Thibault v. Banque de Nouvelle-Écosse, 2004 SCC 29

• Judge: McLachlin, C.J.C., Bastarache, Arbour, Deschamps and LeBel, JJ.
• Court: Supreme Court of Canada
• Case Date: Friday May 14, 2004
• Jurisdiction: Canada (Federal)
• Citations: 2004 SCC 29;(2004), 319 N.R. 340 (SCC);239 DLR (4th) 385;[2004] 5 CTC 73;[2004] 1 SCR 758;58 DTC 6437;319 NR 340

Thibault v. BNS (2004), 319 N.R. 340 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [2004] N.R. TBEd. MY.020

ScotiaMcLeod Inc., maintenant Scotia Capitaux Inc. (appelante) c. Banque de Nouvelle-Écosse et Guy Thibault (intimés) et Sous-ministre du Revenu du Québec (intervenant)

(28871; 2004 CSC 29; 2004 SCC 29)

Indexed As: Thibault v. Banque de Nouvelle-Écosse

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Arbour, Deschamps and LeBel, JJ.

May 14, 2004.

Summary:

An owner-annuitant had a self-directed retirement savings plan with a trust com­pany. Scotia McLeod held the plan's assets as the trust company's agent. A creditor of the owner-annuitant obtained a writ of seiz­ure against Scotia McLeod. The owner-an­nui­tant applied to set aside the seizure. At issue was whether the plan was exempt from seizure in Quebec.

The Quebec Superior Court dismissed the application. Scotia McLeod appealed. The creditor consented to the appeal. An amicus curiae was appointed to support the con­clusions in the Court of Appeal's decision.

The Quebec Court of Appeal, Rothman, J.A., dissenting, in a decision reported [2001] R.J.Q. 2099; 27 C.C.P.B. 169, dis­missed the appeal. Scotia McLeod appealed again.

The Supreme Court of Canada dismissed the appeal.

Quebec Civil Law - Topic 7402

Trusts - General - What constitutes - An owner-annuitant had a self-directed retire­ment savings plan with a trust company described by the plan as the trustee - The plan provided that the trustee held in trust the contributions by the owner-annuitant and the income earned thereon - On the ma­turity date, the trustee was to liquidate the plan's assets and use the proceeds to provide the owner-annuitant with retire­ment income in the form of a fixed-term an­nuity - Before maturity, the trustee's sole obligation was to execute the invest­ment directions of the owner-annuitant and maintain the investments - The owner-an­nui­tant was entitled to withdraw assets with­out affecting the survival of the con­tract or the benefits - The Supreme Court of Canada ruled that for the period before the maturity date the plan did not qualify as a trust under the Civil Code of Québec because there was no transfer of property to a patrimony by appropriation, no appro­priation to a particular purpose and no acceptance of the property by a trustee - Consequently, the plan was not exempt from seizure - Even if the court assumed that, as a result of a declaration made by legislative amendment, total or partial with­drawals did not prevent the plan from being characterized as a trust, the assets here were still in the owner-annuitant's hands thus preventing characterization of the plan as a trust - See paragraphs 30 to 59.

Quebec Civil Law - Topic 7420

Trusts - General - Unseizability - [See Quebec Civil Law - Topic 7402].

Quebec Civil Law - Topic 7444

Trusts - Creation of - Acceptance of trust - [See Quebec Civil Law - Topic 7402].

Quebec Civil Law - Topic 7448

Trusts - Creation of - Ownership of the trust property - [See Quebec Civil Law - Topic 7402].

Quebec Nominate Contracts - Topic 4732

Annuities - What constitute - An owner-annuitant had a self-directed retirement savings plan with a trust company de­scribed by the plan as the trustee - The plan provided that the trustee held in trust the contributions by the owner-annuitant and the income earned thereon - On the maturity date, the trustee was to liquidate the plan's assets and use the proceeds to provide the owner-annuitant with retire­ment income in the form of a fixed-term annuity - Before maturity, the trustee's sole obligation was to execute the invest­ment directions of the owner-annuitant and maintain the investments - The owner-an­nuitant was entitled to withdraw assets without affecting the survival of the con­tract or the benefits - The Supreme Court of Canada ruled that for the period before the maturity date the plan did not qualify as an annuity under the Civil Code of Québec because there was no alienation of the capital - Also, it was not clear whether the trust company could be characterized as a debtor or be obliged to make periodic payments - Consequently, the plan was not exempt from seizure - Even if the court assumed that, as a result of a declaration made by legislative amendment, total or par­tial withdrawals did not prevent the plan from being characterized as an annu­ity, the assets here were still in the owner-annuitant's hands, thus preventing charac­terization of the plan as an annuity - See paragraphs 10 to 29, 42 to 59.

