Mahoney,
J:—In
issue
is
the
fair
market
value
on
Valuation
Day,
December
22,
1971,
of
a
common
share
of
Canadian
Wallpaper
Manufacturers
Limited,
hereafter
called
"the
company".
Such
share
was
prescribed
to
be
a
publicly-traded
share
and
its
value
prescribed
to
be
$85.50
pursuant
to
subsection
26(11)
of
the
Income
Tax
Application
Rules,
1971,
SC
1970-71-72,
c
63:
26.
(11)
For
the
purposes
of
this
section,
the
fair
market
value
on
valuation
day
of
any
property
prescribed
to
be
a
publicly-traded
share
or
security
shall
be
deemed
to
be
the
greater
of
the
amount,
if
any,
prescribed
in
respect
of
that
property
and
the
fair
market
value
of
that
property,
otherwise
determined,
on
valuation
day.
The
company
had
only
one
class
of
shares,
the
common.
Prior
to
Valuation
Day,
the
last
trading
in
the
company’s
shares
recorded
on
the
Toronto
Stock
Exchange,
where
they
were
listed,
occurred
October
29,
1971,
when
100
shares
traded.
That
day
they
were
quoted
at
a
high
of
$86
and
a
low
of
$85.
There
were
no
trades
Valuation
Day.
On
December
21
and
23,
the
bid
was
$83
and
the
ask
$88
with
no
sales
reported.
The
defendant
questions
the
validity
of
the
prescribed
fair
market
value
on
two
bases
of
some
substance:
firstly,
that
on
Valuation
Day
a
take-over
bid
was
in
the
offing
and
the
defendant
knew
it,
and
secondly,
that
the
market
before
Valuation
Day
had
been,
historically,
ephemeral
or
spasmodic.
A
take-over
bid,
at
$200,
was
made,
November
20,
1972,
to
the
other
shareholders,
by
Arthur
Sanderson
and
Sons
(Canada)
Limited,
hereafter
called
“Sanderson”,
theretofore
owner
of
approximately
65%
of
the
company’s
outstanding
shares.
Acceptance
by
the
defendant
of
that
offer
as
to
its
2,010
shares
led
to
the
assessment
under
the
Income
Tax
Act
that
puts
the
fair
market
value
of
such
shares
on
Valuation
Day
in
issue.
This
action
was
tried
on
common
evidence
with
actions
by
the
plaintiff
against
R
Hampson
Gillean
(Court
No
T-3032-76)
and
lan
Gillean
(Court
No
T-3034-76)
who
accepted
the
same
offer
as
to
their
1,000
shares
and
1,690
shares
respectively.
The
company
was
incorporated
in
1927
to
acquire
four
independent
Canadian
wallpaper
manufacturers.
At
all
times
material
hereto
it
enjoyed
about
80%
of
the
Canadian
wallpaper
market,
10%
being
accounted
for
by
a
new
competitor
and
the
balance
by
imports.
On
Valuation
Day,
some
87,000
of
the
company’s
129,246
outstanding
shares
were
owned
by
Sanderson,
a
wholly-owned
subsidiary
of
The
Wallpaper
Manufacturers
Limited,
a
British
company
controlled,
in
turn,
by
Reed
Paper
Group
Ltd.
Of
the
remaining
shares,
some
30,000
had
been
acquired
by
clients
of
Spicer
Investment
Counsel
Limited,
hereafter
called
“Spicer”,
during
the
1960’s.
The
defendant’s
shares
were
among
these.
This
portion
of
the
company’s
shares
was
held
by
its
owners
as
long-term
investments.
Sanderson’s
shares
were
not
offered
in
the
market
and,
except
for
a
handful
of
shares
sold
by
Spicer
clients
faced
with
liquidity
problems,
the
shares
offered
in
the
market
during
the
material
period
prior
to
the
take-over
bid,
both
before
and
after
Valuation
Day,
involved
only
the
remaining
12,000-odd
shares,
something
less
than
10%
of
the
total
outstanding.
There
is
before
me
in
considerable
detail
the
evidence
of
Philip
M
Spicer
as
to
why
he,
and
his
late
father,
had
recommended
the
company’s
stock
as
a
long-term
hold.
The
most
important
factors
were
the
company’s
innovative
and
aggressive
product
and
market
development
approaches,
its
commanding
position
in
the
Canadian
market,
its
acquisition
of
a
United
States
subsidiary
and
the
understated
values
of
its
production
equipment
and
real
estate.
