The taxpayers agreed with the corporation controlled by them to transfer an apartment building to the corporation in consideration for the issuance of preference shares. However, at the time of the agreement, the authorized capital of the corporation did not include preference shares. After this deficiency was discovered, and following the continuance of the corporation from Prince Edward Island to Nova Scotia, two judicial orders were obtained pursuant to subsections 109(3) and 44(1) of the Companies Act (Nova Scotia) declaring the contract for the issuance of the shares to be retroactively valid and declaring the authorized and issued share capital of the corporation to be retroactively amended to reflect the issuance of the preference shares.
Robertson J.A. found that because an order of a superior court that has not been set aside must receive full effect according to its terms and is not (subject to very limited exceptions) subject to collateral attack, the issuance of the preference shares should also have retroactive effect for taxation purposes.