Muldoon,
J.:—This
appeal
pursuant
to
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act")
by
way
of
a
first-instance
action,
was
heard
jointly
with
a
companion
action,
Suit
No.
T-563-86,
of
the
same
name,
pursuant
to
the
order
made
on
August
11,
1989,
by
Mr.
Justice
Martin.
As
it
later
did
in
1980,
the
plaintiff
corporation
in
its
1979
taxation
year,
which
both
corresponded
with
the
calendar
year,
claimed
and
purported
to
take
capital
cost
allowance
on
certain
machinery
used
in
its
manufacturing
business
to
produce
beverage
cans
and
container
crowns
or
caps,
which
articles
it
sold
to
producers
of
canned
foods
and
beverages.
All
seemed
to
be
going
well
enough
in
these
regards
until,
by
notices
of
reassessment,
both
dated
December
21,
1983,
the
Minister
of
National
Revenue
reassessed
the
plaintiff
in
respect
of
its
1979
and
1980
taxation
years.
In
the
reassessment
here
in
issue,
the
Minister
inter
alia
disallowed
the
plaintiff's
deduction
of
capital
cost
allowance
and
its
claim
for
investment
tax
credit
in
respect
of
four
FBB-420
can-bodymakers
being
manufactured
by
Soudronic
A.G.,
hereinafter
"Soudronic"
of
Switzerland.
In
this
case
the
defendant,
even
before
examinations
for
discovery,
conceded
that
the
appeal
ought
to
be
allowed
in
regard
to
the
imposition
of
penalties
as
the
plaintiff
claimed
in
paragraph
23(b)
of
its
statement
of
claim.
In
that
pleading
the
plaintiff
asserted
that
the
penalty
imposed
in
regard
to
the
plaintiff's
claim
for
dividend
refund
be
removed
and
remitted
to
it.
So
be
it.
The
defendant
concedes
that
subsection
163(2)
of
the
Act
does
not
permit
the
Minister
to
assess
penalty
in
respect
of
a
dividend
refund
claimed
pursuant
to
subsection
129(1)
of
the
Act.
As
it
is
claimed
there,
let
it
be
done,
but
without
any
costs
specifically
attached
to
the
plaintiff's
victory
or
the
defendant's
concession
here.
Costs
will
be
disposed
at
large
here
to
follow
the
event
in
terms
of
the
resolution
of
the
principle
issue
in
contention.
Through
a
sibling
corporation,
Crown
Cork
(Belgium)
S.A.
hereinafter
"BelCrown",
a
member
of
the
worldwide
Crown
group
of
companies,
the
plaintiff
and
the
other
members
of
the
Crown
group
became
aware
in
1978
of
Soudronic's
development
of
the
seam-welding
can-bodymaker
to
supersede
the
making
of
the
then
current
cans
with
lead-soldered
seams.
Lead
contaminates
the
contents
and
constitutes
a
definite
hazard
to
human
health.
Designated
in
Exhibits
3,
4,
5
and
6
as
a
“high
performance
welding
bodymaker
for
food
and
beverage
cans,
type
FBB-420”,
it
is
a
large
4,600
kilogram
complex
machine
which
shapes
a
pre-cast
sheet
of
tin-plated
steel
to
form
a
can
body
of
the
desired
diameter
and
welds
the
side
seam
using
high-speed
rollers
and
continuous-feed
copper
wire
electrodes
inside
and
outside
the
formed
cylinder
of
tin-plate.
It
was
decided
that
BelCrown
would
be
purchasing
agent
for
the
Crown
group
in
ordering
the
construction
of
40
FBB-420
machines
by
Soudronic,
of
which
four
were
to
be
installed
in
the
plaintiff's
plants
across
Canada.
For
the
Canadian
market,
however
there
were
unique
requirements.
The
desired
can
diameter—more
imperative
than
merely
desired,
in
fact—was
to
be
59.9
millimetres,
a
10-ounce
can,
as
distinct
from
the
usual
65
millimetre
diameter
can,
12
ounces,
to
be
produced
by
the
other
36
machines.
The
can-body
height
had
to
be
121.1
millimetres
for
the
plaintiff's
Canadian
market
and
the
tin-plate
was
to
be
double
reduced
(DR)
.15
millimetre
gauge,
a
comparatively
thin,
hard
and
brittle
tin-plate.
A
DRC
system
was
required
to
apply
a
driven-roller
coating
to
the
seam
area.
These
specifications
required
special
tooling
to
be
developed
for
the
plaintiff's
four
Canadian
FBB-420
machines,
only
the
first
of
which
was
to
have
the
DRC
system.
It
appears
from
Exhibit
1(a),
Tab
10,
that
the
plaintiff
requested
BelCrown
in
Antwerp,
attention,
Mr.
Van
Roy,
to
order
four
FBB
machines
from
Soudronic
on
August
31,1978.
At
the
same
time
BelCrown
in
Antwerp,
attention
Mr.
Van
Overburgh,
was
requested
to
order
one
inside
stripe-driven
roller-coating
system,
that
is,
the
DRC
system.
The
specifications
stated
in
the
plaintiff's
requisition
are
clear:
Bodymakers
to
be
set
on
59.9
millimetres
(2.359”);
Bodylength:
121.4
millimetres
or
(4.781");
Bodyplate:
.15
millimetres
(55
1b/bb’)
D.R.
These
particular
requisitions
provoked
a
cable
or
telex
message
from
Mr.
Van
Roy
dated
some
three-and-a-half
months
later,
on
December
19,
1978.
The
principal
text
of
Van
Roy's
message,
unabbreviated,
on
the
third
page
of
Tab
10,
runs
thus:
As
far
as
delivery
of
your
two
first
machines
is
concerned,
please
note
that
supplier
is
proceeding
with
special
development
of
the
diameter
59.9
m.m.-type
and
will
only
be
able
to
ship
this
type
early
in
1980
instead
of
August-September
1979.
That
document
as
exhibited
indicates
copies,
or
internal
routing,
to
the
plaintiff's
president
and
chief
executive
officer,
J.
Douglas
Scott,
to
Allan
Sharpe,
the
plaintiff's
vice-president
for
manufacturing
operations,
and
to
Louis
A.Simon,
the
plaintiff's
chief
engineer
for
Canada.
That
message
from
Van
Roy
conveys
an
early
indication
of
Soudronic's
refusal
to
become
boxed-in
or
committed
to
early
delivery
dates
for
which
the
plaintiff
was
pressing.
The
reason
for
such
refusal
could
not
be
more
clearly
stated.
