Muldoon,
J.:—The
focus
of
this
litigation
is
the
taxability,
if
any,
of
the
gain
realized
on
certain
of
the
land
included
in
the
taxpayer's
principal
residence,
of
which
he
made
a
disposition
by
outright
sale
thereof
in
March
1982.
The
principal
provisions
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the"Act")
which
are
pertinent,
and
readily
understandable
on
a
careful
first
reading,
are:
38.
For
the
purposes
of
this
Act,
(a)
a
taxpayer's
taxable
capital
gain
for
a
taxation
year
from
the
disposition
of
any
property
is
/2
of
his
capital
gain
for
the
year
from
the
disposition
of
that
property;
and
54,
In
this
subdivision,
(g)
“principal
residence"
of
a
taxpayer
for
a
taxation
year
means
a
housing
unit,
a
leasehold
interest
therein,
.
.
.
owned,
.
.
.
in
the
year
by
the
taxpayer,
if
the
housing
unit
was,
(i)
ordinarily
inhabited
in
the
year
by
the
taxpayer.
.
.
except
that,
subject
to
section
54.1,
in
no
case
shall
any
such
housing
unit,
interest
or
share,
as
the
case
may
be,
be
considered
to
be
a
taxpayer's
principal
residence
for
a
year
(iii)
unless
it
has
been
designated
by
him
in
prescribed
form
and
manner
to
be
his
principal
residence
for
that
year,
and
no
other
such
housing
unit.
.
.
has
been
so
designated
for
that
year
by
him
.
.
.
and
for
the
purposes
of
this
paragraph
the”
principal
residence”
of
a
taxpayer
for
a
taxation
year
shall
be
deemed
to
include,
except
where
the
property
consists
of
a
share
of
the
capital
stock
of
a
co-operative
housing
corporation,
the
land
subjacent
to
the
housing
unit
and
such
portion
of
any
immediately
contiguous
land
as
may
reasonably
be
regarded
as
contributing
to
the
taxpayer's
use
and
enjoyment
of
the
housing
unit
as
a
residence,
except
that
where
the
total
area
of
the
subjacent
land
and
of
that
portion
exceeds
1/2
hectare,
the
excess
shall
be
deemed
not
to
have
contributed
to
the
individual's
use
and
enjoyment
of
the
housing
unit
as
a
residence
unless
the
taxpayer
establishes
that
it
was
necessary
to
such
use
and
enjoyment;
[Emphasis
added.]
The
parties,
through
their
respective
counsel
have
sensibly
and
commendably
agreed
upon
certain
facts
without
the
necessity
of
making
proof
at
trial,
and
have
stated
those
facts
in
Exhibit
2,
thus:
1.
This
is
an
appeal
under
sections
172
and
175
of
the
Income
Tax
Act
.
.
.
from
the
reassessment
by
the
Minister
of
National
Revenue
of
the
Plaintiff's
1982
taxation
year.
2.
The
Plaintiff,
Glen
M.
Windrim
is
a
businessman
who
resides
in
the
Province
of
British
Columbia.
3.
In
November
1979,
the
Plaintiff
purchased
for
$60,398.51,
17.6
acres
of
land
with
civic
address
370
Baker
Road,
Ganges,
Saltspring
Island,
B.C.
(the
"Baker
Road
Property").
4.
The
Plaintiff
designated
the
Baker
Road
Property
as
his"
principal
residence”
for
his
1980
and
1981
taxation
years.
5.
In
March
1982
the
Plaintiff
sold
the
"Baker
Road
Property"
for
$315,000
and
received,
after
deducting
expenses
related
to
the
sale,
$300,475.
6.
On
April
4,
1986,
the
Minister
reassessed
the
Plaintiff
for
his
1982
taxation
year
by
adding
to
the
Plaintiff's
income
$102,585.50
(/2
of
a
$205,171
capital
gain).
7.
Upon
further
review
of
the
reassessment,
the
Minister
now
submits
that
the
amount
to
be
added
to
the
Plaintiff's
income
for
his
1982
taxation
year
should
have
been
$81,290.50
(/2
of
$162,581
capital
gain).
8.
The
Minister
has
provided
the
Plaintiff
with
the
following
schedule
of
calculations:
|
Residence
and
|
Remaining
|
|
Total
|
Two
Hectares
|
Land
|
|
Proceeds:
|
$315,000.00
|
$104,500.00
|
$210,500.00
|
|
Costs:
|
|
|
Land
|
60,398.00
|
28,185.00
|
32,213.00
|
|
Improvements
|
21,000.00
|
15,000.00
|
6,000.00
|
|
Outlays
|
14,525.00
|
4,819.00
|
9,706.00
|
|
$
48,004.00
|
$
47,919.00
|
|
Gain:
|
|
$
56,496.00
|
$162,581.00
|
|
Less:
|
|
|
Exempt
Portion
|
|
56,496.00
|
0
|
|
Capital
Gain:
|
|
$162,581.00
|
|
9.
