In 1980, Nortel had established a health and welfare trust (the “HWT”) for its employees. Following its insolvency and filing under the CCAA (with the related CCAA proceedings being court-supervised), it made lump sum payments in 2011 to the taxpayers, pursuant to a court-approved settlement agreement, in satisfaction of their entitlement to payments under the HWT. Mr. Scott, had been the husband of a full-time non-unionized employee, and had been receiving monthly survivor income benefits following her death, that had been included in his income under s. 56(1)(a)(iii) as death benefits. Ms. McCann was similar.
After finding (at para. 102) that the 2011 distribution was paid to Mr. Scott as partial compensation for the termination of the monthly payment of his death benefits, and referring (at para 140) to the broad meaning accorded in Transocean to “in lieu of” (also appearing in s. 56(1)(a)(iii)), thereby rendering it unnecessary to refer to the surrogatum principle (see para. 129), Sommerfeldt J stated (at para. 141):
[I]f the distributions paid in 2011 by the HWT to Mr. Scott and Ms. McCann were not received by them on account of the death benefits that they were entitled to receive, I am of the view that those distributions were received by them instead of, in place of, or in lieu of, those death benefits, so as to come within the statutory phrase “any amount received … in lieu of payment of, … a death benefit.”