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The Crown considered that the PSLP business losses were deemed to be limited partnership losses of MLP – which meant that they were effectively trapped in MLP given that s. 111 (and, thus, the ability to deduct limited partnership losses under s. 111(1)(e)) was only available to a taxpayer and not to a partnership. ...

In finding that there were two supplies under ss. 142(1)(d) and 142(2)(d), respectively, Dawson JA stated (at paras. 95, 97): I see no reason in principle that precludes splitting up the supply so that the supply is treated as two supplies in order to recognize that ultimately the services are inherently distinct in one important respect: the services relating to the operation of the vacation homes located in Canada are services in relation to real property situated in Canada and hence are a taxable supply – the services relating to the operation of the Intrawest vacation homes situated outside of Canada are services related to real property situated outside of Canada and hence are a non-taxable supply. ...

Webb JA found that the taxpayer was estopped from now arguing that the mooted dividends in fact were not dividends (so that s. 160 did not apply to their payment)- because the appropriate procedures for the declaration and payment of the amounts as dividends were not followed and because s. 38(3) of the Business Corporations Act (Ontario) prohibited the payment of a dividend by an insolvent corporation – on the basis of the application of the principle (based on Wolofsky, 2001 FCA 119) that: [A] taxpayer who has benefited from having an amount included in his or her income as a dividend in a particular taxation year (and who has not objected to the assessment of tax based on having received this dividend) is estopped from claiming in any subsequent appeal related to the application of section 160 of the Act, that the previous filing position was wrong. ...

. … Quite clearly, the fact that the parties were splitting money that was not theirs and believed that they could profit without putting at risk their own patrimony or property took away one of the fundamental safeguards that is inherent in an arm’s length relationship. ...

Regarding the first point, she noted that the redemption amount was not required by s. 181(5) to be paid “exclusively” or “primarily” in the course of a commercial activity, and stated (at para. 26): Unlike the words exclusively and primarily, the phrase “in the course of” has a broad meaning; it means “incidental to” or “connected to” directly or indirectly …. ...

., acquiring the FMO units at a high cost in steps 2 and 4, being allocated a capital gain by FMO in step 6 so as to generate a CDA increase which could then be distributed, and having their high cost FMO units redeemed in Step 7 so as to generate a capital loss to offset the capital gain in step 6) and “the only purpose for the appellants’ participation in the series of transactions was to pay capital dividends to their parent corporations and to avoid Part III tax in doing so” (para. 202) – and there accordingly was an avoidance transaction. ...