It
was
the
requirement
for
special
development
of
the
59.9
millimetre
diameter
can
body.
It
may
be
noted
that
such
a
problematic
small
diameter
appears
to
be
related
as
well
to
the
thin,
hard
and
brittle
tin-plate,
as
Mr.
Simon
described
it
in
his
testimony,
upon
which
flanging,
for
fitting
of
the
can
ends,
caused
an
unacceptable
incidence
of
cracking
of
the
welded
seams.
Mr.
Scott
testified
that
he
presumed
he
saw
that
message
from
Mr.
Van
Roy
on
December
19,
1978.
Louis
Simon
was
in
no
doubt
that
he
received
a
copy.
He
confirmed
that
the
requirement
of
a
59.9
millimetre
diameter
necessitates
the
special
development
of
appropriate
tooling
for
the
FBB-420
machines.
Now
this
leitmotif
of
Soudronic's
associating
later
and
later
delivery
of
the
FBB
machines
with
the
problem
of
developing
special
tooling
for
a
59.9
millimetre
diameter
can
production
with
thin,
hard
and
brittle
tin-plate,
runs
throughout
the
documentary
evidence
and
the
plaintiff's
witnesses'
testimony
even
though
the
latter
sought
to
dilute
that
theme
in
their
viva
voce
testimony.
An
example
of
the
theme
emphasized
by
Soudronic
is
an
even
earlier
message
from
Van
Roy
to
Scott
on
September
10,
1970.
It
is
found
at
Tab
12
of
Exhibit
1(a)
and
is
worth
reciting.
The
noted
leitmotif
is
not
to
be
diluted.
Shipping
schedule:
will
normally
be
one
August,
1979,
one
September,
1979,
two
June,
1980.
However,
Soudronic
can
only
confirm
at
present
for
diameter
65-100
and
will
during
first-quarter
1979
be
able
to
confirm
diameter
59.9
after
successful
testing
of
smaller
tooling.
During
testimony
in-chief,
Douglas
Scott
averred
that
anticipated
delivery
dates
kept
changing
and
the
four
machines
were
ultimately
received
in
the
summer
of
1980.
A
few
moments
later,
however,
he
swore
that
he
did
not
anticipate
any
problem
with
delivery
dates.
Scott
evinced
great
confidence
in
the
professional
and
technical
problem-solving
skills
of
Soudronic
and
he
explained
that
although
delays
were
of
concern,
he
believed
that
ultimately
the
special
development
problems
would
be
solved
by
Soudronic.
As
in
a
Wagnerian
musical
drama,
that
irrepressible
leitmotif
keeps
surfacing.
Tab
17
in
Exhibit
1(a)
contains
a
rather
poor
copy
of
a
message
from
A.
(Tony)
J.
Leenaards
of
BelCrown,
transmitted
to
Scott
on
March
15,
1979.
It
runs:
After
further
negotiations
with
Soudronic,
they
confirm
that
the
4
(four)
machines
FBB
in
diameter
207.5
could
be
shipped
one
in
March
1980,
one
in
April
1980
and
two
in
May
1980.
Please
advise
whether
the
diameter
207.5
is
absolutely
necessary
as
I
believe
that
a
much
better
shipping
schedule
can
be
obtained
for
the
normal
211
diameter.
Regards
A.
J.
Leenaards
On
the
very
same
day,
March
15,1979,
president
and
C.E.O.
Scott
replied
in
no
uncertain
terms:
Many
thanks
Soudronic
delivery
information.
Unfortunately
we
must
have
207.5
diameter.
Will
appreciate
receiving
information
from
you
on
progress
with
inside
coatings.
Would
like
to
plan
a
visit
to
Europe
when
you
feel
it
would
be
worthwhile.
In
meantime,
please
keep
pressure
on
Soudronic.
Our
customer
is
insisting
that
he
must
have
welded
can
by
end
this
year
and
his
alternative
is
to
use
Continental
Conoweld
or
American
Miraseam,
both
of
which
are
now
available.
Regards
and
many
thanks.
D.
Scott.
The
theme
pulses
on
in
Tab
19
of
Exhibit
1(a)
where
vice-president
for
manufacturing,
Allan
Sharpe,
takes
up
the
beat
in
a
message
to
Van
Roy
acknowledging
revised
delivery
schedule
for
one
FBB
in
June
1980,
and
three
in
July
1980,
requesting
that
they
be
processed
without
delay.
Sharpe
promises
to
try
to
improve
on
the
delivery
schedule,
later.
Then
in
Tab
21
there
appears
a
copy
of
a
plaintiff's
cheque
requisition
for
56,200
Swiss
francs,
being
the
10
per
cent
down
payment
on
one
FBB
machine,
purchase
order
08885,
approved
on
April
25,
1979,
by
Lloyd
Churchill,
the
plaintiff's
then
vice-president
of
finance.
Finally,
in
June
1979
Soudronic
issued
order
confirmations
for
four
FBB
machines
with
serial
numbers
KM
11241
(Tab
24
and
Exhibit
4),
KM
11242
(Tab
24
and
Exhibit
3),
KM
11243,
(Tab
25
and
Exhibit
5)
and
KM
11244
(Tab
26
and
Exhibit
6).
Each
of
those
order
confirmations,
signed
by
Ulrich
Guenthart
and
A.
Keller,
recites
the
appropriate
and
ordered
working
range
and
plate
thickness
and
temper,
equipped
for
welding
of
the
specified
plate
to
an
inside
body
diameter
of
59.9
millimetres
(2.359").
Each
states
conditions
of
payment
to
be:
"10%
with
order,
15%
three
months
prior
to
delivery,
75%
two
months
after
delivery".
Each
order
confirmation
forwards
and
maintains
the
now
trite
theme
or
leitmotif
earlier
identified,
that
is:
Time
of
shipment
June
1980
Since
this
is
a
new
machine
type
the
stated
delivery
times
are
to
be
understood
as
provisional
indications
only.
There
might
be
a
certain
delivery
delay.
We
will
do
our
utmost
to
deliver
the
equipment
as
agreed
upon.
Although
the
four
order
confirmations
are
all
dated
June
5,
1979,
they
apparently
were
sent
under
cover
of
a
letter
dated
June
5,
1979,
from
Van
Roy
to
Sharpe,
with
a
copy
to
Soltys.
That
is
at
Tab
29.
It
is
written
for
special
emphasis
and
I
quote:
Re:
Soudronic
FBB—machines.
.
.