I
do
not
think
it
necessary
to
review
this
evidence
in
detail.
I
accept
that
Spicer
had
good
reason
to
recommend
the
company’s
shares
to
its
clients
as
a
long-term
hold.
The
shares
held
by
Spicer
clients
were
not
subject
to
any
binding
arrangement.
The
only
common
thread
disclosed
in
evidence
is
that
the
holders
of
30,000-odd
shares
all
received
and
acted
on
Spicer’s
advice.
Neither
Spicer
nor
any
of
its
clients
were
represented
on
the
company’s
board
of
directors;
however,
the
late
H
S
Spicer,
at
least,
had
maintained
an
exceptional
rapport
with
officials
of
both
the
company
and
its
controlling
interest.
He
was
well
and
routinely
informed
by
them
as
to
its
affairs
and
prospects
and
felt,
through
the
1960’s,
that
they
were
receptive
to
his
ideas
and
sympathetic
to
the
interests
of
the
minority
shareholders.
In
1970,
for
the
first
time,
the
controlling
interests
displayed
a
polite
interest
in
Spicer’s
view
of
its
clients’
intentions
as
to
their
investments
per
se.
Up
to
then,
they
had
been
receptive
to
Spicer’s
representations
on
behalf
of
its
clients.
Now
they
were
not.
A
change
in
dividend
policy,
said
to
be
designed
to
benefit
the
minority
shareholders
without
detriment
to
the
controlling
interest,
was
suggested
and
ignored.
The
Toronto
Stock
Exchange
was
actively
and
publicly
considering
prescribing
conditions
upon
which
the
continued
listing
of
stocks
would
depend.
If
it
adopted
the
conditions
being
publicly
discussed,
the
company’s
shares
would
be
delisted.
A
share
split
would
avoid
that.
Spicer
suggested
it
and,
again,
was
ignored.
Spicer
smelled
a
take-over
or
a
work-out
proposal
in
the
offing
and
so
advised
its
clients.
Spicer
was
of
the
view
that
a
take-over
price
in
excess
of
$300
per
share,
perhaps
as
much
as
$500,
could
be
expected.
There
was
not,
nor
ought
there
have
been,
any
public
announcement
of
the
pending
take-over
on
or
before
Valuation
Day.
When
the
offer
came,
November
10,
1972,
the
price
was
$200.
Spicer
was
disappointed
but
advised
its
clients
to
accept.
The
delay
of
the
better
part
of
three
years
from
when
Spicer
formed
the
opinion
that
some
proposal
from
Sanderson
was
in
the
offing
until
it
actually
came
does
not
raise
doubt
in
my
mind
that
the
proposal
was
bona
fide
anticipated
early
in
1970.
The
offer
to
the
company’s
minority
shareholders
appears,
per
se,
to
comprehend
a
relatively
simple
and
straightforward
transaction.
It
was,
however,
only
one
transaction
of
a
complex
series
concurrently
undertaken
by
Reed
Paper
Group
Ltd
to
reorganize
its
Canadian
holdings.
I
do
not
accept
that
the
defendant’s
2,010
shares
themselves
constituted
such
a
block
as
to
call
for
a
departure
from
the
ordinary
functioning
of
the
open
market
in
order
to
determine
their
fair
market
value.
Neither
do
I
accept
that
there
is
any
basis
for
considering
those
shares
as
part
of
such
a
block,
namely,
the
entirety
of
the
Shares
owned
by
Spicer
clients;
those
30,000-odd
shares
were
not
a
block.
On
the
other
hand,
I
do
accept
that
Spicer
did
anticipate
a
proposal
from
Sanderson
to
the
other
shareholders,
that
the
anticipation
was
reasonably
founded
and
that
it
was
communicated
to
its
clients,
including
the
defendant.
I
further
accept
that,
with
that
information,
no
shareholder
would
willingly
have
sold
his
shares
for
anything
like
$85.50
on
Valuation
Day.
He
would
have
demanded
considerably
more
and
a
prospective
purchaser,
armed
with
the
same
information,
would
have
expected
to
pay
considerably
more.
However,
it
remains
that
what
is
to
be
determined
is
the
fair
market
value
on
Valuation
Day.
In
Crabtree
v
Hinchcliffe,
[1971]
3
All
ER
967,
the
House
of
Lords
applied
United
Kingdom
legislation
in
a
similar
factual
situation.
