Welcome to the 21st issue of the Blakes Pensions Newsletter. This newsletter provides a summary of recent jurisprudential developments that affect pensions and benefits and is not intended to be legal advice.

For additional information or to discuss how any aspect of these developments may affect you, please contact a member of the Blakes Pensions, Benefits & Executive Compensation group.

IN THIS ISSUE

FAMILY LAW

PRE-RETIREMENT DEATH BENEFITS

BENEFICIARY DESIGNATIONS

DEDUCTABILITY OF PENSION PLAN CONTRIBUTIONS

DISCRIMINATION UNDER HEALTH AND WELFARE BENEFIT PLANS

INCENTIVE PLAN PAYMENTS FOLLOWING TERMINATION

RETAIL SALES TAX ON HEALTH AND WELFARE PLANS

FAMILY LAW

Malbon v. Malbon, 2017 BCCA 427

Leslie Alan Malbon (Appellant) and Teresa Ruth Malbon (Respondent) married in 1980 and separated in 2002. In 2007, they entered into a consent divorce order (Order), which provided that the Appellant would pay the Respondent C$1,000 each month in spousal support. The Order also stated that the pension plans of both the Appellant and the Respondent were family assets and that each party would be given a proportionate share in the benefits payable under the other party’s pension plan pursuant to the former Family Relations Act (British Columbia) (FRA). The Appellant elected to receive his share of the Respondent’s pension benefit by way of a lump-sum payment, instead of monthly instalments. The Respondent elected not to receive her share of the Appellant’s pension as a lump-sum payment; however, she was precluded under the FRA from receiving monthly instalments until the Appellant retired. The legislative scheme changed in 2013 when the Family Law Act (British Columbia) (FLA) came into force, which stated that the Respondent is entitled to receive her share of the Appellant’s pension on the earliest date that he could elect to have his pension commence (i.e., before retirement). In that same year, the Respondent started collecting her share of the Appellant’s pension in monthly instalments.

The Appellant applied to the Supreme Court of British Columbia (BCSC) to reduce the spousal support owing to the Respondent on the basis that her collecting of his previously divided pension constituted a change in circumstances. The BCSC rejected the Appellant’s argument, finding that the Respondent’s decision to begin collecting her share of the Appellant’s pension as soon as it became available was contemplated by the parties at the time of the Order and therefore was not a change in circumstances. Further, the BCSC applied the “double recovery” rule from Boston v. Boston (Boston). It noted that just as the Appellant would not be required to use pension income to pay spousal support, neither should the Respondent be disentitled to continued spousal support because of her receipt of income from a previously equalized pension.

The Appellant brought an appeal to the British Columbia Court of Appeal (BCCA), which confirmed the ruling of the BCSC and dismissed the appeal. Although the “double recovery” rule in Boston was formulated in the inverse case to prevent the recipient from receiving the benefit of a pension twice — as an asset and then again as a source of income — the BCCA held that the BCSC was correct to apply the rule to the present scenario to allow the Respondent to receive spousal support notwithstanding her collecting of a previously equalized pension.

British Columbia Court of Appeal Decision

Fawcett v. Fawcett, 2018 ONCA 150

In Fawcett v. Fawcett, 2018 ONCA 150, the Ontario Court of Appeal (ONCA) considered the division of a federal pension as family property under the Ontario Family Law Act (FLA). Charlene Fawcett (Appellant) and Timothy Fawcett (Respondent) married in 1994 and separated in 2013. The Appellant had a Canadian Forces pension provided under the Canadian Forces Superannuation Act (CFSA), with a commuted value of C$747,200. The pension had matured and the Appellant was receiving monthly payments.

