Neutral Citation: 1997 ONICDRG 203

OIC A97-000304

ONTARIO INSURANCE COMMISSION

BETWEEN:

GEORGE BILIOURAS

Applicant

and

ALLSTATE INSURANCE COMPANY OF CANADA

Insurer

DECISION

Issues:

The Applicant, Mr. George Biliouras, was age 25 when on October 21, 1995, he was involved in an accident while driving a motorcycle. He sustained disabling injuries and by an application dated November 11, 1995, he applied to Allstate Insurance Company of Canada ("Allstate") for accident benefits. Allstate continues to pay Mr. Biliouras income replacement benefits ("IRBs") under section 7 of the Schedule¹ at the rate of $185 per week. However, Mr. Biliouras disputes the benefit rate. He argues that proceeds from the sale of a property at 5 Frizzell Avenue ("5 Frizzell") ought to have been treated as business income pursuant to section 10 of the Schedule and included in the determination of his self-employment income for 1995. Allstate, on the other hand, argues that the proceeds of sale are a capital gain and, in accordance with section 83 of the Schedule, should not be included in the calculation of his benefits. The parties were unable to resolve their dispute through mediation, and Mr. Biliouras applied for arbitration under the Insurance Act, R.S.O. 1990, c.I.8, as amended ("the Act").

The issues in this hearing are:

1. Should the net proceeds from the sale of 5 Frizzell Avenue be treated as business income from self-employment or a capital gain pursuant to section 83 of the Schedule?

2. What is the correct amount of Mr. Biliouras' IRBs under section 10 of the Schedule?

Mr. Biliouras also claims under the Act interest on any amounts owing and his expenses incurred in the hearing.

Result:

1. The net proceeds from the sale of 5 Frizzell Avenue are not income from self-employment and accordingly cannot be considered in determining the amount of Mr. Biliouras' IRBs.

2. I exercise my discretion under section 282 (11) of the Act to allow Mr. Biliouras his expenses incurred in respect of the arbitration proceeding.

Hearing:

The hearing was held at the offices of the Ontario Insurance Commission in North York, Ontario, on September 24 and September 25, 1997 before Arbitrator Beth Allen.

Present at the Hearing:

Applicant:

George Biliouras

Mr. Biliouras'

Joel B. Kohm

Representatives:

Barry Marcus

Barristers and Solicitors

Allstate's

Richard F.L. Rose

Representative:

Barrister and Solicitor

Allstate's

Gary Tsuji

Officer:

Claims Manager

Witnesses:

For Mr. Biliouras:

Joann Milonas

Maria Biliouras

Helene Katz

Lawrence Bossin

For Allstate:

Joseph P. Flanagan

Evidence:

Background:

In addition to being involved with the sale of 5 Frizzell, Mr. Biliouras started hardwood floor refinishing and driveway asphalting businesses in about 1994. In 1995, he earned self-employment income from these businesses. Mr. Biliouras claims to have also been self-employed through his dealings with 5 Frizzell. He claims that when he purchased 5 Frizzell his plan was to engage in the business of buying and renovating properties and turning them over for profit. The accident, he submits, thwarted this intention, prematurely bringing his business to an end. However, he seeks to have the proceeds of sale of this property, together with self-employment income from the other sources, included in determining the amount of his IRBs.

Mr. Biliouras' dealings with 5 Frizzell can be summarized as follows: In 1989, Mr. Biliouras' brother, Jim, purchased 5 Frizzell, a single-family, detached, two-storey house which the City had condemned. Jim, without physical or financial contribution from his brother, did the demolition work and completed 60% to 70% of the renovations, but by 1991 could not financially maintain the property. Mr. Biliouras came to his brother's aid by first taking a 25% interest in the property on May 13, 1991, and finally taking full title on October 10, 1991. Mr. Biliouras testified that his intention when he took over the property was to personally complete the renovations, which he estimated would take about three months, and then to sell the property. The renovations that remained to be finished were numerous and included: completing two of the four bathrooms; installing three skylights; insulating the attic; installing the basement floor; installing a dishwasher; and finishing work such as plumbing, carpentry and drywalling. Mr. Biliouras valued the related labour at approximately $60,000 to $70,000. He testified that he had the skills to complete this work on his own.

