Addy,
J:—This
appeal
is
against
a
decision
of
the
Tax
Review
Board
which
upheld
an
income
tax
assessment
made
by
the
Minister
of
National
Revenue
against
the
plaintiff
for
the
year
1975.
There
are
two
matters
in
issue:
the
first
one
concerns
the
disallowance
of
a
claim
for
$1,024.30
claimed
by
the
plaintiff
as
moving
expenses
and
the
second
one,
the
sum
of
$1,490.48
disallowed
as
a
trading
loss
for
certain
shares
sold
during
the
year.
As
to
the
first
point,
the
plaintiff,
as
an
employee
of
the
Department
of
National
Revenue,
moved
from
Montreal
to
Ottawa
during
the
year.
He
claimed
and
received
from
the
Department
certain
expenses
for
moving
which
are
not
in
issue.
The
expenses
in
issue
in
this
case
are
those
which
the
plaintiff
incurred
for
room
and
board
and
other
incidental
out-of-pocket
expenses
of
his
son
who
completed
his
high
school
studies
in
Montreal
before
going
to
college
rather
than
to
come
to
Ottawa
to
complete
the
final
year.
A
total
amount
of
$2,500
at
$250
per
month
was
actually
paid
to
a
former
neighbour
of
the
plaintiff
in
Montreal
where
the
son
resided
while
completing
his
studies.
$1,000
of
this
was
expended
during
1975
and
this
sum
is
the
subject
of
the
present
appeal
together
with
an
amount
of
$24.50
paid
to
Bell
Canada
for
a
telephone
for
the
son
during
that
period.
There
is
no
question
but
that
it
was
greatly
to
the
advantage
of
the
son,
who
was
a
brilliant
student,
to
complete
his
studies
in
Montreal
at
that
stage
rather
than
to
transfer
to
the
Ontario
school
system
in
his
final
year
of
high
school.
The
family
moved
at
the
end
of
July
to
Ottawa
and
the
son
came
with
them.
His
possessions
were
moved
to
Ottawa
at
the
time
and
he
resided
with
them
there
in
his
own
room
until
Labour
Day
when
he
returned
to
Montreal
in
order
to
attend
his
final
year
of
high
school
as
above
mentioned.
It
is
worthy
of
note
that
the
plaintiff
claimed
and
was
reimbursed
for
the
moving
expenses
of
the
son
to
Ottawa
in
July
including
meals
and
accommodation
during
the
moving
period.
The
issue
is
simply
whether
the
above-mentioned
sum
of
$1.024.50
was
“paid
by
him
on
account
of
moving
expenses
incurred
in
the
course
of
the
moving
from
his
old
residence
to
his
new
residence’’
as
provided
for
in
paragraph
62(1
)(b)
of
the
Income
Tax
Act,
RSC
1952,
chapter
148,
as
amended
by
section
1
of
SC
1970-71-72,
chapter
63.
and.
therefore,
whether
he
can
claim
this
amount
as
an
expense
for
income
tax
purposes.
Subsection
(3)
of
that
section
reads
as
follows:
62.
(3)
In
subsection
(1),
“moving
expenses’’
includes
any
expense
incurred
as
or
on
account
of
(a)
travelling
costs
(including
a
reasonable
amount
expended
for
meals
and
lodging),
in
the
course
of
moving
the
taxpayer
and
members
of
his
household
from
his
old
residence
to
his
new
residence,
(b)
the
cost
to
him
of
transporting
or
storing
household
effects
in
the
course
of
moving
from
his
old
residence
to
his
new
residence,
(c)
the
cost
to
him
of
meals
and
lodging
near
the
old
residence
or
the
new
residence
for
the
taxpayer
and
members
of
his
household
for
a
period
not
exceeding
15
days,
(d)
the
cost
to
him
of
cancelling
the
lease,
if
any,
by
virtue
of
which
he
was
the
lessee
of
his
old
residence,
and
(e)
his
selling
costs
in
respect
of
the
sale
of
his
old
residence.