Quebec Nominate Contracts - Topic 4750

Annuities - Unseizability - [See Quebec Nominate Contracts - Topic 4732].

Statutes - Topic 24

General principles - Classification of stat­utes - Declaratory statutes - The Supreme Court of Canada stated that the legislature could act to state the law, but in so doing it did not change the law - See paragraphs 42 to 47.

Cases Noticed:

Poulin v. Morency (Serge) et Associés Inc., [1999] 3 S.C.R. 351; 245 N.R. 312; 177 D.L.R.(4th) 283, refd to. [para. 2].

Perron-Malenfant v. Poliquin, [1999] 3 S.C.R. 375; 244 N.R. 350, refd to. [para. 10].

Coopérants, Les, In re; Firstcliff Develop­ment Inc. v. Raymond, Chabot, Fafard, Gagnon Inc., [1994] R.L. 268 (Que. C.A.), refd to. [para. 22].

Jobin (Bankrupt) c. Monarch Life Assu­rance Co., [1986] R.J.Q. 1755; 1 Q.A.C. 99 (C.A.), refd to. [para. 25].

Caisse populaire Laurier v. Compagnie Trust Royal et Farrah, [1989] R.J.Q. 550; 30 Q.A.C. 86, refd to. [para. 30].

Statutes Noticed:

Civil Code of Lower Canada, art. 1787 [para. 23].

Civil Code of Québec, L.Q. 1991, c. 64, art. 1260 [para. 31]; art. 1819 [para. 28]; art. 2367 [para. 15]; art. 2379, para. 2 [para. 28]; art. 2393, para. 2 [para. 12]; art. 2457 [para. 10]; art. 2458 [para. 11]; art. 2644 [para. 9]; art. 2645 [para. 9].

Code of Civil Procedure (Que.), R.S.Q. 1977, c. C-25, art. 553 [para. 2].

Insurance and other legislative provisions, Act to amend the Act respecting, S.Q. 2002, c. 70, sect. 187 [para. 42].

Trust companies and savings companies, Act respecting, R.S.Q. 1977, c. S-29.01, sect. 178 [para. 14].

Authors and Works Noticed:

Brierley, John E.C., and Macdonald, Rode­rick A., Quebec Civil Law: An Introduc­tion to Quebec Private Law (1993), nos. 9 and 130 [para. 24].

Cantin Cumyn, Madeleine, Traité de droit civil: L'administration du bien d'autrui, sous la direction de Paul-A. Crépeau (2000), p. 241 [para. 37].

Côté, Pierre-André. Interprétation des lois, 3e éd., 1999, p. 651 [par. 44, version française].

Côté, Pierre-André, The Interpretation of Legislation in Canada (3rd Ed. 2000), p. 516 [para. 44, English version].

Craies, William Feilden, Craies on Statute Law (7th Ed. 1971), by S.G.G. Edgar, p. 58 [para. 44].

Crawford, William E., Taxation and Re­tirement Planning (1995), 43 Can. Tax J. 1343, p. 1349 [para. 52].

Digesta, Les cinquante livres du Digeste ou des Pandectes de l'empereur Justinien, livre L, titre XVI, 1803-1805, p. 608, para. 67 [para. 24].

Lluelles, Didier, Précis des assurances terrestres, 3e éd., 1999, pp. 407 and 413 [paras. 25, 45]; 408 [para. 45].

Counsel:

Marzia Frascadore and Julie-Martine Lo­ranger, for the appellant, ScotiaMcLeod Inc.;

Written submissions only by Henry S. Brown, Q.C., for the respondent, Banque de Nouvelle-Écosse;

Written submissions only by the respon­dent Guy Thibault;

Danny Galarneau and Ginette Breton, for the intervener, Sous-ministre du Revenu du Québec;

James A. Woods and Annie Galarneau, for the amicus curiae.

Solicitors of Record:

Gowling, Lafleur, Henderson, Montreal, Quebec, for the appellant, ScotiaMcLeod Inc.;

Scotiabank, Montreal, Quebec, for the respondent, Banque de Nouvelle-Écosse;

Veillette & Associés, Sainte-Foy, Quebec, for the intervener, Sous-ministre du Revenu du Québec;

Woods and Partners, Montreal, Quebec, for the amicus curiae.

This appeal was heard on November 4, 2003, by McLachlin, C.J.C., Bastarache, Arbour, LeBel and Deschamps, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court was delivered in both official languages on May 14, 2004, by Deschamps, J.