MacGuigan
J.A.:-This
case,
dealing
with
an
income
tax
assessment
for
1980,
began
before
the
Tax
Court,
where
the
appellant
disputed
the
Minister
of
National
Revenue’s
determination
for
capital
gains
purposes
of
the
fair
market
value
of
$100
an
acre
as
at
December
31,
1971
(valuation
day),
of
2,422.19
acres
of
land
it
disposed
of
only
in
1980.
The
appeal
was
there
dismissed
(Appeal
Book
I,
60
ff.).
The
appellant
then
appealed
to
the
Trial
Division
of
this
Court,
which
occasioned
a
trial
de
novo
in
that
forum.
The
appellant
was
there
held
to
fail
in
its
major
premisses,
but
to
succeed
in
having
the
valuation
day
market
value
set
at
$140
an
acre,
for
a
total
fair
market
value
of
$340,000.
The
appellant
now
appeals
that
judgment
to
this
Court.
We
are
all
agreed
that
the
appellant
again
cannot
succeed
in
its
major
premisses.
In
our
view,
the
trial
judge
committed
neither
an
error
of
law
nor
any
palpable
and
overriding
error
in
his
factual
conclusions
such
as
would
alone
justify
our
intervention.
In
particular,
he
did
not
err
in
failing
to
attribute
value
to
the
special
adaptability
of
the
lands
in
question
for
the
operation
of
a
mine,
since,
in
adopting
the
concept
of
"highest
and
best
use”,
he
explicitly
recognized
that
the
highest
and
best
use
of
the
land
on
December
31,
1971,
was
for
speculative
purposes,
as
being
land
in
the
vicinity
of
a
possible
mine
development,
where
part
or
all
of
it
might
some
day
be
required
for
the
development
of
a
mine,
as
opposed
to
its
current
use
in
1971
as
mere
woodland.
He
thus
took
into
account
all
the
potentialities
of
the
land,
as
the
appellant
urged
he
must
do
under
Lamb
v.
Manitoba
Hydro-Electric
Board,
[1966]
S.C.R.
229,
55
D.L.R.
(2d)
654,
an
expropriation
case
in
the
Supreme
Court
of
Canada.
The
method
to
be
used
in
determining
the
fair
market
value
of
any
given
piece
of
land
depends
upon
all
the
circumstances
in
the
case.
It
is
true
that
Mahoney
J.
(as
he
then
was)
made
use
of
a
prorated
appraisal
in
Community
Shipping
Developments
Ltd.
v.
The
Queen,
[1983]
C.T.C.
60,
D.T.C.
5071,
in
a
situation
where
suburban
land
had
been
zoned
for
commercial
or
multi-family
residential
use,
but
that
does
not
establish
a
principle
of
straight-line
prorating
for
other
cases,
as
the
appellant
urged.
Similarly,
the
anticipation
of
subsequent
urban
annexation
by
Walsh
J.
in
Bibby
Estate
v.
The
Queen,
[1983]
C.T.C.
121;
83
D.T.C.
5148,
where
such
an
event
was
widely
expected
in
the
community
at
valuation
day,
establishes
no
overriding
principle
as
to
the
effect
of
subsequent
events
on
an
earlier
valuation
date.
The
only
principle
in
this
area
is
that
the
method
of
valuation
must
be
appropriate
to
the
circumstances.
In
the
case
at
bar,
the
trial
judge’s
taking
into
account
of
the
sales
of
neighbouring
properties
in
1969
for
mining-related
purposes
was
fully
appropriate
to
the
circumstances.
Moreover,
all
of
his
findings
of
fact,
following
his
incisive
rejection
of
the
opinions
of
the
expert
witnesses,
were
supportable
on
the
evidence
before
him.
We
would
therefore
dismiss
the
appeal
in
its
entirety
if
it
were
not
for
a
small
oversight
which
the
trial
judge
appears
to
have
made
in
calculation,
and
which
was
accepted
as
such
by
the
respondent,
in
failing
to
include
in
the
acreage
price
the
8.25
per
cent
factor
he
allowed
for
woodcutting
for
1969
and
1970
also
for
the
1971
year.
The
inclusion
of
this
factor
for
1971
leads
to
a
fair
market
value
of
$149.32
an
acre,
rounded
to
$150
an
acre.
In
turn,
this
leads
to
a
total
fair
market
value
for
the
2422.19
acres
of
$363,328.50,
rounded
to
$364,000.
The
appeal
must
therefore
be
allowed
in
part,
the
decision
of
the
trial
judge
set
aside
in
part,
and
the
matter
referred
back
to
the
Minister
for
reassessment
of
the
appellant’s
capital
gain
on
the
basis
that
its
fair
market
value
on
valuation
day
was
$364,000.
Given
the
divided
success,
there
will
be
no
order
as
to
costs.
Appeal
allowed
in
part.
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