Christie,
A.C.J.T.C.:—This
appeal
pertains
to
the
appellant’s
1978
and
1979
taxation
years.
The
issues
raised
by
the
pleadings
are
these.
What
was
the
fair
market
value
of
certain
real
estate
identified
as
2473-2475
Yonge
Street,
Toronto,
(“the
property")
as
of
December
31,
1971,
("V-Day”)
and
how
should
that
value
be
apportioned
between
land
and
improvements
as
of
that
date?
As
is
generally
the
case
in
relation
to
issues
of
this
kind
the
evidence
adduced
at
hearing
consisted
of
a
clash
of
expert
opinion
from
witnesses
testifying
on
behalf
of
the
appellant
and
the
respondent.
Mr.
R.
W.
O'Brien
testified
on
behalf
of
the
appellant
and
Mr.
R.
F.
Blaauw
on
behalf
of
the
respondent.
O’Brien
estimated
the
fair
market
value
at
V-Day
to
be
$108,000.
His
allocation
as
of
that
date
was
$48,384
to
land
and
$59,616
to
improvements.
Blaauw’s
figures
are
$77,000,
$38,500
and
$38,500
respectively.
The
property
consists
of
2,688
square
feet
and
is
commercially
zoned.
It
has
a
basement
and
three
storeys.
The
ground
floor
is
utilized
as
a
retail
outlet
and
the
two
storeys
above
consist
of
apartments.
There
is
parking
space
in
the
rear.
In
arriving
at
his
estimate
O'Brien
resorted
to
market
data
and
income
approaches
and
his
estimate
that
market
value
as
of
V-Day
was
$108,000
included
a
consideration
of
the
evidence
provided
by
the
two
approaches.
Blaauw
considered
the
market
data,
income
and
cost
approaches.
In
arriving
at
his
V-Day
market
value
figure
of
$77,000
he
relies
in
the
final
analysis
on
the
market
data
approach.
There
is
no
difference
in
substance
between
the
language
used
by
both
witnesses
in
defining
market
value.
They
said
this
about
highest
and
best
use.
O’Brien:
The
highest
and
best
use
of
the
subject
property
is
taken
to
have
been
at
its
retention
and/or
sale
to
a
user-purchaser
for
retail
store
purposes,
with
the
residential
apartments
above
being
used
by
the
purchaser
or
rented
to
provide
an
income
to
the
user-purchaser.
Blaauw:
The
highest
and
best
use
is
that
use
which
is
most
likely
to
produce
the
greatest
net
return,
in
money
or
amenities,
over
a
given
period
of
time.
As
of
December
31,
1971,
the
existing
use
of
commercial
retail,
and
residential
or
offices
above
is
considered
to
represent
the
highest
and
best
use
of
the
subject
site.
As
of
September
8,
1978,
the
continuation
of
the
existing
use,
until
such
time
the
block
is
redeveloped,
is
considered
to
be
the
highest
and
best
use.
In
my
opinion
in
determining
the
market
value
of
the
property
as
of
V-Day
the
better
approach
as
between
a
combination
of
income
and
market
data
on
the
one
hand
and
market
data
alone,
is
the
latter.
My
reason
for
this
pertains
to
what
I
regard
as
the
relatively
weak
persuasiveness
of
what
is
relied
on
in
support
of
the
income
approach.
I
am
also
of
the
view
that
Blaauw’s
opinion
regarding
market
value
should
be
accepted.
This
conclusion
is
based
on
the
whole
of
the
evidence,
but
I
find
in
particular
that
Blaauw’s
comparables
are
of
much
greater
assistance
in
assessing
market
value.
Each
of
his
eight
comparables
related
well
with
the
subject
property.
All
consisted
of
a
retail
outlet
on
the
ground
floor
plus
two
storeys
above.
On
the
other
hand
O'Brien
placed
primary
reliance
on
comparables
consisting
of
two
floors
above
ground.
With
respect
to
the
matter
of
apportionment
as
of
V-Day,
O'Brien's
evidence
in
this
regard
is
45
per
cent
of
his
estimated
market
value
to
land
and
the
rest
to
improvements.
Blaauw
apportions
50
per
cent
to
each
component.
On
balance
I
also
accept
Blaauw’s
opinion
in
this
regard.
Counsel
for
the
appellant
emphasized
that
in
respect
of
six
of
Blaauw’s
comparables
(numbers
3
to
8)
the
vendor
is
the
same
corporation.
It
had
secured
the
properties
from
an
estate.
The
sales
occurred
during
the
period
April
26,
1971
to
November
15,
1972.
Each
sale
was
to
a
different
purchaser.
The
acquisition
of
these
comparables
by
the
corporation
is
characterized
by
O'Brien
as
a
“bulk
purchase"
and
it
is
inferred
that
there
was
some
element
of
bargain
prices
in
the
sale
of
the
properties.
I
do
not
accept
such
an
inference.
O'Brien
acknowledges
that
the
individual
sales
were
made
“at
a
substantial
profit".
There
is
no
reason
to
conclude,
having
regard
to
the
nature
of
he
properties,
the
magnitude
of
the
Toronto
market
and
the
period
of
time
over
which
the
sales
were
made,
that
prices
lower
than
their
market
value
as
defined
by
O'Brien*
were
resorted
to
in
order
to
realize
the
sales
that
were
made.
Counsel
for
the
respondent
raised
a
matter
which
he
contends
disposes
of
this
appeal
in
favour
of
his
client
apart
from
what
has
already
been
dealt
with
in
these
reasons.
