As a condition to distributing shares of Aco to the beneficiaries of a testamentary trust of which it was sole trustee, the trustee ("Pubco"), which was a public company, required the beneficiaries to provide it with an indemnity which was secured by a pledge of the Aco shares, so that the Aco shares would be transferred to Pubco of a failure to honour the indemnity.
CRA first noted that as "Pubco, has a contingent right pursuant to the Pledge to acquire all the Aco shares from its shareholders," Pubco would be deemed by s. 251(5)(b) to control Aco. In then finding that s. 256(6) would not apply to override this result, CRA noted that "the question is whether the purpose of the Pledge would be to safeguard rights and interests of Pubco in respect of any indebtedness owing to Pubco." After discussing authorities on "indebtedness" including Fingold, Beament and Tonolli, CRA stated:
[T]here was no known liability or claim for which the Indemnified [sic] Parties may have liability under the Indemnification Agreement. Consequently… the rights and interests of Pubco under the Indemnity Agreement…do not seem to represent indebtedness the whole or any part of the principal amount of which was outstanding in the context of subparagraph 256(6)(b)(i).