Docket: 2014-3401(IT)G  
BETWEEN:  
JAMES T. GRENON,  
Appellant,  
and  
HER MAJESTY THE QUEEN,  
Respondent.  
Appeal heard on common evidence with the appeal of The RRSP Trust  
of James T. Grenon (552-53721) by its Trustee CIBC Trust Corporation  
2014-4440(IT)G  
Appeal heard on February 11, 12, 13, 14, 15, 18, 19, 20, 21, 22, 2019 and  
September 9, 10, 11, 12 13, 2019, at Winnipeg, Manitoba.  
Before: The Honourable Justice Guy R. Smith  
Appearances:  
Counsel for the Appellant:  
Cy M. Fien  
Brandon Barnes Trickett  
Ari M. Hanson  
Aron W. Grusko  
Counsel for the Respondent: Ifeanyi Nwachukwu  
Tanis Halpape  
Christopher Kitchen  
Jeremy Tiger  
AMENDED JUDGMENT  
Page: 2  
[This Amended Judgment is issued in  
substitution of the Judgment dated April 9, 2021 to  
correct and add counsel’s names.]  
In accordance with the attached Reasons for Judgment, the appeal from Notices of  
Reassessment made by the Minister of National Revenue on February 28, 2013 in  
respect of the 2008 and 2009 taxation years, pursuant to subsection 56(2) of the  
Income Tax Act AND the appeal from the Notices of Assessment made on March 1,  
2013 in respect of the 2004 to 2011 taxation years, pursuant to subsection 204.1(2.1)  
of the Income Tax Act, are hereby allowed.  
The parties will have 60 days from the date of hereof to provide written submissions  
regarding costs. Such submissions shall not exceed 15 pages for each party.  
Signed at Ottawa, Canada, this 27th day of April 2021.  
“Guy R. Smith”  
Smith J.  
Docket: 2014-4440(IT)G  
BETWEEN:  
THE RRSP OF JAMES T. GRENON (552-53721)  
BY ITS TRUSTEE CIBC TRUST CORPORATION,  
Appellant,  
and  
HER MAJESTY THE QUEEN,  
Respondent.  
Appeal heard on common evidence with the appeal of  
James T. Grenon 2014-3401(IT)G  
Appeal heard on February 11, 12, 13, 14, 15, 18, 19, 20, 21, 22, 2019 and  
September 9, 10, 11, 12 13, 2019, at Winnipeg, Manitoba.  
Before: The Honourable Justice Guy R. Smith  
Appearances:  
Counsel for the Appellant:  
John J. Tobin  
Linda Plumpton  
James Gotowiec  
Cy M. Fien  
Brandon Barnes Trickett  
Ari M. Hanson  
Aron W. Grusko  
Counsel for the Respondent: Ifeanyi Nwachukwu  
Tanis Halpape  
Christopher Kitchen  
Jeremy Tiger  
Page: 2  
AMENDED JUDGMENT  
[This Amended Judgment is issued in  
substitution of the Judgment dated April 9, 2021 to  
correct and add counsel’s names.]  
In accordance with the attached Reasons for Judgement, the appeal from Notices of  
Assessment made by the Minister of National Revenue on March 6, 2013 in respect  
of the 2004 to 2009 taxation years, pursuant to subsection 146(10.1) of the Income  
Tax Act is allowed and the appeal is referred the back to the Minister for  
reconsideration and reassessment on that basis that the income of the RRSP Trust  
received from the Income Funds (described herein as the Distribution Transactions)  
during the 2005 taxation year, shall be reduced by $136,654,427;  
The appeal from Notices of Reassessment dated March 6, 2013 in respect of the  
2004 to 2009 taxation years, pursuant to subsection 207.1(1) of the Income Tax Act,  
is hereby dismissed.  
The parties will have 60 days from the date of hereof to provide written submissions  
regarding costs. Such submissions shall not exceed 15 pages for each party.  
Signed at Ottawa, Canada, this 27th day of April 2021.  
“Guy R. Smith”  
Smith J  
Page: 3  
Table of Contents  
OVERVIEW..................................................................................................................................................1  
BACKGROUND FACTS................................................................................................................................3  
a) The Appellant....................................................................................................................................3  
b) The Income Funds.............................................................................................................................5  
c) The acquisition of units by the RRSP Trust .......................................................................................7  
d) The income distributions made by the Income Funds....................................................................10  
e) Tom 2003-1 Income Fund...............................................................................................................12  
f) Tom 2003-2 Income Fund...............................................................................................................13  
g) Tom 2003-3 Income Fund...............................................................................................................13  
h) Tom 2003-4 Income Fund...............................................................................................................14  
i) Tom 2006-5 Income Fund...............................................................................................................15  
j) Tom 2006-8 Income Fund...............................................................................................................15  
k) The Fact witnesses..........................................................................................................................15  
THE ASSESSMENTS.................................................................................................................................19  
a) Grenon Appeal - Part 1 Reassessments .........................................................................................19  
b) Grenon Appeal - Part X.1 Assessments...........................................................................................19  
c) RRSP Trust Appeal - Part 1 Assessments.........................................................................................20  
d) RRSP Trust Appeal - Part XI.1 Reassessments.................................................................................20  
THE ISSUES.............................................................................................................................................20  
a) Grenon Appeal - Part 1 Reassessments and Part X.I Assessments.................................................20  
b) RRSP Trust Appeal - Part 1 Assessments and Part XI.1 Reassessments..........................................21  
PRELIMINARY ISSUES ..............................................................................................................................22  
a) Admissibility of the Affidavit of Helen Little ...................................................................................22  
b) Admissibility of certain Read-ins.....................................................................................................25  
RELEVANT STATUTORY PROVISIONS .....................................................................................................26  
a) The RRSP legislative framework......................................................................................................26  
b) Mutual Fund Trusts.........................................................................................................................37  
c) Indirect Payments ...........................................................................................................................43  
d) General Anti-Avoidance Rule (“GAAR)..........................................................................................44  
ANALYSIS...............................................................................................................................................48  
Page: 4  
Whether the Income Funds were “Qualified Investments”? .............................................................48  
a) Overview – “a lawful distribution…to the public” ..........................................................................48  
b) Summary of the Alleged Deficiencies .............................................................................................56  
c) The burden of proof in tax appeals.................................................................................................57  
d) General principles of statutory interpretation ...............................................................................60  
e) The meaning of “distribution” in subparagraph 4801(a)(i)A ..........................................................61  
f) The meaning of “lawful” in subparagraph 4801(a)(i)A...................................................................66  
g) Failure to disclose the position held...............................................................................................72  
h) The subscription and acquisition of units by minors ......................................................................73  
i) The subscription of units by adults for other adults.......................................................................83  
j) The requirement that units be purchased “as principal” ...............................................................86  
k) The requirements of Regulation 4900(1)(d.2) ................................................................................90  
l) Conclusion.......................................................................................................................................92  
The Sham Doctrine..............................................................................................................................93  
Window Dressing..............................................................................................................................100  
The Application of Subsection 56(2).................................................................................................105  
The Excess Contributions ..................................................................................................................113  
Statute-Barred Years.........................................................................................................................117  
a) The Grenon Appeal .......................................................................................................................117  
b) The RRSP Appeal...........................................................................................................................121  
The application of GAAR...................................................................................................................133  
a) Was there a tax benefit?...........................................................................................................135  
b) Was there an avoidance transaction? ..........................................................................................137  
c) If so, was the avoidance transaction ‘abusive’?............................................................................140  
d) Determination of tax consequences.............................................................................................149  
e) Analysis and Conclusion............................................................................................................151  
CONCLUSION......................................................................................................................................154  
Appendix A The Read-ins .......................................................................................................................157  
Citation:2021 TCC 30  
Date:20210601  
Docket: 2014-3401(IT)G  
BETWEEN:  
JAMES T. GRENON,  
and  
Appellant,  
HER MAJESTY THE QUEEN,  
Respondent.  
Docket: 2014-4440(IT)G  
THE RRSP OF JAMES T. GRENON (552-53721)  
BY ITS TRUSTEE CIBC TRUST CORPORATION,  
Appellant,  
and  
HER MAJESTY THE QUEEN  
Respondent.  
FURTHER AMENDED REASONS FOR JUDGMENT  
Smith J.  
OVERVIEW  
James T. Grenon (the “Appellant”) was the annuitant of a Registered  
Retirement Savings Plan (the “RRSP Trust”) in which he had accumulated  
substantial assets. CIBC Trust Corporation (“CIBC Trust”) acted as trustee.  
The Appellant established and promoted several income funds (the “Income  
Funds”) each of which raised a relatively modest amount of capital relying on the  
exempt distribution rules of the provinces of Alberta and British Columbia. The  
investors in each fund were essentially the same but the Appellant also participated,  
acquiring units personally and through investment vehicles he owned or controlled.  
 
