The taxpayer who was the CEO of an income trust and the holder, through a personal holding company of 8.1% of its units, and who provided consulting services through that or a related company, incurred $2.1 million in legal fees in connection with charges brought against him by the OSC (which ultimately were withdrawn) alleging that he and other senior employees had misstated the financial statements and a class action brought against various parties including the taxpayer, which ultimately was settled. Favreau J in the Tax Court found that the fees were not deductible by virtue of s. 18(1)(a) given inter alia that "the need for the appellant to defend himself against the OSC proceedings and the Class Action was separate from his consulting business" (para. 28), and also found (at para. 41) that "deduction of legal fees incurred to preserve the appellant's reputation and capacity to earn future income is prohibited by paragraph 18(1)(b)."
In dismissing the taxpayer's appeal, Dawson JA stated (at para. 4) that no "palpable and overriding error" had been demonstrated respecting the second (s. 18(1)(b)) finding.