Frappier v. The Queen, 76 DTC 6066, [1976] CTC 85 (FCTD)

Walsh, J:—The plaintiff is an investment dealer duly licensed as such by the Quebec Securities Commission. From 1958 to 1959, she was a registered sales representative for the Champion Mutual Fund and from 1959 to 1960 worked in the same capacity for J E Desrosiers and Company being remunerated on a commission basis. From 1960 to 1967 she worked for another brokerage house, Levesque and Beaubien on commission sales for the first two or three years and subsequently for about four years became a salaried employee managing their Mutual Funds Department, before reverting again to being a sales agent on a commission basis. Even while on a salary with the Mutual Funds Department she maintained her registration with the Quebec Securities Commission. She explained that because of the regulations of the Commission a registered securities salesman cannot sell on his own but has to be employed by a brokerage firm. The brokerage firm also requires to be licensed as such. From 1967 to 1968 she worked for Ord, Wallington and Co Ltd, a Toronto brokerage firm which had a branch office in Montreal. Her husband, Jean Louis Frappier managed their Montreal operation and had been doing so for several years before she herself left Levesque and Beaubien to go to work with that company. There were also approximately 6 other agents working for them primarily selling mutual funds. She and her husband decided to form their own brokerage house and incorporate it as the firm of Frappier and Holland Inc, Holland being her maiden name, but the company did not secure the necessary licence and did not commence operating until July 1968. While she is president of it she works exclusively on a commission basis as she did for Ord, Wallington, receiving no salary or dividends.

During the 17¥2 years that she has worked as a salesperson in the securities field, specializing in mutual funds she has built up an enviable reputation in the Montreal area. In 1969 she was the first woman to be elected as a member of the Canadian Stock Exchange and in January 1974 gained a seat on the Montreal Stock Exchange. Over the years she had built up her customers’ confidence gradually, largely on the basis of referrals from other clients resulting from the good service which she gave them. In 1968 she had between 200 and 300 clients and now has between 500 and 600. Her commission income in 1968 was $27,000, in 1969 $64,000, in 1970 $25,000, in 1971 $30,400, in 1972 $65,000, in 1973 $60,000 and in 1974 $65,400. She explained the drop in income in 1968 and in 1970 and 1971 as resulting from very weak stock markets commencing in mid-1968 until 1970 before prices gradually moved up again and produced a chart indicating this. Despite this she apparently did very well in 1969.

In 1968 while working for Ord, Wallington and Co she did not have to report on any daily basis or keep any regular hours. She carried on business as previously when working for other brokers, merely handling her sales through them. The company had a small second floor office in Montreal and paid for the rent, a secretary, the phones and stationery, but her husband who also managed the office had to pay personally for the quotation machines and the Dow Jones machine as well as for a personal secretary. She and the other salesmen did not have individual offices but merely came in from time to time, to bring in cheques from clients and handle the necessary paper work. No direction or supervision was given from the Head Office in Toronto. She made her appointment calls from home and saw her clients either at their place of work or their home and sometimes in the evening. She received 60% of the commission on mutual funds sales with Ord, Wallington receiving 40%. On bonds she would receive 50%. She paid all her own expenses for entertaining, telephone and so forth without any reimbursement from Ord, Wallington or any allowance for travel expenses nor was there any employee’s pension fund. She would turn the cheques received from clients for their purchases over to Ord, Wallington and once a month they would pay her the commissions due to her. Ord, Wallington made no deduction from these [commissions] for income tax, the only deduction being for her Quebec Pension Plan contribution. She deducted her own expenses in her personal income tax returns and they were regularly allowed.

In the spring of 1968 Ord, Wallington went into bankruptcy and in April lost its licence as a result of this. She could not foresee the bankruptcy and if she had she would have stopped forwarding clients’ cheques to them to avoid any loss by these clients. Her husband had for some time been dissatisfied with his relations with the Toronto directors of the company which is why plaintiff and her husband had incorporated their own company and obtained its licence in March 1968. When the lease of Ord, Wallington for the Montreal premises expired at the end of April they were then planning to sever their connection with them and commence operating their own brokerage house the beginning of May. What actually happened is that they took over the lease and themselves engaged most of the salesmen who had formerly worked with Ord, Wallington to work for them at the same premises.