[that
is
June
5,
1979]
Finally,
please
find
enclosed
the
order
confirmations
of
supplier
for
your
two
07.5
machines.
I
would
like
to
draw
your
particular
attention
on
three
points.
One,
prices
as
requested
by
Mr.
Soltys
by
wire
of
April
16th
1979,
the
price
has
been
made
CIF
Toronto,
"Customs
Duty
and
Brokerage
Fee
unpaid”.
This
would
have
given
Swiss
francs
562,000
as
announced
initially,
however,
has
increased
this
price
with
Swiss
francs
5,000,
confirmed
as
follows
by
supplier.
Please
note
that
there
is
a
price
increase
of
Swiss
francs
5,000
per
machine
for
the
special
59.9
millimetre
diameter
execution.
Your
president,
Mr.
A.J.
Leenaards,
has
been
informed
of
this
price
increase
by
Messrs.
Ulrich
and
Keller
during
their
visit
in
Brussels
on
the
15th
of
May,
1979,
copy
to
Mr.
L.
Soltys.
Point
2,
DRC
system
mounted
on
first
machine.
Point
3,
Shipments,
the
order
confirmation
states
that
those
are
given
as
provisional
indications.
Sincerely
yours,
Crown
Cork
Company
(Belgium)
Edward
Van
Roy,
Purchasing
Department.
NB:
We
have
numbered
your
machines
CA
No.
1
through
CA
No.4.
Please
refer
to
those
numbers
in
future
correspondence.
Thanks.
The
10
per
cent
down
payments
on
the
remaining
three
FBB-420
machines
were
requested
on
August
9,1979
(Tab
30)
and
paid
by
Churchill
the
same
day
in
the
total
amount
of
170,100
Swiss
francs
(Tabs
31
and
32).
Within
the
contents
of
Exhibit
1
(a)
Tab
36
there
is
a
trip
report
of
visits
by
certain
Crown
group
officials,
including
Scott
and
Simon,
to
Antwerp,
Dortmund,
and
the
Soudronic
premises
in
Switzerland
on
September
19,
1979.
On
Page
5
of
that
report
it
is
noted
that
Soudronic's
technical
director,
Mr.
Kaul,
stated
that
at
the
present
time
Soudronic
has
not
yet
completed
development
to
TFS
double-reduced
plate.
More
time
is
required.
It
will
be
remembered
that
double-reduced
plate
was
a
requirement
of
the
plaintiff
to
produce
can
bodies
on
the
specially,
not
yet
developed,
59.9
millimetre
tooling
for
its
FBB-420
machines.
The
plaintiff's
chief
engineer,
Louis
Simon,
testified
in-chief
that
he
was
the
author
of
the
specifications
on
the
purchase
orders,
meaning
the
59.9
millimetre
diameter
and
the
double-reduced
tin-plate,
to
ensure
that
Soudronic
produced
machines
capable
of
manufacturing
Canadian
cans.
He
testified
that
he
was
made
to
understand
that
Soudronic
could
do
that,
but
had
never
done
it
before.
Hence
the
need
for
special
development
and
testing
of
the
FBB-420
tooling
for
use
in
Canada.
Simon
visited
the
Soudronic
plant
with
Scott
and
he
there
met
Messrs.
Kaul
and
Keller.
They
considered
that
the
smaller
diameter
would
produce
a
vast
difference
in
size
between
the
upper
and
lower
welding
rolls,
so
modifications
were
suggested
to
make
the
upper
roll
closer
in
size
to
the
lower
roll.
They
noted
that
flanging
creates
stress
on
the
can
and
so
they
promised
to
reduce
the
energy
input
on
the
leading
and
trailing
edges
of
the
can,
which
would
reduce
stress
cracks.
Simon
testified
in-chief
that
he
did
not
see
any
machines
dedicated
to
Canada
on
that
occasion,
but
he
did
not
ask
to
see
any.
Simon
met
Kaul
again
at
a
canner's
Trade
Show
in
St.
Louis
in
early
February
1980.
Kaul
asked
for
tin-plate
for
further
testing
with
the
smaller
can
size.
Simon
said
he
contacted
BelCrown
to
send
the
same
to
Soudronic
in
Switzerland.
He
also
then
anticipated
final
test
runs
with
tin-plate
from
Canada.
There
is
no
doubt
that
there
is
a
reciprocal
nexus
between
the
still-being-
developed
small
diameter
tooling
and
the
thinner,
harder,
more
brittle
tinplate.
Kaul
demonstrated
it
by
his
remarks
and
request
for
tin-plate
for
testing.
On
cross-examination
Louis
Simon
was
asked
about
the
utility
of
the
Soudronic
FBB-420
machines
without
the
required
Canadian
tooling
and
he
said
flatly
that
the
machines
would
be
of
no
use
to
the
plaintiff,
Crown
Cork
&
Seal.
That
indicates
precisely
to
what
standard
the
machines
would
have
to
be
completed
or,
to
invoke
the
terminology
of
the
Act,
precisely
when
that
which
the
plaintiff
absolutely
needed
and
had
ordered
from
Soudronic,
could
in
reality
be
acquired,
or
finally
existed
in
a
state
of
completion
capable
of
being
acquired
by
the
plaintiff.
So
testified
president
and
C.E.O.
Scott
during
cross-examination.
He
swore
that
the
machines
were,
"no
use
to
Crown
without
that
tooling".
He
added,
"We
never
doubted
their
[Soudronic's]
capacity",
and
noted,
“Since
then
they
have
produced
45
millimetre
machines”.
It
may
be
noted
that
in
order
successfully
to
claim
capital
cost
allowance
one
must
acquire
the
subject
property.
There
is
no
capital
cost
allowance
upon
acquiring
faith
in
a
manufacturer’s
capacity
to
develop
new,
never-before-made
tooling,
which
is
essential
to
property
upon
which
such
allowance
is
sought
to
be
claimed.
Noteworthy
also
is
how
the
plaintiff's
own
pleading
magnifies
the
already-
mentioned
theme
of
Soudronic
to
the
effect
that
the
59.9
millimetre
tooling
had
to
be
first
designed
and
developed
because
it
was
not
standard
off-the-
shelf
wares
and
then
a
further
problem,
it
had
to
be
capable
of
making
can
bodies
of
the
thinner,
harder,
more
brittle,
double-reduced
.15
millimetre
gauge
tin-plate,
and
because
of
those
problems
Soudronic
would
not
commit
itself
to
early
delivery.
Paragraphs
8
and
9
of
the
statement
of
claim
express
that
leitmotif
articulately.