One
hectare
is
equal
to
2.471
acres.
|
|
10.
The
Baker
Road
Property
included
a
large
fresh
water
reservoir
and
a
fresh
water
spring.
11.
The
Baker
Road
Property
is
shown
as
Lot
A
on
the
plan
found
at
Tab
1
of
the
Brief
of
Documents
(“
BD”)
which
accompanies
this
Agreed
Statement
of
Facts.
12.
At
the
time
of
both
the
purchase
and
sale
of
the
Baker
Road
Property
and
throughout
the
period
the
Baker
Road
Property
was
owned
by
the
Plaintiff,
the
Baker
Road
Property
was
subject
to
the
following
charges
(among
others):
(a)
a
Restrictive
Covenant
(H48269)
(Tab
2
of
BD)
filed
June
14,
1979
in
favour
of
Lot
4
as
shown
on
the
plan
found
at
Tab
1
of
the
BD;
(b)
an
Easement
(186510-G)
(Tab
3
of
BD)
filed
May
18,
1955
in
favour
of
Lot
3
(less
the
westerly
250
feet)
as
shown
on
the
plan
found
at
Tab
1
of
the
BD;
(c)
an
Easement
(186511-G)
(Tab
4
of
BD)
filed
May
18,
1955
in
favour
of
Lot
2
as
shown
on
the
plan
found
at
Tab
1
of
the
BD;
(d)
an
Easement
(186512-G)
(Tab
5
of
BD)
filed
May
18,
1955
in
favour
of
the
westerly
250
feet
of
Lot
3
as
shown
on
the
plan
found
at
Tab
1
of
the
BD;
(e)
an
Easement
(C83257)
(Tab
6
of
BD)
filed
July
4,1974
in
favour
of
lot
4
as
shown
on
the
plan
found
at
Tab
1
of
the
BD;
and
(f)
an
Easement
(D93547)
(Tab
7
of
BD)
filed
October
27,1975
in
favour
of
Lot
4
as
shown
on
the
plan
found
at
Tab
1
of
the
BD.
13.
At
all
material
times
the
charges
described
in
the
preceding
paragraph
were
fully
registered
in
the
Victoria
Land
Title
Office
under
the
Land
Title
Act,
R.S.B.C.
1979,
c.
219.
14.
In
accordance
with
the
Easements
described
in
paragraph
11
of
this
Agreed
Statement
of
Facts,
most
of
the
owners
had
caused
pipeline,
pumps,
and
other
waterworks
to
be
constructed
and
drew
water
from
Lot
A
(the
Baker
Road
Property).
15.
On
Lot
4
there
was
located
at
all
material
times
an
operating
resort
consisting
of
a
restaurant,
lodge,
and
approximately
11
housekeeping
cabins.
In
its
operation
the
resort
relied
on
the
fresh
water
drawn
from
Lot
A
(the
Baker
Road
Property).
Photographs
showing
the
Booth
Bay
Resort
are
found
at
Tab
8
of
the
Brief
of
Documents.
16.
The
Restrictive
Covenant
(#48269)
(Tab
2
of
Brief
of
Documents)
prevented
the
subdivision
of
Lot
A
(the
Baker
Road
Property)
which
helped
to
secure
and
protect
the
supply
of
fresh
water
available
to
Lot
4.
17.
The
parties
are
not
aware
of
any
conditions
existing
between
the
dates
the
charges
described
in
paragraph
12
were
registered
and
the
date
the
Plaintiff
sold
the
Baker
Road
Property
under
which
the
Restrictive
Covenant
(H48269)
could
have
been
removed
under
the
Property
Law
Act,
R.S.B.C.
1979,
c.
340
and
the
Plaintiff
made
no
application
to
have
it
removed.
18.
Both
parties
agree
that
further
evidence
may
be
introduced
at
trial
to
establish
further
facts.
The
plaintiff
personally
was
the
only
witness
who
testified
viva
voce
at
trial.
In
examination-in-chief
he
told
of
his
awareness
of
the
restrictive
covenant
H48269
[Exhibit
3(2)
and
Exhibit
2,
paragraph
12(a)]
and
how
it
did
not
affect
his
decision
to
buy
the
Baker
Road
property.
The
plaintiff's
own
words
give
the
appropriate
flavour
and
weight
to
this
evidence:
Q.
Was
it
your
understanding
at
the
time
you
purchased
the
Baker
Road
property
that
there
was
a
restrictive
covenant
in
force?