At the date of the bankruptcy 22 of her clients had credit balances in cash or securities with Ord, Wallington so in order to retain their good will and confidence in her she undertook to reimburse. them and in due course she did so, although in some cases the cheques were issued by her husband. Her claim for this reimbursement which amounted in total to $49,029.03 was deducted by her as a business expense in 1969 and this led to the present litigation. The manner in which she proceeded was to write a form letter to each of these clients on June 10, 1968. The specimen of one of these letters addressed to Mrs Louise Holloway read as follows:

June 10, 1968

Mrs. Louise Holloway

181 Kenton Ave.

Beacon Hill _.

Beaconsfield, P.Q.

Dear Louise:

Due to the difficulties at Ord, Wellington & Co. Limited, they have been unable to deliver the 325 shares Mutual Growth Fund owing to you.

Until they settle with you, I have taken personally the responsibility to pay you their debt.

(1) — As a result, so that you will not be inconvenienced or put in a position to take any financial loss, I enclose a certificate for 325 shares Mutual Growth Fund registered in your name.

(2) — 1! wish you to remain on the books of Ord, Watlington as a creditor. For this reason, you have already signed a letter to Ord, Wallington & Co. Limited stating your claim for 325 shares Mutual Growth Fund. When Ord, Wallington have settled with you, you will repay to me the entire amount of their settlement. This may not be the total amount owing to you. As a result of this arrangement with you, any loss involved will be taken by myself.

Please sign this letter and return to me in the enclosed self-addressed stamped envelope, as your acknowledgement of the above personal agreement between us.

We are sorry for the trouble this has caused all of us.

	Sincerely yours,
MF/gb	(Mrs.) Margaret Frappier
	26 Laurier Court
	Beaconsfield, P.Q.
This will acknowledge the above agreement.
Date June 12th, 1968
	Mrs. Louise Holloway

Plaintiff testified that at that date it was not possible to determine whether anything would be recovered from the Ord, Wallington bankruptcy and accordingly she settled in full with each of her clients subject to their undertaking to file their claim against Ord, Wallington and, of course, to repay her any amounts they received as a result of this. In the case of some of her clients some shares had already been bought but not yet registered in their names. She herself then purchased an equivalent number of shares for them, while in the case of other clients the reimbursement was made by cheque. In some cases United States funds were involved and the exchange on these reimbursements has been included in her claim to arrive at the total of $49,029.03. The claim for deduction of this amount by her as a business expense in 1969 is however complicated by the fact that, to the extent of $29,217.81, reimbursement was made in 1968 either by cheque or purchase of securities, and furthermore by the fact that of the amount of $49,029.03 the sum of $21,811.22 was actually paid by her husband Jean Louis Frappier of which $19,811.22 was paid during 1969. Plaintiff explained that although some cheques were signed by her husband he was really lending the money to her in order that she could settle with her clients as soon as possible. While she admits that she has never repaid this loan there is some corroboration for this evidence in that in a personal balance sheet as of December 31, 1969, prepared on November 22, 1971 and filed with Mr Ronald Belisle of the Federal Tax Department and Mr Claude Couture, QC her counsel, she shows as a liability loans owed to J L Frappier in the amount of $29,000. Since she was not assessed for additional tax as a result of the disallowance of the claim of $49,029.03 for business expenses in 1969 until March 16, 1972, it would appear that at least some evidence of loans by her husband to her had been recorded before the assessment, although the fact that her counsel also received a copy of it might indicate that there had been some ‘discussions with the assessor or a request for additional documentation before the assessment was made.

Of the 22 clients with whom settlement was made, 19 of them have done further business with her since 1968, and several of them have referred relatives and friends to her. Six of the people on the list are Air Canada employees and she has a number of clients in that company. Plaintiff contends that had she not retained the confidence of these clients by personally reimbursing their losses to them she would not only have lost their further business but also referrals that might have been made by them to her. She testified that she claimed the expense in 1969, because it was not until then that it was clear that nothing would be recovered from the bankruptcy. Ord, Wallington was not a member of the Stock Exchange so there was no contingency fund to cover losses of clients, which applies to member firms. Since that time brokerage houses are now required to join in a national contingency fund for this purpose.