While
it
is
a
matter
which
might
bear
that
consequence,
I
find
it
unnecessary
to
make
a
determination
regarding
it
because
what
has
already
been
said
is
sufficient
to
dispose
of
this
appeal
in
favour
of
the
respondent.
Nevertheless
something
occurred
during
the
course
of
the
hearing
which
I
believe
warrants
additional
comment.
The
examination-in-chief
of
Blaauw
ended
just
prior
to
adjournment
on
the
afternoon
of
December
4,
1985.
Cross-examination
commenced
the
following
morning.
At
the
outset
counsel
for
the
appellant
questioned
the
witness
regarding
whether
he
had
conferred
with
counsel
for
the
respondent
during
the
intermission.
Although
counsel
for
the
respondent
immediately
assured
the
Court
that
there
was
no
impropriety
in
any
discussions
which
had
taken
place
between
him
and
the
witness,
I
allowed
the
questioning
to
proceed
because
of
the
wide
latitude
which
I
consider
should
be
allowed
to
a
cross-examiner
in
pursuit
of
the
truth.
On
reflection,
I
believe
that
I
should
not
have
done
so
without
ascertaining
its
purpose.
Nothing
came
of
the
line
of
questioning
embarked
upon
by
Mr.
Henderson
and
I
concluded
that
he
had
resorted
to
a
stratagem
which
is
not
novel.
It
is
described
at
pages
52
and
53
of
a
work
entitled
Legal
Ethics
by
Mark
M.
Orkin
of
the
Bar
of
Ontario:
A
device
sometimes
used
on
cross-examination,
to
embarrass
a
witness
or
disconcert
inexperienced
counsel
is
to
ask
the
witness
if
he
has
been
discussing
the
case
with
counsel
for
the
side
which
called
him.
There
is,
of
course,
nothing
in
the
least
improper
about
doing
this
and
the
witness
should
be
so
advised
before
he
takes
the
stand.
I
question
the
appropriateness
of
resorting
to
this
kind
of
tactic
merely
for
one
or
both
of
the
purposes
mentioned.
To
my
mind
the
certainty
of
the
efficaciousness
of
cross-examination
as
a
device
to
ascertain
truth
is
well
established
without
resorting
to
the
kind
of
thing
described.
I
do
not
believe
that
it
contributes
to
its
enhancement.
At
a
minimum
it
borders
on
the
vexatious
if
indeed
it
does
not
transgress
that
line.
In
my
opinion
a
witness
should
not
be
cross-examined
about
what
transpired
between
him
and
counsel
for
the
party
on
whose
behalf
he
is
testifying
unless
the
alleged
consultation
occurred
after
cross-examination
commenced
or
the
purpose
is
something
other
than
to
simply
embarrass
a
witness
or
add
to
his
already
often
existing
honest
discomfiture
or
to
have
the
previously
described
effect
on
opposing
counsel.
I
say,
“after
cross-examination
has
commenced"
because
in
Canada
the
generally
accepted
rule
is
that
once
cross-examination
is
under
way,
counsel
should
not
consult
with
a
witness
he
has
called.
In
Legal
Ethics
this
is
said
at
pages
52-53:
“Counsel
may
not
talk
to
his
witness
during
an
adjournment
while
he
is
under
cross-examination."
This
prohibition
is
subject
to
these
qualifications:
unless
counsel
for
the
opposing
party
agrees
or
with
leave
of
the
Court.
In
Evidence
in
Civil
Cases
by
Sopinka
and
Lederman
this
is
said
at
page
499:
If
a
cross-examination
is
interrupted
by
an
adjournment
or
a
recess,
it
is
improper
for
counsel
to
communicate
directly
or
indirectly
with
the
witness.
Once
the
cross-examination
of
a
witness
has
commenced,
counsel
should
not
converse
with
him
until
it
is
concluded,
unless
leave
is
obtained.
The
rule
in
the
United
Kingdom
appears
to
reach
beyond
consultation
after
cross-examination
has
commenced.
This
may
arise
out
of
the
fact
that
the
two
traditional
branches
of
the
legal
profession,
barristers
and
solicitors,
have
not
been
fused
there
as
is
the
case
in
Canada
and
the
relationship
between
a
barrister
and
witness
called
by
him
is
generally
much
more
at
arm's
length
than
is
the
case
in
Canada.
In
Conduct
and
Etiquette
at
the
Bar,
2nd
(1957)
edition
by
W.
W.
Boulton
of
the
Inner
Temple,
this
is
said
at
page
10:
Save
with
the
consent
of
counsel
on
the
other
side
or
by
leave
of
the
tribunal,
it
is
improper
for
counsel
to
communicate
directly
or
indirectly
with
a
witness,
whether
or
not
his
client,
once
such
witness
has
begun
to
give
evidence,
until
his
evidence
is
concluded.
In
the
case
of
expert
witnesses
where
there
may
on
occasion
be
good
reason
for
counsel
to
communicate
with
them,
the
permission
of
counsel
on
the
other
side
(which
should
not
be
unreasonably
withheld),
or
if
necessary
of
the
tribunal,
can
always
be
obtained
and
no
difficulty
should
arise
in
practice.
Paragraph
1186
of
Halsbury's
Laws
of
England,
4th
(1973)
ed.,
vol.
3,
is
to
the
same
effect.
The
appeal
is
dismissed.
Appeal
dismissed.
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