However,
Brian
Anderson,
the
plaintiff's
comptroller,
intervened
with
the
perfectly
legitimate,
if
not
entirely
correct,
idea
of
charging
capital
cost
allowance
on
the
four
machines
being
built
and
developed
by
Soudronic
in
the
fiscal
year
1979.
Since
at
least
the
judgment
of
the
Supreme
Court
of
Canada
in
Stubart
Investments
Ltd.
v.
The
Queen,
[1984]
1
S.C.R,
536;
[1984]
C.T.C.
294;
84
D.T.C.
6305,
it
is
sure
that
Anderson's
idea
to
claim
the
allowance
must
be
regarded
as
a
legitimate
approach
even
in
1979.
The
Court's
quotation
from
the
reasons
of
Mr.
Justice
Urie
of
this
Court,
found
at
page
297
(D.T.C.
6307;
S.C.R.
543)
emphasize
that:
"Every
person
is
entitled
to
organize
his
affairs
in
such
a
manner
as
to
minimize
or
eliminate
taxes
so
long
as
he
does
so
within
the
limitations
imposed
by
law.”
Anderson
was
reporting
directly
to
Churchill
at
the
time
and
they
occupied
adjacent
offices.
Anderson
had
access
also
to
members
of
Price
Waterhouse,
the
plaintiff's
auditors.
It
was
he
who
signed
the
certificate,
dated
July
31,
1980,
on
the
plaintiff's
1979
income
tax
returns,
a
copy
of
which
is
exhibited
in
Tab
1,
page
28,
and
shows
the
signed
certificate.
Anderson
testified
that
he
was
aware
that
with
Class
29
property,
the
taxpayer
is
entitled
to
write
off
the
assets
over
a
two-year
period
at
50
per
cent
each
year.
The
possibility
of
doing
so
in
1979
in
regard
to
the
FBB-420
machines
he
discussed
with
the
plaintiff's
auditors
and
later
with
Churchill
and
Scott,
and
it
was
agreed
that
if
the
machines
were
substantially
completed,
Soudronic
would
be
asked
to
provide
a
letter
to
that
effect
and
to
pass
title
to
the
plaintiff.
President
Scott,
according
to
Anderson,
was
not
sure
that
the
machines
were
in
that
state
of
substantial
completion
and
said
he,
Scott,
would
investigate.
Anderson
believed
Scott
then
communicated
with
Soudronic,
and
Anderson
prepared
a
draft
letter
to
be
copied
by
Soudronic
and
sent
back
to
the
plaintiff.
Scott
testified
that
although
he
thought
the
machines
had
to
be
actually
in
our
hands
before
CCA
could
be
claimed,
Anderson
told
him
that
they
had
only
to
be
substantially
completed
and
specifically
identifiable
as
destined
for
delivery
to
the
plaintiff.
Scott
said
that
he
then
believed
the
machines
were
substantially
completed
and
had
been
so
when
he
“was
over
there
a
couple
of
months
ago".
Also,
"We
know
there
were
machines
in
the
process
of
construction
and
that
we
[the
plaintiff's
orders]
were
high
on
the
list
for
delivery”.
So,
Scott
testified,
he
telephoned
to
Belgium
and
spoke
with
the
person
in
charge
at
BelCrown,
Leenaards,
who
presumed
that
the
machines
were
substantially
complete,
but
would
verify.
Scott
told
Leenaards
that,
"we",
would
supply
him
with
the
wording
which
the
government
would
require
and,
providing
that
the
machines
were
substantially
complete,
as
Scott
testified,
"we"
could
proceed.
Anderson's
handwritten
draft
of
the
letter
which
Soudronic
was
to
send
to
the
plaintiff
is
copied
in
Exhibit
1(a)
at
Tab
45.
That
draft
runs
thus:
"Dear
Gentlemen:
The
four
FBB
bodymakers
under
order
by
you.
.
.”
and
this
is,
of
course,
addressed
to
Crown
Cork
&
Seal
Company
Ltd.,
Canada.
The
four
FBB
bodymakers
under
order
by
you,
Serial
Nos.
(blank,
blank,
blank,
blank),
were
substantially
complete
effective
December
15,
1979.
Title
to
the
bodymakers
will
therefore
pass
over
to
Crown
Seal
Company
Ltd.
on
that
date.
Insurance
on
the
bodymakers
from
December
15,
1977,
will
be
charged
to
Crown
Cork
&
Seal.
Shipment
will
occur
early
in
1980
at
which
time
final
payment
will
be
due.
And
then
Mr.
Anderson
wrote
a
note:
"Note:
serial
numbers
are
required.
Paragraph
2
about
the
insurance
can
be
deleted
if
objectionable
to
either
party".
The
date
for
passing
title
and
assuming
insurance,
December
15,
1979,
was
just
picked
by
Anderson
and
is
not
significant
in
itself
except,
as
he
testified,
for
its
occurring
before
the
end
of
December
1979.
Next
is
a
series
of
cumulative
misunderstandings
which,
with
a
different
manufacturer,
was
to
be
repeated
for
the
1980
taxation
year.
Scott
adopted
Anderson's
model
draft
wording
and
passed
it
on
to
Leenaards,
the
plaintiff's
agent
for
dealings
with
Soudronic,
as
can
be
seen
in
the
first
two
pages
of
Tab
42.
Leenaards,
through
an
official
called
Blanpain,
then
simply
copied
the
wording
over
to
Keller
at
Soudronic,
as
seen
on
the
fourth
and
fifth
pages
of
Tab
42.
Now,
however,
not
only
is
a
note
of
urgency
introduced,
but
also
there
is
utterly
no
urging
to
be
certain
that
the
state
of
substantial
completion
of
the
machines
is
what
is
to
be
stated.
It
is
just
a
form
letter
requested
by
the
plaintiff,
one
of
Soudronic's
very,
very
good
customers.
Blanpain's
message
to
Keller
of
Soudronic
is
worth
reciting.
It
is
partly
in
French
and
I
will
have
that
copied,
but
let's
read
it
and
savour
it:
M.
Keller:
Suite
à
notre
conversation
de
ce
jour,
voici
le
texte
de
la
lettre
que
je
vous
demande
d'adresser
en
deux
exemplaires
à
monsieur
A.
J.
Leenaards
le
plus
rapidement
possible.
Quote.
To
Crown
Cork
and
Seal
Company
Ltd.,
7900
Keele
Street,
Concord,
Ontario,
Canada.
