Rothstein JA found that transactions that had the effect of transferring properties with accrued losses to a partnership were a “common law” series, which he defined (at para. 24) as follows:
[F]or there to be a series of transactions, each transaction in the series must be pre-ordained to produce a final result. Pre-ordination means that when the first transaction of the series is implemented, all essential features of the subsequent transaction or transactions are determined by persons who have the firm intention and ability to implement them. That is, there must be no practical likelihood that the subsequent transaction or transactions will not take place.
However, subsequent transactions in which the taxpayers acquired interests in that partnership, with a view to the partnership realizing those losses so as to be allocated to them, were not pre-ordained, and not part of the common-law series. In finding that such subsequent acquisition transactions were assimilated to the common-law series for s. 245(2) and (3) purposes, Rothstein JA stated (at para. 36):
Thus, before applying subsection 248(10), "series" must be construed according to its common law meaning, which I have found to be pre-ordained transactions which are practically certain to occur. To that is added "any related transactions or events completed in contemplation of the series". Subsection 248(10) does not require that the related transaction be pre-ordained. Nor does it say when the related transaction must be completed. As long as the transaction has some connection with the common law series, it will, if it was completed in contemplation of the common law series, be included in the series by reason of the deeming effect of subsection 248(10). Whether the related transaction is completed in contemplation of the common law series requires an assessment of whether the parties to the transaction knew of the common law series, such that it could be said that they took it into account when deciding to complete the transaction. If so, the transaction can be said to be completed in contemplation of the common law series.