In finding that s. 75(2) should not be interpreted so as to result in there being an income inclusion for the same income amount to two taxpayers (e.g., Mary and Jack in a hypothetical illustration), Sharlow JA stated (at para. 55):
[U]nder the Crown’s interpretation of subsection 75(2), the same capital gain is attributed simultaneously to Mary and Jack. That cannot be. Nothing in subsection 75(2) contemplates an outcome involving the attribution of the same gain to more than one person. This double application of subsection 75(2) cannot be avoided by a discretionary use of subsection 75(2), because it is not a discretionary provision. It applies automatically to every situation it describes.