A commercial real estate broker donated land to the City of Ottawa, received a charitable receipt for its appraised value and claimed that his (substantial) gain was exempted under s. 38(a.2). Before affirming this treatment, Owen J stated (at para. 67):
[P]aragraph 39(1)(a) identifies whether there is a capital gain by asking whether the proceeds of disposition from the property would be included in income if section 3 were read without reference to the inclusion of taxable capital gains net of allowable capital losses. Although the parenthetical language in paragraph 39(1)(a) may appear at first blush to create a circularity in the definition of capital gain, in fact the language simply draws upon the body of jurisprudence that had developed under the pre-1972 income tax statutes and which provided the basis for distinguishing between "income from a source" and "capital".