From
this
subsection
it
seems
abundantly
clear
that
the
words
“moving
expenses’’
mean
the
expenses
incurred
in
physically
moving
and
in
actually
changing
residence
and
certain
other
very
specific
expenses
relating
directly
to
the
actual
move
and
reinstallation
and
do
not
mean
an
amount
to
compensate
for
incidental
disturbances
or
damages
not
related
to
the
actual
move
and
reinstallation
in
the
new
residence.
Furthermore,
it
would
be
stretching
inordinately
the
ordinary
meaning
which
one
would
normally
attribute
to
the
expression
“moving
expenses’’
if
one
were
to
include
the
living
and
tuition
fees
for
the
son
for
the
year
following
the
move.
Were
I
not
disallowing
this
part
of
the
appeal
on
the
above
grounds.
I
would
disallow
it
on
the
grounds
that
the
plaintiff
had
failed
to
discharge
the
onus
cast
upon
him
of
establishing
how
much
of
the
said
sum
of
$1.024.50
was
actually
incurred
by
reason
of
the
move,
for
it
is
obvious,
and
it
was
fully
admitted,
that
the
plaintiff
would
have
had
to
pay
something
for
his
son’s
food
and
incidental
expenses
even
if
they
had
not
moved.
No
attempt
was
made
to
establish
this.
Also
no
allowance
was
made
for
the
amounts
actually
received
for
the
move
of
the
son
and
for
his
meals
and
accommodation,
at
the
end
of
July.
The
plaintiff
is
claiming
the
full
amount
paid
the
neighbour
for
the
accommodation,
food
and
incidental
expenses
of
the
son
without
taking
any
of
the
above
matters
into
consideration.
It
is
obvious
that
if
the
plaintiff
were
entitled
to
the
expenses
it
would
only
be
those
additional
expenses
actually
caused
by
the
move.
The
onus
is
on
the
taxpayer
to
establish
them.
On
the
second
issue,
namely
the
question
of
whether
the
sum
of
$1,490.48
can
be
claimed
as
a
trading
loss.
the
evidence
established
that
the
plaintiff
did
on
March
24,
1975
purchase
some
common
shares
of
a
public
company
which
shares
were
listed
on
the
stock
market
and
were
subsequently
sold
on
March
6.
1975
at
a
loss
of
$1,490.48.
In
his
income
tax
return
he
claimed
that
loss
as
a
capital
loss
and
therefore
did
not
object
to
being
assessed
accordingly.
He
also
failed
to
claim
the
amount
as
a
loss
of
income
before
the
Tax
Review
Board
and
raised
the
matter
in
this
present
appeal
for
the
first
time.
The
plaintiff,
a
chartered
accountant
by
profession,
was
promoted
in
1975
to
the
position
of
Senior
Appeals
Officer
in
the
Taxation
Appeals
Division
at
the
Department
of
National
Revenue.
It
was
as
a
result
of
this
appointment
that
he
moved
to
Ottawa
in
that
year.
He
had
been
employed
by
the
Department
since
1954
and
for
several
years
previously
in
Montreal
as
an
assessor
and
more
recently
as
a
group
head
of
assessors
by
the
same
Department.
His
evidence
was
that
when
he
purchased
the
shares
in
March
1975
he
wished
to
realize
a
quick
profit.
He
testified
that
he
was
not
certain
that
he
was
going
to
move
to
Ottawa
at
that
time
as
the
move
depended
on
the
measure
of
his
success
in
the
departmental
competition
for
the
position,
but
felt
that
he
would
likely
succeed.
He
stated
that
his
decision
to
purchase
the
common
shares
in
issue
resulted
from
certain
special
information
as
to
the
probability
of
certain
benefits
being
granted
the
company
by
the
Government
of
British
Columbia.
As
a
result,
he
invested
in
the
shares
hoping
to
realize
a
quick
profit.
These
benefits
did
not
materialize
and
the
loss
occurred.