To satisfy the equalization payment, the trial judge ordered an application to the pension administrator of the Canadian Forces pension, requiring the latter to transfer C$313,002 to the Respondent. The Appellant wished to pay the Respondent on a monthly basis by having her pension payments split at source. The Respondent wanted an immediate lump-sum transfer. The trial judge held that under the Pension Benefits Division Act (PBDA) (the federal statute governing the division of CFSA pensions), only a lump-sum transfer was permissible. Charlene Fawcett appealed this decision.

The ONCA dismissed the appeal and held that a lump-sum payment was consistent with all relevant legislation. In arriving at its decision, the ONCA interpreted the PBDA, the Garnishment, Attachment and Pension Diversion Act (GAPDA) and the FLA.

The ONCA found that there was nothing in the PBDA that gave a plan administrator the power to split pension payments as a method for dividing family property. It further noted that section 8 of the PBDA addressed the ways in which a pension benefit could be divided and this section only provides for a one-time transfer of funds into a locked-in financial instrument.

In addition, the ONCA held that GAPDA did not allow pension payments to be split at source as family or matrimonial property, but only applied to the enforcement of support orders, which did not encompass matrimonial property.

Finally, the ONCA held that under the FLA, there are two options for satisfying an equalization payment for a pension in pay: (i) a lump-sum transfer; or (ii) a division of pension payments. The ONCA noted that in any given case, it would be up to a judge to determine whether a lump-sum payment was appropriate. After reviewing the relevant legislation, the ONCA held that the trial court judge had not erred in the interpretation of applicable provincial and federal legislation and that in addition to being the only manner of division permissible under the PBDA, a lump-sum transfer of the appellant’s pension was appropriate in the circumstances.

Kraft v. Kraft, 2018 BCSC 496

This case involved a separation, divorce, and subsequent division of property between Klaus Kraft and Virginia Kraft.

Mr. and Ms. Kraft were married for over 27 years. During that time, Mr. Kraft worked for BC Hydro and Ms. Kraft remained at home to raise the couple’s two children. Mr. Kraft became entitled to a defined benefit pension (Pension) under his employer’s pension plan. In 1997, Mr. Kraft separated from Ms. Kraft and began living with a different partner. Mr. Kraft and Ms. Kraft formally divorced in 2015.

Ms. Kraft had a difficult time following the separation. She did not have many discernible job skills and could not earn even a modest income from any occupation. Although Mr. Kraft made small monthly support payments to her following their separation, she lived in relative destitution. She also suffered from ongoing depression, for which she was hospitalized. Ms. Kraft brought a claim against Mr. Kraft for retroactive spousal support for the 17 years between their separation and divorce, and for the division of family property, including the Pension.

The claim was allowed. The Supreme Court of British Columbia (BCSC) explained that this case was unusual because the evidence and circumstances justified Ms. Kraft’s significant delay in commencing proceedings. Accordingly, the parties’ date of separation was used for the purposes of calculating the retroactive support order amount. The BCSC held that Mr. Kraft owed Ms. Kraft C$563,376 for retroactive spousal support.

The BCSC considered how the division of family property (including the Pension) impacted this amount. It relied on section 129 of B.C.’s Family Law Act (FLA), which allows the court to reapportion pension benefits for the purpose of providing a spouse with an independent source of income, and to deviate from the general rule that pension division must be determined as of the date of separation. Such an order was necessary to remedy unfairness. Thus, pursuant to section 129(1)(b) of the FLA, the BCSC ordered that the Pension be reapportioned and divided equally between the parties as of the first day of the trial. This reapportionment avoided the need for ongoing spousal support payable by Mr. Kraft to Ms. Kraft. Additionally, the division of the Pension, along with the division of other family property, was ordered to have the effect of a lump-sum payment of spousal support and cancelled any remaining arrears owed by Mr. Kraft to Ms. Kraft.

