Before going on to find that the taxpayer’s losses from a cattle operation (which were substantial both in dollar terms and relative to the revenues) were deductible as business losses before consideration of the limitation on farming-loss deductions under s. 31, Owen J stated (at paras. 103-105):
The assumption underlying the test in Stewart is that a commercial activity is undertaken for profit… Consequently, unless there is some reason to question this assumption in the circumstances of a particular case, an activity that is on its face clearly a commercial activity as opposed to a personal undertaking is considered a source of income.
In Paletta, Noël, C.J. found that because the evidence revealed that there was no pursuit of profit notwithstanding the apparently commercial nature of the transactions there could not be a business source of income.
Noël, C.J. was not proposing an additional layer of inquiry into whether a commercial activity was in pursuit of profit. Rather, Noël, C.J. recognized that the peculiar facts of the Paletta case called into question the validity of the assumption underlying the test in Stewart. Noël, C.J. simply found that the transactions in Paletta had the “appearance” of being commercial but in fact were not “clearly commercial” when one considered all the circumstances.
Owen J went on to find (at para. 108) that “[t]he nature of the Appellant’s undertaking (raising organically certified cattle for sale) and the manner of pursuing that undertaking were both consistent with a clearly commercial activity” and that there was “no evidence that calls into question the assumption underlying the test in Stewart that the Appellant pursued her clearly commercial farming activity for profit.”