Dear
Gentlemen:
The
4
f.b.b.
bodymakers
under
order
by
you
serial
numbers.
.
.
and
there
are
the
appropriate
four
blanks
.
.
.were
substantially
complete
effective
December
15th,
1979.
Title
to
the
bodymakers
will
therefore
pass
to
Crown
Cork
and
Seal
Company
Limited
on
that
date.
Insurance
on
the
bodymakers
from
December
15th,
1979,
will
be
charged
to
Crown
Cork
and
Seal.
Shipment
will
occur
early
in
1980,
at
which
time
final
payment
will
be
due.
Best
regards
unquote.
And
Mr.
Blanpain
continues:
Je
vous
remercie
de
votre
collaboration.
compliments.
Blanpain
There
was,
despite
both
the
urgent
and
perfunctory
nature
of
Blanpain’s
request,
still
an
opportunity
to
put
matters
right,
if
the
assertion
of
substantial
completion
were
regarded
seriously
and
properly
understood.
Keller
passed
on
the
task
to
Ulrich
Guenthart
at
Soudronic,
who
seemed
to
have
regarded
the
request
seriously
but
who,
like
Scott
and
Anderson,
revealed
in
his
testimony
that
he
misunderstood
it.
Guenthart
testified
that
he
went
to
the
plant
assembly
shop,
looked
at
the
machines
and
compared
the
serial
numbers
with
the
order
confirmations
illustrated
in
Exhibits
3,
4,
5
and
6.
Those
were
certainly
the
machines
destined
to
be
delivered
late
in
1980
to
the
plaintiff.
But
it
is
not
enough
for
income
tax
purposes
to
have,
as
Scott
testified
he
saw
earlier
in
1979:
"The
cast
iron
body
frames,
gears,
chains,
power
take-offs,
all
in
the
course
of
being
mounted
in
the
machines".
Nor
is
it
enough
for
income
tax
purposes,
as
Guenthart
testified:
”.
.
.
to
have
machines
which
were
mechanically
and
electrically
complete,
with
the
exception
of
the
tooling”,
when
it
is
the
tooling
that
is
the
crucial
feature
of
the
machine
to
make
it
useful
for
manufacturing
cans
in
Canada,
which
was
the
plaintiff's
essential
requirement.
Guenthart
testified
in-chief
that
if
Soudronic
had
been
permitted,
"to
put
on
standard
tooling,
one
could
make
cans
with
those
machines".
Of
course,
with
standard
tooling
one
could
not
have
made
59.9
millimetre
diameter
cans
and
the
machine
in
that
plight
would
have
been
utterly
useless
to
the
plaintiff.
Guenthart
went
on
to
say
that
with
appropriate
tooling,
that
is
standard,
more
specially
developed
tooling,
two
or
three
weeks
of
testing
on
the
test
bench
would
still
have
been
needed,
then
the
machines
could
be
shipped.
He
also
confirmed
that
before
the
machine
would
be
shipped,
the
KM
serial
number
would
be
engraved
on
the
machine
plate
to
become
that
machine's
number.
Guenthart
never
discussed
with
anyone
at
BelCrown
or
in
the
plaintiff's
office
the
meaning
of
that
deceptively
simple,
non-statutory
term,
"substantially
complete",
and
that
appears
to
be
the
probable
source
of
the
misunderstanding.
It
does
not
refer
to
the
gathered
or
even
assembled
presence
of
a
mighty
pile
of
metal
or
of
pieces,
parts,
chains,
electrical
and
mechanical
components,
if
the
essential
feature—here
the
specially
developed
tooling—
was
by
then
not
yet
developed.
Now,
it
cannot
be
denied
that
in
a
bilateral
contract
for
the
manufacture
and
supply
of
goods,
the
two
parties
can
amend
their
contract
at
will
and
the
vendor,
if
ad
idem
with
the
buyer,
can
pass
title
to
the
mass
of
metal
as
it
stands.
That
is
their
business.
But
when
it
comes
to
claiming
an
income
tax
advantage
such
as
resides
in
capital
cost
allowance,
that
which
the
taxpayer
acquires
must
be
the
asset
upon
which
it
is
permitted
to
deduct
capital
cost
allowance
and
not
mere
components
to
go
with
that
which
has
not
yet
been
developed.
The
plaintiff's
analogy
to
buying
a
drill
press
which
just
needed
a
drill
bit
is
false
insofar
as
the
needed
drill
bit
could
be
a
standard
off-the-shelf
stock
item.
If
the
drill
bit
has
yet
to
be
invented
and
yet
to
be
developed
to
drill
into
a
special,
difficult-to-drill
material
contemplated
by
the
buyer,
then
the
buyer
may
take
title
to
the
drill
press,
but
the
drill
press
is
not
substantially
complete
in
so
far
as
taking
capital
cost
allowance
is
concerned.
It
is
indeed
at
that
point,
and
before
development
and
testing
of
the
tool,
absolutely
useless
to
produce
anything
the
taxpayer
needs
to
produce
and
is
substantially
incomplete.
So
with
this
rather
insouciant
misunderstanding
of
what
was
expected
of
him,
Guenthart
obliged
and
sent
to
Leenaards
a
letter,
dated
December
21,
1979,
addressed
to
the
plaintiff
in
the
very
words
Anderson
had
proposed,
save
but
a
few
insignificant
ones.
He
said
it
was
an
unusual
request
but
it
did
not
disturb
him.
After
all,
he
testified,
the
plaintiff
was
one
of
Soudronic's
best
customers
and
if
Soudronic
could
do
the
plaintiff
a
favour,
Soudronic
would
do
it.
Guenthart
even
forgot
to
charge
insurance
costs
to
the
plaintiff
despite
what
is
stated
in
that
letter
found
at
the
second
last
page
of
Tab
42.
But
Guenthart
was
in
tune
with
Soudronic's
leitmotif,
all
right,
for
he
expressed
it
in
a
companion
letter,
not
for
the
plaintiff's
income
tax
purposes,
but
addressed
to
Leenaards,
president
of
the
plaintiff's
purchasing
agent
in
these
matters,
BelCrown.
Favours,
after
all,
are
merely
favours,
but
business
is
business.
Here,
the
third
last
page
at
Tab
42,
is
what
Guenthart
wrote
to,
“Dear
Mr.
President"
Leenaards:
Dear
Mr.
President:
With
reference
to
Mr.
Blanpain's
telex,
No.
1477,
we
are
pleased
to
send
you
enclosed
two
copies
of
the
requested
letter.
