Minister of National Revenue v. Anthony et al., (1995) 129 Nfld. & P.E.I.R. 91 (NFCA)

JudgeMahoney, Marshall and Steele, JJ.A.
CourtCourt of Appeal (Newfoundland)
Case DateJanuary 23, 1995
JurisdictionNewfoundland and Labrador
Citations(1995), 129 Nfld. & P.E.I.R. 91 (NFCA)

MNR v. Anthony (1995), 129 Nfld. & P.E.I.R. 91 (NFCA);

    402 A.P.R. 91

MLB headnote and full text

Her Majesty the Queen in right of Canada, as represented by the Minister of National Revenue (appellant) v. Gordon Anthony (first respondent) and Janes & Noseworthy Limited (second respondent)

(1993 No. 242)

Indexed As: Minister of National Revenue v. Anthony et al.

Newfoundland Supreme Court

Court of Appeal

Mahoney, Marshall and Steele, JJ.A.

April 24, 1995.

Summary:

A dentist declared bankruptcy. His major creditor was Revenue Canada for unpaid income taxes. Amongst his assets was ap­proximately $265,000 in a registered retire­ment savings plan. His application for dis­charge was opposed by the Minister of National Revenue, who applied for a deter­mination of whether the dentist's interest in the plan was exempt from division among creditors under s. 67(1) of the Bankruptcy and Insolvency Act.

The Newfoundland Supreme Court, Trial Division, concluded that the funds in the registered retirement savings plan were exempt. Revenue Canada appealed.

The Newfoundland Court of Appeal dis­missed the appeal.

Bankruptcy - Topic 434

Property of bankrupt - Particular property - Registered retirement savings plans - A dentist declared bankruptcy - Amongst his assets was approximately $265,000 in a registered retirement savings plan main­tained by his professional organization - His major creditor was Revenue Canada for unpaid income taxes - The trial judge held that the R.R.S.P. fund was sheltered from the bankrupt's creditors, where it was exempt from seizure in Ontario (location of the assets) and in Newfoundland (resi­dence of the bankrupt) - The Newfound­land Court of Appeal affirmed that the R.R.S.P. was not available for distribution among his creditors.

Bankruptcy - Topic 483

Property of bankrupt - Exemptions or exclusions - Property exempt from seizure under provincial laws - [See Bankruptcy - Topic 434 ].

Bankruptcy - Topic 483

Property of bankrupt - Exemptions or exclusions - Property exempt from seizure under provincial laws - A bankrupt's registered retirement savings plan was situated in Ontario - The bankrupt resided in Newfoundland - The Newfoundland Court of Appeal held that the registered retirement savings plan was exempt from seizure under s. 67(1)(b) of the Bankruptcy and Insolvency Act, notwithstanding that the province where it was situated did not coincide with the province where the bankrupt resided - See paragraphs 9 to 24.

Execution - Topic 754

General rules - Exemptions - Annuities - [See Insurance - Topic 7003 ].

Insurance - Topic 7003

Life insurance - Life insurance defined - The Newfoundland Court of Appeal stated that, pursuant to s. 2(u)(ii)(C) of the Life Insurance Act, R.S.N. 1990, c. L-14, an undertaking to provide an annuity by an insurer (i.e., a variable annuity contract) is deemed a contract of life insurance - See paragraphs 26 to 40 - Pursuant to s. 27(2) of the Act, the variable annuity contract is exempt from seizure and execution - See paragraphs 56 to 75.

Cases Noticed:

Middleton v. Middleton (1980), 3 Sask.R. 33; 110 D.L.R.(3d) 497 (C.A.), refd to. [para. 20].

Morgan Trust Co. v. Dellelce (1985), 85 D.T.C. 5492 (Ont. H.C.), refd to. [para. 34].

Gray v. Kerslake, [1958] S.C.R. 3, refd to. [para. 39].

Larocque, Re (1982), 43 C.B.R.(N.S.) 24 (Ont. S.C.), refd to. [para. 45].

Bank of Montreal v. Arrowsmith (1984), 65 N.S.R.(2d) 190; 147 A.P.R. 190; 7 C.C.L.I. 256 (T.D.), refd to. [para. 60].

Bank of Montreal v. Freedman (1984), 58 B.C.L.R. 289 (S.C.), refd to. [para. 61].

Crosson v. Crosson (1985), 14 C.C.L.I. 246 (B.C.S.C.), refd to. [para. 61].

Toronto-Dominion Bank v. Berezowsky (1987), 77 A.R. 297; 49 Alta. L.R.(2d) 337 (Q.B.), refd to. [para. 61].

Ramgotra (Bankrupt), Re, (1994), 120 Sask.R. 277; 68 W.A.C. 277; 115 D.L.R.(3d) 536 (C.A.), refd to. [para. 63].

Royal Bank of Canada v. North American Life Assurance Co. - see Ramgotra (Bankrupt), Re.

Statutes Noticed:

Annuities Payable Under Life Insurance Contracts, An Act to Amend the Statute Law in Respect of, S.N. 1978, c. 19, generally [para. 37].

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, sect. 43(5) [para. 21]; sect. 67(1) [para. 6]; sect. 67(1)(b) [para. 1].

Life Insurance Act, R.S.N. 1990, c. L-14, sect. 2(e), sect. 2(s) [para. 71]; sect. 2(u)(ii)(C) [para. 27]; sect. 27(2) [para. 56].

Authors and Works Noticed:

Beauchesnes' Parliamentary Rules and Forms (6th Ed.), paras. 679(1), 688, 1082 [para. 67].

Erskine May, Parliamentary Practice (21st Ed.), pp. 472, 486 [para. 67].

Houlden, L.W., and Morawetz, C.H., Bankruptcy Law of Canada (3rd Ed.), p. I-3 [para. 17].

Counsel:

Barry Learmonth, for the appellant;

Barrie Heywood, for the first respondent;

Second respondent not represented.

This appeal was heard on January 23, 1995, before Mahoney, Marshall and Steele, JJ.A., of the Newfoundland Court of Appeal. On April 24, 1995, Marshall, J.A., delivered the following judgment for the court.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT