The Crown sought to have tax memos provided to the taxpayer by its law firm (Macleod Dixon) produced, on the basis that the the taxpayer had produced on discovery a memo from Macleod Dixon that advised that the publicly traded debt of an income fund could be assumed by the corporation into which it effectively was converted under a "SIFT conversion" transaction without triggering its early redemption. The Crown argued that "Superior Plus waived the privilege on the opinion which supports its contention that the transactions in issue were not tax motivated while maintaining it on those pointing the other way" (para. 12). In finding that the production of the Macleod Dixon did not entail implied waiver of privilege for the tax memos, Noël CJ stated (at paras. 17, 19):
[U]ntil Superior Plus introduces the disclosed document in evidence, access to the other privileged opinions is neither "vital or necessary" to the Crown's ability to respond… .
[A]n implied waiver [is] not [to] be pronounced unless and until it becomes necessary to do so in order to prevent the unfairness and inconsistency which the doctrine of implied waiver is intended to guard against.