A newly-launched public corporation ("Birchcliff") accessed the losses of a lossco ("Veracel"), in order to shelter the profits from producing oil and gas properties which it was acquiring. Private placement investors were directed to subscribe for subscription receipts of Veracel rather than Birchcliff, with their subscriptions followed immediately by Veracel's amalgamation with Birchcliff, and with the subscription proceeds applied to the properties' purchase. As they received a majority voting equity interest in Amalco, the loss streaming rules otherwise engaged by ss. 256(7)(b)(iii)(B) and 111(5)(a) were avoided.
Hogan J found (at para. 73) that although "the overarching purpose behind…the sale of subscription receipts by Veracel was to raise equity financing for the [properties'] acquisition, this does not provide a bona fide non-tax reason for having Veracel rather than Birchcliff issue the subscription receipts," so that such issuance was an avoidance transaction.