Bonner
J.T.C.C.:-This
is
an
appeal
from
an
assessment
of
income
tax
for
the
appellant’s
1984
taxation
year.
During
that
year,
the
appellant
entered
into
an
Agreement
in
writing
(the
’’Farmout
agreement")
with
Esso
Resources
Canada
Ltd.
("Esso").
Under
the
Farmout
agreement,
the
appellant
received
from
Esso
the
sum
of
$4.5
million
for
"...the
right,
licence
and
privilege
of
earning
an
interest
in
oil
sands
rights..."
in
the
Fisher
Creek
area
of
the
Primrose
Lake
Air
Weapons
Range
in
Alberta.
The
appellant
treated
the
consideration
received
as
proceeds
from
the
disposition
of
an
eligible
capital
property.
The
Minister
of
National
Revenue
("Minister")
made
the
assessment
under
appeal
on
the
basis
that
the
consideration
was
the
proceeds
of
disposition
of
a
Canadian
resource
property
and
that
it
was
required
by
subsection
59(1.1)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act")
to
be
included
in
the
amount
referred
to
in
clause
66.2(5)(b)(v)(A)
when
cumulative
Canadian
development
expense
was
calculated.
The
issue
in
this
appeal
is
whether
the
Minister
was
correct
in
assessing
tax
on
the
basis
that
the
thing
sold
was
a
"Canadian
resource
property"
within
the
meaning
of
paragraph
66(15)(c)
of
the
Act.
A
second
issue
raised
by
the
pleadings
was
abandoned.
The
rights
that
were
sold
to
Esso
were
acquired
by
the
appellant
under
an
agreement
with
the
Province
of
Alberta.
That
Agreement
was
formed
by
the
acceptance
on
April
26,
1978
of
an
offer
made
by
the
appellant
on
April
20,
1978
(the
"acquisition
agreement").
By
the
acquisition
agreement,
Alberta
leased
to
the
appellant
all
the
petroleum
and
natural
gas
rights
within
an
area
known
as
the
Primrose
Lake
Air
Weapons
Range.
The
offer
read
in
part:
Alberta
Energy
Company
Ltd.
(AEC)
hereby
offers
to
lease
all
petroleum
and
natural
gas
rights
(the
"said
rights"),
excluding
oil
sands
as
defined
in
section
2(1)
20
of
the
Mines
and
Minerals
Act
being
Chapter
238
of
the
Revised
Statutes
of
Alberta,
1970,
(Oil
Sands),
owned
by
Alberta
within,
upon
or
under
those
lands
(the
"said
lands")
in
the
north-eastern
portion
of
Alberta
known
as
"Primrose
Lake
Air
Weapons
Range”
generally
as
outlined
on
Schedule
"A"
attached
hereto.
It
provided
as
well
that
the
leases
to
be
granted
under
it
were
to
"..convey
no
right
to
crude
bitumen".
Specifically
it
said:
The
said
rights
shall
be
leased
to
AEC
in
one
or
more
leases
which
shall
be
in
the
form,
and
be
subject
to
the
royalties,
rentals
and
other
provisions,
currently
prescribed
in
the
Mines
and
Minerals
Act
(Alberta)
and
the
Regulations
thereunder,
but
notwithstanding
any
provision
of
the
Mines
and
Minerals
Act
and
regulations
thereunder
the
leases
convey
no
right
to
crude
bitumen
or
to
the
substances
which
could
be
recovered
as
part
of
a
bitumen
recovery
scheme.
Crude
bitumen
is
a
substance
of
higher
viscosity
than
crude
oil.
In
the
natural
state,
crude
bitumen
is
often
found
mixed
with
sand
in
deposits
called
"oil
sands"
and
will
not
flow
into
a
well
bore.
It
may
be
recovered
through
a
well
only
if
heated
sufficiently
to
reduce
the
viscosity,
permitting
it
to
flow.
Heating
may
be
accomplished
by
the
injection
of
steam.
It
is
the
higher
viscosity
in
the
natural
state
which
distinguishes
crude
bitumen
from
conventional
crude
oil.
The
presence
of
crude
bitumen
may
however
be
discovered
in
the
course
of
drilling
for
conventional
oil
and
gas.
