N
OEL,
J.:—This
is
an
appeal
from
a
decision
of
the
Tax
Appeal
Board
(25
Tax
A.B.C.
353)
dated
November
29,
1960,
dismissing
the
taxpayer’s
appeal
from
re-assessments
made
upon
him
by
the
Minister
increasing
his
declared
income
by
an
amount
of
$8,956.11
and
$4,276.05
for
the
taxation
years
1954
and
1955
respectively
as
profits
resulting
from
the
sale
of
his
wife’s
interests
in
a
real
estate
joint
venture
or
partnership
in
which
he
had
supplied
his
wife’s
equity.
The
amounts
added
to
the
appellant’s
income
are
similar
to
those
received
by
one
of
the
other
parties
in
the
partnership,
one
Jacob
B.
Fisher
which
were
held
to
be
in
Jacob
B.
Fisher
v.
M.N.R.,
24
Tax
A.B.C.
313,
amounts
received
as
income
from
a
business
as
defined
in
Section
139(1)
(e)
of
the
Income
Tax
Act.
The
appellant’s
appeal
to
the
Tax
Appeal
Board
was
rejected,
Mr.
Fordham
being
of
the
opinion
that
the
taxpayer
was
not
allowed
to
establish
by
verbal
evidence
that
the
amount
he
supplied
to
his
wife
as
her
participation
in
the
real
estate
partnership
was
owed
her
as
a
result
of
a
verbal
agreement
which
was
alleged
to
have
taken
place
shortly
after
their
marriage
whereby,
although
the
taxpayer
had
in
their
marriage
contraet
undertaken
to
supply
household
furniture
and
effects
up
to
an
amount
of
$10,000
and
maintain
such
a
value
throughout
their
married
life,
his
wife
consented
at
the
time
to
purchase
such
furniture
and
effects
with
her
money
as
the
taxpayer
had
no
funds
available
at
the
time
to
do
so,
having
just
purchased
a
new
business.
It
was
indeed
stated
by
both
the
taxpayer
and
his
wife
that
the
monies
expended
by
the
latter
to
purchase
these
furniture
and
effects
were
a
loan
which
the
husband
had
promised
to
repay
as
soon
as
he
could.
An
objection
was
entered
by
counsel
for
the
respondent
to
verbal
proof
of
such
a
loan
on
the
basis
of
article
1233
of
the
Civil
Code
of
Quebec
which
requires
that
proof
of
all
juridical
acts
must
be
made
in
writing
unless
they
fall
within
one
of
the
exceptions
provided
in
the
article.
As
Mr.
Fordham
held
that
the
establishment
of
a
loan
did
not
fall
within
one
of
these
exceptions,
he
disregarded
the
verbal
evidence
with
respect
to
the
alleged
loan
of
funds
for
the
purchase
of
furniture.
On
the
other
hand,
as
the
taxpayer
had
supplied
the
money
necessary
to
enable
his
wife
to
invest
in
her
portion
of
the
joint
venture,
the
Minister
treated
the
gain
made
from
the
real
estate
transaction
as
being
income
to
the
appellant
rather
than
to
his
wife
who
was
taken
to
be
merely
the
taxpayer’s
agent
or
alter
ego.
Mr.
Fordham,
in
the
above
Tax
Appeal
Board
decision,
states
that
it
was
with
some
reluctance
that
he
found
that
the
reassessments
forming
the
subject
of
this
appeal
had
not
been
dislodged
and
that
he
should
affirm
them
but
that,
because
of
the
requirement
of
article
1233
of
the
Civil
Code
of
Quebec
and
its
mandatory
application,
he
had
no
choice
in
the
matter.
He
realized,
indeed,
that
this
would
place
a
Quebec
resident
in
a
position
different
from
that
of
a
resident
of
Ontario
for
instance
which
has
no
such
requirement
as
article
1233
of
the
Civil
Code,
and
where
such
testimonial
evidence
of
such
facts
is
permissible,
although
the
circumstances
of
each
such
resident’s
case
may
happen
to
be
the
same
in
any
material
respect.
He
added,
and
with
reason,
that
such
a
situation
would
appear
to
be
at
variance
with
the
fundamental
rule
mentioned
by
Viscount
Haldane
in
Minister
of
Finance
v.
Smith,
[1927]
A.C.
193
at
197;
[1917-27]
C.T.C.
251:
“
Moreover,
it
is
natural
that
the
intention
was
to
tax
on
the
same
principle
throughout
the
whole
of
Canada,
rather
than
to
make
the
existence
of
taxation
depend
on
the
varying
and
divergent
laws
of
the
particular
provinces.’’
From
that
decision,
the
appellant
now
appeals
to
this
Court
and
he
has
the
burden
of
establishing
that
there
is
error
in
fact
or
in
law
in
the
re-assessments
under
appeal.
Cf.
M.N.R.
v.
Simpsons
Limited,
[1953]
Ex.
C.R.
93;
[1953]
C.T.C.
203.
Before,
however,
reviewing
the
facts
which
gave
rise
to
the
present
appeal,
it
may
be
helpful
to
deal
at
the
outset
with
a
submission
made
by
counsel
for
the
respondent
that
as
the
appellant
had
transferred
what
was
originally
his
land
to
his
wife
Section
21(1)
of
the
Income
Tax
Act
applied
to
the
present
case.
This
section
reads
as
follows:
“21.
(1)
Where
a
person
has,
on
or
after
August
1,
1917,
transferred
property,
either
directly
or
indirectly,
by
means
of
a
trust
or
by
any
other
means
whatsoever,
to
his
spouse,
or
to
a
person
who
has
since
become
his
spouse,
the
income
for
a
taxation
year
from
the
property
or
from
property
substituted
therefor
shall,
during
the
lifetime
of
the
transferor
while
he
is
resident
in
Canada
and
the
transferee
is
his
spouse,
be
deemed
to
be
income
of
the
transferor
and
not
of
the
transferee.”
It
can
be
seen
that,
should
the
above
section
apply,
the
income
for
a
taxation
year
from
the
property
transferred
from
husband
to
wife,
as
in
this
case,
or
from
any
property
substituted
therefor,
is
deemed
to
be
the
income
of
the
husband
(the
transferor)
and
not
of
the
wife
(the
transferee)
and,
of
course,
the
word
“deemed”
in
the
above
section
has
in
many
cases
been
held
to
be
inflexible
in
its
purport.
Cf.
Regina
v.
Norfolk
(1891),
L.J.Q.B.
379
at
380,
and
Rogers
v.
McFarland
(1909),
19
O.L.R.
414
at
416,
418,
420.
Indeed
it
does
not
merely
create
a
rebuttable
presumption,
but
an
irrebuttable
one,
providing
of
course
all
the
conditions
mentioned
in
the
section
are
met.
Section
21
as
well
as
Sections
22
and
23
are
designed
to
prevent
avoidance
of
tax
by
transfer
of
income
producing
property
to
persons
who
are
normally
in
close
relationship
with
the
transferor.
But
what
is
deemed
to
be
the
income
of
the
transferor,
and
this
is
clearly
stated,
is
income
from
property
only.
Indeed
there
is
no
mention
of
income
from
a
business
such
as
we
have
here
and,
therefore,
this
section
can
be
of
no
assistance
in
determining
whether
the
business
profit
resulting
from
the
real
estate
transactions
is
taxable
as
income
of
the
appellant
or
of
his
wife.