Certain other evidence required some explanation from her. The list of reimbursements made totalling $49,029.03 was headed:

Mrs Margaret Frappier

“Payments made for establishing business”

She testified that this was merely a list prepared for her by her accountant in order to establish the total and she paid little attention to the heading which he gave to it. It is now her contention of course that these disbursements were not of a capital nature but were made for “the purpose of gaining or producing income from a business” within the meaning of paragraph 12(1)(a) of the Income Tax Act in effect at that time.

One of the clients to whom the form letter was sent, one Jean Bushkes, replied on December 10, 1969, but addressed her letter to J L Frappier, Frappier and Holland, Inc stating:

Further to your letter of December 8, 1 am returning herewith both copies of the transfer authorization, which have been signed and witnessed.

I would like to take this opportunity to thank both you and Mrs Frappier for your concern and help in this matter, which was greatly appreciated.

Unfortunately the letter of December 8, 1969, which this answers, is not available and it is not clear what Mrs Bushkes was referring to,— that is to say whether what she signed and returned was merely the form letter assigning to Mrs Frappier any claim she might have in the bankruptcy of Ord, Wallington or whether it dealt with a transfer form to enable securities registered in her name to be disposed of. While there is nothing in the letter to indicate that it has anything to do with any reimbursement made to her it probably relates to the payment to her by Mr Frappier (allegedly on behalf of plaintiff) on that date of $4,956, being the amount due to her. This appears to have been made in securities of this value by the purchase for her of 689 shares of Mutual Growth Fund as no cancelled cheque for this amount was produced.

Plaintiff’s counsel admitted that she filed her income returns on a cash basis. The sections of the Income Tax Act (RSC 1952, c 148, as amended) in effect at the time which are pertinent to the determination of the present issue are as follows:

11(6) Where a person in a taxation year was employed in connection with the selling of property or negotiating of contracts for his employer, and

(a) under the contract of employment was required to pay his own expenses,

(b) was ordinarily required to carry on the duties of his employment away from his employer’s place of business,

(c) was remunerated in whole or part by commissions or other similar amounts fixed by reference to the volume of the sales made or the contracts negotiated, and

(d) was not in receipt of an allowance for travelling expenses in respect of the taxation year that was, by virtue of subparagraph (v) of paragraph

(b) of section 5, not included in computing his income,

there may be deducted in computing his income for the year, notwithstanding paragraphs (a) and (h) of subsection (1) of section 12, amounts expended by him in the year for the purpose of earning the income from the employment not exceeding the commissions or other similar amounts fixed as aforesaid received by him in the year.

12(1) In computing income, no deduction shall be made in respect of

(a) an outlay or expense except to the extent that it was made or incurred by the taxpayer for the purpose of gaining or producing income from property or a business of the taxpayer,

(b) an outlay, loss or replacement of capital, a payment on account of capital or an allowance in respect of depreciation, obsolescence or depletion except as expressly permitted by this Part.

Defendant has four grounds of contestation:

(a) the amounts claimed by plaintiff as an expense deduction in 1969 were not incurred for the purpose of gaining or producing income from her own business but were expenditures incurred to retain the good will of the clients of Ord, Wallington Co Ltd and subsequently of Frappier and Holland Inc who were in both cases her employers.

(b) that in any event they constituted a capital expenditure incurred for the purposes of securing a lasting or enduring benefit and not as a current expense which could be deducted in any given year.

(c) in any event the amount of $29,217.81 which was expended in 1968 could not be deducted from the commissions earned by plaintiff in 1969.

(d) that the amount of $21,811.22 paid by plaintiff’s husband Jean Louis Frappier to her clients was not an expenditure made by her and deductible from her income.

Dealing with the first contention plaintiff claims that she was not an employee of Ord, Wallington and Company or subsequently of Frappier and Holland Inc in the sense of the definition of employment in paragraph 139(1)(m) of the Act which reads:

“employment” means the position of an individual in the service of some other person (including Her Majesty or a foreign state or sovereign) and “servant” or “employee” means a person holding such a position.