Mr. Biliouras did not achieve his original objective of selling the property immediately after the three-month renovation deadline. On October 31, 1991, three weeks after the purchase, he began to list the property for sale on a relatively continuous basis. He did not sell until more than three years after the purchase. As a condition of the Purchase and Sale Agreement, Mr. Biliouras agreed to complete the renovations; however, he never satisfied this condition and, with the purchaser's agreement, extended the time for completion. The evidence seems to suggest that Mr. Biliouras had an overly ambitious plan. After he failed to meet his initial three-month renovation deadline, he seems to have changed his intention to one of customizing the renovation, before closing the sale, to the specifications of a purchaser. He also defaulted on this plan. His accident occurred on October 21, 1995 which Mr. Biliouras testified prevented him from ever completing the renovations. Consequently, he forfeited part of a construction hold back he paid to secure completion.

During the period Mr. Biliouras held the property, he rented the house to family members. Mr. Biliouras' mother and sister moved into the unfinished premises in 1992. They paid monthly rent of $800 plus utilities. He also rented to another tenant in 1994, but he did not recall the details of that tenancy. He did only minor renovations before and during his family's residency there. Mr. Biliouras testified that he charged his family low rent because they were prepared to move out immediately when the property sold. I heard evidence that the fair market rent at the time for the house in a completed state was between $1,200 and $1,500. His family stayed for nearly three years, not moving out until a few weeks before the closing date.

Mr. Biliouras maintains, however, that his intention to turn the property over for a business profit is borne out by how quickly and continuously he listed the property. He claims that a slump in the real estate market prevented him from realizing his intention to sell more quickly. Mr. Biliouras argues that, although 5 Frizzell was the only property he ever purchased (in Canada), he intended to continue to buy properties, to renovate them and to sell them at a profit, but the accident also thwarted this intention. In support of his position, Mr. Biliouras testified that in April 1995 he attempted but failed to purchase a property at 9 Sammon Avenue. As evidence of this transaction, he filed into evidence a copy of the listing for this property and a dated, but unexecuted, standard form Agreement of Purchase and Sale. Mr. Biliouras claims that the agreement was unsigned because the deal was private. However, he did not provide me with a signed copy and I heard no evidence that he sought to obtain one for the hearing. Consequently, I assign limited weight to the evidence that he attempted to purchase a further property.

The evidence reveals some of the barriers to Mr. Biliouras turning over the property quickly. He listed the property from October 31, 1991 to February 28, 1994 at prices far higher than the market levels at the time. In fact, he received no offers from these listings and eventually resorted to advertising the property privately. The evidence shows that this factor, combined with the unfinished state of the house, prevented him from selling as quickly as he intended.

Mr. Biliouras called Helene Katz as a witness, a real estate agent with about 20 years' experience in the field, who was involved with the 5 Frizzell property from about 1992 to 1994. It was her opinion that Mr. Biliouras' listing prices were too high. She explained that during her dealings with the property, Mr. Biliouras listed the house at $379,000 in December 1992, at $359,000 in April 1993 and then at $349,000 from December 1993 until February 1994. According to Ms. Katz, the unfinished state of the house substantially detracted from its value. Her evidence was that in its unfinished state the fair market value at the relevant time was about $280,000 and about $329,000 if finished. I accept Ms. Katz's uncontradicted opinion on both the fair market value of the property and the differential in the value due to its incomplete state. Ms. Katz testified that she advised Mr. Biliouras of her concerns about his listing prices, but he resisted her advice. Mr. Biliouras eventually sold the property on January 25, 1995 for $316,000, which Ms. Katz testified was a fair market price at that time.

The financing arrangements on the property presented other barriers to Mr. Biliouras selling the property as he planned since the property, from the date of purchase, was 100% financed with multiple mortgages. Mr. Biliouras testified that he feared incurring a loss if he sold at too low a price. When Mr. Biliouras took over the property in October 1991, he carried two mortgages totalling $235,000; by 1993 he carried three mortgages totalling $245,000; and by 1994 he carried two mortgages totalling $250,000. Mr. Biliouras explained that he used succeeding mortgages to pay the arrears and monthly installments on preceding mortgages, in addition to using the rental and other income to carry the property. Mr. Biliouras testified that he financed the property in this manner to avoid using exclusively his own resources to financially maintain it. In the years 1991 to 1993, he incurred losses because the carrying charges (the mortgage, insurance and tax expenses on the house) exceeded the income he received from tenants. Mr. Biliouras' 1994 income tax records, however, reveal that he claimed personal net income of $2,000 from rental income.