Page: 2  
Following the closing of the exempt distributions, the Appellant (acting alone  
or in concert with two other individuals and their respective RRSPs) then arranged  
for the RRSP Trust to acquire in excess of 99% of the units of the Income Funds.  
The Income Funds then invested in flow-through investment vehicles that  
served as conduits for the acquisition of business ventures or investments controlled  
directly or indirectly by the Appellant, the profits of which flowed back to the  
Income Funds and were distributed to unitholders, including the RRSP Trust.  
It is not disputed that the Appellant intended from the beginning to structure  
the Income Funds as qualified investments for RRSP purposes and one of the key  
issues in this appeal is whether they met the definition of a “mutual fund trust”.  
The Minister of National Revenue (the “Minister”) has taken the position that  
the steps undertaken to establish the Income Funds were not legally effective such  
that they were not a “qualified investment” for RRSP purposes or alternatively, that  
they were a sham or mere window dressing intended to allow the Appellant to  
manipulate the RRSP regime by using the funds in the RRSP Trust to acquire and  
actively manage businesses or investments, the profits of which flowed back to the  
RRSP Trust where they continued to accrue on a tax-exempt basis. The Minister has  
also relied on the general anti-avoidance rule (“GAAR”).  
The appeals herein were heard on common evidence with the appeals in  
Magren Holdings Ltd. v. Her Majesty the Queen, 2017-486(IT)G; 2176 Investments  
Ltd. v. Her Majesty the Queen, 2017-605(IT)G; and Magren Holdings Ltd. v. Her  
Majesty the Queen, 2017-606(IT)G (the “Corporate Appeals”). Reasons for  
Judgment in respect of the Corporate Appeals will be issued separately.  
The “Appellant” will refer to Mr. Grenon in his personal capacity and as the  
annuitant of the RRSP Trust and the “Appellants” will refer to both Mr. Grenon and  
the CIBC Trust. Unless otherwise indicated, the 2004 to 2011 taxation years will be  
referred to as the relevant period (the “Relevant Period”).  
Unless otherwise indicated, all references to legislative provisions in these  
Reasons for Judgment are references to the legislative provisions of the Income Tax  
Act1, (the “Act”) including Regulations promulgated under the Act, that relate to the  
assessments or reassessments and the taxation years in question.  
1 R.S.C., 1985, c.1 (5th Suppl.)  
Page: 3  
BACKGROUND FACTS  
The Appellant testified on his own behalf but also called four fact witnesses,  
all of whom had acquired units in the Income Funds. Two other witnesses testified  
on behalf of the CIBC. Their respective testimony will be reviewed below.  
Alan B. Martyszenko testified as an expert witness but his testimony relates  
primarily to the Corporate Appeals and will not be reviewed herein.  
The Minister did not call any witnesses but relied on the affidavit of Helen  
Little, an auditor with the Canada Revenue Agency (“CRA”).  
a) The Appellant  
The Appellant completed a law degree at University of Manitoba in 1980 and  
practiced law in Alberta for a short period of time before pursuing an interest in  
corporate finance and investments. He resided in Alberta during the Relevant Period  
but became a non-resident when he emigrated to New Zealand in 2012.  
Early in his career, the Appellant became involved with a company known as  
Tom Capital Associates Inc. (“Tom Capital”) that focused on general corporate  
finance including loans and distressed lending. During the Relevant Period, it was  
controlled by Grencorp Management Inc. (“GMI”), wholly-owned by the Appellant.  
The Appellant also owned or controlled numerous other companies or entities  
that were used in the Income Funds structure including 100% of the shares of  
1042946 Alberta Inc. (“1042 Inc.”) and 1019109 Alberta Inc. (“1019 Inc.”) that  
acted as general partners as well as participating interests in Colborne Capital  
Corporation (“CCC”) and Landcraft Development Corporation (“Landcraft”).  
The Appellant was also involved in the early stages of the Alberta oil and gas  
industry and as a result of these activities, gained significant personal wealth.  
By 2003, the Appellant had accumulated substantial assets in the RRSP Trust  
including approximately $39 million in cash and cash equivalents and a 58% interest  
in Foremost Industries Income Fund (“FMO”), a publicly traded mutual fund trust  
created in 2001, of which he was a trustee.  
By March 2004, the units of FMO were valued at $46 million and the total  
value of the RRSP Trust at that point in time was approximately $90 million.  
   
Page: 4  
It was apparent that the Appellant was a sophisticated individual whose  
knowledge of income tax law surpassed that of ordinary taxpayers. He readily  
admitted that he frequently consulted the Act and generally followed developments  
in income tax law. He described this as one of his hobbies.  
With respect to the RRSP Trust, the Appellant explained that he was not  
interested in passive investments or in a diversified portfolio of publicly traded  
companies. He wanted to be as actively involved as possible in the management of  
the investments acquired. He understood the financial consequences of withdrawing  
funds from an RRSP which he described as financial “suicide”.  
With respect to the structure of his investments or businesses, the Appellant  
explained that he preferred a flow-through structure using business trusts or limited  
partnerships that he viewed as more efficient from an income tax point of view.  
With respect to the Income Funds, the Appellant’s objective was to broaden  
his RRSP investment horizon and to provide flexibility in the management of his  
investments in a way that was not normally possible within an RRSP.  
He was also not especially interested in raising large amounts of capital from  
a wide array of investors. As will be seen below, he only sought to raise as much  
capital from as many investors as was needed to meet or exceed the minimum  
requirements of a “mutual fund trust” as defined by the Act.  
Since he had already accumulated substantial assets in the RRSP Trust, what  
he needed was an appropriate vehicle to invest those funds. He was of the view that  
the Income Fund structure was “best aligned with his investment objectives.”  
With respect to at least two Income Funds, the Appellant collaborated with  
two other business associates, namely Bruce MacLennan (“MacLennan”) and Angus  
Sutherland (“Sutherland”). Both individuals acquired units of two Income Funds,  
accepting a transfer from the Grenon RRSP in exchange for cash from their  
respective RRSP’s (the “MacLennan RRSP” and “Sutherland RRSP”) and assumed  
various roles in the Income Fund structure. They acted as trustee of some funds or  
as directors of various companies that acted as general partners. As will be seen in  
greater detail below, the MacLennan RRSP and Sutherland RRSP each held a 49%  
interest in two Income Funds.  
Although the Appellant was the promoter of all the Income Funds, the  
Minister has described all three individuals as insiders (the “Insiders”) in connection  
Page: 5  
with the Income Fund structure. According to the Minister’s assumptions2 “the  
structures were crafted so that Insiders could obtain a number of tax related benefits  
from these non-arm’s length structures” including the following (the Minister refers  
to the Income Funds as the “Promoted Funds”):  
- The reduction and postponement of taxes payable by Grenon and various  
businesses owned by Grenon, through the payment of interest and management  
fees to related entities;  
- The deferral of tax on the distribution of income to the various RRSP Trusts held  
by the Insiders, including the Grenon RRSP Trust, income that would otherwise  
be distributed as dividends, or otherwise, subject to tax;  
- The avoidance of Part 1 and Part X1.1 tax on non-qualifying investments held by  
the Insiders’ RRSP Trusts, including the Grenon RRSP Trust;  
-The avoidance of Part X.1 tax on excess amounts contributed to the Grenon RRSP  
Trust in respect of the amounts that the Grenon RRSP Trust received from the  
Promoted Funds.  
b) The Income Funds  
The Income Funds that are relevant to these appeals were established in 2003  
and 2006. The 2003 series of Income Funds (described as Tom 2003-1, Tom 2003-  
2, Tom 2003-3, Tom 2003-4) were established in Alberta by separate deeds of trust  
dated March 14, 2003. The 2006 series of Income Funds (known as Tom 2006-5 and  
Tom 2006-8) were similarly established on June 30, 2006.  
Each Income Fund undertook a first distribution of units to 171 Investors (the  
“First Distribution”) relying on a prospectus exemption pursuant to the securities  
legislation of the provinces of Alberta and British Columbia (“BC”) known as the  
“Offering Memorandum Exemption” (“OME”).  
The units in the 2003 series of Income Funds were distributed pursuant to the  
OME requirements described in Part 4 of Multilateral Instrument 45-103 Capital  
Raising Exemptions.3 The units in the 2006 Income Funds were issued pursuant to  
the OME requirements described in Part 2 of National Instrument 45-106 Prospectus  
2 Paragraph 19(dd) of the Fresh as Further Amended Reply.  
3 Adopted by the Alberta Securities Commission effective March 30, 2002 and by the BC Securities Commission  
effective April 3, 2002.  
 
Page: 6  
and Registration Exemptions4. The OME requirements of Multilateral Instrument  
45-103 and National Instrument 45-106 (the “Instruments”) are substantially the  
same and where there are differences, they are not material in these appeals.  
An Offering Memorandum (“OM”) was prepared for each Income Fund  
indicating that a minimum of 100 units (a “block of units”) valued at $7.50 per unit  
for a total of $750 would be issued to each investor, subject to a minimum of 160  
investors (the “Investors”). All units had the same rights. The investment process  
involved delivery of the OM to prospective investors who were then required to sign  
the risk acknowledgment (the “Risk Acknowledgment”) and subscription agreement  
(the “Subscription Agreement”) forms.  
Each Income Fund allegedly issued units to 171 Investors thus raising  
approximately $128,250, subject to nominal legal and accounting fees. As explained  
by the Appellant, the minimum subscription amount and minimum number of  
Investors, was established by him with the intention that it meet or exceed the  
minimum requirements of a “mutual fund trust”, as defined by the Act.  
The Appellant participated as an Investor in the First Distribution acquiring a  
block of units for himself but additional units were acquired by entities owned or  
controlled by him including Grencorp, Tom Capital, Tom Capital Consulting Corp  
and Tom Consulting Limited Partnership. All were included as part of the Investors.  
As will be seen in greater detail below, the units were promoted and  
distributed to the Appellant’s immediate and extended family members, friends,  
employees, business associates and others with whom he was not as closely  
connected. In any event, it is not disputed that Investors who acquired units in the  
2003 and 2006 series of Income Funds were essentially the same persons.  
Additionally, I find that all Investors were residents of Alberta or BC.  
The OM indicated that it was a “blind pool offering” or “junior capital pool”  
and that the business would be identified by trustees at a later date. It indicated that  
investors would be “restricted from selling their units for an indefinite period to  
time” but that the Appellant would provide liquidity to those who might wish to  
redeem their units at cost (though this never occurred). It also indicated that the  
Appellant would “invest at least $1,000,000 in the Fund” and that he or other trustees  
4 Adopted by the Alberta Securities Commission and the BC Securities Commission effective September 14, 2005.  
Page: 7  
would acquire at least 66.66% of the units, thus allowing them “to substantially  
control the Fund”.  
Each OM contained a certificate indicating: “This Offering Memorandum  
does not contain a misrepresentation”. It was signed by the Appellant as trustee and  
promoter and included the following statement:  
No securities regulatory authority has assessed the merits of the Units or reviewed  
this offering memorandum. Any representation to the contrary is an offence. This  
is a risky investment (…)  
Finally, the OM contained an explanation of the “Tax Status of the Fund”  
indicating that, subject to certain conditions, it would be a “unit trust” and a “mutual  
fund trust” and thus a “qualified investment for Exempt Plans”. It added that if the  
fund ceased to qualify as a “mutual fund trust”, investors who acquired units in an  
exempt plan would have to pay a 1% tax on the fair market value of the units and  
report any income or gains personally.  
Upon completion of the First Distribution, the Appellant selected and  
arranged for the appointment of the trustees of the Income Funds, including Bruce  
MacLennan and Deborah Nickerson, as well as various legal counsel.  
As will be seen in greater detail below, the income fund structure generally  
included a series of trusts described as fund venture trusts (“FVT’s”) wholly-owned  
by the Income Funds. The FVT’s in turn held 99.99% of the units of a master limited  
partnership (“MLP”) that established a series of limited partnerships, as required, to  
acquire various investments or businesses. A corporation generally wholly-owned  
or controlled by the Appellant or other Insiders acted as general partner and held a  
0.01% interest. The 2006 series of Income Funds did not use an FVT and  
investments were held directly.  
c) The acquisition of units by the RRSP Trust  
Following completion of the First Distribution (including the filing of a report  
with the Alberta and BC securities commission), the Appellant undertook a second  
distribution of units in favour of his RRSP Trust which resulted in a substantial  
dilution of the initial Investors’ aggregate holdings.  
The table below provides a detailed breakdown of the subscriptions made by  
the RRSP Trust in the 2003 and 2006 series of Income Funds, setting out the date of  
 