The
legislation
provided
that,
on
the
initiation
of
the
taxation
of
capital
gains,
the
market
value
of
shares
quoted
on
the
London
Stock
Exchange
be
determined
with
reference
to
its
market
quotations
on
April
6,
1965,
except
where
in
consequence
of
special
circumstances
prices
so
quoted
are
by
themselves
not
a
proper
measure
of
market
value.”
In
November
1964
serious
discussions
had
begun
between
the
chairman
of
Vickers
Ltd
and
the
taxpayer’s
father,
chairman
of
R
W
Crabtree
&
Sons
Ltd
contemplating
the
acquisition
of
all
of
the
latter
company’s
issued
shares
by
Vickers
Ltd.
On
January
14,
1965,
when
the
shares
were
quoted
at
47s
6d
on
the
London
Stock
Exchange,
a
price
of
72s
was
proposed
to
Vickers.
The
April
6,
or
Valuation
Day,
market
value
of
42s
6d
was
established
with
reference
to
London
Stock
Exchange
quotations.
On
August
6,
a
price
of
55s
was
agreed
upon
by
the
negotiators
and
on
August
17,
the
public
was
made
aware
of
the
intended
take-over,
which
was
duly
effected.
It
was
common
ground
that
no
public
intimation
ought
to
have
been
given
prior
to
Valuation
Day.
The
House
of
Lords
was
unanimous
in.
dismissing
the
taxpayer’s
appeal
against
the
42s
6d
determination,
which
had
been
allowed
by
the
Special
Commissioners
but
reversed
by
the
Court
of
Appeal.
Their
Lordships’
ratio
is
most
succinctly
stated,
at
page
973,
by
Lord
Reid:
It
must
happen
every
day
that
directors
of
many
companies
have
in
their
possession
confidential
information
which
very
properly
they
do
not
make
public
but
which
if
made
public
would
lead
to
a
substantial
alteration
of
the
quoted
prices
of
their
companies’
shares.
That
could
not
possibly
be
a
“special
circumstance’’
and
in
my
opinion
that
is
all
that
happened
here.
The
defendant’s
entire
argument
in
this
branch
was
predicated
on
ignoring
the
prescription
that
what
subsection
26(11)
requires
be
determined
is
fair
market
value,
not
value
by
some
other
standard.
It
would
require
affirmative
proof
of
some
situation
rendering
prices
quoted
on
the
open
market
something
other
than
reflective
of
market
value
to
justify
adopting
another
approach
to
its
determination.
I
do
not
think
that
the
presence
of
the
word
“fair”
in
subsection
26(11)
and
its
absence
from
the
British
statute
distinguishes
the
Crabtree
case
from
this
one.
Spicer’s
accurate
insight
is
no
more
a
reason
than
the
insider
information
available
to
the
taxpayer
in
the
Crabtree
case
to
depart
from
the
open
market’s
verdict
as
to
market
value.
Be
it
market
value
or
fair
market
value,
it
is
the
value
in
the
market-place,
not
the
value
to
a
particularly
situated
or
motivated
investor,
that
is
to
be
determined.
That
market
price
is
the
best
test
of
fair
market
value
was
the
verdict
of
the
Supreme
Court
of
Canada
in
Untermyer
Estate
v
Attorney
General
for
British
Columbia,
[1929]
SCR
84
at
91:
We
were
favoured
by
counsel
with
several
suggested
definitions
of
the
words
“fair
market
value”.
The
dominant
word
here
is
evidently
“value”,
in
determining
which
the
price
that
can
be
secured
on
the
market—if
there
be
a
market
for
the
property
(and
there
is
a
market
for
shares
listed
on
the
stock
exchange)—is
the
best
guide.
It
may,
perhaps,
be
open
to
question
whether
the
expression
“fair”
adds
anything
to
the
meaning
of
the
words
“market
value”,
except
possibly
to
this
extent
that
the
market
price
must
have
some
consistency
and
not
be
the
effect
of
a
transient
boom
or
a
sudden
panic
on
the
market.
The
value
with
which
we
are
concerned
here
is
the
value
at
Untermyer’s
death,
that
is
to
say,
the
then
value
of
every
advantage
which
his
property
possessed,
for
these
advantages,
as
they
stood,
would
naturally
have
an
effect
on
the
market
price.
Many
factors
undoubtedly
influence
the
market
price
of
shares
in
financial
or
commercial
companies,
not
the
least
potent
of
which
is
what
may
be
called
the
investment
value
created
by
the
fact—or
the
prospect
as
it
then
exists—
of
large
returns
by
way
of
dividends,
and
the
likelihood
of
their
continuance
or
increase,
or
again
by
the
feeling
of
security
induced
by
the
financial
strength
or
the
prudent
management
of
a
company.
