In March 1993 an individual ("Boulle") transferred his shares of a Canadian public junior exploration company ("DFR") to the taxpayer, which was a newly-incorporated Cayman Islands company wholly owned by him. By June 1995 the DFR shares had substantially appreciated in value, at which time the taxpayer exchanged, on a rollover basis pursuant to s. 85.1, a portion of its DFR shares for common shares of a large Canadian public company ("Inco"), with the result that the taxpayer's shareholding in DFR was reduced below 10%.
Bell J. found that in light of OECD commentary (not including OECD commentary that was made subsequent to the negotiation of the Treaty) and "the decision by Canada and Luxembourg not to include an explicit reference to anti-avoidance rules in their carefully negotiated Treaty", that there was no ambiguity in the Treaty permitting it to be construed as containing an inherent anti-abuse rule.