May
I
also
add
that
there
is
no
evidence,
and
I
have
gone
through
the
transcript
very
thoroughly,
that
land
belonging
to
the
appellant
was
transferred
to
his
wife.
Indeed
what
the
transcript
discloses
is
that
the
husband
forwarded
a
cheque
in
the
amount
of
$6,900
to
a
Mr.
Rozanski
in
trust,
one
of
the
co-partners
of
his
wife,
for
her
participation
in
the
real
estate
partnership
and
this
took
place
a
few
days
after
the
partnership
document
was
signed.
What
the
appellant
did
do
was
to
pay
for
his
wife’s
equity
in
the
joint
venture
and
the
property
transferred
was
money
and
not
land.
This
may
be
of
some
importance
in
dealing
later
in
this
Judgment
with
the
matter
of
a
loan.
It
follows
that
the
only
matter
in
issue
here
is
therefore
whether
the
Minister,
with
respect
to
this
business
profit,
was
right
in
assessing
the
appellant
instead
of
his
wife.
That
question
is
to
be
answered
by
a
consideration
of
all
the
facts
and
a
determination
as
to
whether
the
appellant’s
wife
or
himself
were
the
real
parties
to
the
transactions
which
gave
rise
to
the
realized
profits.
With
this
in
mind
it
will
now
be
convenient
to
consider
the
facts
and
exhibits
produced
at
the
hearing
before
the
Tax
Appeal
Board
and
which
by
consent
were
produced
in
the
present
appeal.
On
November
12,
1952,
Messrs.
James
D.
Raymond,
Jacob
B.
Fisher,
Moses
Wigdor,
Matus
Rozanski
and
Dame
Bina
Sukiennik
(Mrs.
Robins,
the
taxpayer’s
wife)
entered
into
a
real
estate
partnership
agreement
for
the
purchase
of
subdivisions
220
to
229
inclusive
and
349
to
871
inclusive
of
lot
366
of
the
Town
of
St-Michel
which
was
effectively
purchased
by
the
partnership
on
November
14,
1952,
(Exhibit
R-l)
for
the
sum
of
$31,229.
The
taxpayer
supplied
Mr.
Rozanski
in
trust
with
a
cheque
dated
November
17,
1952,
in
the
amount
of
$6,900,
which
the
taxpayer
admitted
was
for
his
wife’s
participation
in
the
partnership.
On
August
3,
1953,
due
to
an
apparently
founded
suspicion
that
Messrs.
Raymond
and
Rozanski
had
deceived
the
other
partners,
including
Mr.
Fisher
and
Mrs.
Robins,
in
purchasing
the
property
on
behalf
of
the
partnership
in
an
amount
much
higher
than
its
listing,
the
partnership
was
dissolved
and
the
lots
were
partitioned
between
the
parties,
Mrs.
Robins
and
Mr.
Fisher
receiving
subdivisions
349
to
371
inclusive
of
original
lot
366
on
the
official
plan
and
book
of
records
of
the
parish
of
Sault-au-Récollet,
Ville
St-Michel,
P.Q.,
on
a
two-thirds/one-third
basis
respectively.
On
October
26,
1954,
Mr.
Fisher
and
Mrs.
Robins
sold
above
lots
(Exhibit
A-4)
to
Messrs.
E.
Finestone,
A.
R.
Isaaes,
Elie
M.
Solomon
and
Moses
Tupnik
for
the
price
of
$45,705.60
of
which
$22,852
in
cash
and
the
balance
payable
in
18
months
and
of
which
Mrs.
Robins,
after
expenses,
received
two-thirds
and
Mr.
Fisher
one-third.
The
profit
realized
in
this
transaction
totalled
$13,232.16
of
which
$8,956.11
was
received
in
1954
and
$4,276.05
in
1955.
A
cheque
is
attached
to
this
Exhibit
A-4
in
the
amount
of
$1,218.80
signed
by
Mrs.
Robins,
the
taxpayer’s
wife
and
made
out
to
the
order
of
Capital
Realties
as
payment
in
full
for
the
real
estate
agent’s
commission
on
the
sale
of
the
land
held
jointly
by
both
Mrs.
Robins
and
Mr.
Fisher.
School
and
municipal
tax
bills
for
the
St-Michel
property,
Exhibit
A-13,
were
sent
to
Mr.
Jacob
B.
Fisher
and
Mrs.
Nathan
Robins
and
the
latter
signed
a
cheque
dated
November
11,
1954,
for
the
sum
of
$1,213.12
for
the
payment
of
the
above
tax
bills.
Mrs.
Robins
had
some
means,
as
evidenced
by
Exhibits
A-5,
A-6,
A-7
and
A-8
which
are
all
written
agreements
dated
January
30,
1948,
whereby
she
sold
a
number
of
common
and
preferred
shares
in
a
company
called
Stuart
Busby
&
Asgo
Co.,
Limited,
as
well
as
a
number
of
Dominion
bonds,
both
of
which
she
had
inherited
from
a
former
husband
and
the
sale
price
of
which
totalled
$12,025.
She
also,
according
to
Exhibit
A-ll
which
is
a
copy
of
her
bank
ledger
from
June
27,
1947
to
April
29,
1949,
had
in
her
bank
account
amounts
varying
from
$17.57
to
$4,270.
The
taxpayer’s
marriage
contract
with
Mrs.
Bina
Sukiennik,
wherein
it
is
stated
that
the
parties
are
separate
as
to
property,
is
dated
December
23,
1948,
and
comprises
inter
alia
clauses
6-1
and
2
which
read
as
follows:
“(6)
In
consideration
of
the
foregoing
stipulations,
and
of
the
love
and
affection
which
the
Party
of
the
First
Part
(the
husband)
has
for
the
Party
of
the
Second
Part
(the
wife),
he
does
hereby
settle
upon,
give
and
grant
by
way
of
donation
‘inter
vivos’
and
irrevocably
unto
the
Party
of
the
Second
Part
(the
wife)
thereof
accepting:
1.
Articles
of
household
furniture
of
a
value
of
$10,000
which
the
Party
of
the
First
Part
binds
and
obliges
himself
to
pay
to
the
Party
of
the
Second
Part
at
any
time
within
thirty
years
from
the
date
of
the
solemnization
of
the
intended
marriage
for
the
purpose
of
furnishing
their
home,
and
he
further
binds
and
obliges
himself
to
maintain
and
renew
the
same
when
necessary
during
the
intended
marriage,
and
the
Party
of
the
Second
Part
shall
become
absolute
owner
of
the
aforesaid
effects
and/or
any
replacements
thereof
as
soon
as
and
at
the
moment
they
are
brought
into
the
common
domicile,
subject
to
the
joint
use
thereof
by
both
parties
thereto
;
2.
And
the
sum
of
$25,000
shall
be
paid
to
the
Party
of
the
Second
Part
during
the
intended
marriage
and
at
the
option
of
the
Party
of
the
First
Part
either
in
cash
or
by
‘dation
en
paiement’,
of
moveable
or
immoveable
property.”
It
is
suggested
by
the
appellant
that
his
wife
had
supplied
furniture
in
an
amount
of
approximately
$10,000
of
which
documentary
evidence
in
an
amount
of
$5,463.58
was
established.