She was for all practical purposes a freelance salesperson who received orders for securities from personal clients which orders she then placed through whichever brokerage firm she happened to be associated with at the time, including during the period in issue Ord, Wallington and Co and Frappier and Holland Inc. According to her testimony whenever she severed her connections with brokerage firms her clients would follow her as is quite customary in the trade. Certainly if she had not reimbursed her clients for their losses they would have blamed her for accepting their money for the purchase of securities a few days before the bankruptcy of Ord, Wallington & Co, rather than blaming that company itself. Subsequently, in dealing with the same clients, or the persons they referred to her, she placed their orders through Frappier and Holland Inc but the fact that she has an ownership interest in that company makes no difference. She could just as readily have placed their orders through whatever brokerage house she became associated with following the bankruptcy of Ord, Wallington and Co. I believe the clients must be considered as her clients, therefore, rather than as clients of Ord, Wallington and Co or Frappier and Holland Inc. This includes Mrs Bushkes although she did address her letter to Mr Frappier, probably because the securities which she received to reimburse her for her loss were sent to her by him. The question of whether a person is working as a servant (or employee) or as an independent contractor has been dealt with in many cases. Halsbury’s Laws of England (2nd Edition), Vol 22, page 115 states:

To distinguish between an independent contractor and a servant, the test Is whether or not the employer retains the power, not only of directing what work is to be done, but also controlling the manner of doing the work.

In the City of Saint John v Donald, [1926] SCR 371, at page 381, Mr Justice Anglin quoted from Performing Right Society v Mitchell and Booker, [1924] 1 KB 762, at page 767, in which McCardie, J said:

the question whether a man is a servant or an independent contractor Is often a mixed question of fact and law. If, however, the relationship rests upon a written document only, the question is primarily one of law. The contract is to be construed in the light of the relevant circumstances.

McCardie, J then went on to say:

The final test, if there be a final test and certainly the test to be generally applied, lies in the nature and degree of the detailed control over the person alleged to be the servant. This circumstance is, of course, only one of several, but it is usually of vital importance.

It would appear that in the circumstances of the present case very little if any control was exercised over the work of plaintiff or her manner of doing same either by Ord, Wallington & Co or by Frappier and Holland Inc. Certainly plaintiff comes within the provisions of paragraphs (c) and (d) of section 11(6) in that she was paid by commission and did not receive any allowance for travelling expenses. She probably also comes within paragraph (b) in that most of her work was done away from the employer’s place of business. She only returned to her office from time to time to do paper work and make reports. There may be more doubt about paragraph (a) in that some of the expenses were paid by the employer for the office, telephones and the secretary shared by her in common with others. All her other expenses were paid by her personally, and deducted in filing her annual income tax returns, and not disallowed. When she started working for Frappier and Holland Inc instead of Ord, Wallington the only other item of expense paid for her by her employer was garage space for her car. Plaintiff contends that the acceptance by defendant of expense deductions claimed by her each year in her tax returns is equivalent to an admission that subsection 11(6) applies to her. In any event, even if there is some doubt as to whether the deductions claimed can be allowed under section 11(6), I find that they can be made by virtue of paragraph 12(1)(a). Plaintiff’s personal reputation as a reliable securities salesperson was built up over a period of 17 /2 years and was a very valuable possession. The very life-blood of this business, as in the case of an insurance agent is the continual flow of repeat business from satisfied clients and the acquisition of new clients largely as a result of referrals from them. If clients suffer a loss as a result of their dealings with the agent, even though the loss was occasioned by bankruptcy of her employer and was not her fault, they will be dissatisfied and place their future business elsewhere in this highly competitive field. Moreover they will recount their experience to others and this will damage the reputation of the agent further. Plaintiff is to be commended for having accepted the moral responsibility for the losses of her clients, and by arranging to make them good undoubtedly assured continuation and expansion of her clientele in this field, as is shown by the increase in the number of clients she now serves and her continually increasing. income from commissions on her sales. I believe that the deduction made was therefore a proper one unless it is considered as a payment on account of capital within the meaning of paragraph 12(1)(b) of the Act, which is defendant’s second ground of contestation.