Supreme Court of British Columbia Decision

Lubianesky v. Gazdag, 2018 ABQB 290

Christa Lubianesky and Dustin Gazdag lived together from 1998 to 2013 and had two children. At the end of their relationship, they entered into a Parenting, Support and Property Agreement (Agreement), wherein Ms. Lubianesky was to receive a lump-sum support payment from Mr. Gazdag’s pension and no further payments. When the parties attempted to give effect to the Agreement, Mr. Gazdag’s pension administrator stated it was bound by the Alberta Employment Pension Plans Act (EPPA) and could not transfer the funds to Ms. Lubianesky, as the Agreement was not a matrimonial property order or agreement as required under the EPPA to give effect to a division of a pension benefit.

Ms. Lubianesky sought judgment to declare either that the provision within the Agreement was frustrated, or in the alternative, that the relevant provision of the EPPA is contrary to the Canadian Charter of Rights and Freedoms (Charter). Ms. Lubianesky specifically challenged subsection 78(a) of the EPPA as contravening section 15(1) of the Charter as it applies differently to married and unmarried spouses.

Section 78(a) of the EPPA makes it possible for “pension partners” to divide their pension benefits by agreement. “Pension partners” are defined as: (i) persons who are married to each other and have not lived apart for a continuous period of over three years; and (ii) persons who have lived together in a marriage-like relationship for a continuous period of at least three years, or in a marriage-like relationship “of some permanence” if there is a child of the relationship.

Notwithstanding such broad definition, section 81 of the EPPA only permits the division of pension benefits between pension partners “in accordance with [an] applicable matrimonial property order or agreement”. Section 78(a) of the EPPA further defines “agreement” in this context as “a written agreement that provides for the division and distribution of a benefit and that meets the requirements of section 37 of the Alberta Matrimonial Property Act, and that is enforceable under section 38 of that Act.” However, the Matrimonial Property Act (MPA) only applies to married and formerly married spouses. Accordingly, while the definition of “pension partner” in the EPPA is inclusive of non-married spouses, the rules regarding division of pension benefits apply only to married spouses.

The Court of Queen’s Bench of Alberta (ABQB) allowed the application. By denying common-law spouses the benefit of dividing their pension benefits by agreement, it found that the EPPA had a discriminatory effect on couples based on their marital status. Prior jurisprudence emphasized the “freedom of choice” of being unmarried, and that couples are permitted to structure their legal and financial affairs as they see fit. By taking away from unmarried spouses the freedom to contract and disallowing them to mutually agree to the partition of amounts that one spouse may have accrued, the ABQB held that the EPPA was inconsistent with section 15(1) of the Charter and with the “freedom of choice” principle that has been tied to unmarried spouses.

Therefore, in order to rectify this element and place unmarried spouses in the same position as married ones, the ABQB read the following underlined words into section 78(a) of the EPPA:

“agreement” means a written agreement between pension partners that provides for the division and distribution of a benefit and that meets the requirements of sections 37 and 38 of the Matrimonial Property Act, mutatis mutandis, whether or not that Act is applicable as between the pension partners.

Such wording was chosen to give unmarried spouses the opportunity to contract into the division of pensions if they desired. Further, sections 37 and 38 of the MPA were extended to unmarried spouses to provide further protection to spouses that enter into such agreements voluntarily and with informed consent.

Alberta Court of Queen’s Bench Decision

PRE-RETIREMENT DEATH BENEFITS

Beccarea v. Canadian National Railway Company, 2018 ONSC 630

John Beccarea retired from the Canadian National Railway Company (CNR) in 1980 and began receiving pension benefits under the CNR pension plan (Plan). In 1992, John and Cora Beccarea divorced, and in 2003, Mr. Beccarea died.

Upon Mr. Beccarea’s death, rule 6(6) of the Plan was triggered. It read:

On the death of a pensioner, survivor benefits equal to one-half of his pension shall be paid:

  1. To his widow during her lifetime; or
  2. To his estate during the remainder of a 10-year period from the date of his retirement if within that period his widow dies or he dies without leaving a widow.