Indeed
a
cheque
in
the
amount
of
$1,028.50
dated
January
22,
1949,
made
to
the
order
of
Joe
Brenner,
was
signed
by
Mrs.
Robins.
This
was
for
the
purchase
of
carpets
which
are
now
in
the
common
domicile
of
the
taxpayer
and
his
wife.
A
floor
lamp
and
shade,
valued
at
$31.20,
was
bought
by
Mrs.
Robins
in
1949
as
well
as
a
long
list
of
furnishings
and
furniture,
on
February
5,
1949,
in
an
amount
of
$4,403.88.
She,
therefore,
established
by
receipted
invoices
that
she
had
purchased
furniture
in
a
total
amount
of
$5,463.58,
although,
as
we
have
seen,
under
the
marriage
contract,
her
husband,
the
taxpayer,
was
obligated
to
supply
the
funds
necessary
for
the
furnishing
of
the
common
domicile.
A
letter
dated
June
12,
1956,
addressed
to
the
taxpayer
and
signed
by
Gregory
Charlap,
Advocate,
was
produced
as
Exhibit
A-14
and
counsel
for
the
respondent
admitted
that
if
Mr.
Charlap
was
heard
as
a
witness
he
would
testify
in
accordance
with
this
letter
which
reads
as
follows:
“Mr.
N.
Robins,
1405
Maisonneuve
St.,
Montreal,
Que.
Dear
Mr.
Robins,
Referring
to
our
telephone
conversation,
I
hereby
confirm
that,
in
the
fall
of
1952,
you
consulted
me
in
connection
with
a
proposed
purchase
of
land
by
your
wife.
At
the
time
you
explained
to
me
that
you
were
indebted
to
your
wife
for
monies
which
she
laid
out
on
your
behalf
out
of
her
own
personal
funds
in
connection
with
the
furnishing
of
your
home
and
that
you
were
prepared
to
repay
to
her
the
sum
of,
approximately,
$10,000.00.
I
advised
you
that
you
could
effect
such
repayment
by
issuing
your
personal
cheque
to
the
order
of
the
Vendors
of
the
land
she
was
buying,
for
her
account
and
on
her
behalf,
it
being
obvious
that
the
payment
was
so
being
made,
in
view
of
the
partnership
agreement
between
your
wife
and
her
associates,
in
connection
with
the
purchase
of
the
land
in
question,
which
I
myself
drew
up
prior
to
our
consultation.
Should
you
require
any
further
information,
kindly
do
not
hesitate
to
call
upon
me.
Yours
very
truly,
Gregory
Charlap.”
In
addition
to
the
above
documentary
evidence,
Mr.
J.
B.
Fisher,
Mrs.
N.
Robins
and
Mr.
Robins,
the
taxpayer,
all
testified
before
the
Tax
Appeal
Board.
Mr.
Fisher,
the
taxpayer’s
auditor,
stated
that
he
came
into
the
joint
venture
on
the
invitation
of
Mr.
Robins
in
whom
he
had
a
great
deal
of
faith
and,
as
he
repeatedly
said,
because
of
Mr.
Robins;
that
the
latter
was
associating
himself
with
a
number
of
people,
two
of
whom
were
James
Raymond
and
a
Mr.
Rozanski.
The
latter
as
well
as
the
taxpayer
and
Mr.
Fisher
became
interested
in
a
company
called
Carnival
Amusements
which
purchased
a
number
of
lots
situated
alongside
the
lots
purchased
by
the
partnership
in
which
Mr.
Fisher,
Mr.
Raymond,
Mr.
Rozanski
and
Mrs.
Robins
and
others
became
interested.
The
only
transaction
involved
in
this
appeal
is
the
one
in
which
Mrs.
Robins
was
involved
and
not
the
Carnival
Amusements
Company
which
is
mentioned
here
merely
to
clarify
some
parts
of
the
evidence
which
otherwise
would
be
confused.
When
Mr.
Fisher
and
Mrs.
Robins
started
suspecting
that
their
partners
Raymond
and
Rozanski
had
deceived
them
on
the
price
of
the
lots
purchased
by
the
partnership,
Fisher
states
that
he
came
to
Mr.
Robins
and
began
to
go
over
a
lot
of
the
information
he
had
and
as
he
said,
‘‘
We
reviewed
our
transaction
with
this
Mr.
Raymond
and
Mr.
Rozanski
when
information
was
received
to
the
effect
that
the
seller
of
the
lots
to
the
partnership
could
not
be
identified.’’
He
added
that:
‘‘I
took
the
information
to
Mr.
Robins
and
he
was
upset,
highly
upset
to
say
the
least
because
he
felt
perhaps
that
I
was
implying
some
reflection
on
his
own
integrity
because
there
seemed
to
be
such
an
excessive
difference.”
He
was
here
referring
to
the
price
paid
by
the
partnership
and
that
at
which
it
was
listed
immediately
prior
thereto,
which
happened
to
be
much
less
than
what
the
partnership
paid
for
the
lots.
With
respect
to
the
separation
of
Mr.
Fisher
and
Mrs.
Robins
from
the
other
partners
as
a
result
of
their
suspicions
that
the
latter
had
deceived
them,
Fisher
stated:
“As
a
matter
of
fact,
the
subsequent
history
when
Robins
and
I
felt
we
wanted
to
separate
this
land
in
Ville
St-Michel
as
a
result
of
what
happened,
we
separated
our
land
and
there
were
no
buyers.’’
With
respect
to
the
partition
of
the
lots
at
the
dissolution
of
the
partnership,
Fisher
stated:
“I
have
a
third
with
Mr.
Robins’’.
When
there
was
some
question
of
taking
legal
action
against
the
other
two
partners,
Raymond
and
Rozanski,
Fisher
states
that
he
left
the
decision
to
Mr.
Robins
and
added
at
p.
19
of
the
transcript
:
“A.
Senator
Monet
felt
he
had
a
case
for
legal
action.
Very
shortly
thereafter
Mr.
Robins,
to
whose
opinion
I
deferred
particularly
since
I
became
involved
in
this
largely
through
him
because
curiously
enough
one
of
these
two
parties
Raymond
was
a
person
I
had
known
about,
but
he
had
never
approached
me
in
any
manner
about
any
possible
property
deal
and
apartment
construction
previously.
I
left
the
question
pretty
largely
to
Mr.
Robins
about
taking
legal
action.
We
were
quite
concerned
at
the
time
not
about
the
title
of
the
land
but
about
whether
we
would
ever
be
able
to
recover
what
we
had
originally
expended.”
And
in
view
of
Raymond
and
Rozanski’s
alleged
breach
of
trust,
Fisher,
in
answer
to
the
Chairman’s
question
at
p.
21,
stated:
“Q.
You
got
rid
of
the
others
and
you
and
Robins
were
left?
A.
Yes.’’
It
would
appear
from
the
transcript
that
there
was
some
confusion
in
the
mind
of
the
witness
as
to
which
real
estate
transaction
was
being
dealt
with
as
Fisher
was
indeed
involved
in
two
deals
at
the
same
time,
in
one
he
was
in
with
the
appellant
which
would
be
the
Carnival
Amusement
transaction
which
has
nothing
to
do
with
the
present
instance,
and
in
the
other
with
Mrs.