Page: 8  
the subscription, the number of units acquired, the value of the units and the  
subscription amount, collectively referred to as the second distribution (the “Second  
Distribution”):5  
Subscriptions made by the RRSP Trust in the Income Funds  
2003-1 Income Fund  
Sub. Date  
June. 2003  
Jan. 2005  
Dec. 2007  
Total  
# of Units  
1,575,000  
3,400,000  
1,390,500  
Value of Units Amount ($)  
7.50  
9.06  
8.99  
11,812,500  
30,804,000  
12,500,595  
55,117,095  
2003-2 Income Fund  
Sub Date  
Sept. 2003  
Sept. 2006  
July 2007  
# of Units  
540,000  
225,800  
60,000  
Value of Units Amount ($)  
7.50  
4,050,000  
3,499,900  
896,400  
15.50  
14.94  
15.08  
18.00  
May 2008  
July 2010  
147,700  
41,666  
2,227,316  
749,988  
Total  
11,423,604  
2003-3 Income Fund  
Sub Date  
# of Units  
Value of Units Amount ($)  
Sept. 2003  
540,000  
7.50  
4,050,000  
Total  
4,050,000  
2003-4 Income Fund  
Sub Date  
Nov. 2005  
May 2006  
# of Units  
3,821,850  
4,000,000  
Value of Units Amount ($)  
40.00  
5.53  
152,874,000  
22,120,000  
174,994,000  
Total  
2006-5 Income Fund  
Sub Date  
March 2008  
July 2008  
# of Units  
320,000  
213,333  
Value of Units Amount ($)  
7.50  
7.50  
2,400,000  
1,599,998  
3,999,998  
Total  
2006-8 Income Fund  
Sub Date  
# of Units  
Value of Units Amount ($)  
7.50 39,999,998  
August 2008  
5,333,333  
5 Tab 3 of the Appellant’s Compendium of Documents  
Page: 9  
August 2009  
3,176,620  
7.87  
24,999,999  
Total  
64,999,997  
The total amounts are further summarized in the table below. The RRSP Trust  
acquired units of the 2003 Income Funds and the 2006 Income Funds, valued at  
approximately $245 million and $69 million, respectively:  
Total number and value of units acquired by the RRSP Trust6  
2003 Income Funds  
2006 Income Funds  
Subscription  
Year  
Amount ($)  
Amount ($)  
Number of  
Units  
Number of  
Units  
2,655,000  
0
19,912,500  
0
0
0
2003  
2004  
2005  
2006  
2007  
2008  
0
0
7,221,850  
4,225,800  
1,450,500  
147,700  
183,678,012  
25,619,900  
13,396,995  
2,227,316  
0
0
0
0
0
0
5,866,666  
43,999,996  
0
0
3,176,620  
24,999,999  
2009  
Total  
15,742,516  
$245,584,711  
9,043,286.00  
$68,999,995  
7
As a prerequisite to the acquisition of units in the Income Funds (the  
“Acquisition Transactions”), CIBC Trust required delivery of certain documents  
including copies of the OM, the subscription documents and a legal opinion from a  
reputable law firm to confirm that the Income Funds were qualified investments.  
The process and documentation required was more fully explained by Kerri Calhoun  
and Sabrina Tam, employees of the CIBC, whose testimony is summarized below.  
A total of twelve legal opinions were issued, one for each Acquisition  
Transaction (collectively, the “Legal Opinions”). The Legal Opinions were set out  
6 See below  
7 This table was taken, with slight modifications, from the Written Submissions of the Crown (Volume 1 of 3). I  
have corrected the table to include the subscription amount of $3,999,998 for the 2006-5 Income Fund in 2008. This  
has the effect of increasing the total amount for the 2006 Promoted Funds to $68,999,995 instead of $64,999,997.  
Page: 10  
on the law firm’s letterhead and addressed to CIBC Trust. They contained four  
paragraphs including the following:  
For the purposes of this opinion, we have relied upon the facts represented to us  
by James T. Grenon in the form of the Trustee’s Certificate attached hereto and  
other matters as we have considered necessary or appropriate for the purpose of  
this opinion.  
Four of the Legal Opinions were distinct in that they included a caveat that  
the facts represented in the Trustee’s Certificate (the “Certificates”) had not been  
“independently verified” and that if the facts differed “from those presented (…) this  
opinion may not be valid.” All of the Legal Opinions concluded that the Income  
Funds were “qualified investments under the Act for the RRSP maintained for the  
benefit of James T. Grenon.”  
The Certificates signed by the Appellant contained an acknowledgment that  
the Legal Opinions would be based in part on the factual information set out in the  
certificate wherein the Appellant represented that he knew those facts to be true and  
correct and specifically that:  
In respect of the Fund, an offering memorandum has been filed with the Alberta  
Securities Commission and the British Columbia Securities Commission and there  
has been a lawful distribution in Alberta and British Columbia to the public of Units  
of the Fund in accordance with the offering memorandum.  
When the RRSP Trust acquired units of the Income Funds that were already  
engaged in business or investment activities, valuation reports prepared by  
accounting firm Grant Thornton (the “Grant Thornton valuations”) were included  
with the Legal Opinions. These valuation reports were intended to support the  
issuance of units at prices exceeding the initial subscription price of $7.50 per unit.  
As will be seen in greater detail below, the Income Funds were required to file  
a report with the securities commission within 10 days from the completion of the  
distribution of units. Reports were filed in connection with the First Distribution but  
no evidence was adduced to demonstrate that reports were filed in connection with  
the Second Distributions.  
d) The income distributions made by the Income Funds  
The profits from the various investments or businesses were flowed-up  
through the various entities, including the FVT’s, to the Income Funds and were then  
 
Page: 11  
distributed to unitholders, including the RRSP Trust. Trustee resolutions to support  
the distribution of profits were prepared and reported in the T3 Returns.  
According to the Minister, a total of $186,489,148 was distributed to the  
RRSP Trust (the “Distribution Transactions”). The table below represents a  
summary of all distributions made from the Income Funds to the RRSP Trust during  
the Relevant Period (the “Distribution Transactions”):  
Total distributions made by the Income Funds to the RRSP Trust  
2003-1  
2003-2  
2003-3  
2003-4  
2006-8  
Total  
2004  
4,192,015  
1,924,362  
6,116,377  
2005 6,372,526  
2006 4,176,831  
2007 2,513,091  
2008 1,381,913  
2009  
3,493,797  
861,930  
4,773,945  
3,232,052  
2,838,325  
136,654,427  
2,636,201  
2,554,003  
151,294,695  
10,907,014  
10,099,615  
3,432,833*  
2,194,196  
2,050,920  
1,516,445  
3,122,169 4,638,614  
Total 14,444,361 14,309,303 12,768,594 141,844,631 3,122,169 186,489,148  
8
As will be seen in greater detail below, there is some dispute as to the actual  
distributions made in 2005 by the 2003-4 Income Fund. The Appellant argues that  
the distributions made in that year resulted from the issuance of new units to the  
RRSP Trust in exchange for the transfer of the FMO units to the 2003-4 Income  
Fund and that this did not have the effect of increasing the value of the RRSP Trust.  
The Appellant also argues that the Minister failed to account for a loss of  
$129,876,648 realized by the RRSP Trust on the disposition of those units in 2008.  
In any event, the Appellant has acknowledged that the RRSP Trust earned  
approximately $58 million from the Income Funds during the Relevant Period.  
8 The Minister has acknowledged that this amount should be reduced by $1,806,008 to $3,432,833: Written  
Submissions of the Crown, volume 1, page 40.  
Page: 12  
The Appellant as trustee, approved the filing of the respective T3 Trust  
Income Tax and Information Returns on an annual basis indicating that each fund  
was a “mutual fund trust”. Similarly, CIBC as trustee filed a T3GR Return in which  
it was required to list all “taxable” RRSP’s (meaning RRSPs that held non-qualified  
investments) with the applicable tax withheld and remitted to the Minister. The  
RRSP Trust was grouped with others in a specimen plan but was not listed as a  
taxable RRSP holding non-qualified investments. The annual filing of the T3GR  
Returns was explained by the CIBC employees and will be addressed below.  
e) Tom 2003-1 Income Fund  
In June 2003 (shortly after the closing of the First Distribution), the RRSP  
Trust initially subscribed for 1,575,000 units of the Tom 2003-1 Income Fund at  
$7.50 per unit for total proceeds of $11,812,500. Additional subscriptions were made  
at later dates, as detailed above.  
As with all Income Funds, a corporation acted as trustee of the FVT to ensure  
a form of creditor protection, as explained by the Appellant. In this instance, 1019  
Inc., a corporation wholly owned by the Appellant, acted as general partner.  
This fund held 100% of the units of the Tom 2003-1 FVT that owned 99.99%  
of the units of the Tom 2003-1 Master Limited Partnership. (“MLP-1”). 1042 Inc.,  
another corporation wholly owned by the Appellant, acted as general partner.  
Beginning in 2005, MLP-1 acquired a 99.99% in both the Raywal Limited  
Partnership and the Tom 2003-1 Limited Partnership-1 that held 100% of the units  
or shares in 1213321 Alberta Ltd., Raywal Kitchens Inc. and 2037629 Ontario Inc.  
In 2006, the Tom 2003-1 Income Fund acquired a 99.99% interest in Can-Am  
Kitchens Limited Partnership and a 75% participating interest in Landcraft Limited  
Partnership with Landraft as the general partner. Prior to these transactions, 75% of  
the shares in Landcraft were owned by the Appellant. The Appellant also owned or  
controlled several of the companies that acted as general partners.  
The Tom 2003-1 Income Fund also entered into several loan transactions. On  
August 1, 2003, it entered into a loan agreement for $10 million with CCC, owned  
in part by Grencorp, the Appellant’s management company. Security for the loan in  
the form of a general security agreement securing the assets and undertakings of  
CCC, was signed by the Appellant on behalf of the borrower.  
 
