Suncor Energy Inc. v. The Queen, 2001 DTC 660 (TCC), aff'd 2002 DTC 7395, 2002 FCA 350

The taxpayer used the overburden and tailings produced or extracted by it in the process of extracting bitumen from oil sands deposits to construct dykes separating disposal areas from active mining areas, and deposited the balance of the tailings in the disposal areas. Bell T.C.J. found that the expenditures made in this operation (primarily on payroll) were not capital expenditures given that similar expenditures would have to be made in each of the subsequent taxation years and that the tailings had to be disposed of as part and parcel of the production process, and stated (at p. 668) that:

"No asset of enduring benefiting was created, the tailings ponds and dykes in each year having been limited in capacity and usefulness by the expenditures made on them in that year for that year only."

The taxpayer used the overburden and tailings produced or extracted by it in the process of extracting bitumen from oil sands deposits to construct dykes separating disposal areas from active mining areas, and deposited the balance of the tailings in the disposal areas. Notwithstanding that the dykes were 200 or 300 feet tall and were carefully engineered, Bell T.C.J. indicated that even if the expenditures on them were considered to have given rise to a capital asset, it was his "impression" that they could not be described as a "structure".