Catianach,
J:—This
is
an
appeal
by
the
appellant
from
its
assessment
to
income
tax
by
the
Minister
of
National
Revenue
for
its
1969
taxation
year.
In
assessing
the
appellant
as
he
did
the
Minister
increased
the
appellant’s
income
by
an
amount
of
$821,843.06
being
the
gain
received
on
the
sale
of
93
acres
of
land
situated
in
the
Town
of
Burlington,
Ontario,
known
as
the
Peart
farm,
and
after
deduction
of
a.
reserve
pursuant
to
paragraph
85B(1)(d)
of
the
Income
Tax
Act,
levied
tax
accordingly
on
the
basis
that
the
profit
realized
by
the
appellant
was
income
from
a
business
as
the
meaning
of
that
word
is
extended
by
paragraph
139(1)(e)
of
the
Income
Tax
Act
to
include
an
adventure
or
concern
in
the
nature
of
trade.
The
appellant
is
a
joint
stock
company
incorporated
pursuant
to
the
laws
of
the
Province
of
Ontario
with
a
private
status
by
letters
patent
dated
July
6,
1964
under
the
corporate
name
of
Hamarstad
Limited.
The
word
“Hamarstad”
used
in
the
corporate
name
is
an
acronym
formed
from
the
initial
syllables
of
the
words
Hamilton
Area
Stadium.
The
objects
of
incorporation
were
to
purchase,
lease,
construct
or
otherwise
acquire,
manage
and
improve
lands
and
buildings
including
structures
for
sporting
events
and
to
sell,
mortgage
or
otherwise
dispose
of
the
same.
The
fact
that
a
particular
transaction
falls
within
the
objects
contemplated
by
the
letters
patent
is
merely
a
prima
facie
indication
that
a
profit
so
derived
is
a
profit
derived
from
the
business
of
the
company.
The
question
to
be
determined
is
not
what
the
company
might
have
been
authorized
to
do,
but
what
in
fact
it
did
and
whether
what
it
did
was
a
business
of
the
company.
The
City
of
Hamilton
has
always
been
an
avid
“football
town”
since
the
inception
of
the
game.
Its
citizens
were
fans
of
the
team
based
in
the
city.
Throughout
the
years
the
teams
in
Hamilton
were
well
known
as
rugged
competitors
and
enjoyed
success
because
of
the
consistent
outstanding
quality
of
their
players,
coaches
and
management
and
the
support
of
the
fans
contributed
to
that
success.
The
city
looked
upon
itself
as
the
cradle
of
Canadian
football,
a
belief
which
is
disputed
by
other
equally
avid
football
towns.
The
team
which
first
came
into
prominence
in
Hamilton
was
known
as
the
Tigers.
The
Tigers
competed
in
the
Interprovincial
Rugby
Union,
known
as
the
Big
Four,
which
league,
as
the
name
implies,
consisted
of
four
teams
the
other
three
being
the
Ottawa
Rough
Riders,
the
Toronto
Argonauts
and
the
Montreal
Alouettes
but
the
Montreal
team
had
played
under
other
names.
During
the
years
1941
to
1945
the
activities
of
the
league
were
suspended
due
to
the
Second
World
War.
Another
league
known
as
the
Ontario
Rugby
Football
Union
(referred
to
as
the
ORFU)
continued
to
operate
during
those
years.
A
team
was
formed
in
Hamilton
under
the
name
of
the
Wild
Cats
and
became
a
member
of
that
league.
In
1946
the
Tigers
appealed
to
the
Big
Four
for
a
form
of
gate
equalization
and
took
the
stand
if
some
method
of
gate
equalization
was
not
forthcoming
the
Tigers
would
withdraw
from
the
league.
The
Tigers
did
not
get
it
and
made
good
the
threat
to
withdraw.
The
Tigers
were
replaced
in
the
Big
Four
by
the
Wild
Cats,
the
team
that
had
been
formed
during
the
war
and
had
played
in
the
ORFU.
The
Tigers
went
to
the
ORFU.
By
this
time
football
had
become
truly
professional.
The
players
were
being
paid.
substantial
salaries
and
the
salaries
so
paid
were
increasing
each
year.
It
followed
that,
in
competing
for
players
and
patronage,
both
teams
in
Hamilton
were
in
financial
difficulties.
Accordingly
a
group
of
executives
of
the
larger
corporations
in
Hamilton
decided
it
would
be
advantageous
if
the
teams
were
to
amalgamate
and
in
January
1950
approached
Mr
Ralph
Cooper
to
undertake
the
task.
Mr
Cooper
accepted
and
successfully
accomplished
this
task.
Both
clubs
turned
over
all
their
equipment.
The
contracts
of
all
players
on
both
clubs
were
frozen
until
a
single
club
was
organized
for
the
1950
season.
The
board
of
directors
of
the
amalgamated
club
was
composed
of
three
directors
of
the
Tigers,
three
directors
of
the
Wild
Cats,
two
independent
citizens
of
Hamilton
and
Mr
Cooper,
making
a
board
of
nine.
The
directors
rotated.
Also
in
1950
a
corporation
without
share
capital
was
incorporated
pursuant
to
the
laws
of
the
Province
of
Ontario
under
the
name
of
the
Hamilton
Tiger
Cat
Football
Club,
Inc
for
purposes
to
be
carried
out
without
pecuniary
gain
to
the
members.
The
franchise
under
which
the
Wild
Cats
had
played
in
the
Big
Four
was
owned
by
four
individuals
in
Hamilton,
H
G
Hilton,
president
of
the
Steel
Company
of
Canada,
now
deceased,
F
A
Sherman,
president
of
Dominion
Foundaries
and
Steel,
also
deceased,
Sam
Manson,
a
former
football.
great,
and
C
C
Lawson.
These
four
persons
agreed
that,
so
long
as
the
Tiger
Cats
fielded
a
team
and
were
financially
sound,
they
would
allow
the
club
to
use
their
franchise
for
the
City
of
Hamilton.
The
Club
hired
an
outstanding
American
coach
and
general
manager,
Carl
Voyles,
and
had
a
successful
season
in
1950.
Mr
Voyles
brought
with
him
as
player
and
assistant
coach,
Mr
Ralph
Sazio,
who
had
played
under
Mr
Voyles
in
the
US
and
in
whom
Mr
Voyles
had
great
confidence.
The
league
eventually
became
the
Canadian
Football
League,
known
as
the
CFL,
divided
into
an
Eastern
and
Western
conference,
comprised
of
nine
teams,
four
in
the
Eastern
conference
and
five
in
the
Western
conference.
In
1960
the
two
clubs
in
the
Eastern
conference
in
the
area
with
lesser
populations
to
draw
from,
that
is
Hamilton
and
Ottawa,
were
pressing
for
a
larger
share
of
the
gate
receipts
of
the
two
other
clubs,
Toronto
and
Montreal,
in
the
more
densely
populated
areas
and
with
consequent
greater
attendance.
This
was
essential
to
enable
the
clubs
in
Hamilton
and
Ottawa
to
remain
competitive.
The
clubs
in
the
two
larger
populated
areas
recognized
the
wisdom
of
maintaining
the
four
teams
at
equal
strength
but
as
a
condition
of
granting
the
Hamilton
and
Ottawa
clubs
a
greater
share
of
the
gate,
insisted
that
the
franchises
under
which
the
Ottawa
and
Hamilton
clubs
operated
should
be
transferred
to
companies
with
share
capital.
If
my
recollection
of
the
evidence
is
correct
it
was
a
requirement
embodied
in
the
Constitution
of
the
Eastern
conference
of
the
Canadian
Football
League,
that
the
franchises
must
be
held
by
limited
companies.
It
follows
that
the
Hamilton
and
Ottawa
clubs
had
no
choice
but
to
operate
through
companies
with
share
capital.
Accordingly
by
letters
patent
dated
January
31,
1961
Hamilton
Tiger
Cat
Football
Club
Limited
was
incorporated
pursuant
to
the
laws
of
the
Province
of
Ontario
with
share
capital
to
operate
a
professional
football
team.
There
were
twelve
directors
and
shareholders,
namely
Jacob
Gill
Gaudaur,
Ralph
William
Cooper,
Halliwell
Soule,
William
Charles
Schwenger,
Charles
Graigmyle
Lawson,
Hugh
Gerald
Hilton,
Gordon
Walter
Lawson,
Frank
Du
Moulin
Bliss,
Joseph
Ross
Fischer,
Francis
Mallach
Gibson,
Leonard
Percy
Back
and
James
Sylverton
Rogers.
Hereinfater
I
shall
sometimes
refer
to
the
Hamilton.
Tiger
Cat
Football
Club
Limited
as
the
“Football
Club”
or
as
the
“Club”.
These
persons
are
the
same
persons
who
were
members
and
directors
of
Hamilton
Tiger
Cat
Football
Club,
Inc,
the
corporation
without
share
capital.
In
the
meantime
the
holders
of
the
franchise
in
the
Canadian
Football
League
had
become
H
G
Hilton,
C
C
Lawson,
Judge
Schwenger
and
Ralph
Cooper.
It
became
necessary
for
the
newly
incorporated
club
to
acquire
the
franchise
from
the
holders
thereof.
The
holders
engaged
an
accountant
to
put
a
valuation
on
the
Club
based
on
the
assets,
earnings
and
money
in
the
treasury.
The
valuation
was
$170,000.
There
was
$220,000
in
the
treasury.
Two
trusts
were
set
up,
one
an
athletic
trust
to
receive
the
$220,000
and
a
football
trust
to
receive
an
amount
of
$50,000.
A
debenture
was
given
for
the
balance
of
$120,000.
The
interest
from
the
larger
fund
is
used
to
further
amateur
athletics
generally
and
from
the
lesser
fund
to
foster
junior
football
in
the
Hamilton
area.
The
incorporation
of
a
private
joint
stock
company
to
operate
the
Tiger
Cats
raised
a
storm
of
protest.