Page: 13  
As noted in the table above, the 2003-1 Income Fund distributed a total of  
$14,444,361 to the RRSP Trust during the Relevant Period.  
f) Tom 2003-2 Income Fund  
In September 2003, the RRSP Trust initially subscribed for 540,000 units of  
the Tom 2003-2 Income Fund at $7.50 per unit for total proceeds of $4,050,000. The  
MacLennan RRSP owned 49% of the units in this fund. MacLennan owned 100%  
of the shares in Century Services Inc. (“Century Services”) that was involved in the  
business of distressed lending.  
The Tom 2003-2 Income Fund held 100% of the units in a FVT whose primary  
investment was a 99.99% interest in the Century Services Limited Partnership  
(“CSLP”) established on November 15, 2003. Century Services held the remaining  
interest and acted as general partner.  
In December 2003, CSLP purchased the assets and liabilities of Century  
Services Partnership for $12.6 million. The only assets of that partnership were the  
shares of Century Services. In 2005, Century Services paid management fees of  
$5,692,000 to CSLP. The net income of CSLP was paid to the 2003-2 FVT and then  
to the Tom 2003-2 Income Fund.  
As noted above, this fund distributed a total of $14,309,303 to the RRSP Trust  
during the Relevant Period, excluding the amounts distributed to the MacLennan  
RRSP.  
g) Tom 2003-3 Income Fund  
In September 2003, the RRSP Trust subscribed for 540,000 units of the 2003-  
3 Income Fund at $7.50 per unit for total proceeds of $4,050,000. The RRSP Trust  
and Sutherland RRSP each owned 49% of the units and the remaining units were  
held by the Investors. This fund owned 100% of the units in the Tom 2003-3 FVT  
which owned 99.99% of the units in MLP-3 formed in January 2004. The general  
partner was 661314 B.C. Ltd. (“661 Ltd.”), a company controlled by Sutherland.  
Sutherland had a controlling interest in Silvercreek Development Corporation  
and was involved in the development, subdivision and sale of commercial and  
residential properties in Alberta and British Columbia.  
   
Page: 14  
MLP-3 owned 99.99% of the units in Silvercreek Abbortsford Limited  
Partnership (“SALP”), formed in February 2004. Several other limited partnerships  
were later created but in all instances 661 Ltd. was the general partner.  
Properties were identified for development and a corporation owned by  
Sutherland would acquire the property. SALP or other limited partnerships in which  
MLP-3 owned 99.99% of the units, acted as limited partners while 661 acted as  
general partner. These properties were developed and sold to third parties. The net  
income was paid by the limited partnerships to MLP-3 and then to the 2003-3 FVT,  
followed by distributions to the 2003-3 Income Fund.  
As appears from the table above, the Tom 2003-3 Income Fund distributed a  
total of $12,768,594 to the RRSP Trust during the Relevant Period, excluding  
amounts paid to the Sutherland RRSP.  
h) Tom 2003-4 Income Fund  
The Tom 2003-4 Income Fund was not directly involved in any business and  
its income was generated from loans made to related parties including other Income  
Funds. It was referred to by the Appellant as the “fund of funds”.  
As noted above, the Tom 2003-4 Income Fund acquired the units of FMO, a  
publicly traded mutual fund trust, held by the RRSP Trust. As long as the units of  
FMO were actually held by the RRSP Trust, the Minister has acknowledged that  
they were a qualified investment for RRSP purposes.  
This transaction took place on November 14, 2005, and involved, inter alia,  
a transfer by the RRSP Trust of its 58% interest in FMO to the 2003-4 Income fund,  
in exchange for units. As part of that transaction, the RRSP Trust submitted a  
subscription for 3,821,850 units valued at $40 per unit for a total $152,874,012.  
In May 2006, the RRSP Trust submitted a further subscription for 4 million  
units valued at $5.53 per unit for net proceeds of $22,120,000. No explanation was  
provided to the Court as to why the value of the units had decreased in value between  
November 2005 and May 2006.  
As noted in paragraph k) of the Reply to the Fresh as Further Amended Reply,  
the transaction involving the transfer of the FMO units is more particularly described  
in the Corporate Appeals.  
 
Page: 15  
i) Tom 2006-5 Income Fund  
The Tom 2006-5 Income Fund was settled in 2006.  
In March 2008, the RRSP Trust subscribed for 320,000 units at $7.50 per units  
for net proceeds of $2,400,000 and in July 2008, it subscribed for an additional  
213,333 units at $7.50 per unit for net proceeds of $1,599,998.  
As a result of these subscriptions, the RRSP Trust controlled more than 99%  
of the outstanding units but no distributions were made during the Relevant Period.  
The proposed acquisition was never completed and all units were eventually  
redeemed at cost.  
j) Tom 2006-8 Income Fund  
The 2006-8 Income Fund was also settled in 2006.  
In March 2008, the RRSP Trust subscribed for 5,333,333 units at $7.50 per  
unit for net proceeds of $39,999,998 and in August 2009, it subscribed for a further  
3,176,620 units at $7.87 per unit for net proceeds of $24,999,999.  
On August 12, 2008, the Tom 2006-8 Income Fund entered into a loan  
transaction with the Appellant extending a loan of $18,000,000 at 9%per annum.  
The loan proceeds were used for investment purposes and the Appellant  
acknowledged in oral testimony that he claimed the interest charges as a deduction  
on his personal tax return. Several other loans were made to related corporations.  
As noted in the table above, the 2006-8 Income Fund made distributions of  
$3,122,169 to the RRSP Trust during the Relevant Period.  
k) The Fact witnesses  
Geoffrey Merritt  
The Appellant called Geoffrey Merritt, a chemical engineer with extensive  
experience in the oil and gas industry. He invested in both the 2003 and 2006 series  
of Income Funds with his spouse and 2 children, aged 15 and 18 in 2003.  
     
Page: 16  
Mr. Merritt was made aware of the funds through the Appellant’s brother and  
since he knew that the Appellant would be investing his own money, he did not feel  
the need to conduct any further due diligence. He confirmed signing the subscription  
documents on behalf of his spouse and children and receiving income distributions  
and T3’s over the years. He stated that his children held investments in other  
securities from a young age but no corroborating evidence was adduced.  
Mary Yee  
Mary Yee was employed as a legal assistant with Tom Capital for 14 years  
and provided administrative assistance for the Income Funds, including up-dates to  
unitholders, distributions, tax slips and notices of annual meetings.  
She testified that all the investors in the Income Funds were residents of  
Alberta or BC and that while minors had subscribed for units, none had ever refuted  
the subscription or refused or returned a distribution cheque, even upon reaching the  
age of majority. She and her spouse had subscribed for units in the 2006 series of  
Income Funds based on the success of the 2003 series.  
Deborah Nickerson  
Deborah Nickerson joined the accounting team of Tom Capital in 2005 and  
eventually assumed a leadership role. She also provided accounting services for both  
Tom Capital and the Income Funds and served as trustee for several funds. She  
provided those services through a numbered company.  
Ms. Nickernon also provided advice as to the appropriate interest rate and  
security to be provided for loans from the Income Funds to related parties such as  
the Appellant. She felt that the terms were commercially reasonable but  
acknowledged that she had no formal training or credentials in this area. She also  
indicated that the Income Funds were regularly reviewed by external accountants,  
that clarifications were provided where needed and that if any issues arose, they were  
always resolved.  
In connection with the Income Funds, she too confirmed that all Investors  
were residents of either Alberta or BC and that units had been issued to minors. In  
fact, she testified that she had signed the Subscription Agreement and Risk  
Acknowledgment forms for her two children, aged 10 And 13 at the time of the  
subscriptions in 2003. She also indicated that the subscription funds for her children  
Page: 17  
were intended as loans to be reimbursed once the units were redeemed. She  
acknowledged that she had no documentation to support this.  
Bruce MacLennan  
Bruce MacLennan was the president of Century Services whose core business  
was appraising real estate or other assets for institutional and private lenders. It was  
also involved in distressed lending which is how he came into contact with the  
Appellant and Tom Capital.  
Mr. MacLennan served as trustee of the 2003 series of Income Funds. He  
testified that he signed the subscription and risk acknowledgement forms for his two  
children (both aged 5 in 2003) who acquired units in the 2003 series of Income  
Funds. Both children signed their own documents for the 2006 series of Income  
Funds but he witnessed their signature. During cross-examination, he acknowledged  
that he had actually paid the subscription price for his spouse and two children and,  
on re-examination, indicated that the amounts paid on their behalf were intended as  
gifts. All distribution cheques were deposited in their respective bank accounts.  
Kerri Calhoun  
Kerri Calhoun joined CIBC Trust Corporation in 1988 and at the time of her  
testimony was Executive Director. She explained that only trust companies could  
act as trustees of an RRSP and as a result, CIBC, being a Canadian chartered bank,  
had appointed CIBC Trust as trustee for all its RRSP’s. That said, CIBC Wood  
Gundy, and later CIBC Capital Markets Inc., were appointed as agents to manage  
the day-to-day administration and ensure that assets were qualified investments.  
Ms. Calhoun also explained that in a self-directed plan, the annuitant made all  
investment decisions and the role of CIBC Wood Gundy, as agent for CIBC Trust,  
was to ensure that investments were qualified investments under the Act.  
Other investments, described as non-public offerings or private placements,  
required additional documentation including the OM, Subscription Agreement as  
well as a legal opinion from a reputable law firm confirming that the investment was  
a qualified investment. The team tasked with the review of the documents would  
have been familiar with the requirements of the Act and Regulations.  
Page: 18  
From CIBC’s perspective, they relied on the legal opinions provided as to the  
status of the investment though it understood that the law firm itself would be relying  
on the statements made in a trustee certificate. If the investment was an initial  
offering, the value of the securities was determined with reference to the OM but for  
a secondary or subsequent offering, a valuation report prepared by a reputable  
accounting firm might be required. On cross-examination, she indicated that there  
was no obligation to obtain a comprehensive valuation report. They were only  
required to make reasonable efforts to obtain a fair market value of the proposed  
investment. She also indicated that for self-directed plans, in accordance with the  
contractual documentation required to open such a plan, it was ultimately up to the  
annuitant to ensure that the acquired assets were qualified investments.  
With respect to the CIBC Trust’s filing obligations with the CRA, Ms.  
Calhoun indicated that CIBC would submit an application and declaration of trust.  
If the documentation was approved, CRA would assign a specimen plan number that  
could reference hundred of thousand of RRSP plans. On an annual basis, CIBC  
would then submit a T3GR Group Income Tax and Information Return for RRSP,  
RRIF, RESP, or RDSP Trusts, being the prescribed form that included the fair market  
value of all RRSP’s listed under that specimen plan.  
The T3GR included a listing of all RRSPs within the specimen plan that held  
non-qualified investments, described as taxable RRSP’s, in which case taxes were  
deducted from the RRSP and paid to the CRA. In this instance, the RRSP Trust was  
not listed on any of the T3GR forms filed during the Relevant Period because,  
according to Ms. Calhoun, it did not hold any non-qualified investments.  
With respect to the documentation submitted by the Appellant or his agents,  
she was not aware and could not comment as to whether minors had acquired units  
in the Income Funds or who had actually paid the subscription amounts. Such  
enquiries were not made given the reliance on legal opinions.  
On cross-examination, she acknowledged her understanding that the T3GR  
was both an income tax return and information return but that if an RRSP trust had  
taxable income, a T3 Trust and Information Return was required to be filed.  
She indicated that a T3 Return was not filed for RRSPs that held only qualified  
investments as CRA did not require it to do so. She acknowledged that a T3 return  
had not been filed with the CRA in connection with the RRSP Trust.  
Sabrina Tam  
Page: 19  
Sabrina Tam was a director of business risk effectiveness at CIBC World  
Markets Inc. She commenced her employment with CIBC in 1999 as a compliance  
officer moving on in 2005 to the business risk and sales supervision group (“BBRS  
Group”) tasked with reviewing and approving private-placement transactions.  
The BBRS Group reviewed all private placement documentation. If concerns  
arose, they consulted with the CIBC compliance or legal departments. She  
confirmed that the required documents included a subscription agreement to confirm  
both the value and number of securities being purchased as well as a risk  
acknowledgement and legal opinion from a reputable law firm confirming that the  
investment was a qualified investment for RRSP purposes. On cross-examination,  
she stated that they would typically rely on the legal opinion provided and would not  
parse the representations or certificates contained in the OM.  
THE ASSESSMENTS  
The Minister has issued a number of assessments or reassessments (the  
“Reassessments”) as described below but has acknowledged that the Part 1  
assessments in both appeals seek to tax the same amounts for the 2008 and 2009  
taxation years and that she can only be successful in one or the other:  
a) Grenon Appeal - Part 1 Reassessments  
The Appellant appeals from Notices of Reassessment made by the Minister  
on February 28, 2013, on the basis that the payments of $3,432,833 and $4,638,614  
made by the Income Funds to the RRSP Trust during the 2008 and 2009 taxation  
years, respectively, (the “Grenon Part 1 Reassessments”), should be assessed as  
indirect payments taxable in the hands of the Appellant on the basis of subsection  
56(2)9 or in the alternative on the basis of sham, window dressing or GAAR. The  
2009 taxation year gave rise to a nil assessment, such that it is not under appeal, but  
the Appellant claimed a non-capital loss for that year, the amount of which is not in  
dispute, which he carried back to the 2006 taxation year. The Minister reduced the  
non-capital loss by $4,638,614, thus resulting in a consequential increase of the  
Appellant’s taxable income for the 2006 taxation year.  
b) Grenon Appeal - Part X.1 Assessments  
9 An assessment pursuant to subsection 15(1) was later abandoned.  
     
