The taxpayer transferred all its shares of a public company ("PII") of which it was the controlling shareholder to a wholly-owned subsidiary of the taxpayer ("371") in exchange for shares of 371. 26 days later, 371 and PII amalgamated in a triangular amalgamation (with the public shareholders of PII receiving common shares of the taxpayer). Lamarre J. accepted the taxpayer's position that a capital loss realized by the taxpayer on the disposition of its shares of PII to 371 was not suspended by ss.40(3.3) and (3.4) given that one of the conditions in s. 40(3.5)(c) for s. 40(3.3) to apply to the transactions, namely, that the taxpayer or an affiliated person "own" the shares of PII or substituted property was not satisfied, as at the end of the 61-day period, shares of PII no longer existed. Lamarre J. stated (at para. 27):
"It is perfectly logical, in my opinion, to say that the presumption in paragraph 40(3.5)(c) was established specifically to allow the eventual recognition of the loss in the case of a merger after the 61-day period, because otherwise the possibility of claiming this loss would be gone forever since the property giving rise to the loss no longer exists. If the merger occurs within the 61-day period, there is no reason for the presumption because, since the substituted property no longer exists and is therefore no one's property, the transferor has already had entitlement to the loss."