Thurlow,
J:—The
issue
in
this
appeal
is
whether,
on
facts
which
are
not
in
dispute,
the
dispositions
made
by
the
appellant
of
certain
shares
in
three
companies
were
made
by
him
while
or
after
carrying
on
a
campaign
to
sell
shares
of
these
companies
to
the
public
within
the
meaning
of
subsection
83(4)
of
the
Income
Tax
Act.
If
so,
the
effect
of
the
subsection
is
to
deny
the
appellant
the
exemption
from
tax
provided
by
subsection
83(3)
on
the
profits
realized
on
the
sale
of
the
shares.
It
is
common
ground
that
the
shares
were
sold
at
a
time
when
a
campaign
to
sell
shares
of
the
three
companies
to
the
public
was
in
progress
and
that
in
all
three
cases
the
campaign
was
being
carried
on
by
J
Appleby
Securities
Limited,
a
company
engaged
in
business
as
a
broker
dealer,
distributor
and
underwriter
of
which
the
appellant
himself
was,
at
all
material
times,
the
sole
beneficial
shareholder,
a
director,
the
president
and
the
person
who
dominated
and
directed
its
business.
There
seems
to
be
no
room
to
doubt
that
if
the
appellant
had
carried
out
on
his
own
account
and
in
his
own
name
the
campaign
for
the
sale
of
shares
in
the
three
companies
to
the
public,
or
if
J
Appleby
Securities
Limited
had
been
the
person
who
advanced
the
money
for
prospecting
and
the
recipient
of
the
shares
referred
to
in
subsection
83(3),
subsection
83(4)
would
apply
to
defeat
the
claim
of
either
for
exemption
of
the
profits
from
the
sale
of
the
shares
from
tax.
The
question
to
be
resolved
is
accordingly
whether
in
the
circumstances
of
this
case
either
(1)
the
fact
that
the
campaign
was
carried
on
by
J
Appleby
Securities
Limited
or
(2)
the
fact
that
the
campaign
was
not
carried
out
as
a
business
operation
of
the
appellant
himself
serves
to
render
subsection
83(4)
inapplicable.
It
is,
we
think,
to
be
observed
that,
while
the
application
of
subsection
83(4)
requires
that
the
campaign
be
carried
on
by
the
person
who
would
otherwise
be
entitled
to
exemption
under
subsection
83(3),
the
question
which
arises
on
subsection
83(4)
is
not
one
of
resolving
which
of
two
persons
involved
in
such
a
campaign
carried
it
on,
or
for
whose
account
or
in
whose
name
it
was
carried
on
or
who
was
the
principal
and
who
was
agent
for
him.
Rather
it
is
a
straightforward
question
of
whether
a
person
seeking
exemption
under
subsection
83(3)
carried
on
a
campaign
for
the
sale
of
shares
of
the
companies
to
the
public.
In
seeking
an
answer
to
this
question
it
could
not,
we
think,
be
successfuly
maintained
that
each
of
several
persons
involved
in
jointly
carrying
on
such
a
campaign
was
not
a
person
by
whom
the
Campaign
was
carried
on.
It
would,
in
our
view,
be
equally
untenable
to
suggest
that
a
father
who
directed
the
carrying
on
of
such
a
campaign
by
his
minor
son
and
in
so
doing
personally
supervised
and
directed
the
transactions,
even
to
the
signing
of
his
son’s
name
to
documents,
was
not
himself
carrying
on
a
campaign
for
the
sale
of
shares
of
the
company
to
the
public.
The
circumstance
that
the
father
had
shares
of
his
own
to
sell
and
sold
them
in
the
course
of
the
campaign
would
in
our
opinion
make
the
suggestion
even
less
tenable.
There
is,
in
our
view,
little
to
differentiate
the
present
from
such
a
situation
and
in
our
opinion
it
would
be
difficult
to
conceive
of
a
less
substantial
or
more
artificial
reason
for
concluding
that
the
appellant
himself
did
not
carry
on
such
a
campaign
than
to
say
that
he
did
not
do
so
because
it
was
a
company
that
carried
it
on
when
the
company
was
owned
and
completely
dominated
by
the
appellant
himself.
In
our
view
a
distinction
must
be
made
between
cases
where
one
person
contracts
or
carries
on
business
on
behalf
of
another
and
certain
other
cases.
Where
the
question
is
one
of
which
party
is
liable
on
the
contract
made
by
the
agent
it
is
not
difficult
to
conclude
that
the
principal
is
party
to
the
contract
and
the
agent
is
not.
Similarly
where
the
agent
carries
on
business
on
behalf
of
a
principal
it
is
the
principal
who
carries
on
the
business
and
is
party
to
its
acts
and
the
agent
is
not
personally
a
contracting
party.
Where,
however,
an
employee
does
an
act
for
his
employer,
such
as,
for
example,
driving
his
car,
the
employee
is
the
doer
even
though
in
the
eyes
of
the
law
for
some
purposes
his
driving
is
also
the
act
of
his
employer.
So,
in
our
view,
if,
as
in
the
present
case,
an
officer
or
employee
in
the
course
of
his
duties
carries
on
a
campaign
to
sell
shares
he
is,
in
fact,
personally
carrying
on
that
campaign
even
though
he
is
doing
it
as
part
of
the
business
activities
of
his
employer.
This
distinction
is
the
basis
for
our
conclusion
that
the
appellant
falls
within
the
terms
of
subsection
83(4)
even
though
he
is
not
taxable
under
section
3
of
the
Income
Tax
Act
in
respect
of
the
profits
from
the
business
that
he
carries
on
on
behalf
of
his
employer.
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