Please
note
that
the
effective
delivery
date
of
the
four
machines
will
remain
as
per
your
order
and
our
order
confirmations,
namely,
one
machine
in
June
1980
and
three
machines
in
July
1980.
Hoping
to
be
have
been
of
service
to
you,
we
are,
Yours
sincerely,
Soudronic
A.G.
per
Ulrich
Guenthart
with
an
enclosed
material.
Leenaards
simply
passed
it
all
back
to
Scott.
Also
seen
in
Tab
42
is
his
letter,
and
it
begins:
Dear
Doug:
As
requested
by
your
telex
dated
December
10,
I
enclose
herewith
the
statement
issued
by
Soudronic
to
enable
you
to
claim
the
capital
cost
allowance
in
1979.
Would
you
please
note
that
the
effective
delivery
date
of
the
four
machines
will
remain
as
per
your
order
and
Soudronic
order
confirmations,
namely,
one
machine
in
June
1980
and
three
machines
in
July
1980.
With
my
best
regards,
Yours
sincerely,
Tony.
There
was
still
almost
everything
to
be
done
to
create
the
machine
which
the
plaintiff
could
acquire
as
a
subject
for
a
capital
cost
allowance.
Guenthart
testified
in
cross-examination
that:
In
this
case
we
had
to
manufacture
tooling.
Most
likely
it
started
in
June
1979
and
most
likely
it
was
just
about
complete
in
early
January
1980.
The
delay
to
delivery
in
August
was
due
to
the
double
reduced
material.
Comparing
tooling
for
single
and
double,
only
an
experienced
person
would
detect
the
difference
because
it
is
so
very
close
to
standard
tooling.
It
became
significant
for
DR.
And
then
he
went
on
to
say
the
plaintiff,
“insisted”
on
that
plate.
As
late
as
the
canner's
Trade
Show
at
St.
Louis
in
February
1980,
Guenthart
said
that
Soudronic
then
asserted
that
the
tin-plate
was
too
thin
and
requested
different
tooling,
but
the
plaintiff
would
not
agree.
He
said
then
maybe
it
was
Soudronic
which
gave
in
and
agreed
to
the
thinner
plate.
Guenthart
noted
that
so
adamant
was
the
plaintiff
that
it
still
wanted
to
see
the
FBB-420
operating
at
Soudronic's
Swiss
plant.
The
conclusion
from
all
this
is
clear.
The
machines,
on
which
the
plaintiff
claimed
capital
cost
allowance
in
1979,
were
never
substantially
complete
in
1979,
despite
the
mass
of
metal
which
had
been
assembled
by
December
1979.
The
Court
does
not
assert
that
Soudronic
did
not
pass
title
to
that
mass
of
metal
over
to
the
plaintiff,
despite
the
formal
terms
of
their
contract
requiring
ownership
to
remain
in
Soudronic
until
paid
in
full,
according
to
Article
4
of
Soudronic's
then-in-force
general
conditions
of
sale
and
delivery,
a
copy
of
which
is
in
Tab
5
of
Exhibit
1(a).
If
Guenthart's
letter
dated
December
21,
1979,
was
capable
of
passing
title
to
the
masses
of
metal
standing
in
the
Swiss
plant,
but
without
the
essential
tooling,
then
so
be
it.
But
Guenthart's
letter
was
not
capable
of
passing
title
for
income
tax
purposes
to
an
asset
or
property
upon
which
the
Act
permits
claiming
capital
cost
allowance,
because
that
had
not
yet
[been]
acquired
by
the
plaintiff:
it
was
not
yet
substantially
complete
on
that
day
in
December
1979,
which
Anderson
picked.
Much
has
be
made
of
the
obiter
dictum
expressed
by
Mr.
Justice
Cattanach
in
the
case
of
M.N.R.
v.
Wardean
Drilling
Ltd.,
[1969]
C.T.C.
265;
69
D.T.C.
5194
at
272
(D.T.C.
5198):
"Property
in
the
rig
could
have
passed
forthwith
had
the
parties
so
intended.
But
the
parties
did
not
so
intend."
More
to
the
point
are
the
dispositive
expressions
of
Cattanach,
J.
in
his
reasons
at
pages
270-71
(D.T.C.
5197-98).
For
example:
The
decision
in
this
appeal
turns
on
the
question
as
to
when
the
rig
and
substructure
were
“acquired”
by
the
respondent.
The
submission
on
behalf
of
the
respondent
was,
as
I
understand
it,
that
goods
are
acquired
by
a
purchaser
thereof
when
the
vendor
and
the
purchaser
have
entered
into
a
binding
and
enforceable
contract
of
sale
and
purchase.
The
test
and
concept
of
a
contract
was
that
adopted
by
the
Tax
Appeal
Board
in
the
decision
now
under
appeal.
With
all
deference,
I
cannot
accede
to
that
view.
In
my
opinion
the
proper
test
as
to
when
property
is
acquired
must
relate
to
the
title
to
the
property
in
question
or
to
the
normal
incidence
of
title,
either
actual
or
constructive,
such
as
possession,
use
and
risk.
On
the
facts
in
the
present
appeal
there
is
no
question
whatsoever
that
the
contracts
for
the
purchase
and
sale
of
the
rig
and
substructure
were
completed
prior
to
December
31,
1963.
He
goes
on
to
say
at
page
271
(D.T.C.
5138):
Accordingly,
there
is
no
question
that
as
of
the
end
of
the
respondent's
1963
taxation
year,
he
had
rights
under
those
contracts.
Such
rights
are
property
within
the
meaning
of
Section
139(1)(a)
of
the
Income
Tax
Act,
but
Schedule
B
to
the
Income
Tax
Regulations
does
not
include
a
class
of
property
which
is
subject
to
capital
cost
allowance
such
as
properties
which
are
contractual
rights
under
the
contracts
here
in
question.
In
order
to
fall
within
the
specified
classes
in
Schedule
B
there
must
be
right
in
the
property
itself,
rather
than
rights
in
a
contract
relating
to
the
property
which
is
the
subject
matter
of
the
contract.
As
I
have
indicated,
it
is
my
opinion
that
a
purchaser
has
acquired
assets
of
a
class
in
Schedule
B
when
the
title
has
passed,
assuming
that
the
assets
exist
at
that
time
or
when
the
purchaser
has
all
the
incidents
of
title
such
as
possession,
use
and
risk,
although
legal
title
may
remain
and
the
vendor
has
security
for
the
purchase
price,
as
is
the
commercial
practice
under
conditional
sales
agreements.
In
my
view
the
foregoing
is
the
proper
test
to
determine
the
acquisition
of
property
described
in
Schedule
B
to
the
Income
Tax
Regulations.
The
substantive
dispositions
expressed
by
Cattanach
in
the
Wardean
case
were
taken
up
and
applied
in
The
Queen
v.
Henuset
Bros.
Ltd
[No.1],
[1977]
C.T.C.
227;
77
D.T.C.
5169,
and
in
Kirsch
Construction
Ltd.
v.
The
Queen,
[1988]
2
C.T.C.
338;
88
D.T.C.
6503,
a
decision
by
Mr.
Justice
Strayer.
Strayer,
J.
is
reported
at
page
340
(D.T.C.
6504)
in
expressing
his
principal
conclusions
of
law
thus:“It
has
been
held
that
property
is
'acquired'
for
the
purposes
of
capital
cost
allowance
when
title
has
either
passed
to
the
taxpayer
or
the
taxpayer
has
obtained
all
the
incidents
of
title
such
as
possession,
use
and
risk.”
On
the
basis
then
of
the
law
applied
to
the
evidence
in
this
case,
the
Court
adjudges
that
the
Minister
was
correct
in
disallowing
the
plaintiff's
deduction
of
capital
cost
allowance
in
1979
in
respect
of
the
four
FBB-420
bodymakers.
The
plaintiff's
action
will
be
dismissed
with
costs.
In
accordance
with
Federal
Court
Rule
337(2)(b),
the
defendant's
solicitors
may
present
to
the
Court
a
draft
judgment
giving
proper
effect
to
and,
in
accordance
with
these
reasons,
after
securing
the
plaintiff's
solicitor's
approval
as
to
form,
if
not
content.
Any
problems
may
be
referred
to
the
Court
as
may
any
questions.
*
*
*
*X
*
His
Lordship:
—With
respect
to
Suit
No.
T-563-86,
Crown
Cork
&
Seal
Inc.
v.
The
Queen,
this
appeal
pursuant
to
the
Income
Tax
Act
by
way
of
a
first-
instance
action,
was
heard
jointly
with
a
companion
action,
Suit
No.
T-564-86,
of
the
same
name,
pursuant
to
the
order
made
on
August
11,
1989,
by
Mr.
Justice
Martin.
As
it
earlier
did
in
1979,
the
plaintiff
corporation
in
its
1980
taxation
year,
which
both
corresponded
with
the
calender
year,
claimed
and
purported
to
take
capital
cost
allowance
on
certain
machinery
used
in
its
manufacturing
business
to
produce
cans
and
container
caps,
which
articles
it
sold
to
producers
of
canned
foods
and
beverages.
All
seemed
to
be
going
well
enough
in
these
regards
until,
by
notices
of
reassessment,
both
dated
December
21,
1983,
the
Minister
of
National
Revenue
reassessed
the
plaintiff
in
respect
of
its
1979
and
1980
taxation
years.
In
the
reassessment
here
in
issue,
the
Minister
inter
alia
disallowed
and
imposed
penalties
in
respect
of
the
plaintiff's
deduction
of
capital
cost
allowance
in
respect
of
the
BR4
Scroll
Sheeting
Line
which
the
plaintiff
had
ordered
from
F.J.
Littell
Machine
Co.
of
Chicago,
Illinois.
The
pertinent
statutory
provisions
in
effect
in
this
instance
[are]
found
at
section
162
of
the
Income
Tax
Act
and
[are]
recited
thus:
162.(1)
Penalties.—Every
person
who
has
failed
to
make
a
return
as
and
when
required
by
subsection
150(1)
is
liable
to
a
penalty
of
(a)
an
amount
equal
to
five
per
cent
of
the
tax.
.
.
162.(2)
Every
person
who
has
failed
to
file
a
return
as
required
by
subsection
150(3),
is
liable
to
a
penalty.
.
.
162.(3)
Failure
to
Complete
Information.
—
Every
person
who
has
failed
to
complete
information
on
a
prescribed
form
as
required
by
or
pursuant
to
section
150,
is,
unless
in
the
case
of
an
individual
where
the
Minister
has
waived
it,
liable
to
a
penalty.
.
.[and
the
penalty
is
prescribed.]
Subsection
163(1)
provides:
Every
person
who
wilfully
attempts
to
evade
payment
of
the
tax
payable
by
him
under
this
part
by
failing
to
file
a
return
of
income
as
and
when
required
by
subsection
150(1),
is
liable
to
a
penalty
of
50%
of
the
amount
of
the
tax
sought
to
be
evaded.
And
then,
important
here,
no
less
important
than
the
foregoing,
are
the
provisions
of
163(2),
False
Statements
or
Omissions:
Every
person
who
knowingly,
or
under
circumstances
amounting
to
gross
negligence
in
the
carrying
out
of
any
duty
or
obligation
imposed
by
or
under
this
Act,
has
made,
or
has
participated
in,
assented
to
or
acquiesced
in
the
making
of
a
false
statement
or
omission
in
a
return,
form,
certificate,
statement
or
answer
(in
this
section
referred
to
as
a
"return")
filed
or
made
in
respect
of
a
taxation
year
as
required
by
or
under
this
Act
or
regulation,
is
liable
to
a
penalty
of
(a)
25%
of
the
amount,
if
any,
by
which.
.
.
and
I'm
not
going
to
read
the
mind-boggling
provision
written
in
typical
Income
Tax
Act
style.
Subsection
163(2.1)
says:
For
the
purposes
of
subsection
(2),
the
taxable
income
reported
by
a
person
in
his
return
for
a
taxation
year
shall
be
deemed
not
to
be
less
than
nil
and
the
"understatement
of
income
for
a
year"
of
a
person
means
the
aggregate
of.
.
.
and
that's
not
comprehensible
by
two
readings.
Finally,
subsection
163(3),
says
that:
Where
in
any
appeal
under
this
Act,
any
penalty
assessed
by
the
Minister
under
this
section
is
in
issue,
the
burden
of
establishing
the
facts
justifying
the
assessment
of
the
penalty
is
on
the
Minister.
Important
to
this
case
are
the
words
which
are
found
in
subsection
163(2):
Every
person
[and
that
includes
a
corporation]
who
knowingly,
or
under
circumstances
amounting
to
gross
negligence
in
the
carrying
out
of
any
duty
or
obligation
imposed
by
or
under
this
Act,
has
made,
or
has
participated
in,
as-
sented
to
or
acquiesced
in
the
making
of
a
false
statement
or
omission
in
a
return.
.