A.
Yes,
we
knew
there
was
one.
Q.
What
did
you
understand
the
effect
of
that
restrictive
covenant
to
be?
A.
That
that
parcel
of
land
had
to
stay
as
one
parcel
of
land.
Q.
Did
you
ever
try
to
remove
the
restrictive
covenant?
A.
No.
Q.
Why
not?
A.
It
never
occurred
to
me
because
we
really
wanted
the
total
piece
of
land.
As
I
mentioned.
It
was
a
unique
body
and
we
really
wanted
the
whole
parcel,
and
I
really
wasn't
in
the
business
of
becoming
a
developer.
It
was
a
dream
place
as
far
as
we
were
concerned.
That's
what
we
wanted
to
make
it
into.
Q.
Would
you
describe
for
the
Court
just
the
sort
of
character
of
the
neighbourhood?
A.
Well,
large
or
fairly
large
acreages.
The
neighbourhood
itself
runs
along
the
waterfront
basically.
There
was
a
large
resort
just
across
the
road
from
us,
which
was
the
Booth
Bay
Resort.
There
were
some
permanent
homes
going
down
towards
the
water,
and
up
above
us
there
are
some
larger
parcel
of
lands,
so
again
with
a
permanent
housing.
[Emphasis
added.]
(Transcript:
page
28)
The
emphasized
portion
of
the
above-recited
testimony
was
confirmed
by
the
plaintiff
(Transcript:
page
38)
on
cross-examination.
Placed
on
the
Baker
Road
property
at
the
time
of
disposition,
there
were
three
inhabitable
trailers
of
which
the
smallest
was
left
to
the
buyer.
There
was
a
35-foot
trailer
which
was
the
housing
unit
designated
as
the
plaintiff's
residence
which
he
called
a
mobile
home
of
the
sort
which
are
semi-permanently
emplaced
in
trailer
parks
but
which,
when
their
wheels
are
restored
can
be
towed
away.
There
was
also
a
17-foot
trailer,
the
living
unit
which
was
the
plaintiff's
original
residence
on
the
Baker
Road
property
and,
as
shown
on
Exhibit
4,
there
was,
or
had
been,
shortly
prior
to
the
disposition,
a
so-called
"camper",
a
living
unit
mounted
on
a
truck
in
which
the
plaintiff
could
and
did
offer
accommodation
to
his
guests.
The
35-foot
and
the
17-foot
trailers
were
sold
separately
from
the
realty
and
were
not
included
in
the
gross
sale
revenue
of
$315,000,
but
brought
in
their
particular
and
additional
sums
of
money.
These
facts
were
elicited
from
the
plaintiff
in
his
testimony,
recorded
in
the
transcript:
pages
30-31,
39-41
and
48-49.
The
fresh-water
reservoir,
or
pond,
mentioned
in
Exhibit
2,
paragraph
10,
and
shown
on
Exhibits
3(1)
and
4,
and
mentioned
in
Exhibit
5,
was
stocked
with
trout
by
the
plaintiff
as
he
testified
and
was
so
recorded
in
the
transcript:
pages
30-31
and
51-52.
The
hiking
trails
which
the
plaintiff
established
on
the
Baker
Road
property
are
shown
in
blue
ball-point
pen
lines
and
are
referred
to
in
the
transcript:
pages
31-32
and
57.
Paragraph
3
of
the
plaintiff's
statement
of
claim,
by
its
inclusion
therein
tends,
perhaps
only
subliminally,
to
suggest
that
the
full
physical
extent
and
facilities
of
the
Baker
Road
property
were
all
necessary
to
the
plaintiff's
use
and
enjoyment
of
the
property
as
stated
in
paragraph
54(g)
of
the
Act.
That
suggestion
was
greatly
diluted
and
diminished
on
his
cross-examination
by
the
defendant's
counsel,
thus:
Q.
Now,
I
listened
to
your
evidence
this
morning
about
your
health
problem.
Now,
I
notice
that
your
Statement
of
Claim
says
that
you
were
instructed
to
seek
a
tranquil
lifestyle,
but
what
you
said
this
morning
was
really
what
the
doctor
told
you—
A.
I
wouldn't
say
I
was
totally
instructed.
He
advised
me
that
it
probably
would
help
me
if
I
did
do
something—
Q.
After
you
sort
of
brought
it
up?
A.
Well,
he
mentioned
that
it
was
stress
related,
he
thought,
after
going
through
a
number
of
kidney
tests
and
various
things,
and
I
basically
said
to
him,
would
changing
my
lifestyle
help
me
and
he
says
it
probably
would.
Q.
