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It should be noted here that the lean-tos and stoops were considered by the appellant in its tax returns as coming within class 6 in the Income Tax Regulations. ... Counsel for the respondent considered that the subject properties can even be looked upon as chattels but which remain in the same place for a considerable period of time. ... Having concluded that the subject properties are not to be considered as trailers for purposes of capital cost allowance, it is only proper to note that the very construction of the subject properties and the manner in which they are placed on the land without proper foundations though used as residences are not what one automatically thinks of as an ordinary dwelling. ...

By these plans, lot 166 was subdivided from 1 to 107, lot 167 from 1 to 107, and lot 168 from 1 to 131. 3.16 As a consequence of the increase in area the purchaser, Im-Val Inc, had to pay an additional amount of $250 per acre, in compliance with a clause in the contract (Exhibit A-3) and the counter-letter changing the price per acre from $500 to $250. 3.17 Because of difficulties in payment, part of the land sold, namely lot 166 was retroceded by Im-Val Inc to the vendors on December 11, 1973 (para 3.4 (e)). 3.18 On January 31, 1975, the respondent included in the appellant’s income the sum of $19,814.55; this sum is considered to be the appellant’s commercial income from the transaction which is the subject of this dispute. 3.19 On March 18, 1975 the appellant filed an objection. 3.20 On May 19, 1976, the respondent sent a notification to the appellant maintaining his position that commercial profit and not capital gain was involved, but he also allowed a reduction of $16,179.09 as a deposit on an amount payable. 3.21 On August 17, 1976 an appeal was submtited to the Tax. ... Subject to the other provisions of this part, income for a taxation year from a business or property is the profit therefrom for the year. 139. (1) In this Act, (e) “business” includes a profession, calling, trade, manufacture or undertaking of any kind whatsoever and includes an adventure or concern in the nature of trade and does not include an office or employment; 4.2 Precedents A number of precedents were principally cited by counsel for the respondent: J J Aimé Roy v MNR, 13 Tax ABC 1; 55 DTC 273; Leslie Todd v MNR, 15 Tax ABC 42; 56 DTC 208; No 341 v MNR, 15 Tax ABC 103; 56 DTC 231; Jacob Spelt v MNR, 31 Tax ABC 320, 63 DTC 267; Arthur Dansereau v MNR, 37 Tax ABC 425: 65 DTC 169; Wilfred John Wallace v MNR, 38 Tax ABC 246; 65 DTC 310; Evelyn Nozick v MNR, 39 Tax ABC 361: 65 DTC 687; Leonard Walter Stewart v MNR, 41 Tax ABC 297; 66 DTC 474; Guerino Romano v MNR, 41 Tax ABC 302; 66 DTC 490; Helene Mikula v MNR, 42 Tax ABC 54: 66 DTC 636; Byron B Kennedy v MNR, [1952] CTC 59; 52 DTC 1070; T Campbell v MNR, [1952] CTC 334; 52 DTC 1187; Toby Barnett v MNR, [1957] CTC 355; 57 DTC 1255; Bayridge Estates Limited v MNR, [1959] CTC 158; 59 DTC 1098: Regal Heights Limited v MNR, [1960] CTC 384; 60 DTC 1270; Essex House Limited v MNR, [1961] CTC 270; 61 DTC 1135; Donald C Brown v MNR, [1961] CTC 432; 61 DTC 1255; J-Euclide Perron v MNR, [1962] CTC 457; 62 DTC 1288; Samuel Lyons v MNR, [1962] CTC 478; 62 DTC 1297; MNR v James A Taylor, [1956] CTC 189; 56 DTC 1125; Harry C Walker, Walyrie Klak and William Alexander Rueb v MNR, [1963] CTC 441; 63 DTC 1280; MNR v Clifton H Lane [1964] CTC 81; 64 DTC 5049; William Slater et al v MNR; [1966] CTC 53; 66 DTC 5047; David Rothenberg v MNR, [1965] CTC 1; 64 DTC 255; Harold Diamond et al v MNR, [1966] CTC 670; 66 DTC 5434; Stanley W Carr v MNR, [1965] CTC 334; 65 DTC 5201. 4.3 Comments 4.3.1 The precedents and legal theory have long since formulated certain key points to be considered when deciding whether profits are commercial or capital in nature. ... This land had in fact been inspected by the parties involved and considered to be large enough for a campground. ...