He
testified
that
the
reason
why
he
did
not
originally
claim
the
loss
as
a
revenue
loss
was
that
the
general
policy
of
the
Department
up
until
quite
recently
was
not
to
allow
a
person
who
was
not
a
stockbroker
or
a
professional
trader
to
do
so
and
he
stated
that
he
had
only
heard
of
the
change
of
policy
after
his
appeal
to
the
Tax
Review
Board
had
been
launched.
It
is
difficult
for
me
to
conceive
how
anyone,
with
the
professional
qualifications
of
the
plaintiff
and
his
experience
since
1954
in
the
specific
field
of
income
tax
assessment,
could
be
so
naïve
as
to
believe
that
a
taxpayer’s
liability
for
assessment
depended
on
departmental
policy.
Be
that
as
it
may,
although
a
subsequent
decision
to
claim
a
loss
under
one
heading
or
another
cannot
change
the
taxpayer’s
intention
as
it
existed
at
the
moment
of
the
purchase
of
the
asset,
it
is
certainly
one
of
the
surrounding
circumstances
which
may
be
taken
into
account
in
determining
that
intention.
It
is
clear
that
the
expressed
intention
of
the
taxpayer
is
not
the
sole
determining
factor
in
deciding
under
which
category
the
transaction
must
fall.
Refer
Irrigation
Industries
Limited
v
MN
Ft,
[1962]
SCR
346
at
355;
[1962]
CTC
215
at
230;
62
DTC
1131
at
1138,
where
the
singleness
of
isolation
of
a
transaction,
although
it
may
at
times
be
an
important
factor,
is
not
by
itself
a
determining
one.
An
isolated
transaction
can
constitute
an
adventure
in
the
nature
of
trade
and
the
profit
or
loss
resulting
therefore
can
be
treated
as
revenue.
Refer
MNR
v
James
A
Taylor,
[1956]
CTC
189
at
211
;
56
DTC
1125
at
1137.
In
the
case
at
bar,
although
the
plaintiff
had
invested
in
the
stock
market
on
several
occasions
in
the
years
previous
to
1973,
he
made
no
investment
in
1973
or
1974.
During
1975
he
only
made
the
one
investment
which
is
the
subject
matter
of
this
appeal.
He
made
no
investment
in
1976
but
did
make
some
investments
in
1977.
At
page
351
[219,
1133]
of
the
above-mentioned
report
of
the
Irrigation
Industries
case,
Martland,
J,
in
delivering
the
decision
of
the
majority
of
the
Supreme
Court
of
Canada,
stated:
I
cannot
agree
that
the
question
as
to
whether
or
not
an
isolated
transaction
in
securities
is
to
constitute
an
adventure
in
the
nature
of
trade
can
be
determined
solely
upon
that
basis.
In
my
opinion,
a
person
who
puts
money
into
a
business
enterprise
by
the
purchase
of
the
shares
of
a
company
on
an
isolated
occasion,
and
not
as
a
part
of
his
regular
business,
cannot
be
said
to
have
engaged
in
an
adventure
in
the
nature
of
trade
merely
because
the
purchase
was
speculative
in
that,
at
that
time,
he
did
not
intend
to
hold
the
shares
indefinitely,
but
intended,
if
possible,
to
sell
them
at
a
profit
aS
soon
as
he
reasonably
could.
I
think
that
there
must
be
clearer
indication
of
“trade"
than
this
before
it
can
be
said
that
there
has
been
an
adventure
in
the
nature
of
trade.
As
Scott,
LJ,
said,
when
delivering
the
judgment
of
the
Court
of
Appeal
in
Barry
v
Cordy,
[1946]
2
All
ER
396
at
400:
“That
a
single
transaction
may
fall
within
Case
1
is
clear;
but,
to
bring
it
within,
the
transaction
must
bear
clear
indicia
of
‘trade’;
eg,
Martin
v
Lowry
(1925),
11
TC
297—the
single
purchase
of
a
vast
quantity
of
linen
for
re-sale;
or
Rutledge
v
Commissioners
of
Inland
Revenue
(1929),
14
TC
495,
where
there
was
a
single
purchase
of
paper.
