A portion of the consideration paid by a purchaser of shares of operating companies in which the taxpayer had been a significant shareholder (directly, or through holding companies) was allocated as consideration for his entering into non-compete agreements. The Crown argued that although the right to compete would not be considered “property” within its ordinary meaning, in light of the breadth of the statutory definition of property, and the value of the taxpayer's right to compete, the payment received therefor, should be brought into account for income tax purposes as proceeds of disposition of property, being of the right to compete. In rejecting this submission and in finding that these amounts were not proceeds of disposition of property by the taxpayer, Sharlow J.A. stated (at para. 25):
It is implicit in this notion of “property” that “property” must have or entail some exclusive right to make a claim against someone else. A general right to do something that anyone can do, or a right that belongs to everyone, is not the property “of anyone”. …
She further found that the phrase "a right of any kind whatever" did not expand the ordinary meaning of "property" to include a non-exclusive, commonly held right to carry on a business, such as that held by the taxpayer.
Regarding the situation where an individual injured in a car accident receives a lump sum in settlement of a negligence claim, she stated (at para. 51):
One could say that the right to claim damages was disposed of. But no one would accept the argument that the payment is the proceeds of disposition of capital property. Why? Because fundamentally the payment is compensation for a personal injury, something that is well understood to be beyond the reach of the Income Tax Act. Although a legal claim for damages for personal injury is a "right", the settlement transaction is not within the scope of the capital gains provisions in the Income Tax Act.