.
The
Court
is
not
of
the
opinion
that
the
Minister
has
discharged
the
burden
upon
the
Crown
in
subsection
162(3)
to
establish
the
facts
justifying
the
assessment
of
the
penalty.
The
corporation
in
this
case
operated
much
as
it
did
in
the
previous
case,
T-564-86.
It
was
stated
that
procedures
in
the
head
office
of
the
plaintiff,
Crown
Cork
&
Seal
Canada
Ltd.,
were
somewhat
informal.
The
officers
were
all
in
close
association
with
each
other
because
they
had
adjoining
offices
above
the
plant.
Now,
there
is
much
to
be
said
for
the
informality
of
getting
decisions
made
and
getting
action
taken
in
corporate
management,
and
it
is
not
for
the
Court
to
be
lecturing
anyone
on
corporate
management,
but
it
appears
in
this
case
that
it
might
have
been
well
now
and
then
to
have
a
formal
meeting
where
everyone
said,
"What
I
did
and
what
I
know,
and
what
do
you
know,
and
what
I
think
you
know".
The
comptroller
of
the
company,
Brian
Anderson,
once
again
produced
a
draft
letter
to
send
to
F.J.
Littell
and
Co.
It
was
sent
by
president
Scott
to
Mr.
Sangerman,
who
was
in
charge
of
sales
and
demonstration
of
products.
The
reply
came
back
from
a
Mr.
Pappadopoli,
who
was
Littell's
comptroller.
In
all
of
the
facts
which
the
Court
has
examined,
the
fact
that
Mr.
Anderson
had
taken
advice
from
the
auditors,
Price
Waterhouse,
that
he
discussed
that
advice
with
Churchill
and
Scott,
that
he
had
the
bright
and
legitimate
idea,
if
correct,
of
taking
capital
cost
allowance
for
1980
on
the
line
which
was
being
built
by
Littell,
indicates
a
reasonable
care
and
attention
to
what
ought
to
be
done
in
performing
one's
duties
in
making
a
return
under
the
Income
Tax
Act.
It
is
obvious
that
as
in
1979,
so
in
1980,
Mr.
Anderson
and
his
colleagues
had
a
misunderstanding
of
the
kind
of
asset
upon
which
capital
cost
allowance
could
be
taken,
but
a
misunderstanding
is
not
a
sinister
knowledge.
The
care
with
which
they
went
about
the
business,
although
not
great,
certainly
did
not
amount
to
great
negligence.
The
Court
can
find
no
evidence
of
a
knowing
suppression
of
reporting
income
or
circumstances
amounting
to
gross
negligence.
It
may
be
said,
and
it
is
always
easier
to
say
so
after
the
event,
that
greater
care
should
have
been
taken.
Counsel
for
the
plaintiff
acknowledged
that
had
he
been
asked,
he
might
have
taken
greater
care.
He
might
have
said,
as
perhaps
ought
to
have
been
said
in
the
other
case
discussed
today,
to
the
manufacturer,
"Now,
we
know
we
are
a
good
customer
of
yours,
but
don't
let
that
get
in
the
way
of
the
truth
of
the
matter.
Tell
us
without
fear
or
favour
whether
you
believe
that
that
line
is
substantially
complete
or
not”.
If
that
had
been
passed
on
in
the
other
case,
I
suppose
Mr.
Guenthart,
in
the
other
case,
might
have
taken
a
different
view.
Here,
Mr.
Sangerman
and
Mr.
Pappadopoli
were,
it
seems
from
the
evidence,
doing
a
favour
again
for
a
good
client.
That
was
a
failure
to
be
as
careful
as
one
ought
to
be,
and
one
can
with
hindsight
characterize
it
as
negligence,
but
there
is
no
manner
which
the
Court
can
perceive
from
the
evidence
that
it
can
be
characterized
as
gross
negligence,
or
a
knowing
suppression
of
facts,
a
knowing
diminution
of
reporting
of
income.
One
must
make
this
observation,
I
suppose,
that
that
same
not-too-careful
approach
to
obtaining
a
letter
from
the
manufacturer
will
be
gross
negligence
on
the
part
of
any
corporation
which
attempts
to
do
it
with
knowledge
of
these
reasons.
It
was
not
gross
negligence
at
the
time,
in
the
Court's
opinion,
but
it
is
a
practice
which
could
be
improved,
and
a
corporation
which
operates
in
that
manner
in
future
might
well
be
held
to
be
grossly
negligent
in
terms
of
the
provisions
of
section
162
of
the
Income
Tax
Act.
But
that
is
not
this
case.
And
so
in
this
case
the
plaintiff's
action
and
appeal
are
allowed
with
costs.
In
accordance
with
Federal
Court
Rule
337(2)(b)
the
plaintiff's
solicitors
may
present
to
the
Court
a
draft
judgment
giving
proper
effect
to,
and
in
accordance
with
these
reasons,
after
securing
the
plaintiff's
solicitor's
approval
as
to
form,
if
not
content.
Any
problems
may
be
referred
to
the
Court,
as
may
any
questions.
This
being
a
finding
of
fact
on
the
evidence,
it
seems
not
particularly
appropriate
to
recite
reams
of
jurisprudence.
It
is
a
matter
of
fact,
and
the
Court
finds
as
a
fact
that
there
was
no
knowing
misstatement
or
suppression
of
reporting
of
income
and
no
circumstances
amounting
to
gross
negligence
on
the
part
of
the
plaintiff,
Crown
Cork
&
Seal
Canada
Inc.
*
*
*
*
*
If
there
be
any
questions,
counsel
may
put
them
now
or
if
you
don't
think
of
them
right
now,
you
may
put
them
later.
Mr.
Dans:
There
was
only
one
matter,
My
Lord,
with
respect
to
the
1979
taxation
year,
the
defendant
has
conceded
that
the
penalty
in
respect
of
the
dividend
refund
must
be
vacated,
so
I
think
the
judgment
that
I
would
propose
to
draft
would
be
that
the
action
will
have
to
be
allowed
in
that
respect,
but-His
Lordship:
Oh,
I
see
what
you
mean.
Mr.
Dans:
The
plaintiff
is
entitled
to
no
other
relief
with
costs
to
the
defendant.
His
Lordship:
Yes,
I
think
that's
quite
correct,
Mr.
Dans,
and
you
may
do
so.
Mr.
Dans:
Thank
you,
My
Lord.
That
was
the
only
item
that
I
wished
to
draw
to
your
Lordship's
attention.
Appeal
allowed
in
part.
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