After finding that s. 84(2) extended to the indirect distribution of liquid assets of the target to the taxpayers through its sale to an arm’s length purchaser cum “facilitator” for cash proceeds, Noël C.J. stated (at para. 82):
[T]he appellants argue that the trial judge’s broad interpretation of subsection 84(2) makes the application of this provision unpredictable, uncertain and unfair, and that it should be rejected on that account (Memorandum of the appellants, para. 106). However, an anti-avoidance measure will necessarily raise question marks in the minds of those who choose to test its limits. In the case of subsection 84(2), this uncertainty necessarily looms over taxpayers who, with the assistance of third-party facilitators, use the sale of their business to extract surpluses without tax or at a reduced rate.