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Assuming the correctness of such conclusions, there arises next for consideration the allegation of the applicants that the Minister lost the jurisdiction given to him by the Act when he made his determination under Section 5(2) without notice to the executors of the estate, contrary to the principles of natural justice. ... In other words, the rule that I am discussing does not apply to decisions that are primarily of any administrative or executive nature in the sense that they are arbitrary because they are made having regard primarily to public policy or exediency considerations but does apply to decisions as to individual rights arrived at by ascertaining facts and applying some rule or principle of law to them. ...

The foregoing leads one to a. consideration of accounting practice in general. ... Thus the prime consideration where there is a dispute about a system of accounting is, in the first place, whether it is appropriate to the business. to which it is applied and tells the truth about the taxpayer’s income position and, if that condition is satisfied, whether there is any prohibition in the governing income tax law against its use. ...

Farmer (1910), 5 T.C. 529, the Lord President, at p. 536, stated the following test, relating to recurrent expenses: Now, I don’t say that this consideration is absolutely final or determinative, but in a rough way I think it is not a bad criterion of what is capital expenditure as against what is income expenditure to say that capital expenditure is a thing that is going to be spent once and for all and income expenditure is a thing that is going to recur every year. ... But the Income Tax Acts take no account of this consideration. Broadly speaking, the outlay is deemed to be capital when it is made for the initiation of a business, for extension of a business, or for a substantial replacement of equipment. ...

., at p. 117 is in point: “Although cases may be found in the books of decisions under particular statutes which at first might seem to conflict with the maxim, it will be found on consideration that they are not inconsistent with it, for the rule, which is one of elementary justice, only requires that a man shall not be subject to final judgment or to punishment without an opportunity of being heard.” 8 This principle was reaffirmed in a majority decision of the Supreme Court of Canada in Le Syndicat des Employés du Transport de Montréal (CSN) et al v The Attorney General of the Province of Quebec, [1970] S.C.R. 713, and also Guay v Lafleur, [1965] S.C.R. 12 at 16, [1964] C.T.C. 350, 64 D.T.C. 5218. 9 It seems however that even where private rights are affected, the obligation of a person or board yielding the power, to act judicially, as opposed to a right of the person affected to be heard, is not an absolute one to be applied in all cases wherever private rights are affected. ... Although it might be argued that the right to register a certificate, before the liability to pay the taxes has been finally determined, is an extraordinary one, and although that right carries with it a right to a writ of execution which in turn carries with it a right to a writ of execution which in turn carries with it the right to have the assets seized and subsequently disposed of by sale or otherwise, the execution aspect is merely a means of guaranteeing or of assuring the payment of the tax by the taxpayer either before or after the liability for same has been finally established. 13 Another important consideration in determining the issue before this Court is that the taxpayer has the right to apply to a court to prevent a sale or disposition of any assets seized and, pending final determination of the liability for tax, should a prima facie case be shown against the assessment and should it also be established that the taxpayer would be prejudiced by interim sale of the assets, he would be entitled to have any proposed sale or disposal of the assets stayed or, in special circumstances to have the execution lifted against certain assets which might be likely to spoil or deteriorate. 14 It has been held that there is nothing unreasonable, oppressive, unusual or extraordinary in the summary procedure where Parliament has provided enacting legislation providing for the registration of a certificate or in the effects which flow therefrom, where an execution has issued, notwithstanding an appeal against the assessment. ...

The main issue is whether the payments made to Muriel Allen under the terms of a mortgage assigned to her by her husband were periodic payments for her maintenance and that of the child, or whether they were payments made in settlement and in consideration of property rights. 16 In my opinion, the fact that one of the introductory clauses of the separation agreement states “and whereas the parties hereto desire to settle their property rights and to provide for the custody, support and maintenance of the said child”, and the fact that the payments of interest alone on the mortgage for the first three years were made on a half-yearly basis and that subsequently an amount of $400 in principal and interest was paid on a monthly basis, do not justify my coming to the conclusion that, pursuant to a written agreement, the said payments were made on a periodic basis for the maintenance of the recipient and her child. 17 In considering the separation agreement as a whole, I have some difficulty in seeing any fundamental difference in the nature of the cash payment made to the wife in accordance with paragraph 7 of the agreement, the transfer of Investors' Syndicate shares to the wife according to paragraph 8 of the agreement and the act of securing for the benefit of the wife a total sum of $65,000 by delivery to her of a mortgage in that amount bearing interest at the rate of 7% per annum as provided for in paragraph 9 of the separation agreement. 18 It seems to me quite clear that the payments of interest on a biannual basis for the first three years and the subsequent payments of the combined interest and principal at the rate of $400 a month until the principal has been fully satisfied, although conceivably made on a periodic basis (Exhibit R-1), were payments arising from the terms of the mortgage and were not paid pursuant to a written agreement as alimony or other allowance payable on a periodic basis for the maintenance of the recipient thereof within the meaning of paragraph 11(1)(l) of the Income Tax Act. 19 In my view the mortgage was given to the wife as an asset or additional security along with the cash payment agreed upon in paragraph 7 and the Investors' Syndicate shares described in paragraph 8, and although there is no doubt of the husband's concern for the future welfare of his estranged wife and child, the form in which he assured their future was not by means of alimony or maintenance payments within the meaning of the relevant provisions of the Act. 20 Although the cases cited by counsel are not on all fours with the facts of this appeal, there are, in my opinion, certain fundamental principles to be found therein which are applicable to the circumstances of this case. 21 In the case of MNR v Dorila Trottier, [1967] C.T.C. 28, 67 D.T.C. 5029, Mr Justice Cattanach, at page 37 [5034], stated: Alimony or maintenance continues through the joint lives of the husband and wife but terminates upon the death of either. 22 In the present instance, under the terms of the mortgage, payments were not to cease at the death of either party but were to end only with the full satisfaction of the principal and interest of the mortgage. 23 Mr Justice Cattanach continues— If Mrs Trottier had died during the currency of the second mortgage the payments under the second mortgage would continue to be payable to her assignee, if she had assigned it, and otherwise to her heirs, executors or administrators in accordance with a covenant in the indenture to that effect. ... The payments here under consideration are both assignable and interest bearing under the terms of the second mortgage. 24 In the appeal before us, there is nothing in the terms of the mortgage which could prevent the wife from assigning it. ...