The Law:

Mr. Biliouras' position is that he earned income being self-employed in a business connected to the property he sold. He argues that the proceeds realized from the sale of the property should be treated as business income because he purchased the property as a business venture with the purpose of selling it for profit. Accordingly, his IRB should be calculated taking this self-employment income into consideration. Allstate, on the other hand, submits that the proceeds from the house sale were not business income but a capital gain because Mr Biliouras purchased and held the house as an income producing investment. The parties do not dispute the treatment of capital gains under the Schedule — and agree that if I find the proceeds to be a capital gain, they should not be considered in calculating Mr. Biliouras' IRBs.

Section 10 of the Schedule provides that the amount of an insured person's IRB is calculated by taking 90% of the person's net weekly income from employment derived in accordance with section 81 or 82. Sections 81 and 82 set out the formulae for calculating net weekly income. Section 82(1)(b) applies to self-employed persons, and provides in part that where a person has earned pre-accident income solely from self-employment, the person's net weekly income can be determined in accordance with the Ontario Insurance Commission's Net Weekly Income Table — Self-Employment.

Section 83 of the Schedule provides that self-employment income shall be calculated in accordance with the Income Tax Act (Canada) and the Income Tax Act (Ontario) and shall not include consideration of capital gains. Section 83 states:

83.- For the purpose of this Regulation, a person's income from self-employment shall be determined in the same manner as the person's profit from the business in which the person was self-employed would be determined under the Income Tax Act (Canada) and the Income Tax Act (Ontario), but without taking into account,

(a) expenses that are eligible for capital cost allowance or an allowance on eligible capital property;

(b) capital gains or losses; or

(c) losses deductible under section 111 of the Income Tax Act (Canada)

[emphasis added]

The Schedule therefore expressly disallows a capital gain from being considered in assessing a person's income from self-employment.

Section 5 of the Schedule sets out factors to be considered in determining whether a person is "employed":

5. For the purpose of this Regulation, a person is employed if for salary, wages, other remuneration or profit, the person is engaged in employment, including self-employment, or is the holder of an office, and "employment" has a corresponding meaning.

Was Mr. Biliouras self-employed?

In order to determine whether the proceeds in question are income from self-employment, I must find that Mr. Biliouras was actually self-employed through his dealings with 5 Frizzell. Having reviewed the evidence, I conclude for the following reasons, that he was not self-employed:

Section 5 of the Schedule requires, for a person to be employed or self-employed, that he or she receive "a salary, wages, other remuneration or profit." Mr. Biliouras owned the property from October 1991 to January 1995. The evidence reveals that in 1994 he earned a net profit of $2,000 from rental income and, on the sale of the property in 1995, he claimed for tax purposes a profit of $43,472. He therefore received financial remuneration from the property. However, I agree with Arbitrator Seife's decision where he determined that it is not sufficient for persons claiming they meet the requirements of section 5 that they establish they were engaged in an activity for financial remuneration. "The party must prove that this activity constituted 'employment'..."² Like Arbitrator Seife, I find useful the indicators for "self-employment" set out in the Commissioner's Guideline for Identifying Self-employed Individuals³. These are as follows:

The individual

• is an owner of an unincorporated sole proprietorship or a partner in a partnership (other than a limited partner)

• has an established location where business transactions take place

• participates in the everyday operations of the business (not just an investor or receiving remuneration for purposes of income splitting)

• determines his or her own method and schedule for accomplishing tasks

• determines his or her own hours and may not necessarily work a set number of hours per period (i.e., 40 hours)

• determines the annual income as his or her profit from the business according to the Income Tax Act (Canada) and Income Tax Act (Ontario)

Applying these indicators to Mr. Biliouras' circumstances, I find that his involvement with 5 Frizzell does not reflect a self-employment relationship. I heard no evidence that he registered a sole proprietorship. Although registration is not required to establish a sole proprietorship, it can be an indicator that a business exists. I also heard no evidence that Mr. Biliouras established a business address or location. Clearly, 5 Frizzell was a residential address for his family and another tenant and not a business address. Mr. Biliouras' evidence was that he performed the renovations on his own. He testified that he never completed them and that during the more than three years he owned the property he did no more than minor renovations. He was therefore not daily or regularly engaged in renovation activities. However, it does appear from the evidence that whenever he worked on the property (particularly after the sale) he did this according to his own schedule. Concerning the tax treatment of the profits from the sale (as will be discussed more fully below), Mr. Biliouras initially claimed the proceeds, not as business income, but as a capital gain and later filed an amended return claiming the proceeds as business income after he realized that capital gains are not considered in the calculation of his IRBs.