Page: 20  
The Appellant also appeals from Notices of Assessment (T1-OVP) made by  
the Minister on March 1, 2013 (late filing penalties were later deleted by Notice of  
Reassessment dated August 13, 2014) in respect of the 2004 to 2011 taxation years  
(the “Grenon Part X.1 Assessments”) on the basis that payments made by the Income  
Funds to the RRSP Trust (described herein as the Distribution Transactions) should  
be re-characterized as excess contributions to the RRSP Trust and subject to a tax of  
1 % calculated monthly pursuant to subsection 204.1(2.1), or in the alternative, on  
the basis of sham, window dressing or GAAR.  
c) RRSP Trust Appeal - Part 1 Assessments  
The RRSP Trust appeals from Notices of Assessment made by the Minister  
on March 6, 2013, served on CIBC as trustee, in respect of the 2004 to 2009 taxation  
years (the RRSP Trust Part 1 Assessments”) assessing taxes and late filing penalties  
on the payments made by the Income Funds to the RRSP Trust (described herein as  
the Distribution Transactions), pursuant to subsection 146(10.1) or in the alternative,  
on the basis of sham, window dressing or GAAR.  
d) RRSP Trust Appeal - Part XI.1 Reassessments  
The RRSP Trust also appeals from Notices of Reassessment made by the  
Minister on March 6, 2013, served on CIBC as trustee, in respect of the 2004 to 2009  
taxation years (the “RRSP Trust Part XI.1 Reassessments”), assessing a tax of 1%  
on the fair market value of the units of the Income Funds acquired by the RRSP  
Trust, pursuant to subsection 207.1(1) or, in the alternative, on the basis of sham,  
window dressing or GAAR. Late filing penalties were also assessed.  
THE ISSUES  
The issues in this appeal may be described as follows:  
a) Grenon Appeal - Part 1 Reassessments and Part X.I Assessments  
i. Whether the Income Funds were a “qualified investment” for RRSP  
purposes, as that term is defined in subsection 146(1) of the Act and  
Regulation 4900(1) and, more particularly, whether the Income Funds were  
properly constituted as a “mutual fund trust” as defined in subsection 132(6)  
and met the prescribed conditions set out in Regulation 4801, or alternatively  
qualified as a unit trust as described in Regulation 4900(1)(d.2);  
       
Page: 21  
ii. Whether the Income Funds were shams or mere window dressing;  
iii. Whether the Minister was entitled to include the Income Fund payments  
made in respect of the 2008 and 2009 taxation years to the Appellant’s  
personal income on the basis that they were “indirect payments” relying on  
subsection 56(2) or, in the alternative, whether the Minister was entitled to do  
so relying on sham, window dressing or GAAR, as a basis for the application  
of subsection 56(2);  
iv. Whether the Minister was entitled to re-characterize the payments made by  
the Income Funds to the RRSP Trust, described herein as the Distribution  
Transactions, as “excess contributions” to the RRSP Trust, relying on sham  
or window dressing or alternatively on GAAR, and if so, whether the  
Appellant was entitled to a credit of $152,874,000 (or at least $136,654,427,  
being the lesser amount used by the Minister), being the value of the units  
issued to the RRSP Trust in exchange for the FMO units and/or to a further  
credit of $129,876,648 as a result of a loss suffered by the RRSP Trust from  
the disposition in 2008 of the units held in the 2003-4 Income Fund;  
v. Whether the Part 1 and Part X.1 Reassessments are statute-barred and in  
particular, whether the Appellant was required to file a separate T1-OVP  
Return to report and pay tax on the excess contributions;  
b) RRSP Trust Appeal - Part 1 Assessments and Part XI.1 Reassessments  
i. Whether the Minister was entitled to assess the RRSP Trust on the basis that  
the Income Fund payments, described herein as the Distribution Transactions,  
were income derived from non-qualified investments, taxable pursuant to  
subsection 146(10.1) of the Act or alternatively, on the basis of sham, window  
dressing or GAAR and if so, whether the Appellant was entitled to a credit of  
$129,876,648 resulting from a loss suffered by the RRSP Trust from the  
disposition in 2008 of the units held in the 2003-4 Income Fund;  
ii. Whether the Minister was entitled to assess the RRSP Trust for a tax equal  
to 1% calculated monthly on the fair market value of the units in the Income  
Funds at the time they were acquired, pursuant to subsection 207.1(1) of Part  
XI.1 of the Act or alternatively, on the basis of sham, window dressing or  
GAAR;  
iii. Whether the Part 1 and Part XI.1 assessments are statute-barred on the  
basis that CIBC filed the T3GR form within 90 days from the end of each  
 
Page: 22  
applicable year, as required by subsection 207.2(1) and was assessed  
accordingly;  
PRELIMINARY ISSUES  
The Court reserved on two issues at the conclusion of the hearing and what  
follows is the final disposition forming part of these Reasons for Judgment.  
a) Admissibility of the Affidavit of Helen Little  
As noted above, the Respondent did not call any witnesses but on the final  
day of the hearing, tendered the affidavit of Helen Little (the “Affidavit”), an auditor  
with the CRA, relying on the following provision of the Act:  
244(9) Proof of Documents An affidavit of an officer of the Canada Revenue  
Agency, sworn before a commissioner or other person authorized to take affidavits,  
setting out that the officer has charge of the appropriate records and that a document  
annexed to the affidavit is a document or true copy of a document, or a print-out of  
an electronic document, made by or on behalf of the Minister or a person exercising  
a power of the Minister or by or on behalf of a taxpayer, is evidence of the nature  
and contents of the document.  
Appended to the Affidavit, was a computer screen shot of the name and  
birthdate of all minors who had acquired units in the Income Funds. The Appellant  
was aware of its contents since it had been in the possession of counsel for several  
months prior to the actual hearing of the appeals.  
Helen Little’s name had been included in the Respondent’s list of potential  
witnesses with a short summary of her proposed testimony but she was not called to  
testify. When the Affidavit was tendered as evidence as the Respondent closed its  
case, the Appellant requested a sealing order given the confidential nature of the  
information pertaining to minors. The Court issued the Order, restricting access to  
Court officials, the parties to these proceedings and their authorized agents.  
The Appellant also reserved the right to make further written submissions as  
to the admissibility or weight of the Affidavit. There were no further objections.  
Aside from the sealing Order, no further ruling was made at that time and the  
intention of the Court, though not clearly expressed as appears from the transcript of  
the hearing, was to mark the Affidavit for identification purposes and to reserve on  
its admissibility, subject to written submissions to be delivered at a later date.  
   
