Grant,
DJ:—This
is
an
appeal
from
the
judgment
of
the
Tax
Review
Board
dated
December
17,
1979,
whereby
it
dismissed
the
plaintiff’s
appeal
from
the
reassessment
of
his
income
tax
returns
for
his
1975
taxation
year
except
for
the
increase
it
allowed
in
the
disposal
costs
of
the
subject
property
and
referred
the
same
back
to
the
Minister
for
reconsideration
and
reassessment
accordingly.
The
sole
issue
herein
arose
from
the
gain
the
plaintiff
had
made
in
his
sale
of
real
estate
acquired
by
him
in
the
year
1971
at
a
price
of
$10,000
and
sold
by
him
in
the
year
1975
at
of
$45,000.
In
his
income
tax
returns
for
such
year
the
plaintiff
had
shown
such
land
as
having
a
value
$45,000
on
December
31,
971
while
the
Minister
had
valued
the
same
at
the
sum
of
$22,000.
In
this
result
the
Minister
had
assessed
the
capital
gain
at
$23,000
and
the
portion
thereof
to
be
carried
into
income
at
$11,500.
The
Minister
had
determined
the
disposal
costs
of
the
property
at
$1,530.
Before
the
Board,
Counsel
for
the
appellant
contended
that
the
proper
figure
therefore
was
$2,530.
At
that
time
counsel
for
the
defendant
conceded
such
submission
and
requested
the
Board
to
refer
such
adjustment
back
to
the
Minister
for
reassessment
so
that
the
sole
issue
in
contention
there
as
here
was
the
value
of
the
property
on
December
31,
1979.
The
property
was
obtained
by
the
plaintiff
under
deed
dated
April
20,1971
and
consisted
of
the
west
half
of
Lot
13,
Concession
18
of
the
Township
of
Zone
in
the
County
of
Kent
and
part
of
the
west
half
of
Lot
14
in
the
same
concession
containing
in
all
about
105
acres.
The
conveyance
was
to
the
plaintiff
and
his
wife
Ilona
Neder
as
joint
tenants
and
not
as
tenants
in
common.
In
his
testimony
before
the
Board
Neder
testified
that
such
property
had
been
listed
at
$20,000
but
the
fact
was
it
had
only
been
listed
at
$12,000
by
the
previous
owner.
During
1971
the
plaintiff
erected
a
pre-cut
cottage
on
the
premises
at
a
cost
of
$5,918.76.
Besides
this
amount
which
he
paid
for
building
material
he
had
to
dig
a
foundation
and
put
in
posts
for
support.
It
consists
of
an
840
square
foot
frame
building
without
hydro
or
water.
Pictures
thereof
are
shown
at
page
A
of
exhibit
10.
The
land
except
30
acres
thereof
is
covered
with
scrub
evergreen
trees
which
are
too
large
for
Christmas
trees.
As
to
the
balance
of
the
property
15
acres
thereof
may
have
been
cropped
at
one
time
but
it
was
very
poor
farming
land.
The
plaintiff
did
not
attempt
to
crop
it
in
any
way
while
he
owned
it.
Counsel
for
the
plaintiff
referred
to
it
as
a
hobby
farm
but
it
was
not
entitled
to
such
a
nomen-clature
as
it
was
never
used
for
any
purpose
by
the
plaintiff
except
as
a
week-end
retreat.
It
was
not
adjacent
to
any
body
of
water
and
could
not
qualify
as
a
summer
cottage.
The
plaintiff
attempted
to
prove
the
value
of
the
farm
on
December
31,
1971
by
relating
an
alleged
offer
to
purchase
at
$45,000
in
September
of
1971.
He
said
that
in
1971
a
real
estate
agent
by
the
name
of
Alexander
Bodon
had
dropped
into
his
office
to
ascertain
if
he
had
any
property
for
sale.
This
was
the
only
time
he
had
engaged
Bodon
to
sell
any
property
for
him.
No
rate
of
commission
was
arranged
nor
the
length
of
the
listing
which
was
put
at
$50,000.
He
said
later
that
Bodon
brought
him
an
offer
written
in
hand
for
$48,000
but
he
refused
it
because
there
was
only
$10,000
to
be
paid
down
and
the
balance
in
mortgage.
He
said
he
didn’t
know
the
name
of
the
offeror
and
never
read
over
the
offer,
when
he
sold
the
property
in
March
of
1975
he
took
a
mortgage
back
for
$30,000
and
$15,000
cash.
He
did
not
call
an
appraiser
to
value
the
land
and
offered
no
other
evidence
as
to
its
value.
To
substantiate
his
proof
of
such
offer
he
called
the
agent,
Alex
Bodon,
who
said
the
plaintiff
told
him
he
wanted
to
sell
the
property.
He
went
to
see
the
premises
and
took
a
listing
from
the
plaintiff
at
$50,000
and
put
a
for
sale
sign
on
the
land.
He
said
he
took
out
a
prospective
purchaser
to
see
the
farm
and
was
offered
$48,000
by
him
with
$10,000
down
and
a
mortgage
for
the
balance.
He
drew
up
an
offer
in
writing
and
the
alleged
offeror
signed
it
and
gave
him
a
cheque
for
$500.
Nedar
refused
the
offer
as
he
wanted
all
cash.
Bodon
said
he
then
tore
up
the
offer
and
the
cheque.