On the whole, I find that the evidence does not support Mr. Biliouras' position that he was self-employed in a business in connection with 5 Frizzell.

Are the proceeds a capital gain or business income?

Even were I to have found that Mr. Biliouras was self-employed through the 5 Frizzell property, for the following reasons, I do not find that the proceeds of sale are business income. In coming to this conclusion, I found useful court decisions on the treatment for taxation purposes of proceeds from real estate transactions.

Whether proceeds from the sale of real estate should be treated as an income gain or a capital gain for the purposes of assessing tax liability, is a question of fact to be determined based on the facts of each case.⁴ Court decisions have identified factors to be considered in coming to this determination and have held that no single factor determines the issue. Revenue Canada's Interpretation Bulletin No. IT-218R (the "TaxBulletin") discusses some of the judicially considered factors. Among these factors are: the nature of the taxpayer's business, calling or trade; evidence that the taxpayer had dealt exclusively with real estate; the taxpayer's intentions and the extent to which they were carried out; and the length of time taxpayer held the property.

Section 83 of the Schedule requires Mr. Biliouras to have earned the proceeds in question as income from a business in order that they be included in the calculation of his IRBs. However, from a review of Mr. Biliouras' dealings with the property, I find that he was not involved in a business. I arrive at this conclusion for the following reasons:

The term "business" is defined in the Income Tax Act (Canada) and states in part:

"Business," includes a profession, calling, trade, manufacture or undertaking of any kind whatsoever and,... an adventure or concern in the nature of trade but does not include an office or employment;⁵

The courts have long held that this definition does not preclude a single transaction from being considered as a business and hence the proceeds from a single transaction as business income⁶. The proceeds in Mr. Biliouras' case result from a single transaction, the sale of 5 Frizzell Avenue. Mr. Biliouras claims for tax purposes that the net proceeds, $43,472, from the sale of this property should be treated as income for tax purposes. Mr. Biliouras initially filed his income tax return in the spring of 1996 and claimed the net proceeds as a capital gain; and later, in December 1996, filed an amended return claiming the gain as business income.

The Tax Bulletin discusses some characteristics of a transaction which favour it being considered a business transaction. At paragraph 6 it states:

...the more closely the taxpayer's business or occupation (e.g. a builder, a real estate agent) is related to real estate transactions, the more likely it is that any gain realized by the taxpayer from such a transaction will be considered to be business income rather than capital gain.

The transaction in question was clearly a real estate transaction, but further evidence is required to establish that the transaction was conducted in the context of a business. The Tax Bulletin provides further that the type of business, the profession, calling or trade of the taxpayer are also relevant factors to consider. Mr. Biliouras acknowledged in testimony that he was not engaged in the business of buying and selling real estate and that he has never been licensed to trade in real estate. He testified that he took the first part of a three part real estate license course. He stated that, although he did not complete the course, he acquired useful information about how the real estate market works. The evidence further reveals that Mr. Biliouras completed grade 12 at high school and has never acquired a skilled trade or profession. His past experience in the building and construction field was limited to assisting with renovations in his relatives' construction and renovation businesses. In the latter part of 1994, Mr. Biliouras began his own businesses in hardwood floor refinishing and asphalt paving. I heard no evidence that these businesses were connected to 5 Frizzell.

Mr. Biliouras' position is that, with the purchase of 5 Frizzell he began a business as a builder and renovator — the business of purchasing properties with the purpose of building or doing renovations and selling the properties for profit. I heard no evidence that he named, registered or incorporated a business for this purpose or previously conducted such a business.