You
were
not
ever
told
to
go
and
live
on
Saltspring,
that
was
your
decision
anyway.
A.
No.
Q.
Okay.
Now,
to
do
all
the
things
you
wanted
to
do
did
you
really
need
a
property
of
17.6
acres?
A.
That
particular
property,
I
guess,
because
of
its
uniqueness
I
felt
I
needed
it.
First
of
all
we
wanted
a
large
piece
of
land,
because
it
really
was
a
world
unto
itself,
and
having
the
pond,
which
took
approximately
two
acres,
I
mean,
I
guess
it’s
hard
to
define
what
you
need
and
what
you
want,
I’m
quite
sure,
but
as
a
total
package,
that
was
the
main
appeal,
was
the
fact
that
it
was
a
unique
piece
of
property
that
was
a
world
unto
itself
with
all
that
variety
on
it.
Q.
But
I
mean,
you
could
have
hiked
elsewhere—
A.
We
could
have,
yes.
(Transcript:
pages
43-44)
The
Court
finds
that
the
restrictive
covenant,
Exhibit
3(2),
Exhibit
2,
paragraphs
12(a)
and
16,
was
just
as
effective
and
binding
in
law
to
prohibit
subdivision
of
the
Baker
Road
property
into
smaller
lots
or
parcels
of
land,
a
municipal
or
provincial
enactment
to
the
same
effect
would
have
been.
The
plaintiff
was
just
as
powerless
to
subdivide
his
land
as
if
a
municipal
by-law
or
provincial
statute
had
prohibited
such
subdivision,
in
which
case
he
could,
of
course,
petitioned
the
enacting
legislative
body
to
lift
the
prohibition.
As
it
was,
according
to
paragraph
17
of
the
agreed
statement
of
facts,
Exhibit
2,
given
the
requisite
conditions,
which
never
existed,
the
plaintiff
might
have
made
application
to
remove
the
restrictive
covenant
pursuant
to
the
above-cited
Property
Law
Act
of
British
Columbia.
In
any
event,
as
the
plaintiff
testified,
he
was
never
desirous
of
having
the
restriction
removed.
So,
the
property,
by
operation
of
law
could
not
be
subdivided.
On
the
other
hand,
there
was
no
legal
minimum
size
of
the
taxpayer's
residential
property
prescribed
either
by
municipal
by-law,
provincial
legislation
or
by
restrictive
covenant.
The
result
in
effect,
however,
is
the
same,
for
if
one
be
prohibited
from
subdividing
the
17.6-acre
(7.122-hectare)
property,
effectively
one's
lot
is
restricted
to
not
less
than
17.6
acres
(7.122
hectares)
no
matter
which
kind
of
proscription
be
enforced.
Finally,
in
terms
of
revelations
of
fact
evinced
by
and
through
the
plaintiff's
testimony
there
was
the
prospect
of
a
sale
of
the
Baker
Road
property
to
and
for
the
Federation
of
Canadian
Artists
as
the
site
of
an
art
school.
That
notional
buyer
might
just
have
been
a
not-unheard-of
ruse
by
the
real
estate
agency
Saltspring
Lands,
for,
if
the
inference
from
plaintiff's
testimony
at
pages
32
and
42-43
of
the
transcript
be
truly
what
it
appears
to
be,
the
artists'
federation
did
not
buy
the
land,
but
after
the
"agents
from
Saltspring
Lands
fell
in
love
with
the
property"
and
made
me
an
offer",
the
property
was
according
to
Exhibit
1,
page
6,
sold
to
Culleston
Farms
Ltd.
as
of
March
15,
1982,
for
the
sale
price
of
$315,000.
(Transcript:
pages
32
and
43.)
The
plaintiff's
counsel
argues
that
the
leading
authority
on
paragraph
54(g)
of
the
Income
Tax
Act
is
the
decision
of
the
Appeal
Division
of
this
Court
in
The
Queen
v.
Yates,
[1986]
2
C.T.C.
46;
86
D.T.C.
6296,
affirming
all
of
the
trial
judge's
reasons
for
concluding
that
in
that
particular
case,
the
1978
disposition
by
the
taxpayers
of
the
9.3
acres
in
issue
was
a
disposition
of
a
principal
residence
within
the
meaning
of
paragraph
54(g)
of
the
Act.
The
judgment
upheld
was
that
of
Mahoney,
J.
in
The
Queen
v.
Yates,
[1983]
C.T.C.
105;
83
D.T.C.
5158.
The
learned
judge's
recitation
of
the
facts
of
the
Yates
case
at
106
(D.T.C.