Here again there has been considerable jurisprudence. In the case of Canada Starch Company Limited v MNR, [1969] 1 Ex CR 96; [1968] CTC 466; 68 DTC 5320, President Jackett, as he then was, had this question to consider, and after examining the jurisprudence said at page 105 [475, 5325]:

in distinguishing between a capital payment and a payment on current account, in my view, regard must be had to the business and commercial realities of the matter.

In the case of L Berman & Co v MNR, [1961] CTC 237; 61 DTC 1150, former President Thorson of this Court also examined this question in the case of a payment made by a parent company to suppliers of a Toronto subsidiary whose operations had been closed, because it was anxious to continue doing business with the suppliers. At pages 247-248 [1156] the learned President states:

There is no doubt in my mind that the appellant made the payments in question as a business person intending to continue in business would reasonably do and that, consequently, they were made in accordance with the ordinary principles of commercial trading or well accepted principles of business practice and i am unable to find any ground in Section 12(1)(a) for their exclusion.

Even if the appellant had not been legally bound to make the payments that did not prevent them from having been made in accordance with the ordinary principles of commercial trading. There is strong authority for this statement in Usher’s Wiltshire Brewery, Limited v Bruce, [1915] AC 433. In that case the tenants of the appellants’ tied houses were by agreement bound to repair. their houses and pay certain rates and taxes. They failed to do so. The appellants, though in no way legally or morally bound to do so, paid for these repairs and paid these rates and taxes. They did so, not as a matter of charity, but of commercial expediency, in order to avoid the loss of their tenants, and, consequently, the loss of the market for their beer, which they had acquired these houses for the purpose of affording. It was held that, although they were not legally or morally bound to make these payments, yet they were, in estimating the balance of the profits and gains of their business for the purposes of assessment of income tax, entitled to deduct all the sums so paid by them as expenses necessarily incurred for the purposes of their business.

And In British Insulated and Helsby Cables v Atherton, [1926] AC 205, Viscount Cave, LC said, at page 211:

“It was made clear In the above cited cases of Usher’s Wiltshire Brewery v Bruce, [1915] AC 433, and Smith v Incorporated Council of Law Reporting, [1914] 3 KB 674, that a sum of money expended, not of necessity and with a view to a direct and Immediate benefit to the trade, but voluntarily and on the grounds of commercial expediency, and, in order indirectly to facilitate the carrying on of the business, may yet be expended wholly and exclusively for the purpose of the trade;”

On page 248 he also refers to the cases of Cooke v Quick Shoe Repair Service (1949), 30 TC 460, and Robert Addie & Sons Collieries, Limited v CIR, [1924] SC 231-235, where similar findings were made.

Similar findings were also made by former Associate Chief Justice Noel in the case of R v F H Jones Tobacco Sales Company Limited, [1973] FC 825; [1973] CTC 784; 73 DTC 5577, in which he refers to the Supreme Court judgment in the case of MNR v Algoma Central Railway, [1968] SCR 447; [1968] CTC 161; 68 DTC 5096, which confirmed judgment of Jacket, P in the same case reported [1967] 2 Ex CR 88; [1967] CTC 130; 67 DTC 5091. He quotes at length from the judgment of Pigeon, J in the Supreme Court in the case of MNR v Freud, [1969] SCR 75; [1968] CTC 438; 68 DTC 5279, at pages 81 to 84 [442-4; 5282-3] in which he accepted as deductible moneys advanced to a company for the construction of a sports car prototype which were unfortunately used to no purpose since the venture did not succeed. At page 837 [792; 5582], the learned former Associate Chief Justice states:

the loss sustained by defendant when it was called on to act as surety must be treated as an outlay made for the purpose of gaining or producing income in the operation of its business undertaking, and not as an outlay or loss on account of capital.

Later on the same page he states:

In effect defendant sought through this guarantee to ensure the continued growth of its sales to Tabacs Trans-Canada Ltée and at the same time to make certain that the latter would be able to proceed with large orders for tobacco made.

