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] 2 S.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.