5158-59)
reveals
briefly
and
cogently
how
different
are
the
facts
and
factors
of
that
case
from
this,
thus:
The
defendants
acquired
a
ten
acre
parcel
of
vacant
land
near
Guelph
on
which,
in
1964,
they
built
their
home.
Ten
acres
was
the
minimum
residential
parcel
then
permitted
by
the
zoning.
The
zoning
bylaw
was
subsequently
amended
to
require
a
25
acre
minimum.
The
defendants
continued
to
reside
there
as
legal
non-conforming
users.
When
they
bought,
the
defendants
did
not
want
ten
acres;
they
wanted
only
enough
land
for
their
residence
but
had
to
buy
at
least
ten
acres.
They
did
not
use
more
than
an
acrefor
residential
purposes.
The
balance
was
rented
to
a
neighboring
farmer
who
grew
crops
on
it.
In
1978,
the
defendants
sold
9.3
acres
to
the
City
of
Guelph
under
threat
of
expropriation.
The
9.3
acres
did
not
include
the
residence.
The
defendants
continue
to
reside
on
the
remaining
0.7
acre
plus
an
adjacent
0.225
acre
transferred
to
them
by
the
City
as
part
of
the
consideration
for
the
9.3
acres.
The
defendants
could
not
legally
have
occupied
their
housing
unit
as
a
residence
on
less
than
ten
acres.
It
follows
that
the
entire
ten
acres,
subjacent
and
contiguous,
not
only
"may
reasonably”
be
regarded
as
contributing
to
their
use
and
enjoyment
of
their
housing
unit
as
a
residence;
it
must
be
so
regarded.
It
also
follows
that
the
portion
in
excess
of
one
acre
was
necessary
to
that
use
and
enjoyment.
The
disposition
in
issue
was
a
disposition
of
a
principal
residence.
The
trial
judge
expressed
certain
obiter
dicta,
generated
perhaps
by
the
"threat
of
expropriation”
levied
upon
the
taxpayers
in
Yates,
supra.
Suggesting
that
it
would
be
possible
in
regard
to
the
taxpayers'
use
and
enjoyment
of
the
housing
unit,
that
a
subjective
test
might
be
admissible."Perhaps",
Mahoney,
J.
suggested,
“such
factors
as
are
commonly
taken
into
account
in
applying
subsection
24(6)
of
the
Expropriation
Act,
[R.S.C.
1970
(1st
Supp.),
c.
16]
could
be
relevant
in
appropriate
circumstances."
The
cases
are
far
apart
on
their
facts.
The
Yates
did
not
want
or
need
to
acquire
the
full
ten
acres
merely
for
the
purpose
of
building
their
home,
but
willy-nilly
had
to
do
so.
In
the
case
at
bar
the
plaintiff
gladly
embraced
the
full
17.6
acres,
a
kind
of
private
provincial
park,
because
he
desired
that
grandiose
lot.
Here,
the
plaintiff
did
not
build
his
home,
but
rather
placed
a
couple
of
trailers
which,
it
appears
never
were
affixed
to
and
part
of
the
realty,
such
that
one
doubts
if
they
or
it
(the
plaintiff's
one
housing
unit
at
a
time)
ever
really
had
any
land
subjacent
to
it
or
any
immediately
contiguous
land.
Giving
the
taxpayer
the
benefit
of
any
doubt
on
that
score,
the
Court
locates
the
taxpayer's
housing
unit
as
the
place
upon
which
the
35-foot
mobile
home
was
temporarily
resting
prior
to
the
purchase,
but
truly
that
is
an
evanescent
finding
because
that
mobile
would-be
housing
unit
was
sold
separately
from
the
land.
It
really
does
not
qualify,
in
these
circumstances,
as
a
housing
unit
which
can
be
fixed
upon
the
land
claimed
as
the
plaintiff's
residence,
because
there
was
so
much
more
land
than
was
needed
for
the
mobile
home,
which
was
in
no
way
confined
to
any
one
place
upon
it.
What,
relationship,
one
must
ask,
has
this
mobile
housing
unit,
if
it
were
indeed
a
“housing
unit”
within
the
Act's
contemplation,
with
the
distinct
purposes,
and
modalities
of
the
Expropriation
Act,
and
the
Income
Tax
Act?
Although
both
statutes
evince
an
exertion
of
State
power
in
the
domain
of
public
law,
they
are
not
in
pari
materia.
They
reveal
in
fact
and
in
law
quite
different
purposes.
The
differences
are
plainly
apparent
in
the
requirements
of
the
respective
contexts.
The
Expropriation
Act
is
an
instrument
of
the
State
for
the
forceable
taking
of
a
private
individual’s,
or
a
corporation's
lands
for
a
public
purpose.
The
force
exerted
always
begins
with
the
force
of
law,
but
could
notionally
escalate
into
force
of
arms.
