In The Queen v. PwC as Trustee in Bankruptcy for Bioartificial Gel Technologies (Bagtech) Inc., 2013 FCA 164 (Bagtech), the Federal Court of Appeal (FCA) confirmed the full scope of the Supreme Court of Canada’s decision in Duha Printers (Western) Ltd. v. The Queen. In Bagtech, the Crown argued that a “unanimous shareholder agreement” (USA) can only consist of provisions that restrict the powers of directors to manage the corporation’s business, and that any provisions dealing with the election of directors must be severed from the agreement for purposes of determining the de jure control of a corporation. The FCA did not agree. The Supreme Court of Canada (SCC) clearly held in Duha Printers that if a USA is found to exist, any provisions in the USA concerning the election of directors must also be considered in determining de jure control (paragraph 19 and paragraphs 49 to 51 of the attached). The FCA further commented that in Duha Printers the SCC adopted a pragmatic and flexible approach on this issue (paragraph 58), and that only the SCC has the power to modify the rules set out in its decisions (paragraph 56). In Bagtech, the hypothetical majority non-resident shareholder – for purposes of the definition of a “Canadian-controlled private corporation” (CCPC) – did not have the ability to elect a majority of the directors under the USA. This meant that the corporation was a CCPC.