The
acquisition
agreement,
which
required
the
appellant
to
spend
$32
million
evaluating
and
developing
the
petroleum
and
natural
gas
rights,
recognized
this
possibility
and
provided
for
it
in
clause
8:
In
the
normal
course
of
developing
the
Petroleum
and
Natural
Gas
Rights
AEC
may
encounter
crude
bitumen.
AEC
shall
thereupon
be
accorded
the
right
to
acquire,
without
the
payment
of
a
cash
purchase
price,
explore
for
and
develop
said
bitumen
under
such
terms
and
conditions
as
the
Minister
may
decide,
within
90
days
of
receiving
written
notice
to
that
effect
from
the
Minister.
Clause
8
is
the
source
of
any
rights
to
bitumen
or
oil
sands
that
the
appellant
may
have
held
and
have
conveyed
to
Esso
by
the
Farmout
agreement.
The
Farmout
agreement
was
formed
in
January
of
1984,
almost
six
years
after
the
acquisition
agreement.
It
related
to
a
block
of
lands,
161,280
acres
in
area,
forming
part
of
the
Primrose
Lake
Air
Weapons
Range,
and
known
as
the
Fisher
Creek
Block.
The
recitals
in
the
Farmout
agreement
included:
WHEREAS
pursuant
to
the
acquisition
agreement,
AEC
is
entitled
to
become
the
holder
of
petroleum
and
natural
gas
leases,
comprised
in
the
Primrose
Lake
Air
Weapons
Range
(hereinafter
called
"Air
Weapons
Range");
WHEREAS
pursuant
to
the
acquisition
agreement,
if
in
the
course
of
developing
rights
under
the
petroleum
and
natural
gas
leases
AEC
encounters
Crude
Bitumen,
AEC
will
be
accorded
the
right
in
the
Air
Weapons
Range
to
acquire,
explore
for,
and
develop
Crude
Bitumen
under
such
terms
and
conditions
as
Alberta
may
decide.
The
provision
under
which
the
amount
in
issue
was
paid
reads:
Esso
Resources
agrees
that,
in
addition
to
the
earning
obligations
hereinafter
stated,
it
will
pay
to
AEC
a
cash
consideration
of
$9
million
on
execution
of
this
agreement,
$4.5
million
of
which
shall
be
for
the
right,
licence
and
privilege
of
earning
an
interest
in
and
to
explore
for,
drill
for,
produce
or
take
petroleum
and
natural
gas
substances
from
the
lands
and
$4.5
million
of
which
shall
be
for
the
right,
license
and
privilege
of
earning
an
interest
in
oil
sands
rights.
It
is
the
consideration
for
which
the
second
$4.5
million
was
paid,
that
is
to
say,
"the
right,
licence
and
privilege
of
earning
an
interest
in
Oil
Sands
Rights",
which
is
now
in
question.
The
following
definition
of
"Oil
Sands
Rights"
was
inserted
in
the
Farmout
agreement
to
identify
precisely
what
the
parties
agreed
that
Esso
was
to
have
the
right
to
earn:
“Oil
Sands
Rights"
means
"oil
sands
rights"
as
defined
in
paragraph
121(c)
of
the
Mines
and
Minerals
Act
as
of
the
date
of
this
Farmout
agreement
but
only
to
the
extent
that
such
rights
may
be
available
or
are
granted:
(i)
in
accordance
with
Clause
8
of
the
acquisition
agreement
or
other
arrangement
in
substitution
therefor,
or
(ii)
by
any
leases,
licenses
or
permits
or
other
documents
of
title
to
oil
sands
rights
granted
from
time
to
time
to
AEC
in
accordance
with
the
provisions
of
Clause
8
of
the
acquisition
agreement
or
other
arrangement
in
substitution
therefor,
insofar
as
and
to
the
extent
only
that
the
same
pertain
to
Oil
Sands;
The
term
"crude
bitumen"
was
also
defined
in
the
Farmout
agreement.
"Crude
Bitumen"
has
the
meaning
set
forth
in
paragraph
1(1
)(d)
of
the
Mines
and
Minerals
Act
and
amendments
thereto
as
of
the
date
of
this
agreement;
The
paragraph
121(c)
definition
of
"oil
sands
rights"
and
the
paragraph
1
(l)(d)
definition
of
"crude
bitumen",
which
were
incorporated
by
reference
in
the
Farmout
agreement,
now
follow
(R.S.A.
1980
c.
