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It is to be noted that, having purchased the heater for $197, the appellant used it as a source of profit by parting with possession of it to a customer for a net rental of $2.50 or $2.99 per month and that, in addition to parting with possession of the heater during that period, to earn that rental, the appellant had to incur certain expenses, namely, (a) it had to install the heater at the beginning of each lease, which involved, in 1966, labour $27.05 wiring (labour & material) 22.45 material 14.90 transportation 12.00 Hydro inspection 3.00 overhead and profit 5.60 $85.00 and, in 1967, similar amounts totalling $100; (b) it had to service the heaters during the term of the lease; (c) it had to remove the heater at the end of the lease; and (d) it had, in certain cases, to pay the manufacturer either $28 or $36 for reconditioning the heater between leases. ...

.: — This appeal was heard together with the appeal in Court File No. ...

.] — per Lord Diplock, at page 326 The Abbot v. Philbin judgment was in no way put in question. ...

The second method of distinguishing Graham is the classical one — on the facts. ...

.: — This appeal raises the same issues of law as are raised in Court File No. ...

& P.E.I.R. 168, 211 A.P.R. 168 (P.E.I.C.A.) The principles were in our view best summarized by Lord Griffiths, speaking for the majority, in Ketteman v. ...

Estey, J. expanded upon this test of “ object and spirit" in his majority judgment in The Queen v. ...

There, a statutory tribunal had to construe the word “night” in a context which read: “... he is so severely disabled physically or mentally that he requires from another person, in connection with his bodily functions, frequent attention throughout the day and prolonged or repeated attention during the night...”. ...

However, the next question to be asked is — is that situation affected by the fact that the amounts held to be payable by the judgments of Judge Ferg might have been varied if the appeals had been successful in whole or in part? ...

[12] What is the line which separates the two classes of cases may be difficult to define, and each case must be considered according to its facts; the question to be determined being — Is the sum of the gain that has been made a mere en- hancement of value by realising a security, or is it a gain made in an operation of business in carrying out a scheme for profit-making? ...