On the whole, I find that the evidence does not tend to show that Mr. Biliouras was involved in a business in connection with 5 Frizzell. Although the transaction pertained to real estate, the evidence does not support Mr. Biliouras' claim that he was involved in a building and renovation business. The only substantial renovations he ever undertook on his own he began on 5 Frizzell in late 1994 — renovations which in fact he never completed. Moreover, the evidence discloses that Mr. Biliouras has never actually, before or since the purchase of 5 Frizzell, owned, built or renovated a house for sale. As noted earlier, the courts have determined that, while profit from an isolated transaction can be considered income, it is more likely to be a capital gain, particularly if the single transaction is not obviously of a commercial nature.⁷ While not in itself a determinative factor, he did not register or incorporate a business to carry out his intentions. Furthermore, his hardwood floor refinishing and asphalt paving businesses were not connected to the 5 Frizzell transaction. I therefore find that the 5 Frizzell transaction was not obviously commercial in nature.

Mr. Biliouras asserts that the economy and the accident thwarted his business intentions. In my view, while the insured person's intention with respect to property has some relevance in determining the nature of a transaction in relation to that property, I attribute limited weight to this evidence. Courts dealing with issues of tax liability have recognized the evidentiary problems presented by attempts to assess the subjective intentions of taxpayers. The Supreme Court of Canada has held that taxability cannot be solely based on the primary subjective intention of the purchaser.⁸ In a later case, the Supreme Court employed an objective test and held that "[t]he question to be determined is not what business or trade the company might have carried on but what business, if any, it did in fact engage in."⁹ It is difficult, in my estimation, to determine the extent to which credibility problems, improvident decision-making or inexperience could colour the evidence of a person's intention.

Despite Mr. Biliouras' alleged intentions, I do not find that the evidence supports the view that his dealings with 5 Frizzell were more in the nature of a business trade venture than a capital investment. Despite what Mr. Biliouras declares his intention was, I must consider what actually occurred in relation to the property. He realized a profit on the sale of 5 Frizzell, but I cannot conclude from the evidence that he earned this profit through a business venture. I, therefore, find that the proceeds are more in the nature of a capital gain.

Mr. Biliouras' income tax filings with Revenue Canada:

I looked at the evidence of Mr. Biliouras' income tax filings. Allstate urges that Mr. Biliouras' conduct in relation to filing his 1995 income tax return points to the proceeds of sale being a capital gain. Mr. Biliouras' evidence is that he filed the initial return, which was prepared by his local accountant, in the spring of 1996. He testified that his fiancee delivered to the accountant the supporting documentation for the return. He claims that he does not recall having any communications with his accountant about his initial return. The copy of the initial return submitted into evidence does not contain Mr. Biliouras' signature. Mr. Biliouras pointed out that he suffered, among other things, from cognitive problems affecting his memory and emotional state, and consequently he did not realize that his accountant had prepared the return claiming the proceeds as a capital gain. He submitted a medical report by Dr. Neville H. Bayer, a neurologist, dated June 11, 1996, substantiating this evidence. I accept Mr. Biliouras' evidence about his cognitive problems in the spring of 1996. However, Mr. Biliouras admitted that he purposely filed an amended return on December 5, 1996, claiming the proceeds as business income. He admitted that he discovered at mediation that capital gains are not considered in the calculation of IRBs and this motivated him to refile, despite his knowledge of the tax consequences. Revenue Canada reassessed his tax liability accordingly which resulted in the imposition of higher taxes.

It is a long-standing principle that, short of misrepresenting their financial circumstances, taxpayers are legally entitled to structure their financial affairs so as to attract the least tax liability.¹⁰ Consequently, even if Mr. Biliouras had filed his initial return mistakenly claiming a capital gain, in my view, nothing would turn on this in terms of his credibility or establishing the nature of the 5 Frizzell transaction. While I have noted my concerns about his income tax filings, I attributed little weight to this evidence in coming to my final determination in this case.

Conclusion:

I conclude, on the whole, that the evidence discloses that Mr. Biliouras was not self-employed in a business in relation to 5 Frizzell. For this reason, I find that the proceeds from the sale are not income from business but rather a capital gain and, accordingly, cannot be included in the calculation of his IRBs.

The evidence overwhelmingly shows that Mr. Biliouras was not involved in a business. He claims he was in the business of building and renovating properties, but he neither built nor completed the renovation of any building. I find that Mr. Biliouras did not rebut the presumption that a single transaction is more likely to be a capital gain. In my view, the 5 Frizzell transaction was not obviously of a commercial nature since Mr. Biliouras did not purchase it in a broader business or commercial context.

