THE
CHIEF
JUSTICE
(all
agree)
:—This
is
an
appeal
from
a
judgment
of
the
Exchequer
Court
reversing
the
decision
of
the
Income
Tax
Appeal
Board
and
restoring
the
assessment
of
the
appellant
to
income
tax
for
the
year
1952.
The
relevant
statutory
provisions
of
The
1948
Income
Tax
Act,
C.
92,
are:
“3.
The
income
of
a
taxpayer
for
a
taxation
year
.
.
.
is
his
income
for
the
year
.
.
.
and,
without
restricting
the
generality
of
the
foregoing,
includes
income
for
the
year
from
all
(a)
businesses,
4.
Subject
to
the
other
provisions
of
this
Part,
income
for
a
taxation
year
from
a
business
or
property
is
the
profit
therefrom
for
the
year.
127.
(1)
In
this
Act,
(e)
business’
includes
a
profession,
calling,
trade,
manufacture
or
undertaking
of
any
kind
whatsoever
and
includes
an
adventure
or
concern
in
the
nature
of
trade
but
does
not
include
an
office
or
employment.”
Having
sold
his
grocery
and
meat
business
in
1948
and
being
then
unoccupied,
the
appellant
entered
into
an
arrangement
with
a
relative
to
purchase
vacant
land
known
as
Grandview
Park
Subdivision,
at
that
time
near
the
city
of
Sarnia
but
subsequently
incorporated
within
the
limits
of
that
municipality.
A
consideration
of
the
entire
record
makes
it
clear
that
that
arrangement
was
an
adventure
or
concern
in
the
nature
of
trade
within
the
meaning
of
the
term
“business”
as
defined
in
the
Act,
but
the
argument
is
that,
because
of
differences
which
arose
between
him
and
his
relative,
what
he
did
subsequently
was
merely
an
endeavour
to
realize
upon
an
investment.
I
agree
with
Mr.
Justice
Hyndman
that
that
is
not
the
true
conclusion
from
all
the
circumstances;
nor
do
I
think
that
it
is
answered
by
the
reasons
of
the
Income
Tax
Appeal
Board
that,
in
order
to
escape
taxation,
the
appellant
should
either
have
refrained
from
selling
the
lots
for
more
than
they
had
cost
him,
or
else
have
given
them
away.
It
is
quite
true
that
an
individual
is
in
a
position
differing
from
that
of
a
company
and
that,
as
stated
by
the
Master
of
the
Rolls
in
Smith
v.
Anderson
(1880),
15
Ch.
D.
247
(approved
by
this
Court
in
Argue
v.
M.N.R.,
[1948]
S.C.R.
467
at
476;
[1948]
C.T.C.
235),
“So
in
the
ordinary
case
of
investments,
a
man
who
has
money
to
invest,
invests
his
money
and
he
may
occasionally
sell
the
investments
and
buy
others,
but
he
is
not
carrying
on
a
business.”
However,
it
is
also
true,
as
well
in
the
case
of
an
individual
as
of
a
company,
that
the
profits
of
an
isolated
venture
may
be
taxed:
Edwards
v.
Bairstow,
[1956]
A.C.
14.
It
is
impossible
to
lay
down
a
test
that
will
meet
the
multifarious
circumstances
that
may
arise
in
all
fields
of
human
endeavour.
As
is
pointed
out
in
Noak
v.
M.N.R.,
[1953]
28.C.R.
186;
[1954]
C.T.C.
6,
it
is
a
question
of
fact
in
each
case,
referring
to
the
Argue
case
and
Campbell
v.
M.N.R.,
[1953]
1
S.C.R.
3;
[1952]
C.T.C.
334,
to
which
might
be
added
the
judgment
of
this
Court
in
Kennedy
v.
AL.N.R.,
noted
at
p.
VIII
of
[1953]
2
S.C.R.,
which
affirmed
the
decision
of
the
Exchequer
Court
[1952]
Ex
C.R.
258;
[1952]
C.T.C.
99.
In
the
present
case
I
agree
with
Mr.
Justice
Hyndman’s
findings
with
reference
to
the
appellant
that:
“Having
acquired
the
said
property
there
was
no
intention
in
his
mind
to
retain
it
as
an
investment,
but
to
dispose
of
the
lots,
if
and
when
suitable
prices
could
be
obtained.”
The
appeal
should
be
dismissed
with
costs.
Judgment
accordingly.
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