M-15):
121
In
this
Part,
(c)
"oil
sands
rights"
means
(i)
the
right
to
mine,
quarry,
work,
remove,
treat
or
process
oil
sands
that
occur
in
a
zone
designated
by
the
Energy
Resources
Conservation
Board,
including
the
right
to
recover
any
products
therefrom
whether
above
or
below
the
surface,
and
(ii)
the
right
to
dispose
of
the
oil
sands
and
any
products
recovered
therefrom.
1(1)
In
this
Act,
(d)
"crude
bitumen"
means
a
naturally
occurring
viscous
mixture,
mainly
of
hydrocarbons
heavier
than
pentane,
that
may
contain
sulphur
compounds,
and
that
in
its
naturally
occurring
viscous
state
is
not
recoverable
at
a
commercial
rate
through
a
well;
There
was
introduced
evidence
of
correspondence
between
the
appellant
and
the
Energy
and
Natural
Resources
Department
of
Alberta
in
which
officials
of
the
Department
express
their
views
on
the
meaning
of
clause
8
of
the
acquisition
agreement.
Thus,
for
example,
in
a
letter
of
September
6,
1978
an
official
advised
the
appellant
that:
The
company
(the
appellant)
should
advise
potential
"farmees"
of
P&NG
rights
to
be
issued
under
the
terms
of
the
letter
agreement
between
the
company
and
the
Department
that
their
acquired
interest
in
the
P&NG
rights
will
not
automatically
provide
them
with
a
present
or
future
interest
in
any
oil
sands
that
may
be
encountered
in
drilling
for
oil
and
gas.
In
a
subsequent
letter
the
official
said
that
the
acquisition
agreement:
…€effectively
requires
AEC’s
participation
in
any
program
involving
oil
sands
evaluation
and
development.
This
means,
instead
of
dealing
with
the
industry
at
large
on
proposals
for
oil
sands
development
within
the
Primrose
Range,
the
Department
is
obliged
to
deal
with
AEC.
Other
than
that,
however,
AEC
or
its
partners
should
prepare
their
proposals
for
oil
sands
evaluation
and
development
in
accordance
with
the
guidelines
enclosed
herein.
The
Primrose
Lake
Range
which
was
the
subject
of
the
acquisition
agreement
included
a
number
of
areas
of
land
in
addition
to
the
Fisher
Creek
Block.
Neither
the
appellant
nor
any
of
its
farmees
had
carried
out
any
drilling
or
other
exploratory
work
on
the
Fisher
Creek
Block
prior
to
formation
of
the
Farmout
agreement.
However,
before
the
Farmout
agreement
was
formed,
crude
bitumen
had
been
encountered
in
three
other
areas
of
the
Range,
Ipiatik
West,
Ipiatik
East,
and
Burnt
Lake.
Oil
sands
leases
had
been
issued
for
these
areas.
Thus
clause
8
of
the
acquisition
agreement
did
in
practice
work
as
it
was
intended
to
work.
The
appellant
made
an
application
for
an
oil
sands
lease
relating
to
the
Fisher
Creek
Block
late
in
1985.
This
application
was
rejected
by
the
Minister.
A
subsequent
application
by
the
appellant
for
an
oil
sands
prospecting
permit
covering
a
larger
area
was
successful
and
a
permit
was
granted.
The
statutory
definition
of
"Canadian
resource
property",
as
it
read
at
the
relevant
time,
is
central
to
the
dispute.
Paragraph
66(15)(c)
of
the
Act
defined
the
term
in
part
as
follows:
"Canadian
resource
property"
of
a
taxpayer
means
any
property
acquired
by
him
after
1971
that
is
(ii)
any
right,
licence
or
privilege
to
(B)
prospect,
explore,
drill
or
mine
for
minerals
in
a
mineral
resource
in
Canada,
(vii)
any
right
to
or
interest
in
any
property
(other
than
property
of
a
trust)
described
in
any
of
subparagraphs
(i)
to
(vi)
(including
a
right
to
receive
proceeds
of
disposition
in
respect
of
a
disposition
thereof);
It
may
be
useful
at
this
point
to
note
two
features
of
the
definition.
Firstly
subparagraph
(vii)
provides
that
a
right
to
or
interest
in
a
right
or
privilege
to
prospect,
explore,
drill
or
mine
for
minerals
falls
within
the
definition.
Secondly
the
definition
uses
the
word
"any"
three
times
as
in
"any
property"
and
"any
right"
and
thereby
expresses
a
legislative
intent
to
cast
a
wide
net.