There,
the
policy
which
Parliament
imposes
on
the
Crown
is
that
an
individual's
home
is
precious
to
him,
and
be
it
ever
so
humble
or
grandiose,
it
is
home.
For
that
wrenching
away
of
an
individual's
home
the
Crown
must
pay
enough
at
least
to
the
homeowner
to
relocate
his
residence
in
or
on
premises
reasonably
equivalent
to
the
premises
expropriated.
Such
provision
is
often
referred
to
as"a
home
for
a
home"/'
maison
pour
maison".
Public
law
is
common
law
and
the
common
law
has
always
paid
great
respect
to
an
individual's
privacy
and
comfort
in
his
or
her
home,
and
so
it
is
not
surprising
that
the
legislator
in
this
instance
maintains
that
respect.
This
legislative
policy
is
richly
illustrated
by
the
unanimous
judgment
of
the
Supreme
Court
of
Canada
delivered
by
Estey,
J.
in
The
Queen
v.
Gerencer,
[1980]
1
S.C.R.
403;
29
N.R.
181,
cited
herein
on
the
plaintiff's
behalf.
The
Gerencer
judgment
is
based
in
large
part
on
the
reasons
of
Mr.
Justice
Urie
who,
for
a
unanimous
Appeal
Division
of
this
Court,
upheld
the
trial
judge's
reasoning
in
imparting
a
wide
and
generous
interpretation
to
the
words
of
subsection
24(6)
of
the
Expropriation
Act,
where
it
mentions
"used
by
the
owner
thereof
for
the
purposes
of
his
residence".
In
this
context,
so
held
the
Court
in
three
immediately
consequential
instances,
that
"residence"
is
meant
by
the
legislator
to
be
(at
S.C.R.
page
407)
a
place
where
one
may
indeed
have
those
minimal
benefits
but
where
one
may
also
enjoy
amenities
of
pleasant
living
according
to
one's
taste,
where
one
may
find
the
companionship,
solaces,
comforts
and
joys
of
family
and
where
one
may,
if
facilities
and
purse
permit,
pursue
hobbies
and
leisure
time
activities
and
do
those
things
which
he
finds
enjoyable
but
which
are
not
available
to
him
in
his
vocation.
I
think
this
view
finds
support
by
the
use
of
the
plural
in
"purposes"
in
the
wording
"purposes
of
his
residence”.
If
on
this
property
there
were
a
swimming
pool,
a
putting
green,
a
tennis
court
or
even
all
three
it
would
be
clear
enough
that
they
would
be
included
in
residence.
If
a
man's
inclination
does
not
run
to
swimming
or
tennis
or
golf
but
rather
to
doing
a
little
farming
in
the
time
which
he
has
free
from
his
job
it
would
seem
to
me
that
there
is
no
fundamental
difference
in
principle.
And
that
is
the
legislatively
adopted
principle
there,
not
for
all
purposes
in
all
the
laws
of
Canada,
but
for
the
purpose
of
forcibly
taking
away
from
a
person
his
or
her
home.
How
different
are
the
purpose
and
principle
of
the
Income
Tax
Act!
In
and
by
means
of
this
latter
statute,
the
State
levies
a
tax
on
gains
of
revenue,
or
income,
whether
realized
by
wages,
salaries,
investments,
or
commissions,
or
by
sale
of
property
whose
monetary
value
is
augmented
by
real
value
or
by
inflation.
In
this
instance
the
State
does
not
purport
to
deprive
anyone
of
his
or
her
home
forever,
but
rather
the
State
waits
until
the
homeowner
is
effecting
a
sale
and,
exempting
a
basically
defined
primary
residence
from
tax,
it
nevertheless
taxes
the
realized
value
of
the
property
which
exceeds
the
basic
half
hectare
residence,
unless
the
homeowner/taxpayer
persuades
the
Minister,
and
ultimately
the
Court
on
appeal,
that
the
excess
land
was
at
its
disposition
necessary
to
the
homeowner's
use
and
enjoyment
of
the
housing
unit
which
is
included
in
the
defined
residence.
The
statutory
words
of
necessity
here
are
"
use
and
enjoyment”
or
"nécessaire
à
cet
usage
et
à
cette
jouissance".
The
meaning
of
use/usage"
presents
utterly
no
difficulty,
but
it
must
be
noted
that
the
meaning
of
"enjoyment/
jouissance"
eschews
all
connotation
of"
hedonism
or
volupté”
in
this
context.
Jowitt's
Dictionary
of
English
Law,
2nd
ed.,
4th
impression
1982,
Sweet
&
Maxwell,
London,
puts
it:
"Enjoyment,
the
exercise
of
a
right.