Robins
which,
of
course,
is
the
one
involved
here.
If
one,
however,
reads
a
little
further
down
the
transcript,
at
p.
22,
the
Robins
mentioned
by
the
Chairman
would
appear
to
be
Mrs.
Robins.
Indeed,
the
appellant’s
counsel
states
in
a
question
that
such
is
the
case
and
the
witness
does
not
deny
it.
“Q.
At
the
time
of
your
agreement,
Exhibit
A-2,
you
and
Mrs.
Robins
were
left
with
the
property,
what
did
you
then
do
with
it?’’
Fisher’s
evidence
is
confirmed
entirely
by
the
taxpayer
himself
at
p.
53
of
the
transcript
:
“Q.
Have
you
heard
Mr.
Fisher’s
evidence
this
morning
?
A.
Yes.
Q.
Would
you
agree
with
what
he
said
in
so
far
as
.
.
.
A.
100%.
Q.
Are
there
any
changes
you
would
make,
or
would
you
say
he
was
correct
it
what
he
said?
A.
I
do
not
think
so;
what
he
said
is
correct.??
Fisher’s
evidence
is
also
confirmed
by
Mrs.
Robins
at
p.
49
of
the
transcript.
On
the
other
hand,
Fisher
admits
that
when
the
partnership
was
dissolved,
he
and
Mrs.
Robins
took
one-third
of
the
prop-
erty
in
the
partnership
and
that
consequently
the
sale
price
of
the
property
was
divided
between
himself,
his
silent
partner
Mr.
Yelin
and
Mrs.
Robins.
Mrs.
Robins
testified
that
when
she
acquired
an
interest
in
the
joint
venture
she
was
the
owner
and
that
her
purpose
in
so
acquiring
such
an
interest
was
to
build
some
apartment
houses.
With
respect
to
supplying
the
funds
necessary
to
invest
in
this
joint
venture
by
her
husband
she
added,
‘‘my
husband
wanted
to
give
me
back
my
money
and
this
was
an
opportunity’’.
Evidence
with
respect
to
this
alleged
previous
loan
by
her
to
her
husband,
as
mentioned
above,
was
strongly
objected
to
under
article
1233
of
the
Civil
Code
of
Quebec
and
this
objection
was
taken
under
advisement,
and
later
as
already
mentioned,
sustained
by
the
Tax
Appeal
Board.
We
will
deal
with
this
matter
later
on
in
this
judgment.
At
p.
50
of
the
transcript
Mrs.
Robins
declares
that
she
kept
the
part
that
came
to
her
when
the
property
was
sold.
This
is
confirmed
by
her
husband,
the
taxpayer,
who
swore
that
he
had
received
nothing
from
this
real
estate
transaction.
She
admits
that
the
money
that
went
into
paying
her
share
was
provided
by
her
husband,
the
taxpayer,
who
also
admits
this
at
p.
65
of
the
transcript
:
“Q.
To
get
back
to
the
question
of
the
$6,900
do
you
say
you
paid
the
purchase
price
or
your
wife’s
equity
in
the
purchase
price
of
this
property?
A.
I
paid
for
my
wife.’
With
respect
to
the
reasons
why
the
taxpayer
paid
out
this
sum
of
$6,900
under
reserve
of
the
objection
to
verbal
evidence
based
on
article
1233
of
the
Civil
Code,
he
stated
in
answer
to
his
counsel
at
p.
57
of
the
transcript
:
“Q.
How
much
money
had
she
spent?
A.
I
do
not
know
exactly,
but
I
think
about
$10,000.
Q.
What
had
the
money
been
spent
for?
A.
Carpets,
furniture.
At
that
time
I
could
not
spend
that
money
because
I
had
just
bought
out
my
partners.
Q.
In
what
firm?
A.
Tarkor.
Q.
What
arrangements
did
you
make
?
A.
As
soon
as
ever
I
had
it
I
would
pay
it
back.
Q.
What
is
the
connection
between
the
monies
you
paid
in
this
connection
we
are
now
talking
about,
in
this
particular
case,
and
the
money
spent
by
your
wife?
A.
I
do
not
understand
the
question.
Q.
Were
you
lending
your
wife
the
money
you
advanced!
A
No
I
paid
it
back
and
she
bought
this
land.
Q..
To
whom
did
the
money
belong
then?
A.
To
her.
Q.
You
understand
you
were
paying
back
what
she
laid
out?
A.
We
had
no
written
agreement,
but
I
promised
to
pay
her
back
and
I
did.”
The
appellant
argued,
and
rightly
so,
that
the
documentary
evidence
shows
that
his
wife
was
the
partner
in
the
partnership
agreement
relating
to
the
property
which
gave
rise
to
the
profit
and
that
she
was
the
one
who
acquired
an
interest
in
the
property
;
that
she
paid
out
of
her
own
money
the
municipal
and
school
taxes
on
the
property
and
the
real
estate
agent’s
commission
on
the
sale
of
the
property
and
finally
that
she
received
the
monies
from
the
sale
of
the
property
and
retained
them.
This
i
18
also
confirmed
by
her
husband.
The
respondent,
on
the
other
hand,
submitted
that
it
was
not
unreasonable
for
the
Minister
to
consider
the
appellant
as
the
owner
of
the
land
since
he
had
provided
money
for
its
purchase.
He
added
that
it
therefore
follows
that
if
the
appellant
were
the
owner,
any
and
all
profits
derived
from
the
sale
of
his
property
should
accrue
to
him
and
be
taxed
in
his
hands
He
admits
on
the
other
hand
that
the
appellant
has
produced
a
partnership
document
in
which
it
appears
that
his
wife
is
one
of
the
individual
owners
of
the
land
and
that,
therefore,
a
conflict
exists.
He,
however,
urges
that
this
conflict
should
be
decided
in
his
favour
unless
and
until
the
appellant
can
show
the
existence
of
a
juridical
relationship
between
husband
and
wife
which
allowed
the
transfer
of
what
was
originally
the
land
of
the
appellant
to
the
property
of
his
wife
and
that
this
relationship
should
not
only
be
shown
to
exist
but
it
must
be
brought
in
evidence,
according
to
the
rules
which
govern
evidence
under
article
1233
of
the
Civil
Code
of
Quebec.
Now
I
have
already
pointed
out
that
the
husband
did
not
transfer
any
land
that
belonged
to
him
to
the
property
of
his
wife
but
merely
supplied
her
with
the
money
necessary
to
pay
for
her
participation
in
the
real
estate
partnership
and
that,
therefore,
the
respondent’s
submission
in
this
regard
is
unfounded.
,
Respondent’s
argument
to
the
effect
that
the
appellant
must
establish
the
juridical
relationship
between
himself
and
his
spouse,
important
and
useful
as
this
may
be
to
assist
the
Court
in
deciding
who
was
the
real
participant
in
the
present
transaction,
is
not
the
only
and
an
indispensable
element
in
this
regard.
Indeed,
there
are
many
other
facts
which
must
also
be
taken
into
consideration
i
in
determining
the
real
party
interested
in
this
transaction.