Page: 23  
The Appellant indicates in written submission that Helen Little was to be  
cross-examined at the hearing. It is argued that although she was present in court for  
most of the hearing, she was not present when the Respondent closed its case and  
this has deprived him of the fundamental right of cross-examination.  
There is little doubt that the facts that the Affidavit seeks to establish are  
relevant to the Minister’s position i.e. whether minors acquired units of the Income  
Funds. It had been established that “the presumption is that relevant evidence is  
admissible and that all those called to testify with respect to relevant evidence are  
compellable”: Globe and mail v. Canada (AG), (2010) 2 SCR 592, (para 56).  
Thus, although Hellen Little was “compellable”, the Appellant did not  
indicate to the Court that he wished to cross-examine her nor request an adjournment  
to secure her presence. Given that 5-6 days remained in the scheduled time allotted  
for the hearing of the appeals, there was still ample time to do so.  
As excerpted above, subsection 244(9) indicates that an “affidavit of an officer  
of the Canada Revenue Agency (…) setting out that the officer has charge of the  
appropriate records and that a document annexed” is a true copy of “a print-out of  
an electronic document (…) is evidence of the nature and contents of the document”.  
Similarly, subsection 25(1) of the Canada Evidence Act, RSC, 1985, c C-5 provides  
that “[w]here an enactment provides that a document is evidence of a fact (…) that  
document is admissible in evidence and the fact is deemed to be established in the  
absence of any evidence to the contrary”.  
The Minister submits that the Appellant failed to introduce “any evidence to  
the contrary” by way of documentary or viva voce evidence as to the age of unit-  
holders in the Income Fund. As will be reviewed in greater detail below, the  
Appellant confirmed in oral testimony that subscription documents signed by minors  
or their guardian, had been accepted and units issued accordingly. This was also  
confirmed by several fact witnesses, as noted above.  
As noted by the Court at the hearing, the fact that minors had signed  
subscription documents was relatively uncontroversial. In fact, CIBC Trust has since  
indicated in written submissions (para. 44) that “[b]etween 35 and 40 unitholders  
were under the age of 18 years old when they subscribed”.  
In James Scott et al. vs. HMTQ, 2017 TCC 224 (“James Scott”) (paras 36-64),  
Sommerfeldt J. conducted a review of the applicable law on the admissibility of an  
affidavit under subsection 244(9). In that instance, the appellant had objected to the  
Page: 24  
filing of an affidavit without prior notice arguing that it “constituted prejudicial ‘last-  
minute trial-by-ambush type tactics” and that the affidavit “should not be admitted  
into evidence”.  
Justice Sommerfeldt reserved on its admissibility and later reviewed  
subsection 89(1) of the Tax Court of Canada Rules (General Procedure) SOR/90-  
688a (the “Rules”) which provides as follows:  
89 (1) Unless the Court otherwise directs, except with the consent in writing of  
the other party or where discovery of documents has been waived by the other  
party, no document shall be used in evidence by a party unless  
(a) reference to it appears in the pleadings, or in a list or an affidavit filed  
and served by a party to the proceeding,  
(b) it has been produced by one of the parties, or some person being  
examined on behalf of one of the parties, at the examination for discovery,  
or  
(c) it has been produced by a witness who is not, in the opinion of the  
Court, under the control of the party.  
(2) Unless the Court otherwise directs, subsection (1) does not apply to a  
document that is used solely as a foundation for or as part of a question in  
cross-examination or re-examination.  
Justice Sommerfeldt noted (para 47) that “the opening words of subsection  
89(1) (…) provide the Court with a discretion to allow a document into evidence  
even if the requirements of that provision have not been met” and that:  
(47) “(…) The Court must exercise its discretion judicially, according to the rules  
of reason and justice, and not arbitrarily. In determining whether to admit a  
previously undisclosed document, there must be a balancing of the competing  
interest of justice and the overriding importance of having all of the relevant  
information before the Court to enable it to arrive at a proper and just disposition  
of the particular appeal (…).”  
In this instance, as noted above, the Appellant reserved the right to make  
written submissions as to the admissibility of the Affidavit but did not indicate that  
he wished to conduct cross-examinations nor request an adjournment for that  
purpose.  
Page: 25  
The contents of the Affidavit are relevant to these proceedings and are  
relatively uncontroversial (as noted above) since the Minister had made an  
assumption that minors had acquired units in the Income Funds. The Appellant has  
not seriously disputed the Minister’s position on this issue but has not outright  
admitted the actual number of minors (except as noted above by the CIBC Trust)  
indicating in response to a request to admit that there was no reason to conclude that  
the listed minors were not minors, arguing in any event that the issue was not  
relevant since minors could acquire units in the Income Funds.  
In the end, I find that the information appended to the Affidavit was readily  
available or would have been readily available to the Appellant had he taken the time  
to obtain it in order to contradict the Minister’s assumption. He chose not to do so  
despite having the evidentiary burden of rebutting the assumption.  
I conclude that the Court should exercise its discretion pursuant to subsection  
89(1) of the Rules and that rejecting the Affidavit at this time, would be procedurally  
unfair to the Minister. Having considered the written and oral submissions of the  
respective parties and having considered the requirements of subsection 89(1) of the  
Rules, the Court hereby rules that the Affidavit of Helen Little is admissible.  
It establishes the birthdates of the minor Investors in the 2003 and 2006 series  
of Income fund. The relevance of this information will be discussed below.  
b) Admissibility of certain Read-ins  
Parties are permitted to read into evidence examination for discovery  
materials pursuant to the operation of section 100 of the Rules and Tax Court of  
Canada Practice Note 8, titled “Use of Discovery/Undertakings”, July 19, 2001  
(“Practice Note 8”) which governs the use of examinations for discovery and  
undertakings as evidence at trial. An adverse party may request that other parts of  
the evidence be introduced to qualify or provide some context concerning the  
proposed read-ins.  
Before the scheduled date for the hearing of theses appeals, the parties had  
exchanged their list of read-ins from examination for discovery. The Appellant gave  
notice of his proposed read-ins on February 1, 2019 and the Minister did not request  
any contextual read-ins in respect of those read-ins.  
The Minister served a notice of proposed read-ins on February 6, 2019,  
exactly four days before the hearing was scheduled to commence. They consisted of  
 
Page: 26  
approximately 850 pages of discovery transcript, representing a substantial majority  
of the discovery. The Appellants reviewed the Minister’s proposed read-ins within  
the two days contemplated by Practice Note 8 and served their notice of proposed  
contextual read-ins on February 7th and 8th, 2019.  
On the last day of trial, the Minister tendered on the Appellant and the Court  
her list of read-ins from examinations for discovery but the list was a significantly  
abridged selection of the read-ins which the Minister had identified in her pre-trial  
notice, constituting about one-third of that original list. The Appellants requested  
time to perform a new contextual review of the Minister’s actual read-ins as the  
previously identified contextual read-ins were rendered moot by the significant  
reduction in the Minister’s read-ins. The Minister challenged the appellants’ request  
for time to complete a contextual review of the read-ins.  
The Court ordered that the parties provide written submissions on the matter  
and the parties did so later in March of 2019. The Minister challenged certain of the  
Appellant’s requests to read-in additional portions of the discovery evidence in order  
to qualify or explain the Minister’s read-ins pursuant to subsection 100(3) of the  
Rules. The Minister challenged these requests on the basis that section 100 and  
Practice Note 8 did not allow additional read-ins at or following trial.  
Only four contextual read-ins are at issue. For reasons set out in the attached  
Appendix A, I find that the contextual read-ins #8, #10 and #18 are admissible and  
that contextual read-ins #16 is also admissible but subject to certain limits.  
RELEVANT STATUTORY PROVISIONS  
a) The RRSP legislative framework  
The basic legislative framework for RRSP’s is set out in Division G, entitled  
“Deferred & Special Income Arrangements” and is governed by section 146 and  
various other provisions of the Act in addition to certain regulations under the Income  
Tax Regulations, CRC, c 945 (the “Regulations”).  
Definitions  
Définitions  
146(1) In this section,  
annuitant means  
146(1) Les définitions qui suivent  
s’appliquent au présent article.  
   
