The taxpayer held shares of a Canadian corporation which, under their terms and a related agreement, were exchangeable on a one-for-one basis into American depositary shares of a non-resident parent ("Alcatel") of the corporation. The taxpayer reported a capital loss when it exercised its exchange right.
Rip CJ held that s. 40(3.5)(a) did not cause the exchangeable shares and the Alcatel shares to be deemed to be identical property, so that the recognition of the capital loss by the taxpayer was not suspended. He stated (at para. 39) that, while the exchangeable shares "had an attached right" to exchange for Alcatel shares, it was "part of the bundle of rights in the Exchangeable Share." He concluded (at para. 44):
[Paragraph 40(3.5)(a)] is directed to a "right to acquire a property" and the property itself. At bar, the particular property disposed of in paragraph 40(3.3)(a) is not "a right to acquire a property", but another property altogether, the Exchangeable Shares.