The
word
"property"
as
defined
in
subsection
248(1)
of
the
Act
is
also
very
broad
in
scope:
"property"
means
property
of
any
kind
whatever
whether
real
or
personal
or
corporeal
or
incorporeal
and,
without
restricting
the
generality
of
the
foregoing,
includes
(a)
a
right
of
any
kind
whatever,
a
share
or
a
chose
in
action,
The
appellant
contended
that
the
"Oil
Sands
Rights"
sold
to
Esso
could
not
be
a
Canadian
resource
property
unless
they
were
"property"
of
the
appellant
at
the
date
of
the
Farmout
agreement
in
January
1984.
The
appellant
argued
that
while
the
definition
of
"property"
in
subsection
248(1)
of
the
Act
included
a
right
of
any
kind
whatever,
the
expression
"Oil
Sands
Rights"
used
in
the
Farmout
agreement
was
a
defined
term
and
was
not
to
be
regarded
as
a
right
referred
to
in
the
definition
of
"property"
merely
because
the
same
word,
"right",
was
used.
I
agree
this
far.
It
was
submitted
that
the
thing
sold
was
a
"mere
expectation",
not
a
right,
and,
because
it
was
not
a
right,
it
could
not
be
"property"
within
the
meaning
of
the
applicable
statutory
language.
The
appellant
argued
that
the
"Oil
Sands
Rights"
were
not
true
rights
because
the
Alberta
Minister
was
under
no
duty
or
obligation
to
issue
an
oil
sands
prospecting
permit
or
oil
sands
lease;
the
Minister
had
a
discretion
under
the
Mines
and
Minerals
Act
either
to
refuse
to
grant
a
lease
or
exploration
permit
or
to
grant
the
approval
subject
to
prescribed
conditions.
It
was
the
appellant’s
position
that
the
right
referred
to
in
clause
8
of
the
acquisition
agreement
was
a
mere
right
to
negotiate
with
the
Minister
or
a
right
of
first
refusal.
Clause
8
did
not
create
a
right
of
property
or
an
interest
in
land
but
was
a
mere
expectancy.
The
appellant
further
contended
that
clause
8
came
into
operation
only
upon
an
encounter
with
crude
bitumen
in
the
normal
course
of
the
exercise
of
its
petroleum
and
natural
gas
rights.
The
appellant
submitted
that
this
was
a
true
condition
precedent.
Since
the
appellant
had
not
encountered
crude
bitumen
at
the
time
that
the
Farmout
agreement
was
entered
into,
the
appellant
had
no
right
to
acquire
"Oil
Sands
Rights".
The
respondent
argued
that
the
appellant
had
a
legally
enforceable
option
under
the
acquisition
agreement:
an
option
to
acquire,
explore
for,
and
develop
any
crude
bitumen
encountered
in
the
course
of
developing
its
petroleum
and
natural
gas
rights.
It
was
the
respondent’s
submission
that
the
only
thing
the
Minister
had
reserved
was
the
power
to
determine
the
terms
and
conditions
under
which
the
bitumen
could
be
developed.
The
respondent
contended
that
clause
8
should
be
interpreted
in
light
of
the
subsequent
conduct
of
the
parties.
It
was
said
that
the
parties
to
the
acquisition
agreement
themselves
had
treated
clause
8
as
having
conveyed
to
the
appellant
a
legal
right
in
the
bitumen.
The
respondent
relied
on
the
fact
that
Alberta
had
previously
granted
oil
sands
leases
in
three
other
areas
of
the
Primrose
Range.
The
respondent
argued
that
it
was
strange
for
the
appellant
to
assert
that
clause
8
of
the
acquisition
agreement
was
unenforceable
when
it
had
already
been
acted
on
by
the
parties
as
if
it
were
enforceable.
Furthermore,
the
appellant
and
Esso
had
agreed
that
the
$4.5
million
was
in
respect
of
the
disposition
of
a
right
to
an
interest
in
oil
sands
rights.
It
was
the
respondent’s
submission
that
this
characterization
should
bind
the
appellant;
the
appellant
had
characterized
it
as
a
right
and
could
not
now
assert
that
it
was
not.
The
respondent
also
argued
that
the
appellant
had
a
legally
enforceable
right
against
the
Minister
under
clause
8
of
the
acquisition
agreement
because
the
Minister
was
obliged
to
accord
the
rights
on
reasonable
terms
and
conditions.