The effect of subsection 8(8) is, as I read it, that the excess contributed in a prior year may be considered as a contribution to a registered pension fund or plan in the current year. ... As mentioned, since the payment was made in February 1976, the law as it existed at the time of the payment must be considered. It is therefore subsection 146(5) as amended by SC 1974-75, c 26, applicable to premiums paid after June 23, 1975, which must be considered. ...

The evidence is that the properties subject to the appeals and acquired in a package deal can, for the determination of the issue, be considered as income-producing properties which in fact produced income in each of the taxation years. ... (Exhibit A-13) It has become trite that formal declaration of intentions must be viewed in the light of all the surrounding circumstances before a transaction can be considered as having been made solely for investment purposes. ... From this an inference may well be taken that the sale of the properties was in fact considered at the time of acquisition if the price were high enough. ...

Only one light manufacturing company considered by Mr Turner as an important tenant, and towards which considerable advertisement was directed, actually leased floor space. ... As early as February 17, 1961 offers for the purchase of the Gutta Percha property were made to Mr Lawrence who, in his testimony, stated that he did not solicit the offers, that he did not recall having seen the offers and that in any event he could not have considered them. ...

The Appellant submits that the amount paid should not be considered as income from office or employment as set out in Section 5(1) of the Income Tax Act. 8. ... I point out here, just for the record, that no effort was made by the Minister to include the amount at issue as “taxable” by virtue of the provisions of section 6 of the Act — and I do not imply that it would be so taxable, merely to note that the Board has not considered that possibility. ...

However, I clearly established in my notes (dated May 1st, 1978 entitled “calculs et explications”, and enclosed with above mentioned income tax return) that I considered myself to be self-employed. ... Add to that the fact that whatever teaching methods I used were completely at my own discretion, thus even the fact of actually giving what could be considered to be “lectures”. ...

With regard to the “wheelchair” point made by the taxpayer, counsel took the view that what was considered by the lay public as a wheelchair, was an arm-propelled wheelchair of the variety normally seen and used, not an office chair. ... However, in this matter, no possible minimum or maximum levels of incapacity need be considered since this appellant, left completely alone without external aid or assistance, would be in bed at all times and that situation can only be attributed to his affliction. ...

Doctrine Phipson on Evidence, 12th edition; Sopinka & Lederman: Evidence in Civil Cases. 4.03 Analysis 4.03.1 In his argument, counsel for Cyril Stern said that all the letters between counsel for the parties written from 1972 to 1974 must not be considered because of the following rule of law quoted from Sopinka & Lederman, Evidence in Civil Cases: By the general rules of the common law, if there be a contract which has been reduced into writing, verbal evidence is not allowed to be given of what passed between the parties, either before the written instrument was made, or during the time that it was in a state of preparation, so as to add to or subtract from, or in any manner to vary or qualify the written contract... ... Despite the fact that it could have written on a contract: “contract of sale”, if, pursuant to all clauses, it is substantially a contract of rent the words “contract of sale” must not be considered to construe the said contract. ...

The respondent was of the view that that mortgage, in the circumstances to be recounted, was not a qualified investment for the trust as it was prohibited from being so considered by Regulation 4900(1)(g) of the Income Tax Regulations (as it was in 1975) in as much as the “mortgagor” was “a person with whom the annuitant does not deal at arm’s length”. ... He continued that, as between those two parties, Black Prince is considered the mortgagor “and it can renew or replace the existing first mortgage”. ...