Page: 27  
(a) until such time after maturity of the  
plan as an individual’s spouse or  
déductions inutilisées au titre des  
REER  
common-law partner becomes entitled, as  
a consequence of the individual’s death, a) Jusqu’au moment, après l’échéance  
to receive benefits to be paid out of or du régime, où son conjoint acquiert le  
under the plan, the individual referred to droit, par suite du décès du rentier, de  
in paragraph (a) or (b) of the definition recevoir des prestations qui doivent être  
retirement savings plan in this subsection versées sur ce régime ou en vertu de ce  
for whom, under a retirement savings régime, le particulier visé aux alinéas a)  
plan, a retirement income is to be ou b) de la définition de régime  
provided, and  
d’épargne-retraite au présent paragraphe  
pour lequel est prévu, en vertu d’un  
(b) thereafter, the spouse or common-law régime d’épargne-retraite, un revenu de  
partner referred to in paragraph (a); retraite;  
(rentier)  
b) après ce moment, son conjoint.  
benefit includes any amount received out (annuitant)  
of or under a retirement savings plan other  
than  
prestation est comprise dans une  
prestation toute somme reçue dans le  
(a) the portion thereof received by a cadre d’un régime d’épargne-retraite, à  
person other than the annuitant that can l’exception  
reasonably be regarded as part of the  
amount included in computing the income a) de la fraction de cette somme reçue  
of an annuitant by virtue of subsections par une personne autre que le rentier et  
146(8.8) and 146(8.9),  
qu’il est raisonnable de considérer  
comme faisant partie de la somme  
(b) an amount received by the person with incluse dans le calcul du revenu d’un  
whom the annuitant has the contract or rentier en vertu des paragraphes (8.8) et  
arrangement described in the definition (8.9);  
retirement savings plan in this subsection  
as a premium under the plan,  
b) d’une somme reçue à titre de prime en  
vertu du régime par la personne avec  
(c) an amount, or part thereof, received in laquelle le rentier a conclu le contrat ou  
respect of the income of the trust under the l’arrangement visé à la définition de  
plan for a taxation year for which the trust régime d’épargne-retraite au présent  
was not exempt from tax by virtue of paragraphe;  
paragraph 146(4)(c), and  
c) d’une somme, ou d’une partie de cette  
(c.1) a tax-paid amount described in somme, reçue relativement au revenu de  
paragraph (b) of the definition tax-paid la fiducie en vertu du régime, pour une  
amount in this subsection that relates to année d’imposition, à l’égard de laquelle  
interest or another amount included in la fiducie n’était pas exonérée d’impôt  
computing income otherwise than en vertu de l’alinéa (4)c);  
because of this section  
Page: 28  
and without restricting the generality of c.1) d’un montant libéré d’impôt, visé à  
the foregoing includes any amount paid to l’alinéa b) de la définition de cette  
an annuitant under the plan  
expression au présent paragraphe, qui se  
rapporte à des intérêts ou à un montant  
(d) in accordance with the terms of the inclus dans le calcul du revenu  
plan,  
autrement que par l’effet du présent  
article.  
(e) resulting from an amendment to or  
modification of the plan, or  
Sans préjudice de la portée générale de  
ce qui précède, le terme vise toute  
(f) resulting from the termination of the somme versée à un rentier en vertu du  
plan; (prestation)  
régime :  
(…)  
d) soit conformément aux conditions du  
régime;  
issuer means the person referred to in the  
definition retirement savings plan in this e) soit à la suite d’une modification du  
subsection with whom an annuitant has a régime;  
contract or arrangement that is a  
retirement savings plan; (émetteur)  
(…)  
f) soit à la suite de l’expiration du  
régime. (benefit)  
(…)  
non-qualified investment, in relation to a  
trust governed by a registered retirement émetteur la personne visée à la  
savings plan, means property acquired by définition de régime d’épargne-retraite  
the trust after 1971 that is not a qualified au présent paragraphe et avec laquelle  
investment for the trust; (placement non un rentier a conclu un contrat ou un  
admissible)  
arrangement qui constitue un régime  
d’épargne-retraite. (issuer)  
(…)  
(…)  
qualified investment for a trust governed  
by a registered retirement savings plan placement non admissible dans le cas  
means  
d’une fiducie régie par un régime  
enregistré d’épargne-retraite, s’entend  
(a) an investment that would be described des biens acquis par la fiducie après  
in any of paragraphs (a), (b), (d) and (f) to 1971 et qui ne constituent pas un  
(h) of the definition qualified investment placement admissible pour cette fiducie.  
in section 204 if the references in that (non-qualified investment)  
definition to a trust were read as  
references to the trust governed by the (…)  
registered retirement savings plan,  
placement admissible« placement  
admissible » Dans le cas d’une fiducie  
Page: 29  
(b) a bond, debenture, note or similar régie par un régime enregistré  
obligation  
d’épargne-retraite  
(i) issued by a corporation the shares of a) placement qui serait visé aux alinéas  
which are listed on a prescribed stock a), b), d) et f) à h) de la définition de  
exchange in Canada, or  
placement admissible à l’article 204 si la  
mention « fiducie » y était remplacée par  
(ii) issued by an authorized foreign bank la mention de la fiducie régie par le  
and payable at a branch in Canada of the régime enregistré d’épargne-retraite;  
bank,  
b) obligation, billet ou titre semblable  
(c) an annuity described in the definition qui, selon le cas :  
retirement income in respect of the  
annuitant under the plan, if purchased (i) est émis par une société dont les  
from a licensed annuities provider,  
actions sont inscrites à la cote d’une  
bourse de valeurs au Canada visée par  
règlement,  
(…)  
(d) such other investments as may be (ii) est émis par une banque étrangère  
prescribed by regulations of the Governor autorisée et payable à sa succursale au  
in Council made on the recommendation Canada;  
of the Minister of Finance; (placement  
admissible)  
c) rente visée à la définition de revenu de  
retraite relativement au rentier en vertu  
du régime, si elle a été achetée d’un  
fournisseur de rentes autorisé;  
(…)  
No tax while trust governed by plan  
d) tout autre placement qui peut être  
146(4) Except as provided in subsection prévu par règlement pris par le  
146(10.1), no tax is payable under this gouverneur en conseil, sur  
Part by a trust on the taxable income of the recommandation du ministre des  
trust for a taxation year if, throughout the Finances. (qualified investment)  
period in the year during which the trust  
was in existence, the trust was governed (…)  
by a registered retirement savings plan,  
except that  
Exonération d’impôt d’une fiducie  
régie par le régime  
(a) if the trust has borrowed money (other  
than money used in carrying on a 146(4) Sous réserve du paragraphe  
business) in the year or has, after June 18, (10.1), aucun impôt n’est payable en  
1971, borrowed money (other than money vertu de la présente partie par une  
used in carrying on a business) that it has fiducie sur son revenu imposable pour  
not repaid before the commencement of une année d’imposition si, tout au long  
the year, tax is payable under this Part by de la période de l’année où la fiducie  
the trust on its taxable income for the year;  
Page: 30  
(b) in any case not described in paragraph existait, elle était régie par un régime  
146(4)(a), if the trust has carried on any enregistré d’épargne-retraite; toutefois :  
business or businesses in the year, tax is  
payable under this Part by the trust on the a) si la fiducie a emprunté de l’argent  
amount, if any, by which  
(autre que de l’argent utilisé pour  
l’exploitation d’une entreprise) au cours  
(i) the amount that its taxable income for de l’année ou a emprunté, après le 18  
the year would be if it had no incomes or juin 1971, de l’argent (autre que de  
losses from sources other than from that l’argent utilisé pour l’exploitation d’une  
business or those businesses, as the case entreprise) qu’elle n’a pas remboursé  
may be,  
avant le début de l’année, un impôt est  
payable par la fiducie, en vertu de la  
présente partie, sur son revenu  
imposable pour l’année;  
exceeds  
(ii) such portion of the amount determined  
under subparagraph 146(4)(b)(i) in b) dans tout cas non visé à l’alinéa a), si  
respect of the trust for the year as can la fiducie a exploité une ou plusieurs  
reasonably be considered to be income entreprises au cours de l’année, un impôt  
from, or from the disposition of, qualified est payable par elle en vertu de la  
investments for the trust; and  
présente partie sur l’excédent éventuel  
du montant visé au sous-alinéa (i) sur le  
(c) if the last annuitant under the plan has montant visé au sous-alinéa (ii):  
died, tax is payable under this Part by the  
trust on its taxable income for each year (i) le montant qui constituerait le revenu  
after the year following the year in which imposable de la fiducie pour l’année si  
the last annuitant died.  
elle n’avait pas tiré de revenu, ni subi de  
pertes de sources autres que l’entreprise  
ou les entreprises en question,  
(…)  
(ii) la partie du montant déterminé selon  
Disposition of non-qualified investment  
le sous-alinéa (i) à l’égard de la fiducie  
146(6) Where in a taxation year a trust pour l’année, qu’il est raisonnable de  
governed by a registered retirement considérer comme un revenu provenant  
savings plan disposes of a property that, soit de placements admissibles pour elle,  
when acquired, was a non-qualified soit de la disposition de tels placements;  
investment, there may be deducted, in  
computing the income for the taxation c) si le dernier rentier en vertu du régime  
year of the taxpayer who is the annuitant est décédé, un impôt est payable par la  
under the plan, an amount equal to the fiducie en vertu de la présente partie sur  
lesser of  
son revenu imposable pour chaque  
année postérieure à l’année suivant  
(a) the amount that, by virtue of l’année du décès de ce rentier.  
subsection 146(10), was included in  
computing the income of that taxpayer in (…)  
Page: 31  
respect of the acquisition of that property,  
Disposition d’un placement non  
and  
admissible  
(b) the proceeds of disposition of the 146(6) Lorsque, au cours d’une année  
property.  
d’imposition, une fiducie régie par un  
régime enregistré d’épargne-retraite  
dispose d’un bien qui, au moment où il a  
été acquis, était un placement non  
admissible, il est permis de déduire, dans  
le calcul du revenu du contribuable qui  
(…)  
Benefits taxable  
146(8) There shall be included in est le rentier du régime, pour l’année  
computing a taxpayer’s income for a d’imposition, une somme égale au  
taxation year the total of all amounts moins élevé des montants suivants :  
received by the taxpayer in the year as  
benefits out of or under registered a) le montant qui était, en vertu du  
retirement savings plans, other than paragraphe (10), inclus dans le calcul du  
excluded withdrawals (as defined in revenu de ce contribuable à l’égard de  
subsection 146.01(1) or 146.02(1)) of the l’acquisition de ce bien;  
taxpayer and amounts that are included  
under paragraph (12)(b) in computing the b) le produit de disposition du bien.  
taxpayer’s income.  
(…)  
(…)  
Prestations imposables  
Where acquisition of non-qualified  
investment by trust  
146(8) Est inclus dans le calcul du  
revenu d’un contribuable pour une année  
146(10) Where at any time in a taxation d’imposition le total des montants qu’il  
year a trust governed by a registered a reçus au cours de l’année à titre de  
retirement savings plan  
prestations dans le cadre de régimes  
enregistrés d’épargne-retraite,  
(a) acquires a non-qualified investment, l’exception des retraits exclus au sens  
à
or  
des paragraphes 146.01(1) ou 146.02(1),  
et des montants qui sont inclus, en  
(b) uses or permits to be used any property application de l’alinéa (12)b), dans le  
of the trust as security for a loan,  
calcul de son revenu.  
the fair market value of  
(…)  
(c) the non-qualified investment at the  
time it was acquired by the trust, or  
Acquisition d’un placement non  
admissible par une fiducie  
(d) the property used as security at the 146(10) Lorsque, à un moment donné  
time it commenced to be so used, d’une année d’imposition, une fiducie  
Page: 32  
as the case may be, shall be included in régie par un régime enregistré  
computing the income for the year of the d’épargne-retraite :  
taxpayer who is the annuitant under the  
plan at that time.  
a) acquiert un placement non admissible;  
b) utilise à titre de garantie d’un prêt un  
bien quelconque de la fiducie ou en  
permet l’utilisation,  
la juste valeur marchande :  
c) du placement non admissible au  
moment de son acquisition par la  
fiducie;  
d) du bien utilisé à titre de garantie, au  
moment où il a commencé à être ainsi  
utilisé,  
selon le cas, doit être incluse dans  
le calcul du revenu, pour l’année,  