The
citizens
of
Hamilton
looked
upon
the
Tiger
Cats
as
being
in
the
same
category
as
the
Mountain
and
the
Market.
The
Tiger
Cats
were
considered
as
a
public
trust
belonging
to
every
inhabitant
of
Hamilton.
Not
only
did
this
action
inspire
popular
protest,
but
it
also
inspired
political
protest.
The
municipal
politicians
took
the
position
that
the
team
had
been
a
community
enterprise
and
should
be
continued
to
be
owned
by
the
community.
The
transfer
of
the
franchise
was
publicly
opposed
by
several
members
of
the
City
Council.
In
the
fall
of
1961
Victor
Copps
who
was
campaigning
for
election
as
Mayor
of
Hamilton
was
particularly
vehement
in
his
objection.
He
was
elected
Mayor
on
December
15,
1960.
Mr
Copps
obtained
an
interlocutory
injunction
restraining
the
completion
of
the
sale
of
the
football
team.
A
Committee
for
the
Continuation
of
Public
Ownership
of
the
Hamilton
Football
Club
was
formed.
Many
members
of
the
City
Council
were
on
this
committee.
The
committee
conducted
a
vigorous
campaign.
The
directors
of
the
private
company
were
looked
upon
as
thieves.
While
it
is
not
incumbent
upon
me
to
decide
the
matter
it
does
not
appear
from
the
evidence
before
me
that
the
football
team
was
ever
owned
by
the
community.
More
accurately
it
would
appear
to
have
been
adopted
by
the
community
as
its
own.
It
had
been
operated
by
a
non-profit
corporation.
The
protest
was
against
the
team
being
operated
by
a
joint
stock
company
the
shares
of
which
were
owned
by
individuals,
who
were
the
same
individuals
as
had
been
the
members
of
the
corporation
without
share
capital.
Further
the
franchise
had
always
been
held
by
four
private
individuals.
The
storm
of
protest
evoked
bespeaks
the
success
of
the
policy
of
the
members
of
the
corporation
without
share
apital
in
presenting
and
selling
the
Tiger
Cats
to
the
populace
as
“community
enterprise”.
There
is
no
doubt
that
the
transfer
of
ownership
to
a
limited
company
was
extremely
unpopular
and
resulted
in
a
climate
of
extreme
antagonism
against
that
company
and
its
directors
and
shareholders.
While
the
witnesses
described
the
antagonism
with
exactitude
they
did
so
in
restrained
form.
I
could
not
escape
the
conclusion
that
the
antagonism
was
much
more
vehement
and
bitter
than
was
described
in
moderate
terms.
I
also
formed
the
distinct
impression
that
the
antagonism
was
directed
particularly
at
Mr
Gaudaur.
Mr
Gaudaur
was
the
general
manager
of
the
Football
Club,
as
well
as
a
shareholder
and
director.
He
was
looked
upon
as
the
author
and
motivator
of
the
changed
status
of
the
ownership
of
the
Football
Club
and
as
such
drew
the
wrath
of
the
opposition
to
the
change.
The
Tiger
Cats,
at
all
relevant
times,
played
their
home
games
in
the
Hamilton
Civic
Stadium
which
is
owned
by
the
Board
of
Parks
Management
of
the
City
of
Hamilton.
The
members
of
the
Parks
Board
are
not
elected
officials
but
are
appointed
by
the
City
Council.
The
Football
Club
paid
a
rental
fee
for
the
use
of
the
stadium
pursuant
to
agreements
between
the
Club
and
the
Parks
Board.
The
political
antagonism
directed
at
the
new
owner
of
the
Football
Club
was
reflected,
quite
naturally,
in
the
rental
negotiations
between
the
Club
and
the
Parks
Board
which
is
appointed
by
the
City
Council
and
it
will
be
recalled
that
the
Mayor
before
his
election
had
obtained
an
injunction
to
prohibit
the
sale
to
the
limited
company.
In
1960
the
corporation
without
share
capital
had
negotiated
a
rental
agreement
with
the
Parks
Board
which
had
been
reduced
to
writing
in
draft
form.
This
agreement
provided
for
(1)
a
rental
of
15%
of
gate
receipts
after
deduction
of
municipal,
provincial
and
federal
taxes,
(2)
the
Club
was
to
pay
the
electric
bill
for
floodlighting
and
(3)
the
agreement
was
to
be
for
twenty
years
subject
to
the
rent
being
reviewed
every
five
years.
The
principal
advantage
of
this
draft
agreement
was
that
it
provided
security
of
tenure
for
twenty
years.
When
the
joint
stock
company
took
over
as
owner
of
the
football
team
the
Parks
Board
was
not
willing
to
sign
this
agreement.
The
Club
was
forced
to
negotiate
its
rental
agreement
with
the
Parks
Board
each
year.
Each
year
negotiations
were
long
and
protracted
and
conducted
in
a
spirit
of
acrimony.
So
protracted
were
the
negotiations
that
the
Football
Club
never
knew
with
certainty
if
it
would
have
a
field
on
which
to
play
its
home
games.
Beginning
with
the
1961
season
the
Parks
Board
made
monetary
demands
which
in
the
opinion
of
the
general
manager
of
the
Football
Club,
Mr
Gaudaur,
were
so
oppressive
as
would
result
in
the
end
of
football
in
Hamilton
if
accepted.
In
addition
to
15%
of
the
gate
receipts
and
the
cost
of
lighting
for
night
games
the
Parks
Board
also
demanded
a
gurantee
of
$94,000
for
gate
receipts
plus
15%
of
radio
and
television
rights.
No
other
club
in
the
CFL
was
required
to
give
any
revenue
received
by
from
radio
rights
and
in
the
Eastern
Conference
the
revenue
from
television
rights
was
distributed
equally
among
the
four
clubs.
The
constitution
of
the
Conference
prohibited
any
of
the
clubs
assigning
any
revenue
from
the
television
rights
to
any
person.
The
Tiger
Cat
Club
prepared
a
well
documented
submission
to
the
effect
that
the
previously
existing
rental
arrangement,
which
had
been
in
effect
for
some
years,
was
the
most
onerous
from
the
Football
Club’s
standpoint
and
the
most
beneficial
from
the
stadium
ownership
viewpoint
of
all
nine
clubs
in
the
league.
It
was
pointed
out
that
the
Club
must
be
allowed
to
be
competitive
in
the
league
or
both
the
stadium
and
the
Club
would
suffer
in
the
ultimate
result.
The
Parks
Board
responded
by
requesting
to
examine
the
Club’s
financial
statements
and
budget
and
it
was
at
this
time
that
the
Parks
Board
proposed
a
one-year
contract.
The
Club
acceded
to
the
production
of
its
financial
statements
and
budget
and
also
prepared
a
study
of
the
financial
aspects
of
the
proposed
agreement
as
well
as
detailed
cost
benefit
analysis
which
clearly
demonstrated
that
contrary
to
the
Park
Board’s
claim
that
it
was
subsidizing
the
Football
Club
the
Parks
Board
was
benefited
by
over
$100,000
from
its
revenue
exacted
from
the
Football
Club.
The
opinion
of
the
management
of
the
Football
Club
was
that
the
Parks
Board
was
actuated
by
vindictive
political
motives
and
was,
in
reality,
killing
the
goose
that
laid
the
golden
egg.
A
new
agreement
was
eventually
entered
into
on
June
30,
1961
on
terms
far
less
onerous
than
first
demanded
but
there
was
a
slight
increase
in
rental
over
that
in
the
1960
draft
agreement
which
was
to
be
for
20
years
and
the
1961
agreement
was
only
for
one
year.
In
1962
the
same
routine
was
repeated.
This
time
the
demand
by
the
Parks
Board
was
for
a
minimum
guarantee
of
$73,000.
The
Parks
Board
indicated
that
they
must
get
something
from
the
Club
and
as
illustrative
of
the
annoyance
inflicted
upon
the
Club
the
Board
demanded
to
retain
the
right
to
the
commission
on
the
collection
of
the
Ontario
hospital
tax
although
the
cost
and
the
work
of
collecting
that
tax
fell
on
the
Club.
This
picayune
demand
was
conceded
by
the
Club.
All
annual
rental
agreements
for
1961
and
subsequent
years
were
concluded
each
year
on
substantially
the
same
terms
but
when
each
negotiation
time
came
up
the
Parks
Board
consistently
made
onerous
demands
on
the
Club
followed
by
protracted
and
acrimonious
negotiation.
It
was
a
great
annoyance
to
the
Club
not
to
be
able
to
complete
their
rental
arrangements
until
well
into
the
year
and
to
be
constantly
faced
with
the
uncertainty
as
to
whether
the
Club
would
have
a
park
to
play
its
home
games
in.
The
demands
for
a
minimum
guarantee
persisted.
The
guarantee
demanded
in
1969
was
for
$62,000
or
alternatively
a
voice
in
the
management
of
the
Tiger
Cat
Football
Club.
Simultaneously
with
the
difficulties
the
Club
was
experiencing
in
its
rental
negotiations
with
the
Parks
Board
it
was
experiencing
difficulties
with
the
seating
capacity
in
the
stadium
itself.
The
Club
was
faced
with
increased
operational
costs
and
had
need
of
additional
revenue
to
remain
competitive.
That
revenue
could
only
come
from
increased
ticket
sales.
In
1959
the
capacity
of
the
Hamilton
Civic
Stadium
had
been
increased
to
25,000
by
rebuilding
the
south
side
stand.
Even
with
this
increased
capacity
the
major
drawback
of
the
stadium
was
that
only
12,000
seats
were
between
the
goal
lines
the
least
number
of
any
of
the
stadia
used
by
the
other
eight
clubs
in
the
league
except
Regina.
In
the
years
1957
to
1967
the
Hamilton
Tiger
Cats
were
in
the
Grey
Cup
finals
eight
times.