The
sum
of
all
these
advantages
controls
the
market
price,
which,
if
it
be
not
spasmodic
or
ephemeral,
is
the
best
test
of
the
fair
market
value
of
property
of
this
description.
I
therefore
think
that
the
market
price,
in
a
case
like
that
under
consideration,
where
it
is
shown
to
have
been
consistent,
determines
the
fair
market
value
of
the
shares.
I
do
not
lose
sight
of
the
fact
that
mining
operations
are
often
of
a
speculative
character,
that
there
is
always
a
danger
of
depletion,
and
that
a
time
will
sooner
or
later
arrive
when
no
more
minerals
will
be
available,
unless
other
properties
are
secured
to
keep
up
the
supply.
But
all
these
elements
have
an
effect
on
the
price
of
the
shares
on
the
stock
exchange,
and
no
doubt
they
were
fully
considered
by
the
purchasers
of
the
stock
at
the
then
prevailing
prices.
I
take
it
that
in
referring
to
a
spasmodic
or
ephemeral
market
price,
Mignault,
J
was
postulating
a
special
circumstance
in
which
prices
quoted
in
the
market
would
not
be
a
proper
measure
of
fair
market
value.
The
second
branch
of
the
defendant’s
argument
turns
on
the
proposition
that
the
market
for
the
company’s
shares
was
spasmodic
or
ephemeral.
The
appropriate
definitions
of
these
words,
as
they
appear
in
The
Shorter
Oxford
English
Dictionary,
3rd
edition,
are:
Ephemeral:
Beginning
and
ending
in
a
day;
existing
only
for
a
day
or
a
few
days;
shortlived,
transitory.
Spasmodic:
Occurring
or
proceeding
by
fits
and
starts;
irregular,
intermittent;
not
sustained.
The
Federal
Court
of
Appeal
in
Henderson
Estate
v
MNR,
[1975]
CTC
485;
75
DTC
5332,
appears
to
have
extended
the
principle
enunciated
by
the
Supreme
Court
in
the
Untermyer
case
to
embrace
the
market
as
well
as
the
market
price.
It
will
be
noted
that
Mignault,
J
said:
.
.
.
the
market
price
must
have
some
consistency
and
not
be
the
effect
of
a
transient
boom
or
a
sudden
panic
on
the
market.
and
again:
.
.
.
the
market
price,
in
a
case
like
that
under
consideration,
where
it
is
shown
to
have
been
consistent,
determines
the
fair
market
value
of
the
shares.
In
the
Henderson
case,
the
Federal
Court
of
Appeal,
at
page
492
[5337],
held:
Given
a
consistent
market
in
the
sense
of
a
market
that
is
not
“the
effect
of
a
transient
boom
or
a
sudden
panic”
or
that
is
“not
spasmodic
or
ephemeral”,
to
adopt
the
terms
used
by
Mignault,
J
in
the
Untermyer
case,
the
stock
market
is
the
best
evidence
of
fair
market
value.
and
again
[p
493
[5337]]:
The
stock
market
may
be
a
consistent
market,
though
prices
of
the
stock
in
question
vary
fairly
substantially,
if
the
market
is
not
significantly
out
of
line
with
market
patterns
for
the
type
of
stock.
The
weekly
quotations
and
trading
volume
of
the
company’s
shares
on
the
Toronto
Stock
Exchange
for
the
years
1969
to
1972
inclusive,
as
reported
by
the
Financial
Post,
are
in
evidence.
They
were
not
challenged
and
I
accept
them.
In
the
week
ended
January
3,
1969,
3,000
shares
traded:
the
quotations
were
a
high
of
$129
and
a
low
and
close
of
$124.
During
the
balance
of
1969,
a
total
of
3,405
shares
traded,
only
905
after
May.
Trading
occurred
during
all
but
about
ten
weeks
and
involved
400
shares
one
week,
300
during
two
weeks,
200
during
three
weeks,
100
during
seven
weeks
and
from
as
many
as
90
to
as
few
as
5
during
the
other
weeks.
Prices
ranged
to
a
high
of
$190
the
week
ended
April
18,
when
400
shares
traded,
and
closed-for
the
year
at
a
low
of
$110
the
week
ended
December
12.
During
1970
only
655
shares
traded,
one
week’s
trade
involving
200
shares,
two
weeks’
trade
involving
100
and
the
balance
ranging
from
35
to
5
shares
in
the
18
weeks
that
trading
occurred.
