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., concurring): — This appeal is from an order of the Trial Division of October 12, 1995, which partially lifted a stay order of that Court dated November 26, 1993. ... Metropolitan Stores (MTS) Ltd.; Manitoba Food & Commercial Workers, Local 832 v. ...

., [1996] 2 CTC 144 Hugessen J.A: — This is an appeal and a cross-appeal from a decision of the Trial Division which allowed in part claims by the respondent in respect of certain alleged overpayments of the tax imposed by section 23 of the Excise Tax Act R.S.C. 1985, c. ... Wampole & Co., [1931] S.C.R. 494, [1931] 3 D.L.R. 754 where the distribution of free samples was held to be “use”. ...

.: — The parties hereto have agreed that, despite the small amount involved, this appeal is an important one since it is a test case for a substantial number of other potential appellants whose appeals from assessments of income tax arising from largely similar facts, depend on the outcome of the appeal. ... The first meeting discussed ”... the question of taking Liquor Board Branch members off the job to escalate the Public Service/ Government Employment strike”. ...

Freman, Hardy & Willis Ltd., [1939] 2 K.B. 1 at pages 6 and 11). Where “income” appears in subsection 83(5), it implies the profit in each year, that is, the profit derived in each year, as represented by the proceeds of sales in excess of the expenditures in that year. ... When the 36 months’ period ends the enterprise enters a new era — an era untouched by the relieving provision. ...

One business or commercial principle that has been established for so long that it is almost a rule of law is that “The profits... of any transaction in the nature of a sale must, in the ordinary sense, consist of the excess of the price which the vendor obtains on sale over what it cost him to procure and sell, or produce and sell, the article vended... ” (see The Scottish North American Trust, Ltd v Farmer (1910), 5 TC 693, per Lord Atkinson at 705). ... Accordingly would dismiss this appeal with costs. 1 “It should not be overlooked, however, that, while the appellant’s contention that it has no right to deduct costs of extraction applies to ore removed from all the haulageways superficially at least, the right to capital cost allowance is restricted, by the regulation relied on by the appellant, to the costs of re moving ore from only certain haulageways, namely, “main” haulageways. 2 *See, for example, the following cases: Mersey Docks and Harbour Board v Lucas (1881), 1 TC 385, per Jessel, MR at 461-62; (1883), 2 TC 25, per the Lord Chancellor at 28; Last v London Assurance Corporation (1884), 2 TC 100, per Brett, MR at 118-19, and per Lord Fitzgerald at 128-29; Russell v Aberdeen Town & Country Club (1888), 2 TC 321, per Lord Herschell at 326-28, and per Lord Fitzgerald at 331; Gresham Life Assurance Society v Styles (1892), 3 TC 185, per Lord Halsbury, LC at 189-90, and per Lord Herschell at 193-94; Absalom v Talbot (1944), 26 TC 166, per Viscount Simon, LC at 189; and MNR v Irwin, [1964] S.C.R. 662; [1964] CTC 362; 64 DTC 5227, per Abbott, J at 664-65 [364, 5228]. ...

The application for an in camera hearing was based on the fact that the applicant, a member of a professional body, was fearful that his conduct, which would be revealed through the tax proceedings, might subject him to disciplin- fears were well-founded, he was told that if the tax case were to be publicized, a complaint was likely to be filed against him by a fellow member, he would likely be brought before a disciplinary board and he might be subject to disciplinary proceedings. [2] The applicant testified that until that conversation, his intention was to proceed with his appeal from the reassessment, but that as a result of the conversation, he ” probably won't proceed" with the appeal if it is not heard in camera. ... In the case at bar, the applicant's fear of adverse consequences on his career should the Tax Court proceedings be conducted in public cannot, by any stretch of the imagination, be one of these “ clearest of circumstances” which would justify a departure from the broad principle of openness of our court system. ...

As Judson J. put it, one must look at the parties’ true “position … at law.” ... Stone J.A.: — I have had the advantage of reading in draft the reasons for judgment of my colleague Mr. ... Isaac C.J.: — I have had the benefit of reading the draft reasons of Mr. ...

[mon souligné] O’Connor T.C.C.J., relying on the decision of this Court in Kalef v. /?., ... The words of Hodgins J.A. in Owen Sound Lumber Co., Re ® [20] are quite appropriate: As to the second point, I agree with the view of Middleton J., that, when the directors assumed the fiduciary office of director, they became liable in all respects as though rightly appointed to that office. ... [hereinafter Kalef\. 5 > Wheeliker, supra note 1 at 1114. 6 [1988] 2 All E.R. 692 (Eng. ...

The trial judge followed Strayer, J. in Smith, Kline & French Laboratories Ltd. et al. v. ... In fact, the issue has already been decided by this Court, where, on appeal from Strayer, J., Hugessen, J. for the Court expressly approved both Strayer, J.'s conclusion and his reasoning: Smith Kline & French Laboratories Limited et al., supra, at 364 F.C., 290 C.R.R. ... Even with these assumptions, we cannot be aware of all the reasons that moved the Minister and, in any event, his jurisdiction under section 98 was dependent only upon his judgment that the goods were sold at a price which was less, — not, be it noted, less than what would be a fair price commercially or in view of competition or the lack of it, — but less than what he considered was the fair price on which the taxes should be imposed. ...

Vanderpeet [2]. lacobucci J. explained the difference between questions of law, fact and mixed law and fact in Canada (Director of Investigation & Research) v. ... R.. [1987] 1 S.C.R. 32 (S.C.C.) at 52-55. 24 ^ Bronfman Trust, supra, at pages 52-53. 25 Bronfman Trust, supra at page 54. 26 l^Bronfinan Trust, supra at page 53. 27 See, e.g., Canada Safeway Ltd. v. ... In my view, the reasoning in Mark Resources is consistent with the primary task of the Courts — i.e., determining the commercial and eco nomic realities of the transaction at hand. ...