Respecting where two unrelated individuals each held exactly 50% of the (voting common) shares of the employer, CRA first noted that under Duha either individual potentially could have de jure control (based, for example, on the provisions of a unanimous shareholders’ agreement) and be related to the employer under s. 251(2)(b)(i).
No s. 251(5)(b) right was mentioned in the stated facts. However, CRA then noted that either individual could also be related by virtue of any such right, as to which it noted that it was possible that both unrelated individuals could be related to the employer:
While paragraph 251(5)(b) does not deny that actual control is held by the person who has the direct ownership of shares, another person could have control simultaneously as a result of the application of one of the rules in paragraph 251(5)(b).