I
would
add,
however,
that
it
must
be
possible
to
consider
that
this
transfer
of
funds
was
legal
and
if
such
an
explanation
is
not
possible,
it
follows
that
the
amount
was
the
property
of
the
husband,
and
still
is,
and
of
course
this
fact
may
have
a
strong
bearing
in
the
appreciation
of
the
facts
necessary
to
establish
the
real
party
to
the
transaction.
As
we
have
seen,
the
appellant
and
his
wife
both
attempted
to
establish
that
the
payment
by
the
taxpayer
of
the
sum
of
$6,900
for
his
wife
was
a
partial
reimbursement.
of
an
amount
loaned
by
the
wife
previously
in
purchasing
furniture
for
the
common
domicile.
An
objection
to
proof
of
such
a
loan
entered
by
counsel
for
the
respondent
based
on
article
1233
of
the
Civil
Code
of
Quebec
was
maintained
by
the
Tax
Appeal
Board
and
the
evidence
of
such
a
loan
was
completely
disregarded.
Article
1233
of
the
Civil
Code
of
the
Province
of
Quebec
reads
as
follows:
44
Art.
1233.
Proof
may
be
made
by
testimon
:
1.
Of
all
facts
concerning
commercial
matters;—R.S.C.,
c.
213,
s.
2.
2.
In
all
matters
in
which
the
principal
sum
of
money
or
value
in
question
does
not
exceed
fifty
dollars;
8.
In
cases
in
which
real
property
is
held
by
permission
of
the
proprietor
without
lease,
as
provided
in
the
title
Of
Lease
and
Hire
;
4,
In
cases
of
necessary
deposits,
or
deposits
made
by
travellers
in
an
inn,
and
in
other
cases
of
a
like
nature;
5.
In
cases
of
obligations
arising
from
quasi-contracts,
offences
and
quasi-offences,
and
all
other
cases
in
which
the
party
claiming
could
not
procure
proof
in
writing
;
6.
In
eases
in
which
the
proof
in
writing
has
been
lost
by
unforeen
accident,
or
is
in
the
possession
of
the
adverse
party
or
of
a
third
person
without
collusion
of
the
party
claiming,
and
cannot
be
produced;
7.
In
cases
in
which
there
is
a
commencement
of
proof
in
writing.
In
all
other
matters
proof
must
be
made
by
writing
or
by
the
oath
of
the
adverse
party.”
In
short,
this
article
establishes
that,
except
in
commercial
matters,
written
evidence
is
the
rule
and
verbal
evidence
the
exception.
If
proof
of
a
juridical
act,
i.e.,
an
act
having
juridi-
cal
consequences,
does
not
fall
within
one
of
the
exceptions
of
the
above
article,
then
without
a
written
document
it
cannot
be
proven.
There
is
no
question
that
the
laws
of
evidence
of
the
Province
of
Quebec,
and
particularly
article
1233
of
the
Civil
Code,
apply
to
the
present
case.
Indeed,
Sections
2
and
86
of
the
Canada
Evidence
Act,
R.S.C.
1952,
c.
307,
read
as
follows:
41
2.
This
Part
applies
to
all
criminal
proceedings,
and
to
all
civil
proceedings
and
other
matters
whatsoever
respecting
which
the
Parliament
of
Canada
has
jurisdiction
in
this
behalf.
36.
In
all
proceedings
over
which
the
Parliament
of
Canada
has
legislative
authority,
the
laws
of
evidence
in
force
in
the
province
in
which
such
proceedings
are
taken,
including
the
laws
of
proof
of
service
of
any
warrant,
summons,
subpoena
or
other
document,
subject
to
this
and
other
Acts
of
the
Parliament
of
Canada,
apply
to
such
proceedings.”
As
the
Canada
Evidence
Act
and
the
Income
Tax
Act
do
not
mention
any
rules
of
evidence
in
connection
with
any
proceedings
taken
under
these
Acts,
there
is
no
doubt
that
the
laws
of
evidence
of
the
province
where
the
proceedings
are
taken
apply.
It
might
be
of
some
assistance
to
point
out
here
that
there
is
a
basic
difference
between
the
English
law
of
evidence
and
both
the
French
and
the
Quebee
laws
particularly
with
respect
to
article
1233
of
the
Civil
Code.
In
the
English
law
there
are
various
rules
requiring
written
evidence
in
specific
instances
only.
In
Quebec,
however,
written
evidence
is
the
rule
and
testimony
the
exception
and
this
requirement
of
written
evidence
appears
to
be
more
so
here
than
in
France.
The
practical
effect
between
the
Quebec
law
of
evidence
and
the
English
law
would
appear
to
be
that
in
Quebec
the
admissibility
of
verbal
evidence
must
be
justified
by
the
party
proposing
it
whereas
in
England,
or
in
the
common
law
provinces,
the
party
objecting
to
verbal
evidence
would
have
to
justify
his
objection.
In
short,
verbal
evidence
in
the
common
law
provinces
is
the
rule
and
is
only
exceptionally
refused.
Because
of
these
differences,
and
as
pointed
out
by
Mr.
Fordham,
of
the
Tax
Appeal
Board,
in
his
decision,
the
incidence
of
taxation
may
in
some
cases
be
different
for
a
taxpayer
in
Quebec
as
compared
to
a
taxpayer
in
another
province
and
this
is
something
which
I
respectfully
submit,
if
I
may
venture
so
to
say,
should
be
corrected
by
Parliament,
as
it
may
well,
in
some
instances,
deprive
a
Quebec
taxpayer
of
a
right
which
is
enjoyed
by
the
taxpayer
of
the
other
provinces.
May
I
also
add
that
although
the
greater
part
of
article
1233
may
be
traced
to
the
French
Ordonnance
of
de
Moulins,
of
1566,
the
context
and
phraseology
differ
in
many
respects
from
the
corresponding
sections
of
the
French
Code,
namely
article
1341
Code
Napoléon
and
the
following
articles.
In
some
instances
the
law
in
Quebec
comes
from
the
laws
of
England.
Indeed,
English
rules
in
commercial
matters
were
introduced
to
Quebec
law
by
an
ordonnance
of
1785
(25
Geo.
Ill,
ce.
2,
s.
10)
and
the
rule
in
this
respect
in
the
English
law
is
that
verbal
evidence
is
admitted
except
when
there
is
a
writing.
One
difference
of
importance
between
the
Quebec
law
under
article
1233
of
the
Civil
Code,
and
its
corresponding
French
counterpart,
can
be
found
in
subsection
7
of
article
1233
of
the
Civil
Code
and
article
1347
of
the
French
Code
which
both
state
that
verbal
evidence
can
be
permitted
when
there
is
a
commencement
of
proof
in
writing.
Indeed,
under
our
Quebec
law
there
is
no
definition
of
what
is
a
commencement
of
proof
in
writing,
whereas
in
the
French
text
it
is
expressed
as
being
‘‘an
instrument
in
writing
which
proceeded
from
the
party
against
whom
the
claim
is
made,
or
the
party
whom
he
represents
and
which
renders
probable
the
fact
alleged’’.
There
is
no
question
that
proof
of
a
loan
does
not
fall
within
any
of
the
exceptions
of
article
1233
of
the
Civil
Code
unless
there
is
of
course
a
commencement
of
proof
in
writing.
We
have
seen
supra
that
the
French
law
defines
a
commencement
of
proof
in
writing
and
that
the
Quebec
counterpart
does
not.
