Shortly after it became a public company, a predecessor ("Birchcliff") of the taxpayer entered into an agreement for a major acquisition of producing oil and gas properties and also 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, Veracel and Birchcliff amalgamated immediately thereafter under the Plan, and the proceeds were used in the purchase of the oil and gas properties. The previous Veracel shareholders could elect to receive retractable preferred shares on the amalgamation, which most did.
As the voting common shares received by the investors on the amalgamation represented "a majority of the voting shares of the amalgamated entity (the "Majority Voting Interest Test")" (para. 13), no acquisition of control of Veracel occurred under s. 256(7)(b)(iii)(B), so that the loss-streaming rules under s. 111(5) were avoided. In upholding the Minister's finding that this avoidance was an abuse under s. 245(4), Hogan J stated (at paras. 105, 106):
[T[he Majority Voting Interest Test indicates that Parliament did not want amalgamations and reverse takeovers being used as techniques to avoid an acquisition of control in situations where the original Lossco shareholders do not collectively receive shares representing a Majority Voting Interest in the combined enterprise.
…Parliament adopted the Majority Voting Interest Test to prevent Lossco from being subsumed by Profitco without an acquisition of control of Lossco.