In the case of Aluminum Company of Canada Limited v Her Majesty The Queen, [1974] CTC 471; 74 DTC 6408, Heald, J stated at 477 [6413]:

The authorities clearly indicate that an expenditure made as a “gift” or as a matter of commercial morality will be allowed as a deduction in computing income. See Olympia Floor & Wall Tile (Quebec) Ltd v MNR, [1970] CTC 99; 70 DTC 6085 and Pigott Investments v The Queen (supra). Subject expenditure was made in the Interests of commercial morality. . . .

In the case of Olympia Floor and Wall Tile (Quebec) Ltd v MNR, [1970] Ex CR 274; [1970] CTC 99; 70 DTC 6085, referred to therein President Jackett followed the authority of Riedle Brewery Limited v MNR, [1939] SCR 253; [1938-39] CTC 312, which allowed the deduction of amounts spent by breweries following the practice of treating frequenters of hotels and clubs because by following this practice its sales would either be maintained or increased whereas if the practice were discontinued its sales would decrease. See also R v Lavigueur, [1973] CTC 773; 73 DTC 5539, in which loans made to tenants of a commercial building by the landlord to enable them to remain in business and continue occupancy of the leased premises were allowed as a deduction from income as expenses laid out to produce income.

I conclude that on the facts of this case the reimbursement of losses made to clients of plaintiff were made with a view to producing income according to the provisions of paragraph 12(1)(a) of the Act and were not a payment on account of capital by virtue of paragraph 12(1)(b).

Defendant’s third argument is that the amount of $29,217.81 reimbursed to clients in 1968 cannot be claimed by plaintiff in her 1969 taxation year.

Plaintiff cites as authority for making the claim in 1969 for disbursements made in 1968 the case of Associated Investors of Canada v MNR, [1967] 2 Ex CR 96; [1967] CTC 138; 67 DTC 5096, in which the appellant made advances against commissions to its salesmen which were shown as an asset in its balance sheet but at the end of any year only the amount of advances deemed irrecoverable were treated as a business expense in that year. In 1960 and in 1961 appellant wrote off $25,000 of approximately $85,000 which had been advanced to a certain employee in previous years. The judgment of President Jackett, as he then was, held that these advances were an integral part of appellant’s business operations and loss in their value must on ordinary commercial principles be taken into account in computing the profit of its business for the year in which the appellant as a businessman recognized that the loss had occurred and that paragraph 12(1)(a) of the Act does not limit the deduction of outlays and expenses of business for a year to those made or incurred in that year. In rendering judgment the learned President stated at page 104 [146; 5100-01]:

The situation was therefore that, at the time that the advance was made, the appellant had exchanged its money for a “right” that was, from a businessman’s point of view, of equal value. It had submitted one asset in money for another of equal amount. As of that time, therefore, the making of the advance did not affect the overall value of the appellant’s assets. The advance cannot, therefore, as of that time, be regarded, from a businessman's point of view, as having affected the appellant’s profit from his business. Similarly, if the advance was entirely repaid, there was again a substitution of one asset for another of equivalent value and there was no overall effect on the appellant’s asset position. When, however, the chose in action depreciated in value, there was an effect on the appellant’s asset position and accordingly, at that time, for the first time, the advance transaction resulted in the appellant having sustained a loss. As that loss arose out of a transaction in the course of the appellant’s current business operations, it must be taken into account in computing the profits from the appellant’s business or they will be overstated. In my view, it must be so taken into account in computing the profit from the business for the year in which the appellant, as a “businessman”, recognized that the loss had occurred. It cannot properly be taken into account in computing the profit for a previous year.

This judgment also referred to the Supreme Court Case of Riedle Brewery Limited v MNR (supra), in which Kerwin, J stated at page 263 [319-20]:

There remains the question as to whether the money was thus laid out for the purpose of earning the income, that is, the income for the 1933 taxation period. In any consideration of this question, a certain degree of latitude must, I think, be allowed. For instance, in the case of a manufacturing

company employing travellers to solicit business, meticulous: examination of the latter’s expense accounts might easily disclose that sums expended towards the end of one taxation period were not productive of orders or of the filling of the orders or of the payment for the goods supplied,—in the same period. The result should not prevent the company deducting such expenses in its returns under the Act. The statutory provisions may be given a reasonable and workable interpretation by holding that, as long as the disbursements fulfil the requirements already discussed, the taxpayer expended them ‘-for the purpose”, ie, with the object and intent that they should earn the particular gross income reported for the period.