If
one
should
accept
this
French
definition
it
would
appear
that
the
writing
must
have
emanated
from
the
party
sought
to
be
charged.
He
need
not
be
the
absolute
author
of
the
writing;
he
need
not
have
even
signed
it
but
he
must
have
appropriated
to
himself
the
contents
of
it
by
express
or
tacit
consent.
The
writing
also
should
render
probable
the
fact
alleged.
This
is
a
question
of
fact
which
is
left
to
the
Court
to
determine
according
to
the
circumstances
of
each
particular
case.
As
stated
by
the
late
Justice
C.
E.
Dorion
in
a
thesis
entitled
“De
l’admissibilité
de
la
preuve
par
témoins
en
droit
civil’’,
p.
90:
“Il
n’est
même
pas
nécessaire
qu’elle
(cette
personne)
ait
pris
aucune
part
à
sa
confection,
si
elle
s’est
approprié
l’écrit
depuis,
par
exemple,
en
l’invoquant
à
l’appui
d’une
demande.
Le
notaire
qui
dresse
un
acte,
le
commis
qui
écrit
sous
la
direction
de
son
maître,
ne
sont
pas
liés
eux-mêmes
par
ces
écrits
et
on
ne
pourrait
pas
les
invoquer
contre
eux
comme
commencement
de
preuve
par
écrit;
en
réalité
ils
n’émanent
pas
d’eux.
Mais
les
faits
que
le
notaire
constate
par
lui-même
dans
l'acte.
pourront
être
invoqués
contre
lui,
de
même
que
les
énonciations
des
parties
qui
y
sont
intéressées.
Si
l’acte
était
nul
parce
que
le
notaire
était
intéressé
(S.R.Q.
3540),
il
ne
vaudrait
pas
même
comme
acte
sous
seing
privé,
car
la
signature
du
notaire,
portie
contractante,
est
nulle
(C.C.
1221);
il
vaudrait
cependant
comme
commencement
de
preuve
par
écrit
contre
ceux
qui
l’ont
signé,
même
le
notaire.
Il
serait
difficile
en
effet
de
trouver
un
acte
qui
rende
plus
probable
les
faits
qu’il
constate.”
Under
the
above
interpretation,
the
only
document
which
would
qualify
as
one
emanating
from
the
party
against
whom
the
claim
is
made
in
the
present
instance,
i.e.,
against
the
appellant,
is
the
authentic
marriage
contract
between
himself
and
his
wife
which,
of
course,
does
not
establish
a
loan
but
states
that
the
husband
had
undertaken
to
supply
the
funds
necessary
for
the
furnishing
of
the
common
domicile.
This
document
alone,
of
course,
does
not
render
probable
the
verbal
allegations
by
both
husband
and
wife
that
a
loan
took
place
between
the
wife
and
the
husband.
However,
there
is
further
documentary
evidence
adduced
in
this
case
by
the
wife.
She
indeed
produced
several
receipted
invoices
totalling
$4,403.88
from
a
furniture
supplier
and
a
cheque
in
an
amount
of
$1,028.50
for
carpets
which
unquestionably
is
admissible
under
Quebec
law
as
there
is
documentary
evidence
to
support
it
and
besides
it
could
also
be
proven
by
verbal
evidence
as
it
is
not
a
juridical
act
but
merely
a
material
fact
which
can
always
be
proven
by
testimony.
However,
this
evidence
emanates
from
a
third
party
to
the
proceedings,
the
appellant’s
wife
and
we
may
now
well
consider
whether
a
writing
emanating
from
a
third
party
could
be
used
in
association
with
a
marriage
contract,
as
a
commencement
of
proof
in
writing
sufficient
to
establish
by
verbal
evidence
the
loan
of
the
wife
to
the
appellant.
The
late
Mr.
Justice
C.
E.
Dorion
in
the
above
mentioned
thesis
‘De
l’admissibilité
de
la
preuve
par
témoins
en
droit
civil’’,
pp.
94
to
99,
has
this
to
say
with
regard
to
writings
emanating
from
third
parties:
“Ceci
nous
amène
à
examiner
une
question
très
débattue
dans
le
droit
français.
Il
s’agit
de
savoir
si
l’écrit
émané
d’un
tiers
parti
peut
servir
de
commencement
de
preuve
par
écrit.
Disons
d’abord
qu’on
ne
peut
trouver
la
solution
de
cette
question
ni
dans
les
auteurs
francais
modernes,
ni
dans
les
auteurs
sur
l’ancien
droit.
Voici
le
cas:
A
revendique
contre
B
qui
n’a
pas
le
titre,
un
immeuble,
et
il
invoqua
une
vente
verbale
qu’il
demande
à
prouver
par
témoins
en
produisant
une
promesse
de
vente
à
lui
consentie
par
C
qui,
lui,
était
bien
propriétaire.
À
sera-t-il
admis
à
faire
la
preuve
par
témoins?
Nous
pensons
que
oui.
Si
un
acte
de
vente
par
C
à
A
suffirait
pour
établir
la
propriété
de
À,
pourquoi
la
promesse
de
vente
ne
suffirait-elle
pas
à
en
faire
un
commencement
de
preuve
par
écrit?
Le
Code
Civil
ne
définit
pas
ce
que
c’est
qu’un
commencement
de
preuve
par
écrit;
à
première
vue
on
est
done
justifiable
de
croire
que
c’est
une
preuve
par
écrit
incomplète,
et
le
Code
ne
distingue
pas
entre
la
preuve
qui
vaut
contre
la
partie
et
celle
qui
vaut
contre
les
tiers.
Le
Code
Napoléon
exige
que
le
commencement
de
preuve
par
écrit
ait
le
caractère
d’un
aveu,
c’est-à-dire
qu’il
émane
‘de
celui
contre
lequel
la
demande
est
formée”.
Les
auteurs
français
s’en
tiennent
à
la
lettre
du
Code
et
leur
opinion
ne
saurait
être
invoquée
dans
notre
droit
qui
ne
contient
pas
cette
restriction.
En
droit
français
il
faudrait
done
probablement
décider
le
cas
posé
contrairement
à
l’opinion
que
nous
soutenons,
malgré
l’autorité
de
Toullier
(Toullier,
t.
8,
no
69
et
suiv.).”
In
view
of
the
difference
between
the
Quebec
text
and
the
French
one
with
respect
to
what
a
commencement
of
proof
in
writing
is
and
the
absence
of
a
definition
in
the
Quebec
law
in
this
regard
it
would
appear
that
the
French
definition
may
not
nécessarily
apply
to
our
Quebec
law
with
the
result
that
what
a
commencement
of
proof
in
writing
would
be
here
is
left
to
the
appreciation
of
the
Court
on
the
basis
of
any
documentary
evidence
which
would
render
probable
the
fact
or
facts
alleged.
The
late
Justice
C.
E.
Dorion’s
opinion
in
this
regard,
as
quoted
above,
would,
I
believe
be
sufficient
authority
to
sustain
thé
above
proposition.
The
marriage
contract
between
the
appellant
and
his
wife
together
with
the
invoices
and
cheque
produced
by
the
wife
indicating
that
she
did
purchase
furniture
for
the
common
domicile,
although
this
obligation
was
that
of
of
the
appellant
would,
in
my
opinion,
be
documentary
evidence
sufficient
to
render
the
allegation
of
a
loan
from
the
wife
to
the
husband
probable.