The
Grey
Cup
is
emblematic
of
the
professional
football
championship.
It
is
the
final
game
in
each
year
and
is
played
by
the
teams
winning
the
Eastern
and
Western
Canadian
Conference
of
the
league.
In
the
early
years
the
Western
teams
were
weaker
and
dominated
by
the
Eastern
teams.
In
those
years
the
Grey
Cup
game
was
no
contest.
It
was
not
until
1935
that
the
Western
teams
began
to
reach
a
level
of
equal
ability.
In
that
year
the
Winnipeg
Blue
Bombers
defeated
the
Hamilton
Tigers
in
a
stunning
upset.
In
1948
the
Calgary
Stampeders
met
the
Ottawa
Rough
Riders
in
the
Grey
Cup
game
in
Toronto.
The
enthusiasm
of
the
Calgary
supporters
was
phenomenal.
They
followed
their
team
to
Toronto
in
great
numbers,
all
in
cowboy
dress
complete
with
cow
ponies.
There
was
square-dancing
in
the
streets
and
pancakes
served
from
chuckwagons.
Those
fans
made
the
Grey
Cup
a
national
spectacle.
In
retrospect
it
was
poetic
justice
that
the
Calgary
team
by
two
instances
of
good
luck
defeated
a
superior
Ottawa
team.
The
Hamilton
Tiger
Cats
defeated
the
British
Columbia
Lions
in
1963
to
win
the
Grey
Cup
in
that
year.
In
that
year
the
attendance
at
the
Hamilton
home
games
was,
on
the
average,
in
excess
of
25,000,
the
maximum
seating
capacity.
The
excess
was
obviously
standing
room.
In
1964
in
anticipation
of
the
demand
for
seats
the
Club
offered
to
put
up
temporary
bleachers,
planks
on
tubular
construction
in
front
of
the
south
stand
at
its
own
expense,
deducting
a
rental
of
15%
on
the
revenue
from
those
seats
until
the
cost
was
recouped
at
which
time
the
seats
would
be
given
to
the
Parks
Board.
This
proposal
was
turned
down
by
the
Board
on
the
ground
of
lack
of
crowd
control.
Later
the
Parks
Board
countered
the
Club’s
proposal
with
a
proposal
of
its
own
to
erect
some
1,800
to
2,000
temporary
seats
at
its
expense
but
demanded
a
rental
of
25%
of
the
revenue.
After
negotiation
the
seats
were
erected
and
the
rental
exacted
was
15%.
This
is
ilustrative
of
the
ill-feeling
that
subsisted
and
the
Parks
Board’s
insistence
in
getting
as
much
as
it
could
from
the
Football
Club,
much
to
the
annoyance
of
the
latter.
Mr
Gaudaur,
the
capable
general
manager
of
the
Football
Club,
prepared
a
projection
based
upon
the
successful
Grey
Cup
years,
when
the
additional
revenue
to
the
Club
from
that
source
was
$100,000,
which
demonstrated
that
the
expense
line
would
cross
the
revenue
line
in
1965.
This
projection
simply
meant
that
without
increased
revenue
which
could
only
come
from
increased
ticket
sales
the
Club
would
operate
at
a
loss
and
that
would
be
the
end
of
professional
football
in
Hamilton.
Mr
Gaudaur’s
projection
was
based
on
Grey
Cup
years.
In
those
years
returns
are
greater.
Hamilton
could
have
no
assurance
that
the
team
would
be
in
the
Grey
Cup
[each]
year.
Therefore
Mr
Gaudaur’s
projection
was
optimistic.
In
1967
the
suggestion
was
made
to
the
Parks
Board
that
the
seating
capacity
of
the
Civic
Stadium
should
be
increased
by
rebuilding
the
north
stand,
as.
had
been
done
in
1959
with
the
south
stand.
This
would
result
in
an
additional
3,000
seats
between
the
goal
lines
at
an
estimated
cost
of
$750,000.
In
Mr
Gaudaur’s
opinion
this
was,
at
best,
a
temporary
measure.
The
Parks
Board
replied
by
letter
stating
that
such
an
expansion
would
not
be
considered
by
the
Parks
Board
at
public
expense,
but
that
it
would
consider
any
further
suggestions
to
be
made
by
the
Club.
In
my
view
this
letter
was
an
absolute
refusal
by
the
Parks
Board
to
undertake
expansion
and
clearly
demonstrated
that
the
Parks
Board
was
completely
unsympathetic
to
the
needs
of
the
Club
for
a
larger
seating
capacity.
The
Football
Club
commissioned
its
auditors
to
prepare
a
feasibility
report
upon
the
construction
of
a
new
stadium.
This
report
was
submitted
to
the
Club
on
March
26,
1964
and
has
been
referred
to
as
the
“Skinner
Report”
taking
its
name
from
the
member
of
the
firm
who
prepared
it.
The
highlights
of
that
report
were
(1)
the
levelling
out
of
attendance
at
the
maximum
seating
capacity
of
the
present
stadium
was
depriving
the
Club
of
revenue,
(2)
projection
that
sometime
between
1975
and
1980
the
Club
would
need
a
50,000
seat
stadium
the
construction
of
which
could
be
done
in
phases
and
(3)
that
it
was
apparent
that
a
stadium
of
that
capacity
would
be
a
good
investment
in
the
long
run.
The
Hamilton
Civic
Stadium
is
located
in
an
area
known
as
Scott
Park
and
in
that
area
there
was
also
located
property
which
was
to
be
dedicated
as
the
site
of
Canadian
Football
Hall
of
Fame
to
be
operated
by
a
civic
committee.
This
area
provided
parking
for
the
persons
attending
the
football
games.
The
Parks
Board
sold
the
land.
The
officers
of
the
Football
Club
felt
that
the
loss
of
parking
would
affect
attendance
detrimentally
even
if
seating
capacity
of
the
stadium
was
increased.
Therefore
the
background
was
that
the
Football
Club
needed
to
increase
its
revenue
through
increased
revenue
to
survive.
It
was
faced
with
antagonism
from
the
civic
authorities
through
the
instrumentality
of
the
Parks
Board
which
adversely
affected
negotiations
for
the
rental
of
the
stadium
and
any
prospect
of
increased
seating
capacity.
The
last
straw
was
the
action
of
the
Parks
Board
in
eliminating
parking
facilities.
Against
this
background
at
a
meeting
of
the
directors
of
the
Football
Club
held
on
June
28,
1963
Mr
Gaudaur
recommended
that
the
Club
look
for
a
property
within
a
radius
of
10
miles
of
the
City
of
Hamilton
with
a
view
to
building
a
stadium
thereon
and
to
consider
plans
and
the
cost
of
doing
so.
A
committee
was
established
consisting
of
Mr
Gaudaur,
Mr
Cooper,
Mr
Gibson,
Mr
Skinner,
the
author
of
the
subsequent
Skinner
Report,
a
real
estate
agent
and
such
other
persons
as
might
be
added.
At
this
point
I
should
mention
that
the
directors
of
the
Football
Club
gave
evidence.
They
were
successful
businessmen
in
the
community
some
of
whom
had
been
former
football
players,
but
like
all
football
devotees
their
overwhelming
desire
is
to
see
the
game
continue
and
improve.
It
was
their
unanimous
opinion
that
Mr
Gaudaur
was
one
of
their
most
competent
and
successful
general
managers.
Being
directors
and
engrossed
in
their
own
affairs
they
left
the
day
to
day
management
in
the
hands
of
the
general
manager
but
they
did
bring
their
undoubted
ability
to
bear
on
major
matters
of
policy.
Naturally
they
relied
heavily
on
the
advice
of
their
general
manager
and
were
influenced
by
him.
When
they
brought
their
own
independent
judgment
to
bear
on
the
general
manager’s
recommendations
for
a
particular
course
of
action
and
the
supporting
reasons
therefor
they
gave
him
whole-hearted
support
if
they
agreed
with
those
reasons.
The
directors
were
convinced
that
it
was
not
economically
feasible
to
continue
in
the
Civic
Stadium
indefinitely
and
positive
steps
should
be
taken
to
build
a
stadium
the
first
step
being
to
acquire
a
site.
It
was
agreed
that
the
Club
could
operate
in
the
Civic
Stadium
for
approximately
five
years.
Accordingly
it
was
not
the
intention
of
the
Club
to
begin
construction
immediately
but
only
upon
the
expiry
of
that
period
when
a
new
stadium
would
become
an
inevitable
necessity.
The
committee,
as
established
and
later
augmented,
undertook
its
search
for
a
suitable
property.
They
looked
at
many
sites
which
were
rejected
because
they
were
not
suitable
for
a
football
stadium.
In
January
1964
the
property
committee
recommended
the
Peart
farm
as
the
best
site
for
a
football
stadium.
This
decision
was
not
made
lightly
but
only
after
a
most
exhaustive
search
and
a
consideration
of
many
factors
all
directed
to
the
suitability
of
the
site
for
a
football
stadium.
A
helicopter
owned
by
Mr
Schwenger
was
used
to
survey
the
areas.
The
Peart
farm
offered
the
most
advantages
for
the
purposes
of
a
football
stadium.
First
the
farm
was
90
acres
in
size
which
was
adequate
for
a
Stadium
leaving
ample
parking
space.
The
location
was
right.
It
was
close
to
the
centre
of
the
City
of
Hamilton.
It
was
between
Hamilton
and
Toronto
where
there
was
denser
population
than
on
the
other
side
of
Hamilton
or
to
the
north.
It
was
easily
accessible
from
major
highways.
It
was
a
short
distance
from
a
cloverleaf
at
the
Queen
Elizabeth
Highway
and
the
Guelph
line.
Further
it
would
be
easily
accessible
from
a
cloverleaf
on
an
extension
of
Highway
403
which
was
to
be
built.
The
site
would
be
located
between
two
major
highways
with
cloverleaves
from
both
of
them.