Unless
ex
facie
the
single
transaction
is
obviously
commercial,
the
profit
from
it
is
more
likely
to
be
an
accretion
of
capital
and
not
a
yield
of
income."
There
is,
in
my
view,
much
less
likelihood
of
an
isolated
investment
in
the
common
stock
of
a
company
listed
on
the
stock
market
being
considered
an
adventure
in
the
nature
of
trade
than
a
truly
commercial
adventure
or
enterprise
such
as
that
considered
in
the
case
of
MNR
v
Taylor
(supra).
In
the
latter
case,
the
taxpayer
was
conducting
and
organizing
the
adventure
or
enterprise
and
was
making
personal
decisions
in
relation
thereto
while
in
the
present
case
he
is
merely
making
an
investment
and
has
in
fact
little
or
no
control
over
its
success
or
failure
and
is
by
no
means
the
master
of
the
adventure
or
enterprise.
The
cases
of
Charles-Léon
Moquin
v
MNR,
[1963]
CTC
55;
63
DTC
1037,
and
Donald
Preston
McLaws
v
MNR
(No
1),
37
Tax
ABC
132;
65
DTC
1,
are
typical
examples
of
a
stock
investment
being
considered
of
a
capital
nature
even
though
the
taxpayer
had
made
repeated
investments
in
common
stocks
on
the
market.
On
the
other
hand,
in
the
case
of
Harold
Donald
Smith
v
MNR,
[1973]
CTC
714;
73
DTC
5526,
continued
repeated
investments
in
common
stock
resulted
in
the
taxpayer
being
considered
as
engaged
in
the
business
of
trading
shares
because
in
the
year
in
question,
namely
the
taxation
year
1969,
he
did,
contrary
to
his
conduct
in
the
former
years,
begin
carrying
out
a
systematic
scheme
for
profit-making
purposes.
Although
each
case
obviously
must
be
decided
on
its
own
facts,
I
agree
with
the
remarks
of
counsel
for
the
defendant
that
the
conduct
of
the
plaintiff
in
the
present
case
is
akin
to
that
of
the
earlier
years
of
the
taxpayer
in
the
Smith
case
(supra)
where
his
investments
in
the
stock
market
were
considered
to
be
of
a
capital
nature.
The
one
case
which
I
could
find
where
an
isolated
purchase
of
common
shares
on
the
stock
market
was
held
to
constitute
an
adventure
in
the
nature
of
a
trade
is
the
decision
rendered
by
my
brother
Collier,
J
in
the
case
of
Sydney
Bossin
v
Her
Majesty
the
Queen,
[1976]
CTC
358;
76
DTC
6196.
That
case,
however,
is
easily
distinguishable
on
the
facts
as
one
of
the
main
reasons
for
the
decision
was
the
extent
and
nature
of
the
borrowing
which
the
taxpayer
was
engaged
in
in
order
to
be
able
to
purchase
the
shares.
At
page
364
[6200]
the
learned
judge
states:
In
my
view,
the
subjective
statements
of
intention
here
are
not
without
support
from
the
other
evidence.
The
funds
were
borrowed.
That
is
not
unusual.
But
here
they
were
obtained
in
a
most
unusual
way,
on
unusual
and
speculative
terms,
and
with
a
firm
deadline
for
ultimate
settlement
of
accounts:
pay
Kosoy
his
money,
interest,
and
50%
of
the
gains,
if
any.
There
was
no
evidence
of
any
speculative
borrowing
in
the
present
case.
Furthermore,
in
the
Bossin
case
(supra),
as
it
is
to
be
noted
from
the
above
extract,
the
circumstantial
evidence
confirmed
the
Subjective
evidence
of
the
taxpayer.
In
considering
all
of
the
circumstances
of
the
present
case,
I
cannot
conclude
that
the
evidence
established
the
assessment
of
the
loss
as
a
capital
loss
to
be
incorrect.
The
appeal
is
dismissed
with
costs
and
the
original
assessment
is
confirmed.