Beaubier
T.C.J.:
Upon
the
application
of
Henry
A.
Gluck,
Kathryn
Philpott
and
Annette
Evans
on
behalf
of
the
Respondent,
Upon
hearing
Sarah
Robertson
and
Stevan
Novoselac
on
behalf
of
the
Appellant,
And
upon
reviewing
the
Notice
of
Motion
in
this
matter
dated
the
15
day
of
September,
1999
that
this
appeal
be
dismissed,
the
affidavit
of
Richard
Holt,
and
the
file,
It
is
ordered
that
this
appeal
is
dismissed
with
costs
in
favour
of
the
Respondent
for
the
following
two
reasons:
I.
The
refusal
of
the
Appellant
“to
provide
all
monthly
brokerage
statements
relating
to
each
hedge
in
issue
from
the
time
the
hedge
was
commenced
to
the
time
that
the
hedge
was
closed.”
In
my
view,
the
position
of
the
Crown
requesting
this
information
is
based
properly
on
the
decision
of
the
Federal
Court
of
Appeal
in
Schultz
v.
R.
[(1995),
95
D.T.C.
5657
(Fed.
C.A.)].
It
is
something
on
which
the
Appellant
bears
the
onus
of
proof.
It
is
something
the
Appellant
must
provide
and
it
is
within
the
Appellant’s
ability,
knowledge
and
documents
to
provide.
2.
The
refusal
of
the
Appellant
to
answer
questions
on
examination
for
discovery
as
to
the
basis
for
claiming
losses
on
income
account
and
gains
on
capital
account.
To
my
mind
that
concept
of
“basis”
is
a
concept
of
fact;
what
are
the
facts
upon
which
you
base
your
statement
that
one
is
income
or
the
other
is
capital,
as
the
case
may
be?
Motion
granted.
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