In rejecting the Minister’s position that s. 95(6)(b) had a broader scope than addressing situations where Canadian taxpayers manipulate share ownership in foreign corporations to achieve more favourable tax consequences under the foreign affiliate rules, Stratas JA stated (at para. 67):
Absent clear wording, I would be loath to interpret paragraph 95(6)(b) in a way that gives the Minister such a broad and ill-defined discretion – a standardless sweep – as to whether or not a tax is owing, limited only by her view of unacceptability. It would be contrary to fundamental principle. It would also promote arbitrary application, the bane of consistency, predictability and fairness.