It
was
an
excellent
location
for
fans
coming
from
Niagara
Falls,
St
Catharines,
the
Welland
area,
Brantford
and
Guelph
as
well
as
Burlington
within
the
boundaries
of
which
the
farm
was
located
and
Burlington
furnished
25%
of
the
Hamilton
Tiger
Cat
football
fans.
It
was
the
hub
of
the
area.
The
land
was
level.
Mr
Schwenger,
who
is
an
engineer,
made
a
study
of
the
land
and
concluded
that
it
was
the
most
susceptible
of
easy
drainage
of
all
possible
sites
and
that
all
services
were
available.
The
only
disadvantage
was
that,
while
the
land
was
being
used
as
a
farm,
it
was
zoned
residential.
In
order
for
a
stadium
to
be
built
on
the
site
it
would
have
to
be
zoned
commercial.
The
directors
did
not
anticipate
any
difficulty
in
accomplishing
this
re-zoning
because
the
land
was
being
used
as
a
farm.
The
land
had
not
been
built
up
resi-
dentially
to
the
east
or
west.
On
the
south
border
was
the
Town
of
Burlington’s
industrial
park.
To
the
north
was
a
hydro
line.
Further
the
land
was
situated
between
two
major
highways
so
that
the
land
was
eminently
more
suitable
for
industrial
rather
than
for
residential
purposes.
The
Town
of
Burlington
did
not
have
an
official
plan
covering
this
particular
area
so
there
was
no
ostensible
impediment
to
re-zoning.
At
the
meeting
of
the
directors
of
the
Hamilton
Football
Club
held
on
May
8,
1964
the
decision
was
made
to
make
an
offer
to
purchase
the
Peart
property.
The
decision
was
made
that
the
offer
should
be
made
by
the
directors
and
shareholders
in
their
individual
capacities
and
not
as
directors
and
shareholders
of
the
Hamilton
Football
Club.
The
offer
was
made
by
F
J
L
Evans,
QC,
who
was
the
solicitor
for
the
Club,
in
trust
for
a
company
to
be
incorporated.
The
offer
was
accepted
by
the
vendor.
Some
60
days
later
the
appellant
herein
was
incorporated
on
July
6,
1964.
The
shareholders
and
directors
of
the
appellant
are
the
same
twelve
persons
who
were
directors
and
shareholders
of
the
Hamilton
Tiger
Cat
Football
Club,
Limited
whose
names
have
been
set
forth
above
except
that
the
shares
in
the
appellant
were
held
by
a
company
owned
by
Mr
Gaudaur,
rather
than
in
his
own
name
and
the
same
thing
prevailed
with
Mr
Cooper’s
contribution.
Mr
Schwenger
took
shares
in
the
name
of
his
wife.
The
purchase
price
for
the
property
was
$151,731
or
approximately
$1,600
an
acre
of
which
$71,731
was
paid
on
closing
and
a
first
mortgage
was
given
as
security
for
the
balance
of
$80,000
payable
in
annual
instalments
of
principal
and
interest
in
the
amount
of
$5,000.
The
$71,731
down
payment
was
forthcoming
from
the
payment
for
the
shares
in
the
capital
stock
of
the
appellant
subscribed
for
by
the
twelve
shareholders
in
the
Hamilton
Tiger
Cat
Football
Club
Limited
in
the
approximate
proportion
of
their
shareholdings
in
the
Football
Club
with
adjustments
depending
on
the
resources
of
the
individuals.
The
purchase
was
completed
by
the
appellant
on
or
about
October
15,
1964.
lt
was
the
decision
of
the
directors
of
the
Football
Club
that
the
purchase
of
the
Peart
farm
should
be
shrouded
in
absolute
secrecy.
The
reasons
for
this
secrecy
can
be
summarized:
(1)
there
would
be
bad
publicity
with
increased
antagonism
towards
the
Club,
(2)
that
bad
publicity
would
affect
ticket
sales,
the
lifeblood
of
the
Club,
(3)
the
knowledge
that
the
Football
Club
intended
to
move
within
a
few
years
would
render
rental
negotiations
with
the
Parks
Board
even
more
difficult
and
intolerable,
and
(4)
it
might
make
a
rezoning
more
difficult
in
that
no
difficulty
was
anticipated
in
an
application
for
rezoning
merely
for
industrial
purposes
but
the
advent
of
a
stadium
might
precipitate
objection
from
persons
resident
in
the
area.
This
secrecy
was
strictly
maintained
from
October
1964
until
April
1966.
Casual
inquiries
about
re-zoning
were
made
and
the
fact
that
the
Football
Club
had
acquired
property
in
Burlington
leaked
out.
The
directors
of
the
Club
therefore
concluded
that
the
shares
in
the
appellant
need
not
continue
to
be
held
by
them
and
the
shares
were
transferred
to
the
Football
Club
at
cost
and
without
gain
to
the
directors
so
that
the
appellant
became
a
wholly
owned
subsidiary
of
the
Football
Club.
From
the
foregoing
facts
it
follows
that
the
appellant
had
been
inextricably
connected
with
the
Football
Club
since
its
incorporation,
first
as
the
shareholders
of
the
appellant
were
shareholders
of
the
Club
and
after
April
1966
the
appellant
was
the
wholly
owned
subsidiary
of
the
Club.
On
January
16,
1968
Mr
Gaudaur
became
the
commissioner
of
the
CFL
and
was
succeeded
as
general
manager
of
the
Hamilton
Tiger
Cats
by
Mr
Ralph
Sazio,
who
had
been
the
coach
of
the
team
formerly.
As
part
of
this
change-over
Mr
Sazio
purchased
the
shares
in
the
Football
Club
held
by
Mr
Gaudaur
from
him.
It
was
during
these
negotiations
that
Mr
Sazio
learned
that
the
Club
was
the
owner
of
the
Peart
farm.
On
accepting
his
new
responsibilities
Mr
Sazio
reviewed
the
files
and
observed
the
negotiations
with
the
Parks
Board
for
increased
seating
capacity
and
rental
agreements,
the
latter
being
begun
in
March
of
each
year.
He
noted
that
the
negotiations
had
been
carried
on
in
friction.
He
had
been
in
Hamilton
since
1950
in
the
different
capacity
as
player,
assistant
coach
and
head
coach
and
knew
of
the
opposition
of
the
populace
and
of
many
prominent
persons
in
Hamilton
to
the
operation
of
the
Football
Club
by
a
limited
company.
Mr
Sazio
attended
the
first
meeting
of
the
Parks
Board
and
forthwith
established
a
good
rapport.
He
began
by
attending
alone,
not
flanked
by
lawyers,
accountants
and
other
members
of
his
board
of
574
directors.
He
knew
many
members
of
the
City
Council
and
had
in
fact
supported
and
actively
worked
in
Mr
Copp’s
campaign.
He
made>
it
known
that
he
was
aware
of
the
prior
friction
but
stated
that
this
was
now
a
“new
ball
game”,
that
he
had
paid
a
substantial
amount
to
buy
Mr
Gaudaur’s
shares
and
suggested
that
the
previous
acrimony
shou
d
not
be
carried
on
but
that
negotiations
be
conducted
on
a
reasonable
basis
for
the
ultimate
good
of
the
Football
Club,
the
Parks
Board
and
the
City.
This
approach
bore
fruit.
The
1968
rental
agreement
was
completed
speedily
on
the
same
terms
as
for
the
1967
year
which
were
as
Mr
Sazio
pointed
out
still
the
highest
in
the
league.
The
climate
of
antagonism
was
dissipating,
first
by
Mr
Sazio’s
conciliatory
approach.
Then
the
Parks
Board
had
been
subjected
to
open
criticism
in
the
press
and
radio
about
the
deplorable
field
conditions,
a
veritable
quagmire
on
rainy
days,
the
inadequate
lighting
for
night
games,
the
very
bad
conditions
of
existing
rest
rooms,
the
inadequacy
in
the
’number
thereof,
and
the
disgraceful
dressing-rooms
for
visiting
teams.
When
he
was
taxed
with
these
conditions
Mr
Gaudaur
correctly
transferred
the
blame
to
where
it
lay,
that
is
with
the
Parks
Board.
The
Parks
Board
had
become
concerned
of
the
open
criticism
of
themselves.
There
was
a
great
wave
of
enthusiasm
for
the
Hamilton
Tiger
Cats
in
1967.
This
was
Centennial
Year.
Appropriately
the
Grey
Cup
was
played
in
Ottawa
that
year.
The
Tiger
Cats
overcame
a
strong
Ottawa
team
and
entered
the
Grey
Cup
against
Regina
Roughriders,
the
Western
representative,
and
won,
much
to
the
pride
of
the
citizens
of
Hamilton.
As
mentioned
previously
the
Calgary
team
had
made
the
Grey
Cup
a
national
event
in
1948.
The
benefits
to
the
host
city
from
an
influx
of
visitors
became
much
sought
after
from
that
year
forward.
Hamilton
applied
for
the
Grey
Cup
game
in
1960
but
was
turned
down
because
of
poor
field
conditions
and
inadequate
seating
capacity.
The
Mayor
of
Hamilton,
Mr
Copps,
and
the
Deputy
Mayor,
Mr
McDonald,
were
anxious,
as
a
matter
of
civic
pride
and
incidental
benefits,
to
host
the
Grey
Cup
in
1972
to
coincide
with
the
opening
of
the
Canadian
Football
Hall
of
Fame.
The
CFL
was
willing
to
award
the
Grey
Cup
game
to:
Hamilton
conditional
upon
the
seating
capacity
being
increased
and
the
installation
of
artificial
turf.
Mr
Sazio
skilfully
exploited
those
favourable
conditions
to
the
limit.
In
this
he
was
abetted
by
the
enthusiasm
and
efforts
of
Mr
Jack
McDonald.