Counsel
referred
to
the
mandatory
wording
in
clause
8:
"AEC
shall
thereupon
be
accorded
the
right...."
In
the
respondent’s
submission,
there
was
no
condition
precedent
in
clause
8
of
the
acquisition
agreement
because
clause
8
was
to
be
read
as
conferring
a
right
to
any
bitumen
encountered,
and
there
was
a
virtual
certainty
of
encountering
bitumen.
It
was
the
respondent’s
submission
that
encountering
bitumen
was
simply
a
term
of
the
acquisition
agreement
and
not
a
condition
precedent
to
the
existence
of
a
contract;
the
right
to
acquire
a
lease
or
permit
was
granted
when
the
acquisition
agreement
was
accepted.
The
respondent
argued,
in
the
alternative,
that,
if
the
option
fell
short
of
being
a
right
to
a
right,
it
was
an
interest
in
a
right
to
prospect,
explore,
drill,
and
mine
for
minerals
in
a
mineral
resource
in
Canada
and
thus
within
the
statutory
definition.
Without
doubt,
rights
under
paragraph
121(c)
of
the
Mines
and
Minerals
Act
fall
within
the
clause
66(
15)(c)(ii)(B)
definition
of
Canadian
resource
property.
They
are
included
in
the
words...
"any
right
to
prospect,
explore,
drill
or
mine
for
minerals
in
a
mineral
resource
in
Canada".
The
appellant
had
in
fact
neither
applied
for
nor
received
an
oil
sands
prospecting
permit
or
an
oil
sands
lease
in
respect
to
the
Fisher
Creek
Block
at
any
time
before
January
1984.
Thus
the
appellant
did
not
at
the
time
of
the
Farmout
agreement
hold
or
dispose
of
any
such
rights.
That
is
not,
however,
the
end
of
the
matter.
The
4.5
million
dollars
was,
according
to
the
language
of
the
Farmout
agreement,
paid
not
only
for
existing
rights
of
that
description
but
also
for
rights
which
"may
be
available".
The
essential
question
is
whether
the
appellant
disposed
of
property
that
is
a
right
to
any
right,
licence
or
privilege
to
prospect,
explore,
drill
or
mine
for
minerals.
In
my
view,
the
appellant,
by
the
Farmout
agreement,
disposed
of
a
right
to
a
right
of
the
sort
described
in
clause
66(15)(c)(ii)(B).
I
accept
the
argument
that
an
encounter
with
crude
bitumen
had
to
occur
before
the
appellant
or
its
farmee
could
call
on
the
Minister
under
clause
8
of
the
acquisition
agreement
to
accord
to
it
"the
right
to
acquire...explore
for
and
develop
said
bitumen
...."
The
language
of
clause
8
is
not
open
to
any
other
reasonable
interpretation.
Nevertheless,
as
a
consequence
of
the
acquisition
agreement,
the
appellant
was
singled
out
as
the
possessor
of
the
exclusive
right
to
call
on
the
Minister
to
accord
to
it,
in
respect
of
any
bitumen
which
it
encountered,
any
rights
which
the
Minister,
in
the
exercise
of
the
discretion
vested
in
him
by
the
Mines
and
Minerals
Act,
might
decide
to
issue.
I
accept
the
assertion
that
the
Minister
was
entitled
under
section
153
of
the
Mines
and
Minerals
Act,
to
either
refuse
to
issue
an
exploration
licence
or
to
make
any
such
licence
subject
to
conditions
which
he
might
prescribe.
I
do
not
accept
the
argument
that
the
presence
of
such
ministerial
discretion
leads
to
a
conclusion
that
the
appellant
did
not
have
a
paragraph
66(15)(c)
right.
The
language
of
clause
8
of
the
acquisition
agreement
is
mandatory
and
provides
that
the
appellant
shall
be
accorded
the
bitumen
rights.
It
seems
clear
to
me
that
clause
8
was
intended
to
govern
such
rights
as
the
Minister
in
the
exercise
of
his
discretion
might
decide
to
issue
and
to
impose
on
the
Minister
in
respect
of
those
rights
the
obligation
to
issue
them
to
the
appellant.
In
my
view
the
appellant’s
clause
8
right
was
not,
as
suggested
at
one
stage
during
argument
a
right
to
a
right
to
a
right
and
therefore
one
which
falls
outside
the
scope
of
the
definition
in
paragraph
66(15)(c).