The
high
quotation
for
the
year
was
the
opening
$110,
which
was
pretty
well
sustained
through
April.
A
low
of
$75
was
reached
during
the
week
of
November
20
and
the
closing
quotation
for
the
year
for
the
week
ended
November
27
was
$82.
During
1971,
a
total
of
1,483
shares
traded
during
23
weeks.
Three
weeks’
trading
involved
200
shares;
6
weeks’
trading
involved
100;
and
the
other
weeks
ranged
from
43
to
10
shares.
Trading
opened
at
$79
the
week
of
January
8;
prices
rose
steadily
to
a
high
of
$115
the
week
ended
May
14
and
then
fell
to
close
for
the
year
the
week
ended
October
29
at
$85.
There
were
no
trades
thereafter
until
after
Valuation
Day,
the
week
ended
January
14,
1972,
when
40
shares
traded
at
$84.
It
is
perhaps
desirable
to
set
forth
what
occurred
in
what
appear
likely
to
have
been
board
lot
transactions
during
1971:
Week
ended
|
High
High
|
Low
|
_
Close
|
Shares
traded
|
January
15
|
85
|
82
|
85
|
100
|
January
22
|
89%
|
85
|
89%
|
100
|
February
26
|
90
1
/4
|
89%
|
90
|
200
|
May
14
|
115
|
115
|
115
|
100
|
August
20
|
95
|
95
|
95
|
200
|
September
3
|
97
|
95
|
97
|
200
|
September
24
|
91
|
91
|
91
|
100
|
October
8
|
90
|
90
|
90
|
100
|
October
29
|
86
|
85
|
85
|
100
|
The
evidence
does
not
establish
that
the
market
price
of
the
company’s
shares
quoted
for
the
week
ended
October
29,
1971
nor
the
bid-ask
quotations
for
December
21
and
23
were
either
spasmodic
or
ephemeral.
On
the
contrary,
they
were
quite
consistent
with
the
prices
prevailing
in
the
market
during
the
preceding
18
months,
save
only
the
boomlet
in
April
and
May
1971,
when
163
shares
traded
at
over
$100,
the
first
to
do
so
since
the
week
of
April
3,
1970.
The
quotations
for
that
week
are
also
consistent
with
the
trend
in
prices
established
by
the
market
once
its
interest
in
the
shares,
relatively
speaking,
waned
around
May
1969.
Of
8,543
shares
traded
during
1969,
1970
and
1971,
5,500
were
traded
during
the
first
five
months
of
1969.
The
market
price
fell
rapidly
from
the
$160
range
then
to
$110
by
year-end
and
to
$80
by
mid-1970.
Thereafter,
except
for
the
boomlet
mentioned,
the
market
price
ranged
between
$75
and
$100.
Neither,
as
I
apprehend
its
meaning,
was
the
market
for
the
shares
ephemeral.
There
was
a.
real,
continuing
market.
The
market
may
be
fairly
characterized
as
spasmodic;
however,
there
is
no
evidence
that
its
intermittence
was
a
function
of
any
inconsistency
in
the
market.
It
is
obvious
that
it
was
intermittent
because
it
was
an
extremely
thin
market.
To
paraphrase
Lord
Reid:
it
must
happen
every
day
that
the
market
quotes
prices
for
thinly
traded
securities
either
as
a
result
of
actual
trading
in
a
few
shares,
be
it
odd
lot
or
board
lot,
or
by
bidask
quotations
in
the
absence
of
trading.
The
fact
that
the
market
in
a
given
security
is
extremely
thin
is
one
of
the
myriad
factors
taken
into
account
by
those
participating
in
the
market
in
establishing
what
they
are
willing
to
pay
or
accept
for
that
security
at
a
given
time;
it
is
not
a
reason
for
rejecting
the
market’s
verdict
as
to
market
value.
There
is
no
foundation
in
the
evidence
for
me
to
conclude
that
the
market
for
the
company's
shares
was
significantly
out
of
line
with
any
appropriate
market
norm.
In
reaching
this.
conclusion,
I
expressly
reject
the
validity
of
Philip
Spicer’s
relation
of
the
company
and
its
shares
to
such
companies
as
Moore
Corporation.
and
Canadian
Tire
and
their
shares,
which
were
among
the
40
most
actively
traded
Canadian
industrial
shares
on
the
Toronto
Stock
Exchange
during
1971.