Mr
McDonald
was
a
member
of
City
Council
at
that
time.
He
became
chairman
of
the
Grey
Cup
festivities
in
Hamilton
in
1972
and
for
his
outstanding
performance
he
was
named
Hamilton’s
citizen
of
the
year
in
1972.
Mr
Sazio
obtained
from
Mr
McDonald,
Mr
Copps
and
Mr
Pelech
(formerly
a
bitter
opponent)
the
assurance
that
the
football
stadium
would
be
rebuilt
to
provide
a
capacity
of
35,000.
Mr
Sazio
was
in
complete
agreement
with
the
necessity
to
get
more
better
seats;
otherwise
the
future
of
football
in
Hamilton
was
doomed.
It
required
an
attendance
of
22,000
a
game
to
break
even.
The
Club
had
11,000
season
ticket
holders
because
there
were
only
12,000
seats
between
the
goal
lines.
He
was
confident
that
the
Club
could
sell
season
tickets
for
all
seats
between
the
goal
lines.
Mr
Sazio
received
this
verbal
assurance
of
substantial
expansion
of
the
stadium
in
1968
upon
which
he
was
prepared
to
place
reliance.
In
the
fall
of
1968
notice
of
a
debenture
issue
by
the
City
to
finance
the
expansion
was
published.
Some
fifteen
residents
in
the
immediate
area
of
the
stadium
opposed
the
debenture
issue
because
they
feared
that
they
would
lose
their
homes
to
parking
facilities.
The
matter
went
to
the
Ontario
Municipal
Board
which
ordered
a
referendum.
The
referendum
was
held
in
the
spring
of
1970
and
the
proposal
to
expand
the
stadium
received
an
overwhelming
majority.
Mr
Sazio’s
confidence
was
not
misplaced
because
the
stadium
was
built
in
time
for
the
1972
Grey
Cup
with
a
capacity
of
35,000.
Mr
Gaudaur
had
projected
the
necessary
seating
capacity
at
40,000.
The
expanded
stadium
approximated
that
projection.
The
solution
to
the
seating
problem
was
evident
in
1968
and
a
longterm
lease
was
entered
into
between
the
Parks
Board
and
the
Club.
Mr
Sazio
was
opposed
to
building
a
stadium
outside
of
the
City.
He
explained
that
the
whole
theory
of
locating
stadiums
had
changed.
In
the
late
1950’s
the
prevalent
theory
was
that
a
stadium
should
be
built
on
the
outskirts
so
there
would
be
thousands
of
parking
spaces.
This
theory
changed
so
that
the
present
concept
is
to
have
the
stadium
in
the
centre
of
the
city.
This
has
been
demonstrated
by
the
location
of
new
stadia
in
major
cities.
Mr
Sazio’s
view
was
predicated
upon
two
factors,
(1)
the
business
community
wanted
the
facilities
in
the
city
and
(2)
transportation
did
not
present
a
problem.
When
the
stadium
is
on
the
outskirts
the
fans
can
bypass
the
city
completely.
When
the
stadium
is
in
centre
town
the
local
businessmen
profit
and
arrangements
had
been
made
by
the
Club
for
parking
in
shopping
centres
with
public
bus
transportation
from
there.
Whenever
possible
games
are
scheduled
for
days
when
the
shopping
centres
are
closed.
Further
the
City
of
Hamilton
had
cooperated
by
making
access
streets
one-way.
Mr
Sazio
investigated
the
prospect
of
rezoning
the
area
of
the
Peart
farm
from
residential
to
commercial
and
concluded
that
it
would
be
difficult
to
effect
this
change
at
this
time.
When
the
construction
of
a
stadium
was
considered
by
the
board
of
directors
of
the
Football
Club
in
1964
the
cost
thereof
based
upon
$50
a
seat
for
40,000
seats
was
$2
million
dollars.
In
1968
the
rule
of
thumb
estimate
of
$50
a
seat
no
longer
prevailed
but
the
cost
per
seat
had
doubled
so
that
the
cost
of
building
a
40,000
stadium
in
Burling-
ton
would
be
$4
million
dollars
or
more.
Mr
Sazio
did
not
think
that
an
outlay
of
that
amount
was
economically
viable.
For
these
reasons
Mr
Sazio
recommended
to
the
board
of
directors
that
the
Peart
farm
be
sold.
The
directors
were
convinced
by
those
reasons
and
accordingly
accepted
an
unsolicited
offer
to
purchase
the
property
on
August
14,
1968
at
a
price
of
$11,000
an
acre.
The
cost
to
the
Club
in
1964
had
been
approximately
$1,600
an
acre.
The
question
to
be
decided
is
whether
the
gain
realized
by
the
appellant
herein
upon
the
sale
of
the
Peart
farm
is
income
from
an
adventure
or
concern
in
the
nature
of
trade,
as
contended
by
the
Minister,
in
which
event
that
gain
is
taxable.
In
order
to
so
hold
it
must
be
found
as
a
fact
that,
at
the
time
the
appellant
purchased
the
Peart
farm,
it
did
not
do
so
for
the
exclusive
purpose
of
erecting
a
stadium
thereon
but
that
the
appellant
also
had
in
mind
at
the
time
of
purchase
the
possibility
of
resale
in
the
event
that
it
should
become
expedient
not
to
build
a
stadium
on
the
site.
The
onus
of
establishing
the
contrary
to
have
been
the
case
falls
on
the
appellant.
In
the
circumstances
peculiar
to
this
particular
case
it
is,
in
my
view,
important
to
bear
in
mind
that
the
time
as
of
which
the
appellant’s
intention
is
significant
is
the
time
when
the
Peart
farm
was
acquired.
I
emphasize
this
because
the
appellant
is
a
joint
stock
company
and
its
intention
is
coincident
with
that
of
its
directors
and
officers.
At
the
time
of
the
purchase
of
the
property
in
1964
Mr
Gaudaur
was
the
general
manager,
and
a
director
and
shareholder
of
the
Football
Club.
When
the
property
was
sold
in
1968
Mr
Gaudaur
no
longer
held
those
positions
but
had
been
succeeded
by
Mr
Sazio.
Otherwise
the
composition
of
the
board
of
directors
remained
constant.
The
capabilities
of
both
Mr
Gaudaur
and
Mr
Sazio
as
general
managers
were
held
in
high
esteem
by
the
other
members
of
the
board.
The
general
manager
had
the
responsibility
for
the
operation
of
the
Football
Club
and
the
other
directors
placed
great
reliance
on
those
officers’
recommendations.
Therefore
each
in
his
turn
was
the
dominant
member
of
the
board.
In
so
saying
I
do
not
mean
to
imply
that
the
other
directors
were
mere
automatons
blindly
endorsing
the
general
manager’s
recommendations.
On
the
contrary
they
were
not.
They
were
successful
and
outstanding
businessmen
whose
talents
and
energies
were
devoted
principally
to
the
conduct
of
their
own
businesses
but
who
were
also
willing
to
make
their
abilities
available
to
the
Football
Club.
Naturally
the
general
manager
who
devoted
his
entire
time
to
the
Football
Club
had
more
intimate
and
detailed
knowledge
of
its
affairs.
The
directors
brought
their
business
experience
to
bear
upon
the
recommendations
of
the
general
manager.
When,
in
their
judgment,
they
were
convinced
that
the
recommendations
of
the
general
manager
were
based
upon
cogent
reasons
then
they
gave
full
support
thereto.
Taking
cognizance
of
these
circumstances
it
follows
that
the
intention
of
the
appellant
and
its
board
of
directors
on
the
purchase
of
the
Peart
farm
in
1964
coincided
with
the
intention
of
Mr
Gaudaur
and
I
repeat
that
this
is
the
critical
time
at
which
the
intention
of
the
appellant
must
be
determined.
On
the
sale
of
the
property
in
1968
for
the
reasons
expressed
the
intentions
of
the
appellant
and
its
board
of
directors
was
the
same
as
that
of
Mr
Sazio.
The
circumstances
which
prevailed
on
the
sale
of
the
property
differed
materially
from
those
prevailing
on
its
purchase.
The
intention
on
the
sale
of
the
land
is
not
material
except
to
the
extent
that
the
circumstances
prevailing
at
the
time
of
the
sale
may
have
been
foreseen
at
the
time
of
the
purchase
and
influenced
the
intention
of
the
appellant
at
that
earlier
time.
The
question
of
fact
as
to
what
the
appellant’s
purpose
was
in
acquiring
the
Peart
farm
must
be
decided
after
considering
all
the
evidence.
Ex
post
facto
statements
made
by
a
taxpayer
as
to
intention
at
the
time
of
acquisition
must
be
looked
at
critically
and
are
only
part
of
the
evidence.
Such
statements
must
be
considered
along
with
the
objective
facts.
When
the
taxpayer
is
an
individual
the
self-serving
nature
of
such
statements
stands
out.
However
when
the
taxpayer
is
a
joint
stock
company
with
a
board
of
directors
consisting
of
a
large
number
of
strong-willed
businessmen,
as
was
the
case
of
the
appellant,
then
the
impact
of
the
self-serving
nature
of
the
statement
is
lessened.
In
the
present
case
Mr
Gaudaur,
Mr
Cooper,
Mr
Fischer,
Mr
Soule
and
Mr
Schwenger
categorically
swore
that
the
Peart
property
was
purchased
for
the
exclusive
purpose
of
building
a
stadium
on
the
site
and
that
the
possibility
of
sale
at
a
profit
was
not
considered
by
any
of
them
nor
was
it
discussed.
There
are
a
number
of
positive
objective
indicia
that
the
appellant’s
exclusive
intention,
at
the
time
of
the
acquisition
of
the
Peart
farm
was
to
use
the
property
as
a
site
on
which
to
build
a
stadium.