Plaintiff contends that it was not until 1969 that she could be sure that no recovery would be made as a result of the assignment to her of the claims of her clients against the bankruptcy estate of Ord, Wallington & Co, so it was only at that time that the amount of the loss could be determined. Defendant on the other hand states that in the present case the payments made to the clients were a once in a lifetime matter and not a- continuing. payment made from year to year as in the case of the advances to salesmen in the Associated Investors. case, or the treating of customers in the Riedle Brewery case, and that plaintiff must have realized (especially as her husband had been with Ord, Wallington for several years, and was manager of their Montreal office, and should have been aware of the financial position of the company), that very little if anything could be recovered as a result of the claims made in the bankruptcy.

Defendant further relies on the cases of L Berman & Co Ltd v MNR (Supra), and Françon Limitée v MNR, [1973] CTC 708; 73 DTC 5514. In the former case, Thorson, J then President, refused to permit appellant to deduct from what would otherwise have been its taxable income for 1956 certain payments made by it in September and December, 1955, although he had found that these payments were properly deductible under paragraph 12(1)(a) of the Act as expenditures laid out for the purpose of producing income. He referred to the reasoning in his earlier judgment in the case of Consolidated Textiles Limited v MNR, [1947] Ex CR 77; [1947] CTC 63. In that case at pages 81-82 [68] he stated:

Moreover, there is a fallacy inherent in the appellant’s contention that because the 1938 expenses were laid out or expended for the purpose of earning the 1939 income they are deductible from t. It is not a condition of the deductibility of a disbursement or expense that it should result in any particular income or that any income should be traceable to it. It is never necessary to show a causal connection between an expenditure and a receipt. An item of expenditure may be deductible in the year in which it is made although no profit results from it in such year; Vallambrosa Rubber Company, Limited v Inland Revenue (1910) 47 Sc L R 488; and even f It Is not productive of any profit at all: Commissioners of Inland Revenue v The Falkirk Iron Co Ltd (1933) 17 TC 625. The reason for the deduction of an item of expenditure is quite a different one. Under the provision of the United Kingdom Act corresponding to section 6(a) the test of deductibility was laid down by the Lord President (Clyde) of the Scottish Court of Sessions in Robert Addie & Sons’ Collieries, Limited v Commissioners of Inland Revenue [1924] SC 231 at 235, as follows:

“What is ‘money wholly and exclusively laid out for the purpose of the trade’ is a question which must be determined upon the rinciples. of ordinary commercial trading. It is necessary, accordingly, to attend to the true nature of the expenditure, and to ask oneself the question, Is it a part of the Company’s working expenses; is it expenditure laid out as part of the process or profit earning?”

and again at pages 82-83 [69] he stated:

it follows that an item of expenditure becomes a deductible one when and as soon as it meets the requirements of the test, that is to say, that it is deductible in the year in which it becomes a working expense and part of the process of profit making. The appellant’s 1938 operating expenses became its working expenses and [1] part of the process of profit making or, to use the words of section 6(a),* part of the process of earning the income in 1938, and, therefore, deductible in that year; that being so, they were not deductible in 1939.

In my opinion, section 6(a) excludes the deduction of disbursements or expenses that were not laid out or expended in or during the taxation year in respect of which the assessment is made. This is, I think, wholly in accord with the general scheme of the Act, dealing as it does with each taxation year from the point of view of the incoming receipts and outgoing expenditures of such year and by the deduction of the fatter from the former with a view to reaching the net profit or gain or gratuity directly or indirectly received in or during such year as the taxable income of such year.