du contribuable qui est le rentier  
en vertu du régime à ce moment.  
Subsection 146(10) was amended in 2011 (Keeping Canada’s Economy and  
Jobs Growing Act, SC 2011, c. 24 at s.65) to introduce the concept of a “controlling  
individual” for Registered Retirement Savings Plans in section 207.04 of Part XI.01  
of the Act and impose a tax of 50% on the fair market value of non-qualified  
investments held by the controlling individual in the calendar year. Those  
amendments only apply to non-qualified investments acquired after March 22, 2011  
such that they are not at issue in this appeal.  
In any event, the Appellant, being “the taxpayer” who is the annuitant under  
the plan, was not assessed by the Minister pursuant to subsection 146(10) and the  
Minister assessed the RRSP Trust pursuant to subsection 146(10.1) which provides  
as follows:  
Where tax payable  
Impôt payable  
146(10.1) Where in a taxation year a trust 146(10.1) Lorsqu’une fiducie régie par  
governed by a registered retirement un régime enregistré d’épargne-retraite  
savings plan holds a property that is a non- détient, au cours d’une année  
qualified investment,  
Page: 33  
(a) tax is payable under this Part by the d’imposition, un bien qui est un  
trust on the amount that its taxable income placement non admissible :  
for the year would be if it had no incomes  
or losses from sources other than non- a) la fiducie doit payer un impôt en vertu  
qualified investments and no capital gains de la présente partie sur le montant qui  
or losses other than from dispositions of serait son revenu imposable pour l’année  
non-qualified investments; and  
si les sources de ses revenus et pertes  
n’étaient que des placements non  
(b) for the purposes of paragraph admissibles et si ses gains en capital et  
146(10.1)(a),  
pertes en capital ne résultaient que de la  
disposition de tels placements;  
(i) income includes dividends described in  
section 83, and  
b) pour l’application de l’alinéa a):  
(ii) paragraphs 38(a) and 38(b) shall be (i) sont compris dans le revenu les  
read without reference to the fractions set dividendes visés à l’article 83,  
out in those paragraphs  
(ii) aux alinéas 38a) et b) il n’est pas tenu  
(…)  
compte des fractions qui y figurent.  
PART X.I - Tax in Respect of Over-contributions to Deferred Income Plans  
Tax payable by individuals  
Impôt payable par les particuliers  
204.1 (1) (…)  
204.1(1) (…)  
Tax payable by individuals -- Impôt payable par les particuliers —  
contributions after 1990 cotisations postérieures à 1990  
204(2.1) Where, at the end of any month 204(2.1) Le particulier qui, à la fin d’un  
after December, 1990, an individual has a mois donné postérieur au mois de  
cumulative excess amount in respect of décembre 1990, a un excédent cumulatif  
registered retirement savings plans, the au titre de régimes enregistrés  
individual shall, in respect of that month, d’épargne-retraite doit, pour ce mois,  
pay a tax under this Part equal to 1% of payer un impôt selon la présente partie  
that cumulative excess amount.  
égal à 1 % de cet excédent.  
(…)  
(…)  
Waiver of tax  
Renonciation  
204.1(4) Where an individual would, but 204.1(4) Le ministre peut renoncer à  
for this subsection, be required to pay a l’impôt dont un particulier serait,  
tax under subsection 204.1(1) or compte non tenu du présent paragraphe,  
204.1(2.1) in respect of a month and the redevable pour un mois selon le  
Page: 34  
individual establishes to the satisfaction paragraphe (1) ou (2.1), si celui-ci établit  
of the Minister that  
à la satisfaction du ministre que  
l’excédent ou l’excédent cumulatif qui  
(a) the excess amount or cumulative est frappé de l’impôt fait suite à une  
excess amount on which the tax is based erreur acceptable et que les mesures  
arose as a consequence of reasonable indiquées pour éliminer l’excédent ont  
error, and  
été prises.  
(b) reasonable steps are being taken to (…)  
eliminate the excess, the Minister may  
waive the tax.  
Excédent cumulatif au titre des REER  
(…)  
204.2(1.1) L’excédent cumulatif d’un  
particulier au titre des régimes  
enregistrés d’épargne-retraite à un  
Cumulative excess amount in respect of  
RRSPs  
moment  
donné  
d’une  
année  
d’imposition correspond à l’excédent  
204.2(1.1) The cumulative excess amount éventuel du montant visé à l’alinéa a) sur  
of an individual in respect of registered le montant visé à l’alinéa b):  
retirement savings plans at any time in a  
taxation year is the amount, if any, by a) les primes non déduites, à ce moment,  
which  
qu’il a versées à des régimes enregistrés  
d’épargne-retraite;  
(a) the amount of the individual’s  
undeducted RRSP premiums at that time b) le résultat du calcul suivant :  
exceeds  
A + B + R + C + D + E  
(b) the amount determined by the formula  
où :  
A + B + R + C + D + E  
A représente les déductions inutilisées  
where  
au titre des REER du particulier à la fin  
de l’année d’imposition précédente,  
A is the individual’s unused RRSP  
deduction room at the end of the B l’excédent éventuel du moins élevé du  
preceding taxation year,  
plafond REER pour l’année et de 18 %  
du revenu gagné du particulier, au sens  
du paragraphe 146(1), pour l’année  
d’imposition précédente sur le total des  
B is the amount, if any, by which  
(i) the lesser of the RRSP dollar limit for montants représentant chacun :  
the year and 18% of the individual’s  
earned income (as defined in subsection (i) le facteur d’équivalence du particulier  
146(1)) for the preceding taxation year pour l’année d’imposition précédente  
exceeds the total of all amounts each of quant à un employeur,  
which is  
Page: 35  
(ii) the individual’s pension adjustment (ii) le montant prescrit quant au  
for the preceding taxation year in respect particulier pour l’année,  
of an employer, or  
C si le particulier a atteint 18 ans au  
(iii) a prescribed amount in respect of the cours d’une année d’imposition  
individual for the year,  
antérieure, 2 000 $; sinon, zéro,  
C is, where the individual attained 18 D le montant relatif à un REER collectif  
years of age in a preceding taxation year, quant au particulier à ce moment,  
$2,000, and in any other case, nil,  
E si le particulier a atteint 18 ans avant  
D is the group RRSP amount in respect of 1995, le montant de transition qui lui est  
the individual at that time,  
applicable à ce moment; sinon, zéro;  
E is, where the individual attained 18 R le facteur d’équivalence rectifié total  
years of age before 1995, the individual’s du particulier pour l’année.  
transitional amount at that time, and in  
any other case, nil, and  
Déclaration et paiement de l’impôt  
R is the individual’s total pension 204.3 (1) Les contribuables visés par la  
adjustment reversal for the year.  
présente partie doivent, dans les 90 jours  
qui suivent la fin de chaque année  
postérieure à 1975:  
Return and payment of tax  
204.3 (1) Within 90 days after the end of a) produire auprès du ministre, sans avis  
each year after 1975, a taxpayer to whom ni mise en demeure, une déclaration  
this Part applies shall  
pour l’année en vertu de la présente  
partie, selon le formulaire prescrit et  
(a) file with the Minister a return for the contenant les renseignements prescrits;  
year under this Part in prescribed form and  
containing  
prescribed  
information, b) estimer, dans cette déclaration,  
without notice or demand therefor;  
l’impôt dont ils sont redevables en vertu  
de la présente partie pour chaque mois  
(b) estimate in the return the amount of de l’année;  
tax, if any, payable by the taxpayer under  
this Part in respect of each month in the c) verser cet impôt au receveur général.  
year; and  
Dispositions applicables  
(c) pay to the Receiver General the  
amount of tax, if any, payable by the 204.3(2) Les paragraphes 150(2) et (3),  
taxpayer under this Part in respect of each les articles 152 et 158, les paragraphes  
month in the year.  
161(1) et (11), les articles 162 à 167 et la  
section J de la partie I s’appliquent à la  
présente partie, avec les adaptations  
nécessaires.  
Provisions applicable to Part  
Page: 36  
204.3(2) Subsections 150(2) and 150(3),  
sections 152 and 158, subsections 161(1)  
and 161(11), sections 162 to 167 and  
Division J of Part I are applicable to this  
Part with such modifications as the  
circumstances require.  
PART XI.I Tax in Respect of Deferred Income Plans and Other Tax Exempt  
Persons  
Tax payable by trust under registered Impôt payable par les fiducies régies  
retirement savings plan  
par  
des  
régimes  
enregistrés  
d’épargne-retraite  
207.1(1) Where, at the end of any month,  
a trust governed by a registered retirement 207.1(1) La fiducie régie par un régime  
savings plan holds property that is neither enregistré d’épargne-retraite et qui, à la  
a qualified investment (within the fin d’un mois donné, détient des biens  
meaning assigned by subsection 146(1)) qui ne sont ni un placement admissible  
nor a life insurance policy in respect of (au sens du paragraphe 146(1)) ni une  
which, but for subsection 146(11), police d’assurance-vie à l’égard de  
subsection 146(10) would have applied as laquelle, sans le paragraphe 146(11), le  
a consequence of its acquisition, the trust paragraphe 146(10) aurait été applicable  
shall, in respect of that month, pay a tax à la suite de son acquisition doit payer,  
under this Part equal to 1% of the fair pour ce mois, en vertu de la présente  
market value of the property at the time it partie, un impôt égal à 1 % de la juste  
was acquired by the trust of all such valeur marchande des biens au moment  
property held by it at the end of the month, où ils ont été acquis par la fiducie, de  
other than  
tous ces biens qu’elle détient à la fin du  
mois, autres que :  
(a) property, the fair market value of  
which was included, by virtue of a) les biens dont la juste valeur  
subsection 146(10), in computing the marchande a été incluse, en vertu du  
income, for any year, of an annuitant paragraphe 146(10), dans le calcul du  
(within the meaning assigned by revenu, pour une année donnée, d’un  
subsection 146(1)) under the plan; and  
rentier (au sens du paragraphe 146(1))  
en vertu du régime;  
(b) property acquired by the trust before  
August 25, 1972.  
b) les biens acquis par la fiducie avant le  
25 août 1972.  
(…)  
(…)  
Return and payment of tax  
Déclaration et paiement de l’impôt  
Page: 37  
207.2 (1) Within 90 days after the end of 207.2 (1) Le contribuable assujetti à la  
each year, a taxpayer to whom this Part présente partie doit, dans les 90 jours qui  
applies shall  
suivent la fin de chaque année :  
(a) file with the Minister a return for the a) produire auprès du ministre, sans avis  
year under this Part in prescribed form and ni mise en demeure, une déclaration  
containing  
prescribed  
information, pour l’année en vertu de la présente  
without notice or demand therefor;  
partie, selon le formulaire prescrit et  
contenant les renseignements prescrits;  
(b) estimate in the return the amount of  
tax, if any, payable by it under this Part in b) estimer dans cette déclaration l’impôt  
respect of each month in the year; and  
dont il est redevable en vertu de la  
présente partie pour chaque mois de  
(c) pay to the Receiver General the l’année;  
amount of tax, if any, payable by it under  
this Part in respect of each month in the c) verser cet impôt au receveur général.  
year.  
Responsabilité du fiduciaire  
Liability of trustee  
207.2(2) Le fiduciaire d’une fiducie qui  
207.2(2) Where the trustee of a trust that est assujettie à l’impôt en application de  
is liable to pay tax under this Part does not la présente partie qui ne remet pas au  
remit to the Receiver General the amount receveur général le montant de l’impôt,  
of the tax within the time specified in dans  
le  
délai  
imparti,  
est  
subsection 207.2(1), the trustee is personnellement tenu de verser, au nom  
personally liable to pay on behalf of the de la fiducie, le montant total de l’impôt  
trust the full amount of the tax and is et a le droit de recouvrer de la fiducie  
entitled to recover from the trust any toute somme ainsi versée.  
amount paid by the trustee as tax under  
this section.  
Dispositions applicables  
(3) Les paragraphes 150(2) et (3), les  
articles 152 et 158, les paragraphes  
Provisions applicable to Part  
(3) Subsections 150(2) and 150(3), 161(1) et (11), les articles 162 à 167 et la  
sections 152 and 158, subsections 161(1) section J de la partie I s’appliquent à la  
and 161(11), sections 162 to 167 and présente partie, avec les adaptations  
Division J of Part I are applicable to this nécessaires.  
Part with such modifications as the  
circumstances require.  
(…)  
(…)  
b) Mutual Fund Trusts  
 
Page: 38  
132(1) (…)  
132(1) (…)  
Meaning of mutual fund trust  
132(6) Subject to subsection 132(7), for  
Sens de fiducie de fonds commun de  
placement  
the purposes of this section, a trust is a 132(6) Sous réserve du paragraphe  
mutual fund trust at any time if at that time 132(7) et pour l’application du présent  
article, une fiducie est une fiducie de  
(a) it was a unit trust resident in Canada,