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 four taxpayers, pursuant to a court-approved settlement agreement, in satisfaction of their entitlement to funding of life insurance premiums or to survivor death benefits. In characterizing such payments, and after noting that the surrogatum principle had been commonly expressed in the context of someone carrying on a business or having an adventure in the nature of trade, Sommerfeldt J quoted with approval the statement in Dumas, 2000 DTC 2603 regarding the surrogatum principle that:
The real question is to determine why the compensatory amount was paid.
and then stated (at para. 102):
In determining why the distributions were paid in 2011 by the HWT to the Appellants, I have concluded that the distributions were paid to Ms. Ellis and Ms. Kennedy as partial compensation for the termination of the Group Life Plan, and the distributions were paid to Mr. Scott and Ms. McCann as partial compensation for the termination of the monthly payment of their respective death benefits.