He
couldn’t
give
the
man’s
name
nor
had
he
made
any
entry
in
any
of
his
books
of
account
of
the
alleged
offer
nor
receipt
of
the
cheque.
He
said
he
had
put
an
advertisement
in
the
London
Free
Press
but
did
not
produce
a
copy
thereof
nor
an
account
therefore.
I
give
little
credence
to
the
evidence
of
the
plaintiff
and
Bodon
in
respect
of
such
offer
to
purchase.
Even
if
such
testimony
were
accepted
there
would
be
no
means
of
ascertaining
if
the
offeror
had
any
knowledge
as
to
the
value
of
such
property.
In
Youngberg
v
Municipality
of
Metropolitan
Toronto,
1
LCR
282;
Moore,
CCJ
at
286
stated:
It
has
been
said
of
offers
to
purchase
that
they
“are
always
open
to
suspicion,
easy
of
fabrication
and
generally
unsatisfactory
and
probably
in
most
cases
should
be
rejected
entirely”.
Federal
District
Com’m
v
Leaby
et
al,
[1940]
Ex
CR
115.
Offers
received
by
an
expropriated
owner
may
in
certain
cases
be
taken
into
consideration
to
arrive
at
market
value
but
evidence
of
such
offers
must
be
such
that
there
is
no
question
the
offers
were
made
and
that
not
only
the
terms
and
conditions
are
known
but
also
all
the
circumstances
indicating
whether
or
not
they
are
serious.
Pratte,
J
in
The
Queen
v
Beland
et
al,
2
LCR
355.
The
defendant
called
as
a
witness
Patrick
J
Fleming
who
is
an
experienced
appraiser
who
has
been
with
the
Department
of
National
Revenue
for
13
years.
In
his
report
before
the
Board
he
had
used
the
direct
sales
comparison
approach.
He
also
inspected
the
property
personally
and
made
his
own
valuation.
He
also
used
information
provided
in
a
data
bank
of
sales
prepared
by
the
Department
of
Veteran’s
Affairs
and
Revenue
Canada
to
locate
sales
of
similar
properties
at
approximately
the
same
time.
He
inspected
and
analyzed
12
comparable
sales
but
finally
selected
four
from
this
group
as
being
the
most
appropriate
indicators
of
the
market
value
of
the
subject
property
as
of
December
31,
1971.
He
adjusted
these
four
sales
and
came
to
the
conclusion
that
at
such
date
the
market
value
of
such
property
was
$150
per
acre
or
a
total
for
the
land
of
$15,750.
The
plaintiff
had
only
paid
approximately
$95
per
acre
therefore
when
he
purchased
it
in
April
of
the
same
year.
Such
appraiser
was
fair
with
the
Appellant
because
there
was
no
other
evidence
of
such
an
increase
in
the
value
of
such
land
in
that
area
at
that
time.
At
this
appeal
he
filed
a
more
extended
report
(Exhibit
10).
Therein
he
further
used
the
sale
of
the
subject
land
to
the
plaintiff
in
April
of
1971
as
a
guide
and
regarded
it
as
the
most
appropriate
proof
of
value.
He
accepted
the
plaintiff’s
figures
of
cost
for
the
building
at
$5,969.73
to
put
his
total
valuation
at
$22,000.
I
have
no
hesitation
in
accepting
the
testimony
of
this
witness
as
I
thought
he
was
a
most
knowledgeable
and
credible
valuator.
I
therefore
accept
his
valuation.
Although
the
property
was
registered
in
the
joint
names
of
the
plaintiff
and
his
wife,
the
plaintiff
in
making
his
objections
to
the
Minister,
in
respect
of
the
capital
gain
never
raised
the
point
that
his
wife
was
a
half
owner
and
that
therefore
he
should
be
charged
only
with
one
half
of
the
amount
to
be
carried
into
income.
Although
the
deed
described
the
parties
as
holding
the
property
as
joint
tenants
it
was
quite
possible
that
the
plaintiff
could
have
held
the
equitable
ownership
of
the
whole
interest
in
the
property.
The
matter
was
first
raised
in
this
appeal.
The
defendant
readily
agreed
that
the
capital
gain
should
be
so
divided.
It
follows,
as
was
said
at
the
opening
of
this
appeal,
that
the
sole
issue
herein
was
the
value
of
the
property
at
December
31,
1971.
Therefore,
the
judgment
of
the
Tax
Review
Board
is
confirmed
that
the
Minister’s
reassessment
of
the
plaintiff’s
income
tax
returns
for
the
year
1975
should
be
referred
back
to
him
for
consideration
and
reassessment
by
allowing
the
disposal
costs
of
the
property
at
$2,530
rather
than
$1,530
and
also
that
only
one
half
of
the
taxable
capital
gain
on
the
disposition
of
the
105
acre
farm
being
part
of
Lots
13
and
14
in
Concession
8
of
Zone
Township
should
be
included
in
the
plaintiff’s
taxable
income.
In
all
other
respects
the
appeal
is
dismissed.
The
plaintiff
has
contended
at
all
times
that
he
had
made
no
capital
gain.
It
follows
that
he
was
unsuccessful
in
the
only
issue
requiring
the
consideration
of
this
Court.
Therefore
the
plaintiff
should
pay
the
costs
of
the
defendant
in
this
appeal.
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