Beaubier T.C.J.:
Upon the application of Henry A. Gluck, Kathryn Philpott and Annette Evans on behalf of the Respondent,
Upon hearing Sarah Robertson and Stevan Novoselac on behalf of the Appellant,
And upon reviewing the Notice of Motion in this matter dated the 15 day of September, 1999 that this appeal be dismissed, the affidavit of Richard Holt, and the file,
It is ordered that this appeal is dismissed with costs in favour of the Respondent for the following two reasons:
1. The refusal of the Appellant “to provide all monthly brokerage statements relating to each hedge in issue from the time the hedge was commenced to the time that the hedge was closed.” In my view, the position of the Crown requesting this information is based properly on the decision of the Federal Court of Appeal in Schultz v. R. [(1995), 95 D.T.C. 5657 (Fed. C.A.)]. It is something on which the Appellant bears the onus of proof. It is something the Appellant must provide and it is within the Appellant’s ability, knowledge and documents to provide.
2. The refusal of the Appellant to answer questions on examination for discovery as to the basis for claiming losses on income account and gains on capital account. To my mind that concept of “basis” is a concept of fact; what are the facts upon which you base your statement that one is income or the other is capital, as the case may be?
Appeal dismissed.