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.: — These three applications for judicial review of requirements issued by the respondent pursuant to section 231.2 of the Income Tax Act (the “Act”) came on for hearing together before me at Vancouver, British Columbia, on April 3, 1996. ... Analysis In James Richardson & Sons Ltd. v. Minister of National Revenue, [1984] 1 S.C.R. 614, [1984] C.T.C. 345, 84 D.T.C. 6325, the Supreme Court of Canada stated that although the language of section 231.2 is very broad, it should not be construed too liberally. ...

Canada (Minister of Indian Affairs & Northern Development) (1987), 80 N.R. 263 (Fed. ... Touche, Ross & Co. (1986), 7 B.C.L.R. (2d) 105 (B.C. S.C.), formulated the basic elements from the Duke of Bedford case into three unambiguous questions at pages 108-109. ...

The Crown goes on to submit that the Minister of National Revenue, when exercising jurisdiction or powers under the Income Tax Act, acts as a federal board, commission or other tribunal as defined in section 2(1) of the Federal Court Act and here the Crown cites a passage from James Richardson & Sons Ltd. v. ... Justice Muldoon, in Harris, went on to refer to Pica v. /?., [1985] 1 C.T.C. 160 (Fed. ...

In a balance sheet as at October 31, 1968 of R & J Cummings- Kennedy Blvd., we see that an amount of $939,270 is described as “accounts payable and sundry liabilities’’ and we find the same amount in the opening balance sheet of Halstead Holdings Limited on the same date under the same caption; these two financial statements are signed by the same auditors. ... The auditors, in a letter dated August 15, 1974, write: This is to confirm that the amount of $939,270 reflected as accounts payable and sundry liabilities on the balance sheet of R & J Cummings-Kennedy Blvd as at October 31, 1968 were transferred to Halstead Holdings Limited and appear in the opening balance sheet of that company as at November 1, 1968. ...

(See Statement of Pension, Retirement, Annuity & Other Income, T4A-1972, attached as Schedule D hereto). 7. ... (See Statement of Pension, Retirement, Annity & Other income, T4A-1972 attached as Schedule E hereto). ...

Finally he went to John Wood Griffiths of J H Whittome & Co Ltd. On October 25, 1966, Griffiths, really for Whittome, agreed to lend to the plaintiff company the sum of $40,000 on a second mortgage to be subject to the first mortgage to CHMC for $180,000, and to be repaid with interest at 15%, with right to be paid off within two years, the mortgagor to deliver a quit claim deed to be used by the mortgagee if default on the second mortgage continued beyond 90 days (Exhibit A-10). ... In Sutton Lumber & Trading Co Ltd v MNR, [1953] 2 S.C.R. 77; [1953] CTC 237; 53 DTC 1158, Locke, J stated for the Court at page 88 [244,1161]: The question to be decided is not as to which business or trade the company might have carried on under its memorandum, but rather what was in truth the business it did engage in. ...

Under the Civil Code, an emphyteutic lessee has, on the immoveable leased to him, a partial real right which is not a right of ownership (Mignault, Droit Civil Canadien, vol 3, page 196; Montpetit & Taillefer, Traité de Droit Civil de la Province de Québec, vol 3, page 512). ... If an ordinary building lease contains a clause to the same effect (namely a clause stating that the lessor, at the end of the lease, will have the right to keep the building put up by the lessee without having to pay him any compensation) then, according to the authorities (Dalloz, Encyclopédie de Droit Civil, v Louage No. 505; Planiol & Ripert, 2nd edition, vol X, No 607 bis, page 862), the building, as soon as it is erected, belongs to the lessor; with respect to this building the lessee merely has the same right of enjoyment as he has with respect to the land subject to the lease. ...

However, when being cross- examined as to the reason for the insertion of the 90-day termination clause in the event of sale in the lease to Saffron of subject property, he gave his reason: “I want to be free — for development or something” (italics mine). ... The evidence concerning the payment of commission and the approach of the real estate salesman is in the same category — it is an added circumstance pointing unmistakably to a trading intention. ...

Mr Justice Bull of the British Columbia Court of Appeal considered a similar situation in the case of Washer v BC Toll Highway & Bridges Authority, 53 DLR (2d) 620 at 626 and 627. ... Plaintiff’s counsel relied on the BC Court of Appeal case of Washer v BC Toll Highways & Bridges Authority referred to supra. ...

The state- ment of adjustments reads as follows: PURCHASE PRICE $539,400.00 DEPOSIT $ 5,000.00 FIRST MORTGAGE to Vendor 494,400.00 ($45,000 of which is to be paid on March 3, 1969) TAXES: 1968 Taxes — $339.17 Allow Vendor 84.64 BALANCE TO CLOSE payable to Alfred H. ...