The part in issue is whether or not the premises occupied by the appellant for the carrying on of his profession as an optometrist is a property that falls within the terms of subsections (11) and (14) of section 1100 of the Income Tax Regulations as issued by Order in Council pursuant to section 221 of the Income Tax Act, SC 1970–71–72, c 63 (as amended). 2 At the outset, I should point out that no evidence was called and the appellant was represented by an agent, Mr E F Estergaard, a chartered accountant. 3 At the opening of this appeal, consideration was given to the question of whether the appeal should have been disposed of by dismissing it for want of prosecution or for lack of any evidence that would meet the appellant's need to show that the reassessment was wrong either in fact or in law. ... Furthermore, while he himself was occupying the building, the rents receivable from these additional tenants would be necessary to offset a portion of the overhead of his optometry practice caused by building the accommodation that I have referred to at such a choice location. 6 These considerations resulted in a situation wherein the appellant, as I have said, occupied one-quarter of the available office space of the entire building, and the related prescription optical firm another one-quarter, while the unrelated businesses took up the balance of the space in the building. 7 The business results, as I have said, in 1972 showed that the anticipated increase in activity of the appellant's practice had indeed materialized. ...

The sale of assets closed on or about July 2, 1971; Canada Ropes is still operating the No 5 Road plant. 15 On May 21, 1970, as a result of an unsolicited approach, the plaintiff, for a consideration of $10,000, granted the CNR an option to buy the Vulcan Way property for $380,000. ... That he escaped taxation on that gain is, on the evidence, both inexplicable and immaterial. 23 The weight of the evidence before me supports the proposition that when the plaintiff bought the Vulcan Way property it did so for the purpose of putting its new plant there and that the possibility of resale at a profit was not an operating consideration in the decision to buy. ...

Greenwood submitted: that it was not the concept of paying for an expert witness, but it was more the quantum; that for what was provided the fee submitted seemed rather high and should not necessarily be passed on to this appellant in this case; that the appeal was abandoned not because of the merits but because the matter was able to be dealt with in another fashion and it became a “non-issue” resulting in the appeal being abandoned; that by abandoning the appeal the Appellant was not aware that they would be expected to pay costs of this magnum; that in determining what are appropriate costs to be awarded, considerations are: the amount in issue, which in this case the deductions were somewhere in the range of $120,000.00, for whatever tax would be generated from that amount; the importance of the issues, where it is not certain that there is any importance here but rather the case involves a narrow confined issue; the complexity of the issues, where in this matter there was a fairly simple question or narrow issue at stake as to whether the reforestation sums were deductible when they were paid into a trust account or not deductible until they were expended for reforestation? ... Consideration is given to the amounts involved in this appeal, the considerable time and effort expended to develop the report, and the fact that although the expense of acquiring this expert report would not have resulted without the instituting of this appeal, since the Respondent did derive some benefit and value in respect to similar cases, the cost to the Appellant should be reduced to 70 percent. ...

That was interpreted in McLaren and in Fiset as having to be a positive amount and in what was apparently a knee-jerk reaction to these cases, the Income Tax Act was amended and was amended badly, hastily, and without proper consideration of what it was doing. I think that by enacting section 3(f) as it was enacted, without giving proper consideration to what was intended by section 63, was a quick patch-over and enacted in order to negate the effects of McLaren and Fiset. ...

The appellant submitted that the question of whether the $18,000 was paid for the relinquishment of a franchise was a settled question of fact because in paragraph 3 of the Reply to the Notice of Appeal of the respondent it was admitted ‘‘that the appellant agreed to pay and did pay Seven-Up Vancouver Ltd. the sum of $18,000 in consideration of relinquishing certain territory ’ ’. ... On the evidence adduced I am of opinion that the sole question of fact is whether the payment of $18,000 by the appellant to Seven-Up Vancouver Ltd. in consideration of the latter relinquishing certain territory is part of the legal cost of the franchise, Exhibit A-1. ...