Ms. Beccarea repeatedly requested payment of survivor benefits from CNR, but CNR denied her requests, on the basis that she was not his “widow” under rule 6(6) of the Plan, since she was divorced from Mr. Beccarea at the time of his death. She sought a judgment from the Ontario Superior Court of Justice (ONSC) for the unpaid amount, which totaled approximately C$200,000.

Ms. Beccarea’s action failed for having been brought outside the period allowed by the Limitations Act, 2002, as the ONSC agreed with CNR that the limitation period commenced at the time the original claim for a survivor benefit was denied. Nevertheless, the ONSC proceeded to consider the Plan interpretation issue.

Ms. Beccarea argued that her status should be determined at the date of Mr. Beccarea’s retirement, rather than his death. She relied on a decision of the Ontario Court of Justice (General Division), which concluded that the status of the claimant was to be determined when the first instalment of the pension was due, under the wording of subsection 44(1) of the Ontario Pension Benefits Act (PBA). At the time of his retirement, Mr. and Ms. Beccarea were married.

The ONSC distinguished that case on the basis that this Plan was subject to the federal Pension Benefits Standards Act, 1985 (PBSA), which at the time of Mr. Beccarea’s retirement, did not contain equivalent language to that of subsection 44(1) of the PBA (the PBSA has since been amended to require pension benefits commencing on, or after, January 1, 1987 to be paid in joint and survivor form when the member has a spouse at the date of pension commencement). In the absence of a statutory requirement, the ONSC considered the language of rule 6(6) of the Plan and concluded that the wording of the rule clearly triggered entitlement upon Mr. Beccarea’s death. Since Ms. Beccarea was not Mr. Beccarea’s widow at the time of his death, she was not entitled to a survivor benefit under the Plan.

BENEFICIARY DESIGNATIONS

Rehel Estate v. Methot, 2017 ONSC 7529

In 2015, William Rehel committed suicide. At the time, he was married to Sharon Methot, but they were not living together. Mr. Rehel had a Life Income Fund Account (LIF Account), under which he had initially designated Ms. Methot as the beneficiary in 2013. However, a day before he died, Mr. Rehel wrote a will declaring that the money in the LIF Account should be used by the estate trustee (Mr. Rehel’s brother) to pay off any debts owing at his death. One of the issues before the Ontario Superior Court of Justice (ONSC) was whether Ms. Methot was automatically entitled to the funds in the LIF Account.

Under subsection 48(1) of the Ontario Pension Benefits Act (PBA), if a person who is entitled to receive the proceeds of a deferred pension benefit dies before receiving any benefits, that person’s spouse is entitled to the proceeds, notwithstanding the deceased naming someone other than his spouse as the beneficiary of the proceeds. However, pursuant to subsection 48(3) of the PBA, if the person and his spouse were “living separate and apart” at the time of death, the spouse is not automatically entitled to the proceeds and the funds would go to whomever was named as the beneficiary. Upon reviewing evidence produced by the estate trustee proving that separation occurred prior to death, including a letter from Ms. Methot’s divorce lawyer regarding terms of a separation agreement, the ONSC was satisfied that subsection 48(3) of the PBA applied, and that Ms. Methot was not automatically entitled to funds in the LIF Account.

The ONSC then considered whether Quebec law applied, since the application form completed when Mr. Rehel opened the LIF Account included the notation: “Pension governed by the laws of Quebec.” Under section 89 of the Quebec Supplemental Pension Plans Act (SPPA), “the right of a member’s spouse to benefits…is terminated by separation from bed and board.” Ms. Methot argued that “separation from bed and board” has a different meaning than “living separate and apart,” and can only occur if a spouse obtains a decision from a court stating that it has. Since Mr. Rehel did not obtain such court decision, Ms. Methot claimed she remained his spouse under the SPPA and was therefore entitled to the funds in the LIF Account.