The
approach
suggested
was
one
which
would
count
the
rights
to
be
"accorded"
after
an
encounter
with
bitumen
as
one
right
and
the
right
received
upon
the
exercise
of
the
"right
to
acquire"
as
another.
It
is
a
mechanical
approach
and
quite
unrealistic.
It
is
not
acceptable
in
the
determination
of
liability
to
income
tax.
Much
of
the
argument
advanced
on
behalf
of
the
appellant
seems
to
rest
on
the
unstated
premise
that
paragraph
66(15)(c)
encompasses
only
unfettered
rights
to
prospect,
explore,
drill
etc.
The
context
in
which
rights
of
the
sort
described
in
that
provision
often
arise
is
described
in
R.
Dussault
and
L.
Borgeat,
Administrative
Law:
A
Treatise,
2d
ed.,
vol.
3
(Toronto:
Carswell,
1989)
at
page
125:
The
Crown
is
the
owner
of
the
public
domain
and
may
consent
to
relinquishing
all
or
some
of
its
rights,
so
long
as
the
domain
is
not
put
in
jeopardy
through
improper
development.
It
is
for
this
reason
that
most
often
the
agreement
between
the
individual
and
the
public
authority
allows
the
latter
to
determine
the
norms
or
standards
that
will
apply.
Consequently,
the
licensee
is
required
to
make
use
of
the
Crown
domain
under
a
system
of
unilateral
decisions
made
by
the
Administration
within
the
rather
wide
framework
established
by
statute.
In
my
view,
an
intention
to
confine
paragraph
66(15)(c)
rights
to
absolute
rights
is
most
unlikely
to
be
present
in
the
factual
context
addressed
by
the
legislation.
The
acquisition
agreement
was
entered
into
by
the
Alberta
Minister
and
the
appellant
at
a
time
when
little
was
known
about
the
nature
and
extent
of
bitumen
deposits
within
the
Primrose
Lake
Range.
It
is
unlikely
that
either
the
appellant
or
the
Alberta
Minister
would
be
inclined
in
such
circumstances
to
attempt
to
specify
in
advance
of
an
encounter
with
bitumen
just
how
the
discretion
possessed
by
the
Alberta
Minister
under
the
Mines
and
Minerals
Act
ought
to
be
exercised.
No
doubt
it
was
for
that
reason
that
clause
8
was
drafted
in
general
language.
In
those
circumstances
it
would
make
sense
for
the
appellant
and
the
Alberta
Minister
to
agree
quite
simply
that
the
appellant
would
be
the
person
entitled
to
receive,
as
of
right,
any
right
which
the
Alberta
Minister
might
decide
to
issue
permitting
the
exploration,
development
or
exploita-
tion
of
deposits
of
bitumen
which
the
appellant
might
encounter.
That,
as
I
see
it,
was
the
intention
expressed
by
clause
8.
The
appellant
could
not
compel
the
Minister
to
issue
rights
of
the
type
contemplated
by
clause
8
but
it
could
compel
him
to
issue
such
rights
to
it
if
he
decided
to
issue
them
at
all.
Accordingly
what
the
appellant
had
under
clause
8
and
what
was
sold
to
Esso
was
in
my
view
a
Canadian
resource
property
within
the
meaning
of
paragraph
66(15)(c)
of
the
Act.
If,
contrary
to
my
view,
what
was
sold
was
not
a
right,
it
was
at
least,
a
"privilege"
within
the
meaning
of
clause
66(15)(c)(2)(B)
of
the
Act.
The
ordinary
meaning
of
the
word
"privilege"
as
set
out
in
the
Oxford
English
Dictionary
is:
2.
a
A
right,
advantage,
or
immunity
granted
to
or
enjoyed
by
a
person,
or
a
body
or
class
of
persons,
beyond
the
common
advantages
of
others;
3.
A
privileged
position;
the
possession
of
an
advantage
over
others
or
another;
Clearly
the
appellant
acquired
under
clause
8
and
disposed
of
to
Esso
a
right
or
advantage
with
respect
to
bitumen
deposits
encountered
which
the
right
or
advantage
was
superior
to
that
possessed
by
others.
For
the
foregoing
reasons
the
appeal
will
be
dismissed
with
costs.
Appeal
dismissed.