This
would,
therefore,
constitute
a
commencement
of
proof
in
writing
which
would
enable
the
appellant
to
complete
this
proof
by
verbal
evidence.
The
verbal
evidence
adduced
to
the
effect
that
the
supplying
of
a
cheque
in
the
amount
of
$6,900
by
the
appellant
to
his
wife
as
her
participation
in
the
joint
venture
is
the
re-
imbursement
for
the
previous
loan
made
to
the
appellant
for
the
purchase
of
the
furniture
in
the
common
domicile
becomes
therefore
admissible
and
establishes
the
juridical
relationship
of
the
appellant
and
his
wife
with
respect
to
his
amount.
The
contract
of
prête-nom
which
is
really
a
contract
of
agency
has
been
suggested
by
the
respondent
as
existing
in
the
present
case.
No
such
contract
has
been
proven
here.
There
is
no
evidence
that
Mrs.
Robins
agreed
to
act
as
agent
or
prête-nom
of
her
husband
nor
that
the
latter
undertook
to
guarantee
and
indemnify
his
wife
in
respect
of
all
the
liabilities
that
she
personally
assumed
under
the
Deed
of
Sale.
Indeed,
the
evidence
is
quite
the
reverse.
May
I
also
add
that
the
partnership
document
which
to
all
intents
and
purposes
establishes
that
the
appellant’s
wife
is
the
person
interested
in
this
partnership,
has
not
been
contradicted.
The
only
attempt
by
the
respondent
to
challenge
this
particular
document
was
by
producing
the
appellant’s
cheque
and
the
admission
that
he
had
paid
the
amount
of
$6,900
for
his
wife.
We
have
seen
that
this
fact
alone
is
not
sufficient
to
set
aside
this
document
and
that
the
amounts
so
paid
can
be
otherwise
justified.
In
a
judgment
of
the
Supreme
Court
of
Canada
in
La
Corporation
de
la
paroisse
St-Joseph
de
Coleraine
v.
Colonial
Chrome
Co.
Ltd.,
[1933]
8.C.R.
14,
it
was
held:
.
that
the
declarations
and
statements
contained
in
authentic
deeds
as
well
as
in
deeds
under
private
seal
are
considered
as
proved
until
they
are
challenged
and
contrary
evidence
is
adduced,
and
it
is
so,
not
only
as
between
the
parties
to
the
deeds,
but
also
against
third
parties.”
The
partnership
document,
not
having
been
successfully
challenged,
becomes
a
very
significant
element
which
goes
far
to
establish
that
the
appellant’s
wife
is
the
real
party
to
the
transaction.
The
evidence
adduced
and
particularly
that
of
Jacob
B.
Fisher,
who,
as
we
have
seen
in
the
recital
of
facts
supra,
refers
constantly
to
the
appellant
in
his
dealings
with
the
partnership,
has
given
me
some
trouble.
Indeed,
I
did
not
have
the
advantage
of
seeing
and
hearing
the
witnesses
and
the
fact,
as
mentioned
above,
that
the
appellant
was
interested
with
the
same
Mr.
Fisher
in
another
real
estate
deal
conducted
by
a
company
called
Carnival
Amusements,
around
the
same
time,
and
which
had
purchased
lots
situated
next
to
those
purchased
by
the
partnership
in
which
Mrs.
Robins
was
interested,
has
created
a
certain
amount
of
eon-
fusion.
Indeed,
if
one
relies
on
Mr.
Fisher’s
evidence,
Mr.
Robins,
the
taxpayer,
was
a
very
close
and
continuous
adviser
to
both
Mr.
Fisher
and
his
wife
during
the
transactions.
However,
the
fact
that
the
appellant
had
counselled
his
wife
in
her
venture
is
nothing
to
be
surprised
of
and
a
very
natural
thing
indeed.
I
might
even
add
that
this
may
be
considered
as
part
of
the
obligations
of
a
husband
towards
his
wife
in
investment
matters.
Any
action
of
the
husband
in
this
regard,
even
when
he
supplies
the
funds
necessary
to
his
wife,
should
not
necessarily
be
interpreted
as
establishing
that
she
was
acting
as
her
husband’s
agent
or
alter
ego.
In
a
Quebec
case
Déry
v.
Paradis,
10
Que.
K.B.
227,
the
husband
acted
throughout
as
the
agent
for
his
wife
and
even
advanced
the
funds
for
the
purchase
of
the
property.
The
Appeal
Court
nonetheless
clearly
validated
the
wife’s
title
to
the
property
and
Wurtele,
J.
observed
at
p.
230:
“There
is
nothing
either
in
the
prohibition
against
consorts
benefiting
each
other
during
marriage,
to
prevent
a
husband
who
is
separate
as
to
property,
giving
his
advice
and
his
spare
time
to
his
wife
for
the
purpose
of
buying
and
selling
immovable
property
on
her
behalf
and
acting
as
her
agent
in
such
transactions,
when
they
are
genuine
and
when,
although
they
are
beneficial
to
the
wife,
they
abstract
nothing
from
the
property
or
estate
of
the
husband.
A
man
may
give
his
time
and
services
to
another
person
gratuitously
if
he
chooses,
and
there
is
no
provision
of
the
law
which
forbids
him
from
doing
so
for
his
wife.
Then
a
husband
who
is
separate
as
to
property,
can
validly
administer
the
property
of
his
wife,
and
this
right
is
recognized
by
article
1425
of
the
Civil
Code.
In
the
absence
of
clear
evidence
of
fraud,
the
fact
of
a
husband
having
acted
as
the
agent
of
his
wife
in
transactions
whereby
real
estate
was
acquired
by
her,
and
of
having
afterwards
administered
such
property
as
her
agent,
does
not
attaint
the
transactions
by
which
such
real
estate
was
acquired
as
fraudulent
nor
the
deeds
and
titles
under
which
it
is
held
as
simulated.”
I
therefore
must
conclude
that
the
fact
the
appellant,
under
the
circumstances,
supplied
his
wife
with
the
funds
necessary
to
purchase
her
equity
in
the
partnership
and
assisted
her
in
the
transaction
is
not
sufficient
to
overcome
the
evidence
from
the
documents
produced
by
the
appellant
and
his
wife
as
well
as
their
testimony.
Indeed,
a
thorough
examination
of
this
documentary
evidence
and
verbal
evidence
has
brought
me
to
accept
the
verbal
evidence
of
both
the
appellant
and
his
wife
on
the
basis
of
a
commencement
of
proof
in
writing
contained
in
both
the.
marriage
contract
and
the
cheques
and
receipted
invoices
of
the
wife
which
establishes
the
loan
from
the
wife
to
the
husband
and,
therefore,
that
the
payment
by
the
husband
of
an
amount
of
$6,900
is
a
reimbursement
of
this
loan.
However,
should
the
acceptance
of
such
a
commencement
of
proof
in
writing
be
not
valid
and
that
I
should
disregard
entirely
the
verbal
evidence
adduced
regarding
this
alleged
loan,
I
can
still
see
one
of
two
things
to
explain
the
payment
of
this
amount
of
$6,900.
It
must
be
inferred
that
it
is
either
a
loan
or
a
donation
of
the
husband
to
his
wife.