There
is
no
question
that
following
the
transfer
of
the
CFL
franchise
to
the
limited
joint
stock
company
incorporated
on
January
31,
1961
there
was
a
climate
of
extreme
antagonism
towards
the
Club
by
some
of
the
elected
representatives
on
the
City
Council
and
that
antagonism
was
perpetuated
in
the
officers
appointed
by
that
body
to
the
Parks
Board.
Rental
negotiations
for
the
stadium
were
protracted
and
difficult
resulting
in
extreme
frustration
on
the
part
of
the
Club.
lt
is
true
that
annual
rental
agreements
were
made
eventually
in
each
year
which
did
not
differ
substantially
from
those
in
effect
in
former
years
but
petty
concessions
were
exacted
by
the
Parks
Board
and
these
agreements
were
reached
only
after
long
and
bitter
bargaining.
To
management
and
officers
of
the
Football
Club
this
atmosphere
and
the
uncertainty
of
concluding
a
lease
of
the
stadium
became
unendurable.
Added
to
this
uncooperative
and
antagonistic
attitude
of
the
Board
there
was
no
question
whatsoever
that
the
Football
Club
had
need
of
a
greater
seating
capacity
otherwise
the
operation
of
the
Football
Club
could
not
be
continued
successfully.
Again
after
considerable
negotiation
also
conducted
in
difficult
circumstances
minor
concessions
were
made
to
the
Football
Club
by
the
Parks
Board
in
respect
of
a
temporary
increase
in
seating
but
the
Parks
Board
refused
to
undertake
any
major
renovation
of
the
stadium
as
was
requested
by
the
Football
Club
to
provide
an
increase
in
permanent
seating
capacity
between
the
goal
lines.
These
two
factors
prompted
Mr
Gaudaur
to
conclude
that
there
was
no
solution
to
the
need
of
the
Football
Club
for
greater
seating
other
than
for
the
Club
to
build
a
suitable
stadium
itself.
Mr
Gaudaur
persuaded
the
directors
and
shareholders
of
the
Football
Club.
of
the
wisdom
of
his
conclusion
supported
by
well
documented
and
logical
reasons.
Accordingly
a
property
committee
was
established
to
search
for
a
Suitable
site
in
the
immediate
environs
of
the
City
of
Hamilton.
This
the
committee
did
so
search
and
reported
its
efforts
at
regular
intervals
to
the
board
of
directors.
It
is
significant
that
the
committee
considered
a
number
of
different
sites.
The
paramount
considerations
always
present
to
the
committee
in
its
search
were
the
suitability
of
the
site
for
a
stadium.
These
considerations
determined
the
ultimate
selection
of
the
Peart
farm
in
1964
in
preference
to
any
other
site.
It
was
adequate
in
size.
The
location
was
the
most
advantageous.
It
was
sufficiently
close
to
Hamilton.
It
was
in
the
hub
of
all
surrounding
communities.
There
was
ready
access
from
two
major
highways.
It
was
in
the
Town
of
Burlington
which,
while
a
separate
municipality,
adjoins
the
City
of
Hamilton
and
the
Football
Club
wished
to
continue
to
identify
with
Hamilton.
All
necessary
services
were
available
to
the
property.
The
land
was
level
and
drainage
could
be
installed
at
the
minimum
expense.
For
these
reasons
it
was
the
conclusion
of
the
property
committee
and
the
directors
that
the
property
was
ideal
as
the
site
of
a
stadium.
At
this
particular
time
there
was
a
recession
in
residential
development
in
the
Town
of
Burlington.
The
land
was
adjacent
to
an
industrial
park
and
there
was
no
residential
development
in
the
area.
The
Pearts,
who
were
the
vendors
of
the
land,
had
operated
it
as
a
fruit
farm
for
years.
They
were
now
elderly
and
wished
to
retire.
The
farm
had
been
on
the
market
for
several
years.
Throughout
that
time
energetic
efforts
by
an
aggressive
real
estate
agent
had
failed
to
find
a
buyer.
Therefore
the
land
was
not
in
a
speculative
area.
The
facts
that
the
paramount
considerations
leading
to
the
purchase
of
the
land
were
the
factors
eminently
suitable
to
the
construction
of
a
stadium
thereon
and
that
the
land
was
not
in
a
speculative
area
supports
the
statements
of
all
the
directors
that
the
purpose
in
purchasing
the
land
was
to
construct
a
stadium
thereon
to
the
exclusion
of
turning
the
land
to
account
by
resale.
For
the
reasons
given
by
the
directors
of
the
Club
which
I
have
outlined
above
and
one
of
which
was,
it
might
make
negotiations
with
the
Parks
Board
more
difficult,
the
directors
decided
to
cloak
the
purchase
of
the
site
with
absolute
secrecy.
In
negotiations
with
the
Parks
Board
the
directors
did
not
use
the
possession
of
an
alternative
stadium
site
as
a
lever
to
pry
from
that
body
more
favourable
rental
terms
or
temporary
seating.
The
failure
to
do
so
points
to
the
sincerity
of
their
intention
to
carry
through
the
plan
to
build
the
stadium.
Lord
President
Normand
in
CIR
v
Fraser
(1940-42),
24
TC
498,
indicated
that
an
important
indicium
in
determining
whether
a
simple
transaction
amounts
to
trading
is
when
the
transaction
is
in
the
line
of
the
ordinary
trade
of
the
person
engaged
in
the
transaction.
The
objects
for
which
the
appellant
was
incorporated
include
the
authority
to
buy
and
sell
land.
However
as
I
pointed
out
at
the
outset
the
critical
question
to
be
answered
is
not
what
the
company
was
authorized
to
do
but
what
it
did
and
does
what
it
did
amount
to
carrying
on
a
business.
The
intention
of
a
company
is
derived
from
that
of
its
officers
and
directors.
None
of
the
directors
and
shareholders
were
traders
in
land.
The
appellant
did
not
act
in
the
manner
in
which
a
speculator
in
land
acts.
A
speculator
in
land
looks
for
quick
turnovers.
Frequently
the
land
is
purchased
with
money
borrowed
at
a
high
rate
of
interest
with
the
consequent
compulsion
to
realize
forthwith
and
pass
on
to
other
purchases.
A
speculator
usually
puts
up
only
the
minimum
amount
of
money
that
will
ensure
control
of
the
land.
In
the
present
case
the
purchase
price
was
$151,731
with
a
mortgage
back
to
the
vendor
in
the
amount
of
$80,000
so
that
the
down
payment
was
$71,731
approximately
half
of
the
total
purchase
price.
The
funds
for
the
cash
payment
came
from
the
subscription
price
paid
by
the
shareholders
of
the
Hamilton
Tiger
Cat
Football
Club,
Limited
for
shares
in
the
appellant.
The
appellant
company
was
interposed
to
preserve
the
cloak
of
secrecy
concerning
the
purchase
of
the
land
which
secrecy
was
considered
essential
by
the
directors.
When
the
reasons
for
that
secrecy
no
longer
prevailed
in
1966
the
directors
and
shareholders
of
the
appellant
transferred
their
shares
to
the
Hamilton
Tiger
Cat
Football
Club,
Limited
at
cost.
Obviously
the
shareholders
and
directors
did
not
seek
to
reap
a
profit
from
the
transaction
assuming
that
they
saw
the
possibility
of
profit
at
that
time.
They
were
not
vendor
promoters.
such
action
by
the
directors
and
shareholders
is
not
consistent
with
them
being
traders.
Until
the
decision
of
the
Club
to
remain
in
the
Civic
Stadium
and
to
abandon
the
plan
to
build
a
stadium,
for
the
reasons
given
by
Mr
Sazio,
which
are
set
forth
above,
unsolicited
offers
for
the
purchase
of
the
land
were
received
and
emphatically
rejected.
The
land
was
never
listed
for
sale.
One
persistent
real
estate
agent
who
had
negotiated
the
purchase
of
the
land
by
the
Football
Club
and
therefore
knew
of
its
contemplated
use
as
a
stadium
site
was
told
emphatically
that
the
land
was
not
purchased
for
speculation
but
for
a
specific
reason
which
he
well
knew,
that
that
purpose
still
remained
and
that
the
land
was
not
for
sale
at
any
price.
These
positive
indicia
favourable
to
the
appellant’s
position
may
be
summarized
as
follows:
1.
the
site
was
selected
because
it
was
the
most
advantageous
one
for
the
construction
of
a
stadium;
2.
the
land
was
not
in
a
rapidly
developing
and
speculative
area;
3.
the
directors
and
shareholders
of
the
appellant
had
no
experience
or
history
of
trading
in
real
estate;
4.
the
directors
and
shareholders
did
not
act
in
this
transaction
as
traders
in
real
estate
customarily
act;
5.
the
possession
of
a
stadium
site
was
not
used
as
a
lever
to
pry
concessions
from
the
Parks
Board;
and
6.
unsolicited
offers
to
purchase
the
land
were
refused.
Added
to
these
indicia
each
director
of
the
appellant
was
called
as
a
witness,
except
one
director
confined
to
hospital.
Each
director
swore
that
his
intention
and
motivation
in
voting
in
favour
of
the
purchase
of
the
land
by
the
appellant
and
advancing
money
by
way
of
subscription
to
shares
in
the
appellant
to
enable
the
appellant
to
do
so,
was
for
the
sole
purpose
of
building
a
stadium.
Each
director
also
swore
that
he
individually
never
considered
the
prospect
of
resale
of
the
property
and
that
such
a
possibility
was
never
discussed
by
him
with
any
other
directors.
The
directors
who
testified
before
me
impressed
me
as
gentlemen
of
integrity
whose
sworn
testimony
cannot
be
lightly
disregarded.
An
examination
of
the
relevant
minutes
of
the
meetings
of
the
board
of
directors
confirms
the
intention
in
and
motivation
for
the
purchase
of
the
land
was
that
sworn
to
by
the
directors.
There
are
two
indicia
of
trade
which
stated
starkly
are
adverse
to
the
appellant’s
position
were
it
not
for
circumstances
which
prevailed
and
negative
that
adversity.