In the Françon case, also relied on by defendant, the appellant had transferred certain securities to some of its customers and in return it received amounts of money due under a contract which should have been held back and paid in the year they were certified as becoming due, and would normally. have been paid then. When the Minister added the amounts so received in the earlier year to appellant’s taxable income, appellant objected saying that they were not income but had been made under an agreement whereby interest producing securities were substituted for the amount of the holdback that was to become due at a later date. In the Federal Court of Appeal it was held that the appellant must include in its income the amount of the immediate holdback it received, but that it was also entitled to deduct as an expense the amount which it had to pay out in the year to obtain the immediate payment of the holdback. It also followed that the appellant would be required to add to its income for some subsequent year an amount received under such a revenue transaction—namely, the holdback payable under the construction contract in the year of certification. Defendant contends that the same practice should have been followed here with the plaintiff deducting the amounts paid to clients in 1968 from her commission income in that year, and in the event that she received some recovery as a result of the assignment of their claims in the bankruptcy, the amounts received as a result of this recovery would then be added back to her income in the subsequent year when they were so received. This would certainly seem to have been a preferable method of proceeding. It should be noted, however, plaintiff may have had good reason for making the deductions in 1969 rather than in 1968 since in 1968 her income from Ord, Wallington & Co Ltd was only $3,673.15 and from Frappier and Holland Inc, $23,381, whereas in 1969 her income from Frappier and Holland Inc was $65,544.86.

What makes the decision on this point somewhat difficult in the present case is the nature of the payments made in that they are not clearly attributable to the earning of income in any given year despite the fact that I have found, not without some hesitation, that they were not in the nature of a capital expense. Certainly plaintiff in making certain payments to her clients in the latter months of 1968 to reimburse them for their losses did not anticipate an immediate rush of new orders from them in that year, but was looking to future business from them and their friends. It is more a matter of chance than of design that some clients were repaid their losses in 1968 and some not until 1969, as funds became available to make the payments and the payments made in 1968 were more likely to produce additional income for plaintiff in 1969 and the following years than in the few remaining months of 1968 after the payments were made. Furthermore, although she might well have dealt with these payments in the 1968 and 1969 taxation years in the manner suggested by the Françon Limitée case (supra), she chose to deduct them all in the 1969 taxation year on the basis that it was not until then that she could finally determine that there would be no reduction in the amount she could claim for these expenses as a result of any distribution to creditors arising out of bankruptcy. Only the 1969 taxation year is before the Court and under these circumstances it might be appropriate to apply the Associated Investors case (supra), and to conclude that the expenditures ‘‘be so taken into account in computing the profit from the business for the year in which the appellant as a businessman recognized that this loss had occurred”. (See also the Rledle case, supra.)

I conclude, therefore, that the disbursements made in 1968 with a view to producing income can be claimed in 1969 the year in which the final amount of same could be determined and it could be concluded that there would be no recovery to reduce same.

Defendant’s final argument remains to be dealt with namely that the payments of plaintiff’s husband in the amount of $21,811.22 of which $2,000 was made in 1968 and $19,811.22 in 1969, cannot be claimed by her as a deduction. This depends largely on the question of credibility of her evidence. She and her husband were the controlling shareholders of Frappier & Holland Inc and apparently they operated as a team. Both testified, however, that the clients in question were her clients whom she had formerly had when working with Ord, Wallington & Co and in many cases before that, and she was now merely placing their orders through the new company, Frappier and Holland Inc. The voluntary reimbursement by plaintiff to them of their losses should not be affected by the manner in which the payment was made. Plaintiff’s husband in lending her the money which he allegedly did to enable her to make some of these reimbursements, and especially those made in 1969, could easily have written a cheque in her favour for sufficient funds to cover these payments, and she could then have issued her personal cheques to the clients, or herself have bought the replacement securities for them. The fact that instead of this they were paid by cheques signed by Mr Frappier or securities purchased by him should not affect the situation if this was being done on her instructions and on her behalf. Unless her story of the loan is disbelieved, therefore (and it is at least in part corroborated by the information furnished in the statement given to the Department of National Revenue before the assessment was made disallowing the expenses claimed in 1969), she should not be prevented from claiming these expenditures herself, even though they were actually made by her husband, if in fact she has undertaken to reimburse him for them as she claims. In the absence of any evidence to the contrary there is no valid reason for disbelieving her testimony as to the loan, even though this evidence may be of a self-serving nature, and the loan has not yet been repaid.

For the above reasons defendant’s various defences fail and plaintiff’s action should be maintained with costs and a reassessment should be made of her taxation for the year 1969 on the basis of allowing her $49,023.03 as a deduction in computing her taxable income for that year.