A
loan
between
husband
and
wife
is
not
prohibited
under
any
laws
of
Quebec.
Indeed,
it
has
been
so
decided
in
many
cases
such
as
Denis
v.
Kent
&
Turcotte,
18
S.C.
486;
Fry
v.
O’Dell,
12
S.C.
263;
Irvine
v.
Lefebvre,
4
S.C.
75;
Allard
v.
Legault,
[1945]
8.0.
287
and
L.
P.
Sirois:
contrat
entre
époux,
1
R.L.N.S.
293.
Even
in
cases
where,
in
addition
to
supplying
the
funds,
the
husband
had
offered
assistance
to
his
wife,
this
would
not
in
the
slightest
impugn
her
title
to
the
property.
Such
a
decision
was
rendered
in
Rhéaume
v.
Hurtibise,
28
R.L.
(N.S.)
465.
4
‘Le
mari
ne
peut
faire
déclarer
qu’un
acte
de
vente
d’un
immeuble
par
un
tiers
à
sa
femme
négocié
par
lui,
passé
depuis
13
ans
et
exécuté
sous
sa
direction,
est
simulé,
que
sa
femme
n’est
que
son
prête-nom
et
qu’il
est
le
véritable
propriétaire
des
biens-fonds,
en
établissant
qu’il
avait
fait
cette
transaction
au
nom
de
sa
femme
vu
qu’il
avait
l’intention
de
faire
commerce,
et
pour
se
protéger
dans
l’avenir,
contre
les
accidents
et
la
déconfiture.”
In
Saint-Amour
v.
Lalonde,
10
Que.
K.B.
227
it
was
held:
44
A
husband
may
validly
lend
his
wife,
who
is
separate
from
him
as
to
property,
the
purchase
price
of
an
immovable
that
is
sold
to
her,
and
he,
thereby,
becomes
her
creditor
for
the
amount.
His
heirs,
if
he
dies,
or
his
creditors,
if
he
becomes
insolvent,
have
no
other
action
arising
from
the
transaction,
but
a
personal
one
to
recover
the
money
lent.”
In
Côté
v.
Didier,
44
S.C.
39
it
was
held
that:
“Lorsqu’une
femme,
dûment
autorisée,
achète
un
immeuble
en
son
nom,
quand
même
elle
le
paierait
avec
de
l’argent
fourni
par
son
mari,
cette
propriété
n’en
est
pas
moins
la
sienne.
Dans
ce
cas,
le
recours
des
créanciers
est
par
une
saisie-arrêt,
entre
les
mains
de
la
femme
ce
qu’elle
doit
à
son
mari.”
Leblanc
v.
Gamache,
14
R.
de
J.
1
is
to
the
same
effect.
Kladis
v.
Pulos,
R.L.N.S.
482
(confirmed
by
Supreme
Court,
59
S.C.R.
688)
:
‘‘Un
acte
authentique
de
société
ne
peut
être
contredit
par
une
preuve
testimoniale
dans
une
contestation
entre
un
tiers,
créancier
du
mari
de
l’une
des
associées,
et
les
deux
autres
associés,
pour
faire
déclarer
que
la
femme
associée
n’est
que
le
prête-nom
de
son
mari.
Le
mari
peut
représenter
sa
femme
dans
le
commerce
que
fait
cette
dernière,
et
lui
prêter
son
intelligence,
son
expérience,
ses
aptitudes
et
son
temps,
sans
être
considéré
tenir
le
commerce
lui-même
ou
en
société
avec
son
épouse;
ses
créanciers
n’ont
pas
le
droit
de
faire
saisir,
pour
cette
raison,
les
biens
de
la
femme
sous
prétexte
qu’elle
n’est
qu’un
prête-nom.”
In
Rhéaume
v.
Hurtibise
(supra)
:
“Simulation
is
practised
to
give
legal
colour
to
a
disposition
or
contract
prohibited
by
law
and
to
evade
the
law
or
defraud
third
parties.
Nothing
of
the
kind
occurred
here.
It
was
a
real
sale.
The
vendors
intended
to
sell.
The
respondent,
authorized
by
her
husband,
intended
to
buy
and
bought.
Title
was
taken
in
the
name
of
respondent
with
appellant’s
authorization.
She
was
the
real
owner
under
a
real
sale,
not
a
sham
one.
The
hypothecs
in
favour
of
Dame
Celina
Cayer,
appellant’s
mother,
and
J.
N.
Constantin
were
given
by
respondent,
authorized
by
her
husband.’’
A
donation
under
the
laws
of
Quebec
can
be
made
between
husband
and
wife
only
by
a
marriage
contract.
After
the
marriage
such
donations
are
prohibited
(article
1265
of
the
Civil
Code).
If
the
transfer
of
the
amount
of
$6,900
is
a
donation,
it
might,
if
the
appellant
had
asserted,
have
been
a
partial
payment
of
the
sum
of
$25,000
donated
by
the
husband
to
the
wife
in
their
marriage
contract
which,
of
course,
is
the
only
legal
way
in
Quebec
by
which
a
husband
may
donate
to
his
wife
after
the
marriage.
If
such
is
not
the
case,
it
therefore
can
be
but
a
loan
from
the
husband
to
the
wife
which
the
Court
can
properly
infer
as
the
only
other
possibility
would
be
a
donation
not
covered
by
the
marriage
contract
which,
of
course,
is
forbidden
under
Quebec
law.
There
would,
therefore,
be
a
strong
presumption
that
this
would
be
a
loan
on
the
basis
that
this
is
the
only
possible
legal
transaction
it
could
be
under
Quebec
law
and
of
course
one
must
conclude
in
favour
of
the
parties
presumably
entering
into
a
valid
transaction
rather
than
an
invalid
one.
Before
concluding
may
I
add
here
that
should
it
be
a
loan,
or
the
reimbursement
of
a
loan,
it
would
in
both
eases
fall
within
the
Jacob
B.
Dunkelman
v.
M.N.R.,
[1959]
C.T.C.
375
case
where
Thurlow,
J.
decided
under
Section
22(1)
of
the
Income
Tax
Act
that
the
expression
‘‘has
transferred
property’’
must
be
given
its
natural
meaning
and
cannot
include
the
loan
made
by
the
appellant
to
the
trustee.
Section
22(1)
of
the
Income
Tax
Act
is
similar
to
Section
21(1)
of
the
Act
which
I
dealt
with
at
the
beginning
of
this
judgment
and
this
would
be
an
additional
reason
in
deciding
that
Section
21(1)
of
the
Act
cannot
assist
the
respondent
here
and
has
no
application
to
the
present
case.
On
the
whole
and
after
a
careful
analysis
of
all
the
evidence
I
arrive
at
the
conclusion
that
the
appellant
has
discharged
the
burden
cast
upon
him
by
the
re-assessments
and
that
it
therefore
follows
that
the
appeals
must
be
allowed;
consequently,
the
amounts
of
$8,956.11
and
$4,276.05
for
the
taxation
years
1954
and
1955
respectively
should
not
be
added
to
the
appellant’s
income
for
the
above
taxation
years
and
the
assessments
are
referred
back
to
the
Minister
to
be
revised
accordingly.
The
appellant
is
entitled
to
his
costs.
Judgment
accordingly.
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