First,
no
detailed
architectural
and
construction
plans
for
the
stadium
were
ever
prepared
at
the
request
of
the
appellant.
General
design
and
phase
plans
were
developed
and
affixed
to
the
feasibility
report
prepared
by
Mr
Skinner.
When
such
detailed
plans
would
be
required
two
of
the
shareholders
and
directors
of
the
Football
Club,
Mr
Cooper
and
Mr
Schwenger,
had
at
their
command
outstanding
facilities
for
their
preparation.
Mr
Cooper
is
the
largest
and
most
successful
building
contractor
in
the
Hamilton
area.
His
company
had
built
most
of
the
major
buildings
there.
Mr
Schwenger
is
a
professional
engineer
specializing
in
construction.
His
company
had
built
the
extension
of
the
south
stand
of
the
Hamilton
Civic
Stadium
in
1959.
The
plans
used
therefor
were
made
available
to
the
appellant
for
whatever
use
could
be
made
of
them.
Both
Mr
Cooper
and
Mr
Schwenger
had
agreed
to
place
their
professional
staff
at
the
disposal
of
the
appellant.
Secondly,
no
steps
were
taken
by
the
appellant
to
obtain
financing
to
build
the
stadium.
Mr.
Cooper
and
Mr
Schwenger
as
members
of
the
Board
undertook
to
arrange
for
the
necessary
financing
when
the
need
arose.
Their
credit
ratings
were
substantial
and
no
difficulty
was
foreseeable
in
this
respect.
On
the
other
hand
counsel
for
the
Minister
advanced
three
indicia
in
support
of
the
Minister’s
contention
that
at
the
time
of
the
acquisition
of
the
land
by
the
appellant
that
it
also
had
as
one
of
its
possible
purposes
the
subsequent
disposition.
of
the
land
at
a
profit.
If
that
should
be
the
case
then
the
resultant
profit
is
taxable.
The
first
such
circumstance
so
relied
upon
by
the
Minister
is
that
at
the
time
of
the
acquisition
of
the
land
by
the
appellant
the
land
was
zoned
residential,
although
used
for
agricultural
purposes,
and
that
at
no
time
while
the
appellant
I
held
the
land
did
it
initiate
steps
to
change
the
existing
residential
zoning
to
commercial
zoning
so
as
to
permit
the
construction
of
a
stadium
on
the
site.
The
second
circumstance
was
that
from
the
date
of
the
acquisition
of
the
land
by
the
appellant
the
Football
Club
continued
its
negotiations
with
the
Parks
Board
for
rental
of
the
Civic
Stadium
and
continued
to
press
for
additional
temporary
seating
and
continued
in
its
protestations
that
the
permanent
seating
between
the
goal
lines
was
totally
inadequate
and
should
be
increased
by
a
major
reconstruction
programme.
In
the
meantime
the
land
purchased
by
the
Football
Club
remained
vacant
from
the
date
of
purchase
until
the
date
of
sale.
A
third
circumstance
was
that
the
offer
to
purchase
the
land
had
attached
to
it
a
plan
of
sub-division
and
contained
a
provision
for
partial
discharge
of
the
first
mortgage
to
be
taken
back
by
the
vendor.
The
implication
to
be
drawn
from
this
circumstance
is
that
the
purchaser
had
in
contemplation
the
subdivision
and
development
of
the
site;
otherwise
the
insertion
of
the
provision
for
partial
discharge
would
not
be
necessary.
In
my.
opinion
it
is
incumbent
upon
the
appellant
to
satisfactorily
explain
these
circumstances.
The
offer
to
purchase
was
prepared
by
a
real
estate
agent
and
was
approved
by
the
solicitor
for
the
appellant.
The
Peart
family
was
personally
well
known
to
the
real
estate
agent
and
he
had
acted
on
their
behalf
as
vendors.
The
Pearts
reached
their
decision
to
sell
their
farm
with
great
reluctance.
It
had
been
their
home
for
years
and
farming
was
their
way
of
life
but
that
way
of
life
was
becoming
more
difficult
for
them
as
they
advanced
in
years.
The
farm
was
listed
with
the
real
estate
agent
for
about
five
years
prior
to
1964
but
despite
his
efforts
he
was
unable
to
find
a
purchaser.
To
facilitate
the
sale
the
real
estate
agent
had
the
land
zoned
from
agricultural
to
residential.
There
had
been
one
prospective
purchaser
acceptable
to.
the
Pearts.
The
real
estate
agent
had
prepared
an
offer
to
purchase
from
this
prospective
buyer
who
may
have
been
a
developer.
A
provision
for
partial
discharge
of
a
mortgage
back
to
the
vendor
was
contained
in
the
offer
and
a
plan
was
attached
thereto.
The
Pearts
discussed
this
offer
to
purchase
with
their
solicitor
and
eventually
accepted
the
offer.
This
sale
was
never
consummated.
When
the
appellant
decided
to
buy
the
Peart
farm
the
negotiations
for
its
purchase
were
conducted
with
the
Pearts
by
this
same
real
estate
agent.
The
agent
knew
the
Pearts.
He
knew
of
their
attachment
to
the
farm.
He
knew
of
their
reluctance
to
sell,
but
he
also
knew
that
they
had
accepted
a
former
offer
prepared
by
him
after
consultation
with
their
solicitor.
Therefore
he
deliberately
drafted
the
offer
to
purchase
by
the
appellant
in
the
identical
form
as
the
previous
offer
with
plan
attached
and
containing
a
provision
for
partial
discharge.
He
felt
because
an
offer
in
this
form
had
been
accepted
previously
that
to
present
to
the
Pearts
an
offer
materially
different
from
the
previous
one
might
invite
their
enquiries
as
to
the
reasons
for
the
change,
precipitate
prolonged
investigation.
on
the
Pearts’
part
and
trigger
their
reluctance
to
sell
into
a
refusal
to
accept
the
offer.
The
real
estate
agent
explained
this
reasoning
to
the
solicitor
for
the
appellant.
At
that
time
the
appellant’s
moving
interest
was
to
buy
the
property
and
since
the
provision
in
question
had
no
material
bearing
on
that
interest
no
objection
was
raised
or
taken
on
the
appellant’s
behalf
to
the
form
of
the
offer.
Therefore
the
offer
was
made
in
the
form
proposed
by
the
real
estate
agent.
The
real
estate
agent’s
testimony
in
this
respect
was
not
challenged
on
cross-examination
and
I
do
not
see
any
valid
reason
why
I
should
not
accept
this
evidence.
The
second
factor
put
forward
on
behalf
of
the
Minister
was
that
the
land
was
zoned
residential
but
no
positive
steps
were
taken
by
the
appellant
to
change
that
zoning
to
permit
of
the
building
of
a
stadium.
There
was
no
intention
to
begin
construction
of
a
stadium
immediately
upon
the
acquisition
of
the
land
in
1964
but
only
to
do
so
within
four
to
five
years
from
that
date.
There
are
good
grounds
for
accepting
that
premise.
Mr
Gaudaur
had
made
a
projection
into
the
future
which
was
to
the
effect
that
the
Football
Club
could
operate
in
the
Civic
Stadium
with
the
seating
capacity
there
available
for
a
period
of
five
years.
He
made
this
recommendation
to
the
board
of
directors
and
it
was
accepted
by
the
board.
Every
member
of
the
board
testified
to
like
effect.
However
even
accepting
that
premise
as
I
do
that
does
not
explain
the
failure
to
initiate
steps
for
re-zoning
the
land
forthwith.
The
real
estate
agent
who
acted
on
behalf
of
the
appellant
in
purchasing
the
land
was
aware
that
the
erection
of
a
stadium
on
the
site
was
in
contemplation.
He
had
undertaken
to
preserve
the
appellant’s
desire
for
secrecy.
He
assured
the
officers
and
directors
of
the
appellant
that
there
would
be
no
difficulty
in
having
the
land
zoned
commercial.
Presumably
being
a
real
estate
agent
he
would
be
knowledgeable
in
matters
of
zoning
and
he
had
been
instrumental
in
having
the
land
zoned
residential.
But
being
a
real
estate
agent
it
would
be
reasonable
to
look
at
his
assurance
askance
because
of
the
agent’s
anxiety
to
obtain
a
commission.
The
directors
brought
their
own
independent
judgment
to
bear
on
the
likelihood
of
re-zoning
when
application
should
be
made
therefor.
The
location
of
the
land
gave
good
ground
for
the
expectation
the
land
would
be
re-zoned.
There
was
an
industrial
park
on
the
south
border.
To
the
north
there
was
a
high-tension
hydro
power
line.
To
the
east
there
were
some
factories.
Only
to
the
west
was
there
a
possibility
of
residential
development
but
none
had
taken
place.
Added
to
these
obvious
disadvantages
to
residential
development
was
the
still
greater
disadvantage
that
the
farm
was
between
two
major
highways.
Mr
Gaudaur,
as
general
manager
of
the
Football
Club,
was
aware
of
the
necessity
of
keeping
operating
costs
to
a
minimum.
The
annual
payment
of
principal
and
interest
on
the
outstanding
mortgage
balance
was
approximately
$5,000.
To
partially
meet
this
expense
the
farm
was
leased
to
a
fruit
farmer
with
a
provision
for
termination
of
the
lease.
Any
deficiency
was
made
up
by
loans
to
the
appellant
from
the
Football
Club.
There
were
several
appeals
by
the
appellant
against
increased
municipal
assessments.
These
appeals
were
successful
and
the
land
continued
to
be
assessed
at
the
lower
rate
applicable
to
agricultural
land.
If
the
land
were
re-zoned
as
commercial
it
followed
that
the
taxes
would
increase
with
a
corresponding
increase
in
the
cost
of
holding
the
land
which
the
appellant
was
anxious
to
avoid.
lf
applications
were
made
to
rezone
the
land
that
would
remove
the
secrecy
of
the
fact
that
the
Football
Club
owned
land
in
the
area.
