consistently described throughout the proceedings as the failure
to consider that s. 98(5) of the ITA applied to the dissolution of
MAM LP. While the unintended tax rollover might be avoided by
delaying the winding-up of CLICC GP (that is, “correcting” the
decision to wind up that entity), the “mistake” was in the structure of the transaction that permitted the rollover to take effect.
This is the same kind of correction or rectification that the
Supreme Court rejected in Fairmont Hotels and Jean Coutu and
characterized as the “rewriting of history” in order to correct an
error leading to an unforeseen tax liability.
(d) TCR Holding does not permit the retroactive alteration of transactions to correct unintended tax consequences
 Finally, I turn to a consideration of this court’s decision in
TCR Holding. CLICC says that this case permits the court to
retroactively alter a transaction in the exercise of its general
authority to relieve against mistakes. The case involved an application to set aside an amalgamation where a numbered company,
846, had been included in error, resulting in TCR Holding’s
becoming liable on an obligation guaranteed by 846. The application judge set aside the amalgamation nunc pro tunc, on the basis
of rectification, or alternatively, in the exercise of the court’s equitable jurisdiction to relieve against a mistake. This court dismissed the appeal.
 MacPherson J.A. concluded that rectification was not
available because it would have violated the OBCA. He went on,
however, to confirm the order of the court below on the alterna-
tive basis of the court’s equitable jurisdiction to correct a mistake.
He stated, at paras. 26 and 27:
Broadly speaking, a superior court has “all the powers that are necessary to
do justice between the parties”: see 80 Wellesley St. East Ltd. v. Fundy Bay
Builders Ltd.,  2 O.R. 280 (C.A.), at p. 282. More specifically, “superior
courts have equitable jurisdiction to relieve persons from the effect of their
mistakes”: see 771225 Ontario Inc. v. Bramco Holdings Co. (1995), 21 O.R.
(3d) 739 (C.A.), at p. 741.
This was the alternative basis for the application judge’s order. After
reviewing the relevant evidence, he characterized the inclusion of a still debt-liable 846 in the amalgamation as “an inadvertent mistake” and, citing
Bramco and this court's decision in Attorney General of Canada v. Juliar
(2000), 50 O.R. (3d) 728, concluded that there was “no reason not to grant the
relief to TCR under this equitable jurisdiction to relieve against mistake.”
I see no basis for disagreeing with this analysis or with the application judge’s
exercise of discretion in setting aside the amalgamation. The amalgamating
companies agreed to the amalgamation based on the mistake that 846 was