It
is
to
a
right
what
possession
is
to
a
corporeal
thing,
and
.
.
.
.”
The
Canadian
Law
Dictionary,
by
John
A.
Yogis,
Q.C.,
Professor
of
Law,
Dalhousie
University,
is
even
more
concise,
thus:
“Enjoyment
The
taking
of
the
benefit
of
some
right.”
Le
Petit
Robert,
1985,
speaks
with
comprehensive
authority
about
the
word,
whose
meaning
in
law
is
given:
"Jouissance
.
.
.
Dr.
Fait
d'être
titulaire
(d'un
droit).
Avoir
la
jouissance
de
ses
droits
sans
en
avoir
l'exercise
(capacité
de
jouissance
opposé
à
capacité
d'exercise)."
Now,
the
statute
requires
that
where
the
housing
unit
(which
could
be
anything
from
a
hovel
to
a
manor)
is
set
upon
land
ana
contiguous
land
of
less
extent
than
one-half
hectare
the
taxing
authority
leans
in
favour
of
the
relief
of
the
taxpayer/homeowner;
but
where
the
land
is
of
greater
extent
than
one-half
hectare
then
the
excess
is
deemed
not
to
have
contributed
to
that
individual's
use
and
enjoyment
of
the
housing
unit,
unless
he
or
she
establishes
that
it
was
necessary
to
such
use
and
enjoyment.
In
the
present
case
there
is
a
further
complication.
Where
the
taxpayer's/
homeowner's
housing
unit
is
a
mobile
home
which
is
capable
of
going
whither
he
or
she
goes,
how
can
one
readily
identify
any
“land
subjacent
to
[that]
housing
unit
and
such
portion
of
any
immediately
contiguous
land
as
may
reasonably
be
regarded
as
contributing
to
the
taxpayer's
use
and
enjoyment
of
[that]
housing
unit?
That
mobile
home
was
capable
not
only
of
being
moved
off
the
Baker
Road
property
(as,
in
fact,
transpired
through
separate
sale)
but
of
being
moved
anywhere
within
the
Baker
Road
property.
Exhibit
4,
the
plaintiff's
own
sketch
shows
the
mobile
home
to
have
been
set
beside
the
reservoir
or
little
lake
shown
in
Exhibits
3(1)
and
4).
There
is
a
doubtful
probability
that
it
sat
there
just
before
the
disposition
in
March,
1982,
because
of
the
telephone
and
hydro
power
line
shown
extending
from
the
boundary
of
the
lot
to
the
place
where
the
mobile
home
rests,
or
rested.
This
is
an
inference
on
the
probabilities
of
Exhibit
4
only.
There
is
no
direct
evidence
that
the
housing
unit
was
even
present
when
the
separate
disposition
of
the
land
was
effected:
but,
the
probabilities
of
sales
of
land
cry
out
for
the
clear
removal
of
all
of
the
vendor's
chattels,
that
is
his
"housing
unit”,
his
camper
and
the
other
separately
sold
trailer,
before
the
buyer
takes
possession
of
the
land.
This
evidence,
such
as
it
is,
with
the
probabilities
to
be
inferred
from
it
leave
the
Court
in
no
doubt
that
the
plaintiff
simply
cannot
establish
that
the
excess
land
of
16.36
acres
or
6.622
hectares
beyond
one-half
hectare
prescribed
in
the
Act,
was
necessary
to
the
use
and
enjoyment
of
the
mobile
home
because
the
mobile
home
as
a
“housing
unit”
simply
had
no
identifiable
subjacent
or
contiguous
land
even
within
the
lot.
That
is
the
essence
of
its
mobility.
However,
even
if
one
chose
to
regard
the
plaintiff's
mobile
home
as
being
a
housing
unit
affixed
to
the
real
property,
as
being
notionally
part
of
and
rooted
in
the
land,
the
plaintiff
still
fails
because,
according
to
the
agreed
facts
stated
in
Exhibit
2,
paragraph
8,
the
Minister
has
benignly
allowed
the
plaintiff
the
equivalent
exemption
for
two
hectares,
not
just
one-half
hectare.
That
is
a
generous
allowance
for
a
mobile
home,
permitting
the
taxpayer
to
choose
the
most
favourable
two
hectares
without
much
concern
for
the
exigencies
of
the
rest
of
the
property.
Finally
the
plaintiff,
whose
mobile
housing
unit
had
no
fixed
relationship
with
any
particular
subjacent
or
contiguous
lands,
pleads
that
he
could
not
subdivide
the
land
but
had
to
sell
it
en
bloc,
if
it
were
to
be
sold.
The
Court
asks,
so
what?
