and experimental development expenditures and tax credits,
together with their years of expiry and associated values for federal and provincial income tax purposes.
 In 2010, Tuckamore determined to divest its minority
interest in Brompton. Accordingly, it approached Brompton and
its other shareholders to determine if there was any interest in
buying out its position. This led to a further agreement among
the parties, dated July 5, 2011, regarding the sale of Tuckamore’s minority interest. As a term of that agreement, Tuckamore agreed to indemnify Brompton for its proportionate
share (40.94 per cent) of any tax liabilities, including interest or
penalties, assessed against Brompton under the Income Tax
Act, R.S.C. 1985, c. 1 (5th Supp.) in respect of the period when
Tuckamore was a Brompton shareholder (the “Tuckamore
indemnity”). Although several other agreements concern the
commercial dealings between the parties, the focus of these reasons is s. 5.1( l) of the agreement and the Tuckamore indemnity.
 The matter now in contention is whether s. 5.1( l), properly
construed in the context of the agreement as a whole, constitutes
a representation and warranty as to the future tax utilization of
Brompton’s tax pools or, in contrast, whether it is directed solely
to the accurate identification of the tax pools in existence, and
their values, up to the date of closing of the purchase transaction
contemplated under the agreement “after giving effect to the
transactions contemplated by [the agreement]”.
 The question of the proper interpretation of s. 5.1( l) is
important because, after the closing of the transaction provided
for under the agreement and after the date of the Tuckamore
indemnity, the Canada Revenue Agency (“CRA”) disallowed
Brompton’s attempted use of the tax pools to reduce its taxable
revenues during the 2009-2013 taxation years. On March 4,
2015, the CRA assessed Brompton for approximately $11.8 million in additional taxes, interest and penalties. Brompton has
challenged the CRA assessment in the courts. That challenge is
still in progress.
 Following the CRA assessment, Brompton invoked the
Tuckamore indemnity to claim that Tuckamore was obliged to
indemnify Brompton for its proportionate share of the assessed
taxes, interest and penalties and the costs incurred by Brompton
in challenging the CRA assessment.
 Tuckamore resisted this claim, maintaining that s. 5.1( l)
of the agreement is a representation and warranty that the tax
pools would be available for post-closing tax utilization. Since
the CRA has disallowed their use, says Tuckamore, Brompton