Collier,
J.:—This
is
an
appeal
by
the
plaintiff
from
a
decision,
against
him,
by
the
then
Tax
Review
Board.
In
1972,
the
plaintiff
acquired
a
share
interest
in
a
private
company.
In
1976,
he
sold
that
interest
to
another
shareholder
of
the
company.
The
transaction
will
ultimately
yield
a
gain
of
$184,090.
The
plaintiff
took
the
view
it
was
a
capital
gain.
The
Minister
of
National
Revenue
took
the
view
the
whole
of
the
gain
was
taxable
as
income.
He
assessed
the
plaintiff
accordingly,
but
allowed
an
appropriate
reserve.
The
plaintiff
appealed
to
the
Board.
That
tribunal
confirmed
the
Minister's
assessment.
This
appeal,
to
this
Court,
in
the
form
of
a
trial
de
novo,
followed.
As
always,
in
litigation,
but
especially
in
cases
concerned
with
this
problem
of
“capital
gain
versus
income"
the
facts
are
paramount.
These
cases
must
all
depend
on
their
particular
facts”
per
Judson,
J
in
Regal
Heights
Ltd
v.
MNR,
[1960]
SCR
902
at
907.
Cartwright,
J
made
a
similar
observation
in
MNR
v
Foreign
Power
Securities
Corporation
Limited,
[1967]
SCR
295
at
297:
“The
question
is
essentially
one
of
fact
depending
on
the
intention
with
which
the
respondent
acquired
the
shares.”
See
also
the
remarks
of
Cartwright,
J.'s
dissenting
reasons
in
Irrigation
Industries
Ltd
v
MNR,
[1962]
SCR
346
at
360,
citing
the
statement
of
Kerwin,
CJ
in
McIntosh
v
MNR,
[1958]
SCR
119
at
121,
“It
is
impossible
to
lay
down
a
test
that
will
meet
the
multifarious
circumstances,
that
may
arise
in
all
fields
of
human
endeavour
...
it
is
a
question
of
fact
in
each
case.”
The
plaintiff
is
now
a
planning
consultant.
He
specializes
in
dealing
with
municipalities
on
behalf
of
clients
who
hold
or
develop
lands.
Following
the
Second
World
War,
he
was
in
business
with
his
father,
buying
lots
and
building
houses.
In
1952,
he
went
into
municipal
politics
in
the
Borough
of
North
York,
Ontario.
He
held
various
positions,
including
that
of
mayor.
He
ended
his
political
carreer
in
1969.
Since
then,
he
has
carried
on,
partly
though
a
company,
his
present
occupation.
During
his
17
years
in
politics,
the
plaintiff
did
not
engage
in
any
real
estate
transactions.
In
1971
or
1972,
the
plaintiff
had
dealings
with
a
client,
Samuel
Meister,
in
respect
of
the
latter’s
real
estate
transactions.
During
the
course
of
that
association,
Meister
told
the
plaintiff
about
a
property,
of
approximately
106
acres,
in
the
Town
of
Richmond
Hill,
Ontario.
The
land
had
been
purchased
in
1972
by
a
private
company,
Beaufort
Hills
Limited
(“Beaufort
Hill”).
The
company
later
acquired
an
adjoining
50
acres.
The
property
was,
for
practical
purposes,
the
company’s
only
asset.
The
plaintiff
loaned
the
company
$30,000.
He
was
given
a
12
/2
per
cent
interest
in
it.
The
other
holdings
were
as
follows:
Ricenburg
Development
Ltd.
|
50
|
per
cent
|
Samuel
Meister
|
12
/2
per
cent
|
Beallor
|
12
/2
per
cent
|
Belle
Gardens
Properties
Ltd.
|
12
/2
per
cent
|
One
Rosenburg,
controlled
the
Ricenburg
company.
Rosenburg
and
Meister
were
described
by
the
plaintiff
as
“partners”,
who
had
developed
and
sold
lots
in
other
real
estate
transactions.
The
plan,
in
respect
of
Beaufort
Hills,
was
to
develop
the
land,
subdivide,
service,
then
sell
the
lots
for
building
purposes.
