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Her Majesty the Queen, [1996] 3 CTC 254 Hugessen J.A: — This is an appeal from a judgment which dismissed the appellant’s appeal of the Minister’s disallowance for the taxation years 1980 through 1983 of certain “soft” costs in relation to a Multiple Unit Residential Building (MURB) development in which the taxpayer had invested. ...

Accordingly, for all of the foregoing reasons the appeal will be dismissed with costs. 1 See, eg, Regal Heights Limited v MNR, [1960] S.C.R. 902;]1960[CTC 384; 60 DTC 1270; MNR v Foreign Power Securities Ltd,]1967[SCR 295; [1967] CTC 116; 67 DTC 5084; Warnford Court (Canada) Ltd v MNR, [1964] Ex CR 944; [1964] CTC 175; 64 DTC 5103; D C McDonald v The Queen, [1974] CTC 836; 74 DTC 6644. 2 + [1976] CTC at p 453. ...

If the employee chooses at some later date to acquire the shares, as the appellant did in the case at bar, any resulting benefit by virtue of paragraph (a) shall be deemed to have been received in the year of acquisition “... by the employee by virtue of his employment”. ... The option was granted “... in consideration of the optionee fulfilling the conditions...” set forth in the agreement. The option was “... an option to purchase 2,500 common shares of the capital stock of the Company upon the following terms and conditions...” ...

Our argument is that, in some cases we are caught in the same ‘contractor’ — ‘manufacturer’ dilemma with regards to Taxation. ... As explained during the meeting, the Department holds that with reference to Section 29(2b)(a) & (b) of the Excise Tax Act, the persons who produce the goods concerned must be in competition with persons who construct or erect similar goods at site ie concrete in competition with concrete, or wood in competition with wood. ... The Supreme Court of Canada, in Goodyear Tire & Rubber Co of Canada Ltd v T Eaton Co Ltd, [1956] S.C.R. 610; has held that section 57 had no application where the question was whether a person was to be considered a manufacturer or producer for the purposes of sales tax by virtue of paragraph 2(1)(aa) of the Excise Tax Act (which at that time was paragraph 2(a)(ii) of the Act). ...

The opening paragraph of the original agreement reads as follows: “The undersigned, JACK MENDLEWITZ (as Purchaser) hereby agrees to and with BRAMPTON REALTY LIMITED (as Vendor) through Drillich & Company Realty Limited, agent for the Vendor, to purchase all and singular the lands and premises owned by the Vendor lying in the Borough of Scarborough, being on the north side of Sheppard Avenue East and the East Side of Birchmount Road, and being sufficient lands for two apartment buildings containing 307 suites (each site of approximate equal size), one of which sites is at the corner of Sheppard and Birchmount Avenues, at the price or sum of EIGHT HUNDRED AND FORTY-FOUR THOUSAND TWO HUNDRED AND FIFTY DOLLARS ($844,250.00) of lawful money of Canada, payable as follows.” ... Thus in Turney v Zhilka, [1959] S.C.R. 578, at 583-4 where in the absence of a power of waiver the Supreme Court held, inter alia, that specific performance could not be granted, Judson, J, said: The obligations under the contract, on both sides, depend upon a future uncertain event, the happening of which depends entirely on the will of a third party — the Village council. This is a true condition precedent — an external condition upon which the existence of the obligation depends. ...

. / must therefore consider that the decision rests on the view that was taken of the nature of the outlay involved in the acquisition of the companies' shares by the promoters. ... For example, in Berman & Co. v. Minister of National Revenue, [1961] C.T.C. 237 (Can. ... [Berman was cited with apparent approval in the Supreme Court decision in Stewart & Morrison Ltd. v. ...

III — Finding I therefore conclude that whether the right to a credit arises at the time when the United Kingdom tax accrues and becomes payable or whether it arises only when the tax is actually paid the credit must in both cases be calculated by translating the amount of tax payable in sterling into Canadian dollars in accordance with the weighted average rate of exchange prevailing during the taxation year under consideration. ... I do not believe that Parliament intended such a result — namely, that the amount of tax credit should be affected by variations in the rate of foreign exchange. ... The applicable section of the UK Income Tax Act provided as follows: Para. 2(1) — Subject to the provisions of this schedule, where, under the arrangement, credit is to be allowed against any of the United Kingdom taxes chargeable in respect of any income, the amount of the United Kingdom taxes so chargeable shall be reduced by the amount of the credit. ...

.: — The question raised in this appeal is whether the judge of the Tax Court of Canada was correct in vacating the respondent’s assessment for the taxation years 1987 and 1988 on the basis that the Minister of National Revenue had not acted “with all due dispatch” in the exercise of his statutory duty imposed by subsection 152(1) of the Income Tax Act! ... Conseil de la Sauté & des Services Sociaux (Montréal) v. City of Montréal), [1995] 1 C.T.C. 223, 171 N.R. 191 and Québec (Communauté urbaine) v. ... Subsection 152(8) in turn says “An assessment shall... be deemed to be valid and binding notwithstanding any... defect or omission... in any proceeding under this Act relating thereto.” (”“.. une cotisation est réputée être valide et exécutoire malgré... tout vice de forme ou toute omission... dans toute procédure s’y rattachant en vertu de la présente loi”). ...

Yours very sincerely, Orville Kerr — President ORVILLE KERR LIMITED At approximately the same time an announcement was inserted in the Ottawa newspapers which stated, inter alia: Arrangements have been made for the continuation of service on Orville Kerr’s many Fire and Casualty General Insurance accounts by the staff of Farquhar Bethune Insurance Limited. ... In respect of the non-competition covenant as set forth in paragraph 4 of the agreement supra, it should be pointed out that the viva voce testimony of Mr Farquhar, the President of the respondent, was to the effect that he did not direct his mind to the necessity of a non-competition clause because of the precarious state of Mr Kerr’s health at that time; that the inclusion of the clause in the agreement resulted from.. the caution of my attorney” (Transcript p 47); and that because of a substantial improvement in the health of Mr Kerr, he had gone back into the fire and casualty business in the last two or three years and has taken back “... a lot of the business we were entrusted to service (Transcript p 34). ... The fact that the transaction was characterized in the oral evidence of Mr Farquhar and in the written agreement as a payment “... for access to the Operator’s fire and casualty customers’ lists and related policy files to permit the Company to commence servicing such customers, and not as consideration for any proprietary interest which the Operator may have therein.” does not alter the true nature of the transaction. ...

Swinton & Pendlebury Borough Council [[1965] 1 W.L.R. 576]. Lord Parker C.J. stated that the control test was perhaps an over-simplification. ... Minister of Pensions & National Insurance [1967] 1 Q.B. 156]. Professor Atiyah, supra, at 38-9, ends up with Lord Wright’s test from the Montreal Locomotive Works case, as he finds it more general than Lord Denning’s which he sees as decisive in only some cases. ... John Dawson & Partners (Contractors) Ltd., [1976] 3 All E.R. 817, and the two majority judges, supra, at 824, 831, each described it as “very helpful.” ...