The
evidence
does
not
lead
me
to
conclude
that
the
company
was,
in
1971,
generally
comparable
to
the
component
companies
of
any
of
Toronto
Stock
Exchange
indices
that
are
in
evidence
and
that,
therefore,
the
market
value
of
its
shares
ought
to
be
calculated
by
applying
averages
for
those
indices
rather
than
the
market’s
actual
verdict.
It
is
unlikely
that
this
will
be
the
last
case
of
its
kind
to
be
dealt
with
by
this
Court.
I
therefore
feel
constrained
to
repeat
something
I
said
about
expert
evidence
on
another
occasion:
The
Court
is
not
justified
in
jumping
‘with
an
expert
to
a
conclusion
that
is
sustained
only
by
the
evidence
of
his
expertise;
it
simply
must
have
evidence
as
to
facts
so
that
it
can
both
understand
and
evaluate
the
process
leading
to
the
conclusion
and
the
validity
of
the
conclusion
Itself.*
The
expert
evidence
submitted
on
behalf
of
the
defendant
did
not
meet
that
test.
The
expert
evidence
submitted
by
the
plaintiff
set
forth
a
number
of
approaches
to
determining
the
fair
market
value
of
the
shares
on
Valuation
Day
but
concluded
that
the
market
itself
provided
the
best
measure
and
did
not
follow
any
of
the
other
approaches
to
a
determination.
The
witness,
a
qualified
business
valuer,
concluded
that
the
prescribed
$85.50
was
the
fair
market
value.
I
agree
that,
in
this
case,
the
market
itself
does
provide
the
best
evidence
of
fair
market
value.
The
legislation
does
not
contemplate
the
determination
of
a
fair
value
in
the
context
of
something
other
than
the
market;
it
contemplates
the
determination
of
a
fair
market
value.
The
prescribed
fair
market
value
of
$85.50
is,
of
course,
an
average
of
the
high
and
low
quotations
on
the
last
day
of
trading
prior
to
Valuation
Day.
Over
50
days
separated
those
dates.
Whether
that,
in
fact,
was
the
calculation
made
in
its.
prescription
is
not
known
to
me
but
I
assume
that
it
was.
I
am
of
the
opinion
that
a
reference
to
actual
trades,
rather
than
bid-ask
quotations
in
the
absence
of
trading,
is
the
more
reliable
basis
for
a
calculation
of
fair
market
value.
I
further
hold
that,
in
the
case
of
a
security
as
lightly
traded
as
the
shares
in
issue,
reference
ought
to
be
had
to
all
trades
over
a
reasonable
period
of
time
rather
than
to
a
single
day
or
week’s
trading.
I
considered
the
apparent
board
lot
trades
during
1971
as
the
basis
for
the
calculation.
The
average
closing
price
for
the
weeks
in
which
those
occurred
was
$93.32.
I
rejected
that
basis
both
because
I
felt
an
entire
year
too
long
a
period
and,
in
the
nature
of
the
market
for
these
particular
shares,
there
seemed
no
reason
to
ignore
apparent
odd
lot
trading.
I
concluded
that
all
trades
during
the
last
ten
weeks
that
the
shares
actually
traded
was
a
more
valid
basis
for
the
determination.
There
were
no
apparent
aberrations
in
the
market
or
market
price
for
the
shares
during
that
period.
I
expressly
rejected
the
validity
of
hindsight
as
probative
of
fair
market
value
at
a
given
date
and
took
nothing
that
occurred
after
Valuation
Day
into
account.
The
average
closing
price
on
the
Toronto
Stock
Exchange
for
the
shares
during
each
of
the
last
ten
weeks
that
it
actually
traded
prior
to
Valuation
Day
was
$92.55.
I
hold
that
the
fair
market
value
of
a
share
of
the
company
on
December
22,
1971
was
$92.55,
not
$85.50
as
prescribed.
In
the
defendant’s
appeal
to
the
Tax
Review
Board,
the
fair
market
value
was
fixed
at
$170.
That
led
to
the
action
in
this
Court
seeking
to
uphold
the
$85.50
determination.
The
plaintiff
has
been
largely
successful
and
is
entitled
to
costs.
There
will
be
no
order
as
to
costs
in
actions
T-3032-76
and
T-3034-76.
I
do
not
see
that
the
defendant’s
counterclaim
to
establish
a
$200
determination
had
any
bearing
on
the
conduct
of
the
action;
it
did
not
even
require
a
defence.
The
counterclaim
will
be
dismissed
without
costs
and
the
assessment
will
be
referred
back
to
the
Minister
for
reassessment
in
accordance
with
these
reasons.