A predecessor ("Birchcliff") of the taxpayer negotiated a plan to merge with a corporation ("Veracel"), which had discontinued its medical equipment business, in order to access Veracel's non-capital losses and credits. Investors subscribed for subscription receipts of Veracel and received voting common shares of Veracel therefor under a Plan of Arrangement, and Veracel and Birchcliff amalgamated immediately thereafter under the Plan. The voting common shares received by the investors on the amalgamation represented a majority of the voting shares of the amalgamated corporation, so that no acquisition of control of Veracel occurred under s. 256(7)(b)(iii)(B), and the loss-streaming rules under ss. 111(5)(a) and 87(2.1) were avoided.
Although he proceeded to find that GAAR applied to extinguish the losses, Hogan J rejected the Minister's argument that the investors' "would not enjoy the rights and privileges attached to [their] shares" (para. 45) so that their acquisition was a sham, stating (at para. 52) that there was no evidence "that the New Investors were engaged in deceit."
See summary under s. 245(4).