Landry v. Canada
A-392-93
Marceau, Décary JJ.A. and Chevalier D.J.
5/7/94
17 pp.
Application to set aside Tax Court decision holding applicant had no reasonable expectation of profit during 1987 and 1988 taxation years from carrying on profession, practice of law-Application dismissed (Marceau J.A. dissenting)-Décary J.A.: Applicant returned to practice of law in 1979, at age of 71 years, after twenty-three-year interruption during which worked as impresario for various artists-Acknowledged he had not changed his way of practising since 1936, incurring loss upon loss, and the losses grew each year-Had no plan for operating or for adapting, and no alternative plan-Made no effort to alter way of practising which, to all appearances, had been overtaken by time and events and which, on evidence, not leading and could not lead anywhere-It would be incorrect to try to reduce the scope of decision in Moldowan v. The Queen, [1978] 1 S.C.R. 480 to include only farm losses-Profession of lawyer not exempt from rules concerning reasonable expectation of profit-In concluding applicant "unable to show realistically that he expected to derive income from his professional activities during the period at issue" Trial Judge did not commit any error subject to judicial review-Not for Court to substitute its opinion for that of Trial Judge-Marceau J.A. (dissenting): Two errors of law in Trial Judge's approach and analysis-First, omitted to take all factors into account, contrary to what objective evaluation required and contrary to what the Supreme Court said in Moldowan-Second error of law: to take into consideration lack of profit during four years following the period in issue-Trial Judge did not do analysis required to do in order to answer question put to him in manner required by Act.