https://www.taxtips.ca/personaltax/investing/taxtreatment/are-your-investment-gains-and-losses-capital-or-income.htm
Are Your Investment Gains and Losses Capital or Income?
For most taxpayers, their gains and losses from the sale of securities are treated as capital gains and losses. This means 50% of the gains are taxed instead of 100%. A capital loss can only be used to reduce or eliminate capital gains.
Frequent Trades Can Be a Problem!
For some taxpayers, such as day traders, the gains and losses are determined to be business income, not capital. This means 100% of the gain is taxed, and 100% of a loss is deductible. The business loss is deductible from other income, and if the loss exceeds other income it becomes a non-capital loss. Both the conduct and intentions of the taxpayer are examined to determine whether to treat the securities transactions as income or capital. The combination of a number of the following factors may cause the gains or losses to be treated as income (100% taxable), not capital (50% taxable):
bullet frequent transactions, extensive buying and selling of securities
bullet short periods of ownership
bullet some knowledge of or experience in the securities markets
bullet security transactions form a part of the taxpayer's ordinary business
bullet a substantial portion of the taxpayer's time is spent studying markets and investigating potential securities purchases
bullet security purchases are financed primarily with margin or debt
bullet the taxpayer has advertised or otherwise made it known that he is willing to purchase securities
bullet securities purchased are speculative in nature or do not pay dividends
Short Selling
A person is "short" a security when they sell shares they do not own, by borrowing them from their brokerage company. This is called making a "short sale", or "selling short". This is normally done when the person believes that the price of the security is going to fall, so that they can cover the sale by buying back the stock later at a lower price. See also "long".
The gain or loss on the short sale of shares is considered to be an income gain or loss, unless an election has been made under s. 39(4) to treat them as capital transactions, if they are Canadian securities. In Federal Court of Appeal Rezek v. Canada (2005 FCA 227), it is stated that any broker's fees, rental fees and compensatory dividends paid by the short seller between the short sale and the close out will reduce the profit or increase the loss.
Election to Treat Transactions in Canadian Securities as Capital Transactions
A taxpayer can elect under s. 39(4) of the Income Tax Act to have their transactions in Canadian securities to be treated as capital transactions. The election is made by filing Form T123 Election on Disposition of Canadian Securities, and applies for Quebec taxation purposes also (as per Quebec Taxation Act s. 250.1). This election cannot be made for securities owned by
a trader or dealer in securities
a non-resident
a financial institution, or
a corporation whose principal business is lending of money or purchasing of debt obligations, or a combination thereof
The election applies to all sales of Canadian securities by the taxpayer in the year of the election or future years, and cannot be rescinded. The term "Canadian securities" is defined in s. 39(6) of the Income Tax Act as a security (other than a prescribed security as described in s. 6200 of the Income Tax Regulations) that is a share of the capital stock of a corporation resident in Canada, a unit of a mutual fund trust or a bond, debenture, bill, note, mortgage, hypothec or a similar obligation issued by a person resident in Canada. According to the CRA interpretation bulletin IT-479R (link below), a Canadian security includes such a security that is sold short.