According
to
the
plaintiff,
the
other
participants,
at
some
stage,
decided
to
go
further:
to
build
houses
on
the
lots,
and
sell.
The
plaintiff
felt
they
had
no
expertise
in
building
houses.
In
1976,
none
of
the
lots
had
been
sold.
The
plaintiff
thought
it
would
be
a
good
time
to
get
out.
He
negotiated
with
Meister
and
Rosenburg
to
sell
his
interest
in
the
company.
A
price
of
$215,000
was
agreed
upon.
The
interest
was
sold
to
Meister.
As
part
of
the
transaction,
the
plaintiff
assigned
his
shareholder's
loan
to
Meister.
The
plaintiff
contended
the
resulting
gain
of
$185,000
(actually
$184,090)
was
a
Capital
one.
He
testified
his
involvement
with
Beaufort
Hills
was
as
an
investment;
when
the
company
altered
its
development
plans,
he
decided
to
leave.
I
do
not
accept
the
contention
the
plaintiff's
participation
in
Beaufort
Hills
was
an
investment.
His
involvement,
in
my
opinion,
was
an
adventure
in
the
nature
of
trade.
His
whole
course
of
action
was
in
respect
of
the
land,
not
in
the
company.
That
he
obtained
an
interest,
and
realized
on
it,
by
means
of
shares
in
the
company
owning
the
land,
does
not
assist.
The
acquisition
of
the
shares
was
merely
a
method
of
obtaining
an
interest
in
the
land.
The
motivation
was
to
develop
the
lots
and
sell
them
to
produce
income
and
a
profit.
Those
conclusions
are,
as
I
see
it,
borne
out
by
the
evidence.
That
evidence
comes
essentially
from
the
plaintiff
himself.
He
gave
or
loaned
Beaufort
Hills
$30,000.
He
was
to
acquire
a
one-eighth
interest.
The
only
asset
was
the
Richmond
Hill
property.
The
plaintiff
was
never
given
a
promissory
note
or
other
evidence
of
indebtedness.
There
were
no
terms
for
repayment.
He
was
never
allotted
shares.
He
did
not
know
if
shares,
or
in
what
number,
had
been
allotted.
He
frankly
stated
he
was
not
interested
in
the
company,
other
than
the
land
it
held;
he
said
he
was
buying
a
one-eighth
interest
in
the
land,
not
in
the
operations
of
the
company.
He
further
testified
he
expected
to
receive
a
profit
from
the
sale
of
the
lots.
The
plaintiff
obviously
had
little
experience
with,
or
knowledge
of,
private
companies
and
shareholdings
in
them.
Counsel
for
the
plaintiff,
in
argument,
contended
the
plaintiff
was
investing
in
a
company
by
acquiring
a
share
interest;
the
selling
of
his
shares,
in
the
particular
circumstances,
was
a
realization
of
the
investment.
That
may
be
a
legal
approach.
But
it
was
not
in
accordance
with
the
plaintiffs
own
evidence,
and
intentions,
as
I
have
outlined.
The
plaintiff
said
that
at
the
time
of
the
negotiations
resulting
in
the
sale
to
Meister,
he
knew
the
value
of
the
Richmond
Hill
land
had
increased
considerably;
he
negotiated
on
that
basis.
In
answer
to
a
question
from
the
Court
as
to
whether
he
would
have
sold
his
interest
for
$30,000,
he
said
he
would
not:
his
interest
was
worth
much
more.
I
am
satisfied
the
plaintiff
deliberately
engaged
in
a
venture
in
the
nature
of
trade
—
an
income-producing
transaction.
He
intended
to
acquire
an
interest
in
the
land,
and
to
be
paid
profits
as
lots
were
developed
and
sold.
The
use
of
a
company,
as
a
vehicle
to
that
end,
was,
to
him,
immaterial.
The
assessment
by
the
Minister
of
National
Revenue
is
confirmed.
The
plaintiff’s
action
is
dismissed.
The
defendant
is
entitled
to
the
costs
of
this
action.
Appeal
dismissed.