After the taxpayer solicited competing bids for the sale of a significant block of shares it held in another public company ("Falconbridge") both directly and through a holding company ("McIntyre"), it accepted an offer of Falconbridge that required Falconbridge to declare and pay a significant dividend on all the outstanding shares of Falconbridge, and (following the payment of a corresponding dividend by McIntyre) to purchase the shares of Falconbridge and McIntyre held by the taxpayer. The only purpose of the dividends was to permit Falconbridge to make an offer that effectively approximated 118% of the previous market price of the Falconbridge shares (and that exceeded the 115% of the market price which the other bidder could have paid without triggering the statutory requirement for a follow-up offer to the other Falconbridge shareholders). Accordingly, given that the purpose of the transactions was to be determined having regard to the actual state of mind of the taxpayer and Falconbridge, rather than its purpose in some objective sense, s. 55(2) did not apply. Robertson JA stated (at p. 6567):
While there may be instances where the term “purposes” is modified by words or phrases suggesting something other than a subjective understanding, that is not the case with respect to subsection 55(2) ... . [I]t is clear that the use of the term “purpose” in one context and “result” in another requires that a different meaning be attributed to each that is consistent with their use and context within subsection 55(2).
In the Tax Court, Bell TCJ. stated (96 DTC 1787 at 1794) that the taxpayer "had not participated in the creation and structure of the Falconbridge bid" and that "that finding alone renders it impossible to conclude that one of the purposes of the Appellant was to effect a significant reduction of the capital gain to be realized", as to which Robertson JA stated (at p. 6567) that "it remains for future determination whether this reasoning should itself be determinative of the issue."