The ONSC followed previous decisions, which held that the law of another province is foreign law, which must be proven by way of an expert opinion. In the absence of such proof, the ONSC assumed that “separation from bed and board” has the same meaning as “living separate and apart.” Thus, due to the evidence that separation occurred before Mr. Rehel died and the absence of proof that “separation from bed and board” has a different meaning than “living separate and apart,” the ONSC held that Ms. Methot was not automatically entitled to the funds held in Mr. Rehel’s LIF Account.

Cotnam v. Rousseau, 2018 ONSC 216

Shelly Cotnam (Applicant), a child of Barry Cotnam (Deceased), made a claim to the Deceased’s estate for dependant support under the Succession Law Reform Act (SLRA). Section 58 of the SLRA provides that a court may make an order out of an estate it considers adequate for the support of a deceased person’s dependants if such person has not made adequate provision for the proper support of the dependants. The Applicant argued that the Deceased’s pre-retirement death benefit, currently payable to the Deceased second wife, Mabel Ann Rousseau (Respondent), ought to be attributed to the Deceased’s estate pursuant to subsection 72(1)(g) of the SLRA, which states that any amount payable under a designation of beneficiary may be deemed to be part of the Deceased’s estate. Upon the death of the Deceased, the Respondent received a pre-retirement death benefit of approximately C$368,000.

The Respondent argued that subsection 48(6) of the Ontario Pension Benefits Act (PBA) restricts the ability of a pension holder to designate a beneficiary if the member has a spouse at the time of his or her death. Since she received the pre-retirement death benefit as a spouse and not a beneficiary, the Respondent posited that the claw back provision of the SLRA does not apply.

Although two cases clearly supported the Respondent’s position that a spouse’s entitlement to a pre-retirement death benefit flows from marital status, the Ontario Superior Court of Justice (ONSC) held that the pre-retirement death benefit is not sheltered from the SLRA. It reasoned that ignoring the pre-retirement death benefit would frustrate the purpose of the SLRA, which is to balance the assets between spouses and other dependants, particularly in the common case where the pre-retirement death benefit is the only asset available to the Deceased at the time of death. The ONSC therefore held that the value of the pre-retirement death benefit is to be included in calculating the value of the Deceased’s estate, as per subsection 72(1)(g) of the SLRA.

DEDUCTABILITY OF PENSION PLAN CONTRIBUTIONS

Smith v. The Queen, 2018 TCC 61

In this decision, Thomas Smith appealed an assessment made under the Income Tax Act (ITA) for the 2015 taxation year. The issue on appeal was whether Mr. Smith, a registered Indian under the Indian Act, can claim a deduction in respect of contributions made to a registered pension plan (RPP) sponsored by his employer against income other than that arising from the employment relationship in respect of which the contributions were made, or whether the deduction is confined to the income source from which it was derived.

Mr. Smith was employed as tribe councilor and head of economic development for the Tlowitsis-Mumtagila First Nation. His employment income was 100 per cent tax exempt. Yet, Mr. Smith had other taxable income from dividends and capital gains interest. It was against this taxable income that Mr. Smith wanted to claim the deduction for RPP contributions made in respect of his employment.

The Tax Court of Canada dismissed Mr. Smith’s appeal. It held that although claiming the deduction for RPP contributions against Mr. Smith’s non-taxable employment income produces a net-zero effect, the taxing scheme set out in the ITA does not permit the deduction for RPP contributions to be treated as a general deduction that can be separated from its income source. Accordingly, Mr. Smith could only claim an RPP contribution as a deduction against the income source from which it was derived.

DISCRIMINATION UNDER HEALTH AND WELFARE BENEFIT PLANS

Canadian Elevator Industry Welfare Trust Fund v. Skinner, 2018 NSCA 31

The Court of Appeal of Nova Scotia (NSCA) overturned a decision of the Nova Scotia Human Rights Board of Inquiry (Board) and considered what constitutes discrimination in the denial of access to coverage for medicinal marijuana in the context of a private benefit plan.