The
directors
of
the
Football
Club
deemed
it
expedient
to
preserve
this
fact
a
secret
so
long
as
the
Football
Club
played
in
Hamilton
Civic
Stadium
to
avoid
accentuating
the
difficulty
the
Club
was
experiencing
in
negotiating
with
the
Parks
Board
and
any
adverse
effect
on
ticket
sales.
Furthermore,
five
members
of
the
board
of
directors
of
the
Football
Club
were
residents
of
Burlington.
Twenty-five
per
cent
of
the
season
ticket
holders
were
resident
in
Burlington.
While
the
directors
were
anxious
to
preserve
the
traditional
association
of
the
Tiger
Cats
with
the
City
of
Hamilton
and
would
continue
to
play
under
the
name
of
the
Hamilton
Tiger
Cats,
nevertheless
extensive
favourable
publicity
by
way
of
national
television
and
radio
broadcasts
would
accrue
to
the
Town
of
Burlington
from
the
Tiger
Cats
playing
in
a
stadium
built
in
the
Town.
In
1966
the
need
for
secrecy
no
longer
prevailed.
The
knowledge
that
the
Football
team
owned
land
in
Burlington
was
suspected.
It
was
in
that
year
that
the
shareholders
in
the
appellant
transferred
their
shares
to
the
Football
Club
at
cost.
It
was
not
until
1967
that
the
possibility
arose
that
re-zoning
of
the
farm
might
not
be
forthcoming
on
application.
In
that
year
the
Industrial
Commissioner
of
the
Town
of
Burlington
suggested
a
trade
of
the
Peart
farm
for
another
parcel
of
land.
The
reason
put
forward
by
the
Industrial
Commissioner
for
the
proposed
trade
was
that
the
land
offered
in
trade
would
be
easier
to
re-zone.
Mr
Gaudaur
did
not
share
that
view.
Immediately
across
the
street
from
the
land
offered
in
trade,
houses
were
being
erected.
There
was
no
similar
construction
in
the
vicinity
of
the
Peart
farm.
Further
the
land
offered
in
trade
was
not
as
suitable
as
a
site
of
a
stadium
as
the
Peart
farm.
The
directors
of
the
Football
Club
still
held
their
opinion
that
there
would
be
no
difficulty
in
having
the
Peart
farm
re-zoned
because
the
reasons
upon
which
their
opinion
was
based
were
still
applicable
with
equal
force.
Bearing
in
mind
that
it
was
not
until
1969
that
erection
of
the
stadium
was
contemplated
it
would
not
be
until
1968
that
application
for
re-zoning
would
be
made
in
the
ordinary
sequence
of
events.
In
1968
there
was
a
change
in
general
managers.
Those
managers
held
different
views
as
to
the
centre
of
the
city
or
its
outskirts
being
preferable
for
the
location
of
a
stadium.
In
1968
circumstances
had
changed
materially.
The
Parks
Board
was
willing
to
undertake
extensive
renovation
of
the
Civic
Stadium
to
provide
for
a
seating
capacity
of
35,000
persons.
The
seating
capacity
of
the
proposed
stadium
was
to
be
40,000,
a
scant
5,000
more.
The
cost
of
construction
had
doubled
between
1964
and
1968.
Because
it
was
no
longer
economically
feasible
to
construct
a
stadium
at
the
increased
cost
and
because
arrangement
for
the
use
of
an
expanded
Civic
Stadium
was
virtually
a
certainty
there
was
no
need
to
keep
the
Peart
property
and
much
less
a
need
to
apply
for
the
re-zoning
of
that
property.
The
third
circumstance
which
is
obligatory
for
the
appellant
to
explain
is
that
after
the
acquisition
of
the
Peart
Farm
the
Football
Club
continued
its
negotiations
with
the
Parks
Board
for
increased
seating
capacity.
The
efforts
made
by
the
Football
Club
between
1959
and
1967
were
directed
to
persuading
the
Parks
Board
to
increase
the
temporary
seating
in
the
Civic
Stadium
to
meet
the
courrent
revenue
needs
of
the
Club.
The
request
for
an
increase
in
seating
by
the
installation
of
temporary
seats
was
merely
a
stop-gap
and
was
never
accepted
as
a
long-term
solution.
In
1967
there
was
a
change
of
emphasis
in
the
negotiations
of
the
Club
with
the
Parks
Board.
In
the
year
1967
the
Football
Club
received
its
first
intimation
that
difficulty
might
be
encountered
in
having
the
Peart
farm
rezoned
as
commercial.
This
intimation
came
from
the
Industrial
Commissioner
who
suggested
a
trade
of
the
Peart
farm
for
another
property,
considered
less
desirable
by
the
directors
of
the
Football
Club,
because
it
would
be
easier
to
have
the
property
offered
in
trade
re-zoned.
The.
directors
of
the
Club
did
not
agree
but
an
approach
was
made
to
the
Parks
Board
to
have
the
north
stand
enlarged
and
that
approach
was
rejected
by
the
Parks
Board.
As
I
have
stated
before
the
material
time
at
which
the
intention
of
the
appellant
in
purchasing
the
Peart
farm
must
be
determined
is
the
time
of
acquisition.
To
begin
each
director
of
the
appellant
testified
that
the
Peart
farm
was
purchased
for
the
exclusive
purpose
of
building
a
stadium
on
the
site
and
that
the
possibility
of
turning
the
land
to
account
by
resale
was
not
contemplated.
"These
consistent
declarations
of
intent
must
be
considered
critically
in
the
light
of
other
evidence
to
ascertain
if
that
other
evidence
supports
the
avowed
intent.
The
decision
of
the
appellant
to
purchase
the
land
for
the
purpose
of
building
a
stadium
must
be
tested
against
the
reasonableness
of
that
decision
at
that
time.
If
that
decision
was
so
unreasonable
as
to
be
incapable
of
fruition
the
inference
is
that
the
professed
intention
could
not
have
been
seriously
entertained
but
that
the
appellant
also
had
in
mind
at
the
time
of
acquisition
the
intention
of
turning
the
land
to
account
by
resale.
In
the
present
appeal
the
land
was
sold
some
four
years
after
its
acquisition
but
the
decision
to
sell
was
dictated
by
changed
circumstances.
The
antagonism
of
the
Parks
Board
to
the
Football
Club
had
ended.
The
Parks
Board
gave
the
Football
Club
a
commitment
to
expand
the
Civic
Stadium.
Because
of
residential
development
rezoning
of
the
Peart
farm
as
commercial
had
become
more
difficult.
The
cost
of
construction
had
doubled.
Until
the
time
Mr
Gaudaur
left
the
Football
Club
as
general
manager
to
become
commissioner
of
the
CFL
in
1968
he
was
adamant
in
his
belief
that
the
Football
Club
would
be
obliged
to
build
its
own
stadium.
Until
that
time
the
other
directors
agreed
with
him.
His
successor
as
general
manager,
Mr
Sazio,
because
of
the
changed
circumstances
in
1968,
held
a
different
view
and
he
was
successful,
because
of
the
cogent
reasons
on
which
his
view
was
based,
in
converting
the
directors
to
his
view.
In
my
view
I
must
assess
the
reasonableness
of
the
decision
of
the
directors
to
purchase
the
land
at
the
time
that
decision
was
made.
In
the
light
of
the
evidence
there
is
no
doubt
that
the
decision
to
do
so
was
based
on
sound
and
cogent
reasons.
Having
so
concluded
it
follows
next
to
ascertain
if
at
the
time
of
the
acquisition
of
the
land
in
1964
it
was
reasonable
not
to
foresee
the
changed
circumstances
which
came
about
in
1968
to
render
the
plan
to
build
a
stadium
on
the
site
acquired
no
longer
feasible.
If
it
was
unreasonable
not
to
foresee
the
change
in
circumstances
which
did
occur
then
the
failure
to
do
so
might
well
reflect
on
the
cogency
of
the
reasons
which
dictated
the
purchase
of
the
land
in
1964.
In
my
view
the
decision
of
the
directors
to
purchase
the
land
was
based
on
a
sound
business
appraisal
of
the
situation.
For
the
reasons
expressed
above
the
directors
had
no
valid
cause
to
expect
that
the
attitude
of
the
Parks
Board
would
change
and
that
it
would
be
willing
to
expand
the
seating
capacity
of
the
Civic
Stadium.
Neither
was
there
cause
for
the
directors
to
anticipate
that
the
necessary
re-zoning
would
not
be
forthcoming
on
application
being
made
therefor.
With
the
benefit
of
hindsight
it
has
occurred
to
me
that
it
might
have
been
wise
for
the
directors
to
have
commenced
the
building
of
the
stadium
forthwith
upon
the
acquisition
of
the
site.
However
it
was
the
decision
of
the
appellant’s
board
that
to
do
so
was
not
necessary
for
some
four
or
five
years
because
the
facilities
at
the
Civic
Stadium
were
adequate
until
the
expiry
of
that
period.
In
addition
to
that
fact
there
were
sound
and
valid
reasons
for
the
decision
to
defer
construction
and
accordingly
that
decision
was
not
unreasonable
in
the
light
of
the
circumstances
at
the
time
the
decision
was
made.
After
having
given
careful
attention
to
all
the
evidence
and
for
the
reasons
I
have
expressed,
I
am
satisfied
that
the
appellant
acquired
the
Peart
farm
for
the
purpose
of
erecting
a
stadium
thereon
to
the
exclusion
of
any
purpose
of
disposition
at
a
profit.
Accordingly
it
follows
that
the
appellant
has
discharged
the
onus
cast
upon
it
to
establish
that
the
assumptions
of
the
Minister
in
assessing
the
appellant
as
he
did
were
not
warranted.
The
appeal
is,
therefore,
allowed
with
costs.
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