In the context of estate freeze transactions, a trust that the taxpayer had established for the benefit of his children transferred a portion of the Class A shares of a corporation that was controlled by him ("335") to his son's holding company ("2165") in consideration for shares of 2165. Although the taxpayer held Class D shares of 335 with only a nominal redemption value, they were convertible (before his death) into a very large number of Class A shares. The position of the Minister was that the Class A shares had substantially lower fair market value than that attributed to it by the terms of the sale to 2165 given the potential dilutive effect of a conversion by the taxpayer of the Class D shares, so that an s. 56(2) benefit was assessable on the taxpayer. In rejecting this position, Lamarre, J. stated (at para. 37) that:
"If the intent in the instant case had been to sell the Class A shares to a third party, the Appellant, who controlled 332 Canada, would have had no problem waiving the conversion right attached to his Class D shares so that the Class A shares could be given their full value. Common sense would dictate this."