Is
the
result
not
in
sweet
accord
with
the
intent
of
the
legislator
and
with
the
provisions
of
the
legislation?
This
plaintiff
wanted
to
acquire,
use
and
enjoy
the
full
extent
of
the
17.6
acres,
or
7.122
hectares
which
he
bought
in
1977
and
did
not
want
it
to
be
subdividable.
Here
was
no
case
of
a
person
who
found
the
house
he
or
she
could
afford
solidly
affixed
to
more
land
than
the
individual
needed
or
wanted.
There
was
no
house—no
affixed
housing
unit—involved.
The
plaintiff
knowingly
and
quite
intentionally
bought
a
grandiose
lot
with
its
little
trout-stocked
lake,
its
ridge
with
a
view
of
the
sea,
its
forest
and
its
forest
trails.
It
was
a
mini-duchy,
or
a
baronial
domain,
at
least.
He
never
affixed
a
housing
unit
in
or
to
it.
It
consisted
of
7.122
apparently
primeval
hectares.
His
housing
unit
was
a
mobile
home.
Two
and
a
half
years
later
he
sold
the
land
quite
apart
from
the
mobile
housing
unit
and
the
other
trailer,
leaving
only
a
smaller
chattel,
another
trailer,
with
the
buyer.
Indeed
since
the
plaintiff's
would-be
housing
unit
was
a
chattel
not
affixed
to
the
land,
what
he
sold
for
a
significant
capital
gain
was
just
the
land.
The
evidence
which
the
plaintiff
adduced,
ana
the
legal
arguments
which
his
counsel
submitted
are
all
simply
ineffectual
to
establish
that
(a)
there
was
any
subjacent
and
contiguous
land
in
the
Baker
Road
property
which
could
reasonably
be
regarded
necessarily
as
contributing
anything
to
the
taxpayer's
use
and
enjoyment
of
a
mobile
home
as
his
residence,
but
(b)
if
there
were
such,
that
the
additional
12.66
acres,
or
5.122
hectares
were
necessary
to
such
use
and
enjoyment.
This
is
simply
not
established
and
the
universe
unfolds
as
it
should
when
the
acquisition-and-
sale
of
the
Baker
Road
property
produces
a
capital
gain
of
$162,581
for
the
plaintiff,
as
shown
in
paragraph
8
of
Exhibit
2,
the
agreed
statement
of
facts.
The
restrictive
covenant
H48269
filed
against
and
running
with
the
property
from
and
after
June
14,1979
(Exhibit
3(2))
establishes
that
subdivision
of
the
land
is
prohibited,
as
the
plaintiff
has
known
since
he
bought
the
property,
but
its
existence
and
operation
do
nothing
to
establish
that
the
additional
12.66
acres
or
5.122
hectares
were
necessary
to
the
plaintiff's
use
and
enjoyment
of
the
unit,
any
more
than
any
other
12.66
acres
or
5.122
hectares
in
a
wide
radius.
That
he
could
not
sever
them
for
separate
sale,
as
he
did
with
his
mobile
home/housing
unit,
produces
a
result
quite
consonant
with
the
better
administration
of
this
law
of
Canada,
the
Income
Tax
Act.
The
plaintiff's
evidence
and
legal
arguments
just
cannot
pull
him
over
or
across
the
adverse
deeming
provision
in
paragraph
54(g)
of
the
Act.
The
plaintiff
could
enjoy
it
all,
that
private
park
of
his,
or
he
was
competent
to
dispose
of
it
all,
the
transactions
both
having
been
quite
free
and
consensual.
That
the
disposition
renders
the
plaintiff
liable
to
pay
tax
on
the
capital
gain
of
the
value
in
excess
of
the
monetary
value
pro-rated
for
two
hectares,
does
not
affect
his
use
and
enjoyment
of
his
trailer
housing
unit.
It
just
means
that
he
obtained
his
exemption
for
his
principal
residence,
and
realized
his
capital
gain
on
the
sale
of
the
excess
land,
simultaneously.
The
plaintiff
had
occupation
of
and
dominion
over
his
lovely
park,
to
the
extent
of
his
fee
simple
in
possession,
no
matter
where
on
it
or
where
off
it
he
parked
his
mobile
home
from
time
to
time,
including
the
time
immediately
prior
to
the
disposition
of
the
property
which
he
effected
in
March,
1982.
Its
subjection
to
the
covenants
and
the
earlier
above
mentioned
easements
remained
constant
from
acquisition
to
disposition,
and
is
therefore
of
no
effect
or
consequence
here.
The
plaintiff's
appeal
and
this
action
in
which
it
resides
will
be
dismissed
with
costs.
Appeal
dismissed.
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