Gordon Skinner, a member of the International Union of Elevator Constructors, was eligible for health benefits under a Welfare Plan administered by the Welfare Plan’s Trustees (Trustees). Mr. Skinner’s physician prescribed him medical marijuana to manage chronic pain caused by a car accident dating back to 2010. Prior to medical marijuana, Mr. Skinner had been prescribed narcotics and anti-depressants, but both medications were ineffective for him and had negative side effects. Mr. Skinner requested reimbursement of medical marijuana expenses, which the Trustees rejected because the Welfare Plan did not cover prescription drugs not approved by Health Canada. Following the rejection, Mr. Skinner brought a human rights complaint on the basis of discrimination founded on his disability.

In February 2017, the Board found Mr. Skinner had been discriminated against. According to the Board, Mr. Skinner faced “non-direct and unintentional” discrimination, and the exclusion of coverage for medical marijuana had the adverse effect of depriving him of the medically necessary drug prescribed by his physician. The Trustees appealed, claiming that the Board erred in finding Mr. Skinner had established on a balance of probabilities that his disability was a factor in the decision to deny him coverage for medical marijuana.

The NSCA held that the Board erred in finding that non-coverage of medical marijuana discriminated against Mr. Skinner “based on” his disability and that therefore, the Trustees’ decision was not a violation of the Nova Scotia Human Rights Act. According to the NSCA, the Welfare Plan did not cover medical marijuana expenses because it is not a drug approved by Health Canada, which was a reasonable limit imposed by the Trustees on reimbursable benefits, and thus, is not automatically discriminatory. The real benefit offered by the Welfare Plan is not “pain relief” per se, nor could it be. The Trustees, in the exercise of their fiduciary duty, chose Health Canada approval as a reasonable limit to determine what benefits would be available, a limit which is independent of the claimant’s disability.

Talos v. Grand Erie District School Board, 2018 HRTO 680

Wayne Talos reached out to his employer, Grand Erie District School Board (Board) in the spring of 2012, upon learning that his extended health, dental and insurance benefits (Benefits) had been terminated as a result of his age. As a result, Mr. Talos no longer had coverage for cancer medications for his wife.

The Board relied on subsection 25(2.1) of the Ontario Human Rights Code (Code) for its decision to terminate the Benefits. It provides that “the right under section 5 to equal treatment with respect to employment without discrimination because of age is not infringed by an employee benefit, pension, superannuation or group insurance plan or fund that complies with the Employment Standards Act.” Read in conjunction with the relevant provisions of the Employment Standards Act, 2000 (ESA), employers could provide unequal benefits to employees age 65 or older. Mr. Talos argued that such exception within the Code infringed his right to equality and was therefore unconstitutional.

The Human Rights Tribunal of Ontario (Tribunal) agreed with Mr. Talos. It found that the Canadian Charter of Rights and Freedoms (Charter) had been infringed based on an age distinction that created a disadvantage and imposed financial burdens upon those within the distinguished group. Such infringement was not found to be justified under section 1 of the Charter, even though the Tribunal found the objective of supporting financial viability of group plans to be pressing and substantial. Section 25(2.1) of the Code could not be justified under section 1 of the Charter as it was not minimally impairing, the scope and degree of impairment to those affected was too far-reaching, and there was little attempt to find reasonable alternatives.

In support of its view, the Tribunal noted that legislators had at least turned their minds to the potential discrimination stemming from this portion of the Code in the context of discussions about the removal of the mandatory retirement age requirements. The Tribunal also noted that workplace benefit plans can still be bargained for effectively while ensuring financial viability within workplaces without making employees above the age of 65 particularly vulnerable to the loss of their benefits.

