CARTWRIGHT,
J.
(all
concur)
:—This
is
an
appeal
from
a
judgment
of
Gibson,
J.
allowing
an
appeal
by
the
respondent
and
dismissing
a
cross-appeal
by
the
appellant
from
a
decision
of
the
Tax
Appeal
Board
and
declaring
that
under
the
provisions
of
the
Estate
Tax
Act,
S.C.
1958,
7
Eliz.
II,
c.
29,
certain
shares
owned
by
the
deceased
Adam
Newton
Leckie
were
property
situate
in
the
Province
of
Ontario,
which
is
a
prescribed
province.
There
is
no
dispute
as
to
the
facts.
The
questions
which
arise
are
as
to
the
situs
for
the
purpose
of
Section
9
of
the
Estate
Tax
Act
of
(1)
30,003
common
shares
and
165
preferred
shares
of
the
capital
stock
of
Leckie
Enterprises
Limited
and
(ii)
300
shares
of
the
capital
stock
of
Anglo-
Newfoundland
Development
Company
Limited.
As
to
the
shares
in
Anglo-Newfoundland
Development
Company
Limited,
the
Court
at
the
conclusion
of
the
argument
of
counsel
for
the
appellant
stated
that
it
was
not
necessary
to
call
upon
counsel
for
the
respondent
as
on
this
point
we
were
all
in
agreement
with
the
reasons
and
conclusion
of
the
Tax
Appeal
Board
which
were
concurred
in
by
Gibson,
J.
It
remains
to
consider
the
question
as
to
the
shares
in
Leckie
Enterprises
Limited,
hereinafter
called
‘The
Company’’.
The
relevant
provision
of
the
Estate
Tax
Act
is
Section
9(8)
(d)
which
reads
as
follows:
9.
(8)
A
reference
in
this
section
to
the
situs
of
any
property
passing
on
the
death
of
a
person
shall
be
construed
as
a
reference
to
the
situs
of
that
property
at
the
time
of
the
death
of
that
person,
and,
for
the
purposes
of
this
section
except
subsection
(3),
the
situs
of
any
property
so
passing,
including
any
right
or
interest
therein
of
any
kind
whatever,
shall,
where
that
property
comes
within
any
of
the
classes
of
property
mentioned
in
paragraphs
(a)
to
(d)
of
this
subsection,
be
determined
in
accordance
with
the
following
rules:
(d)
shares,
stocks
and
debenture
stocks
of
a
corporation
and
rights
to
subscribe
for
or
purchase
shares
or
stocks
of
a
corporation
(including
any
such
property
held
by
a
nominee,
whether
the
beneficial
ownership
is
evidenced
by
scrip
certificates
or
otherwise)
shall
be
deemed
to
be
situated
(i)
in
the
province
where
the
deceased
was
domiciled
at
the
time
of
his
death,
if
any
register
of
transfers
or
place
of
transfer
is
maintained
by
the
corporation
in
that
province
for
the
transfer
thereof,
and
(ii)
otherwise,
in
the
place
where
the
register
of
transfers
or
place
of
transfer
nearest
to
the
place
where
the
deceased
was
ordinarily
resident
at
the
time
of
his
death
is
maintained
by
the
corporation
for
the
transfer
thereof;
At
the
time
of
his
death
Adam
Newton
Leckie,
hereinafter
referred
to
as
‘‘the
deceased’’,
was
domiciled
and
ordinarily
resident
at
Oakville
in
the
County
of
Halton
in
the
Province
of
Ontario.
He
was
the
beneficial
owner
of
the
30,003
common
shares
which
were
all
the
issued
common
shares
of
the
Company
and
the
registered
owner
of
all
of
these
except
two
used
to
qualify
directors
who
were
his
nominees
and
acted
entirely
on
his
instructions.
The
preferred
shares
had
no
voting
rights
and
it
is
not
questioned
that
the
deceased
was
at
all
times
in
complete
control
of
the
Company.
The
Company
was
incorporated
pursuant
to
the
provisions
of
the
Manitoba
Companies
Act
on
October
2,
1957.
Its
head
office
was
at
all
times
in
the
City
of
Winnipeg.
It
maintained
only
one
register
for
the
transfer
of
shares
and
that
register
was
at
its
head
office
in
Winnipeg.
Section
346(1)
of
the
Manitoba
Act
provides
as
follows:
346.
(1)
The
register
of
transfers
of
every
corporation
with
capital
stock
shall
be
kept
at
the
head
office
of
the
corporation,
and
one
or
more
branch
registers
of
transfers,
at
which
transfers
may
be
validly
registered,
may
be
kept
at
such
office
or
offices
of
the
corporation
or
other
place
or
places
within
or
without
the
province
as
the
directors,
from
time
to
time,
appoint.
Both
registrars
and
and
transfer
agents
may
issue
and
deliver
share
certificates
in
such
manner
as
the
directors
of
the
company
from
time
to
time
authorize.
The
directors
did
not
authorize
a
branch
register
to
be
kept
at
any
office
of
the
Company
in
Ontario
or
at
any
other
place
in
Ontario.
On
this
state
of
facts
it
seems
plain
that
the
condition
prescribed
in
clause
(i)
of
paragraph
(d)
of
subsection
(8)
of
Section
9
of
the
Estate
Tax
Act,
quoted
above,
was
not
fulfilled
and
for
the
purposes
of
that
Act
the
situs
of
these
shares
is
governed
by
clause
(ii)
of
that
paragraph
and
accordingly
they
shall
be
deemed
to
be
situated
in
the
place
where
the
register
of
transfers
or
place
of
transfer
nearest
to
the
place
where
the
deceased
was
ordinarily
resident
at
the
time
of
death
was
maintained
by
the
company
for
the
transfer
thereof.
The
wording
of
this
provision
is
mandatory
and
appears
to
me
to
be
clear
and
free
from
any
ambiguity.
On
the
admitted
facts
it
has
the
inevitable
result
of
declaring
that
the
shares
in
question
shall
be
deemed
to
be
situated
in
Manitoba.
For
the
reasons
stated
by
Mr.
W.
O.
Davis,
who
gave
the
decision
of
the
Tax
Appeal
Board,
and
those
briefly
set
out
above,
I
would
allow
the
appeal
as
to
the
shares
in
Leckie
Enterprises
Limited,
dismiss
the
appeal
as
to
the
shares
in
Anglo-Newfoundland
Development
Company
Limited
and
direct
that
the
assessment
be
referred
back
to
the
appellant
for
reconsideration
and
re-assessment
in
accordance
with
these
reasons.
While
the
value
of
the
shares
in
respect
of
which
the
appellant
has
succeeded
is
much
greater
than
that
of
those
in
respect
of
which
he
has
failed,
success
has
been
divided
throughout
and
in
all
the
circumstances
of
the
case
I
would
direct
that
there
be
no
order
as
to
costs
in
the
Exchequer
Court
or
in
this
Court.
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