I attributed little weight to Mr. Biliouras' alleged intentions with respect to the property as an indicator of the nature of the proceeds from its sale. I based my determination on what he actually did with the property rather than on what he might have done. The fact that the property only produced a profit from its rental income in 1994 suggests that Mr. Biliouras did not hold the property as an income-producing investment property; however, Mr. Biliouras' own failed intentions to renovate the property in a timely fashion, in large part affected the income producing potential of the property. For these reasons, the fact that the property produced little profit from rental income does not, when considered in the context of the other evidence, disprove that it was held as an investment property.

I conclude that, on the balance of probabilities, Mr. Biliouras' profit from the sale of 5 Frizzell is not income from self-employment. Even assuming Mr. Biliouras was self-employed at the time of the accident, I find the proceeds from the sale of this property was a capital gain and as such should not be considered in the calculation of his IRBs.

The Amount of Mr. Biliouras IRBs:

Since I have determined that the proceeds from the sale of 5 Frizzell are a capital gain, the proceeds are not to be considered in the calculation of his IRBs. The parties agreed that under these circumstances they would undertake to calculate the amount of Mr. Biliouras' IRBs.

Expenses:

In view of the complexity of the issues in this case, I exercise my discretion under subsection 282(11) of the Act to award Mr. Biliouras his expenses incurred in respect of the arbitration decision.

Order:

Allstate shall pay Mr. Biliouras, pursuant to section 282(11) of the Act, his expenses incurred in respect of the arbitration proceeding.

December 5, 1997

Beth Allen

Arbitrator

Date

Schedule A

Exhibits:

Exhibit 1

Applicant's Arbitration Brief

Exhibit 1 (a)

Applicant's complete Revenue Canada Income Tax Return, T1 General 1995

Exhibit 2

Insurer's Arbitration Brief

Exhibit 3

Medical Report of Dr. Neville H. Bayer dated June 11, 1996

Exhibit 4

Applicant's Arbitration Brief II

Exhibit 6

Accountant's report of Joseph Patrick Flanagan dated September 24, 1997

Exhibit 8

Curriculum Vitae of Joseph Patrick Flanagan

Contained in Report of Weekly Income Benefits Brief:

Exhibit 5

Report of Lawrence Bossin, Finkelstein, Bossin, Chartered Accountants undated, faxed to Mr. Biliouras' counsel September 23, 1997

Exhibit 7

Mortgage of Land, No. 052880 dated October (day illegible), 1989 and Discharge of Mortgage dated October 2, 1989

Exhibit 9

Revenue Canada, Report of Applicant's Income and Deductions, 1992

Exhibit 10

Revenue Canada, Report of Applicant's Income and Deductions, 1993

Exhibit 11

Abstract of Plan 315E (undated), enlarged copy.

Footnotes

1. 1The Statutory Accident Benefits Schedule —Accidents after December 31, 1994, and before November 1, 1996, is called 'the Schedule "in this decision. The Schedule is Ontario is Ontario Regulation 781/94, as amended by Ontario Regulation 635/94.
2. 2Segal and Zurich Insurance Company (March 13, 1997), OIC A-014646 at page 5.
3. 3Guideline No. 6, Ontario Insurance Commission, April 25, 1995, Guideline for Identifying Self-employed Individuals. This Guideline was issued pursuant to section 268.3 of the Insurance Act, RSO 1990, c.I-8 as amended
4. 4Sutton Lumber and Trading Company Ltd. v. Minister of National Revenue 1953 CanLII 80 (SCC), [1953] 2 S.C.R. 77, [1953] 4 D.L.R. 801 S.C.C.
5. 5Income Tax Act, S.C. 1970-71-72, c. 63, subsection 248 (1) as amended.
6. 6Irrigation Industries Limited, supra, at page 349. See also the Interpretation Bulletin, op. cit, at page 1.
7. 7Irrigation Industries Ltd., supra, at page 351.
8. 8Irrigation Industries Ltd. v. The Minister of National Revenue, 1962 CanLII 55 (SCC), [1962], S.C.R. 346 S.C.C., at pages 350 and 351.
9. 9Sutton Lumber, supra., 1953 CanLII 80 (SCC), [1953] 4 D.L.R. at page 801.
10. 10Stubart Investments Ltd. v. Canada, 1984 CanLII 20 (SCC), [1984] 1 S.C.R. 536 S.C.C.