INCENTIVE PLAN PAYMENTS FOLLOWING TERMINATION

Carroll v. ATCO Electric Ltd, 2018 ABCA 146

John Carroll brought an action against ATCO Electric Ltd. following the termination of his senior executive position. His action included, among other things, a claim for not having received the compensation upon termination to which he was entitled based on his enrolment in two different bonus plans: (i) the Canadian Utilities Limited (CUL) stock option plan; and (ii) the CUL share appreciation rights plan (together, the Plans).

The Alberta Court of Appeal (ABCA) rejected Mr. Carroll’s assertion. Specifically, it held that the Plans contained clear language indicating that, upon termination or retirement, any unvested interest under the Plans would be terminated without regard to statutory or common law notice periods. Accordingly, since Mr. Carroll had no vested interest in the Plans as of the date of the termination of his employment, there was no monetary value in the Plans that could be paid out to him. Mr. Carroll was equally not entitled to any increase in value for awards made under the Plans over the notice period.

RETAIL SALES TAX ON HEALTH AND WELFARE PLANS

Capcorp Planning (2003) Inc. v. Ontario (Finance), 2018 ONCA 406

In this decision, the Court of Appeal for Ontario (ONCA) overturned the decision of the appeal judge of the Ontario Superior Court of Justice (ONSC) and affirmed the assessment of the Ontario Minister of Revenue (Minister) regarding the exigibility of retail sales tax on benefits plans.

Capcorp Planning (2003) Inc. (Capcorp) sold a health and welfare plan (HWP) that requires a participating employer to pay the expenses incurred by its employees. The employer then submits a claim and a cheque to Capcorp, which reviews the claim and reimburses the expenses if they fall within the HWP coverage. Capcorp did not charge any retail sales tax (RST) on any amounts employers paid and it received in respect of the claims made under the HWP. The Minister found that Capcorp had not charged, collected or remitted RST on any amounts paid by employers to Capcorp between January 1, 2005 and March 31, 2009. According to the Minister’s assessment, HWP is considered a “benefit plan”, which is subject to taxation under subsection 2.1(1) of the Retail Sales Tax Act (RSTA). Accordingly, Capcorp was required to charge, collect and remit the outstanding RST and pay a penalty of C$278,625.31, including interest.

Capcorp appealed to the ONSC. The ONSC held that the HWP did not meet the definition of “benefits plan” within the context of the RSTA, focusing on the definition of an “unfunded benefits plan” under subsection 1(1). The ONSC stated that for tax to be owing, the unfunded benefits plan must deal with “a risk to an individual that could otherwise be obtained by taking out a contract of insurance.” The ONSC found:

The evidentiary issue, therefore, is the following: “could the risk in the Plan be covered by a policy of insurance?” The evidence led, here, is that it could not be. The wording suggests that if such insurance is not available, the risk could not be otherwise covered. The wording is clear. It would seem unnecessary to otherwise interpret the statute. The legislature deemed that an exemption was necessary and it is this Court’s view that the wording in the exemption is clear.

Therefore, the ONSC quashed the assessment.

The ONCA held that the ONSC erred in interpreting the term “unfunded benefits plan” and in the consideration of Capcorp’s evidence. The ONCA agreed with the Minister, holding that the HWP is considered an “unfunded benefits plan” and is thus subject to the RST. The decision turned on whether the term “unfunded benefits plan” includes a plan that provided protection under contracts of insurance, but is unavailable to some participants because of their medical conditions. It held that benefit plans, whether they are funded or unfunded, are taxed because such plans are substitutes for insurance and therefore receive similar tax treatment to contracts of insurance.

The ONCA also agreed with the Minister that the evidence presented by Capcorp was insufficient to create a prima facie case leading to the shift of the burden of proof to the Minister. Whenever a vendor fails to make a return or remittance as required by the RSTA, the Minister can assess the tax, which is deemed to be valid and binding on the vendor. In tax cases, the burden of proof rests on the taxpayer to establish that the assumptions on which the Minister grounded the assessment are wrong. The taxpayer must make a prima facie case in order to rebut the Minister’s assumptions that led to the assessment.

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