, 1968 and 1969 on the very same issue. After thorough and sympathetic consideration of all the aspects of the appeals, both presiding Members^ who were bound to apply the Act as written, dismissed the appeals most reluctantly.

There is nothing in the case at bar which differs essentially from the facts and arguments presented in the Donald M Lawson appeal, and there is no way that the circumstances of the appeal under consideration can fall within the meaning of section 27 of the Income Tax Act that was applicable in 1969 and 1970.

Although the statute has since been amended to permit deductions of this nature, it is beyond the jurisdiction and the power of the Board to ignore the state of the law at the time pertinent to this appeal. To apply the subsequently amended section of the Act in this case would, in my Opinion, be contrary to the principles of elementary justice and unfair to those whose appeals had to be decided, and were decided, on the basis of the Act as then written.

For these reasons, I have reluctantly come to the conclusion that I have no alternative but to dismiss the appeal.

Appeal dismissed.