After finding that an arrangement styled as a retirement compensation arrangement was in fact a salary deferral arrangement given that it deferred compensation and that the employer made no contributions to the arrangement from its own assets, the Directorate went on to find that the exclusion in s. 6(12) for an SDA trust did not apply, stating:
Subsection 6(12) does not apply if the agreement is governed by a trust. … [T]he settlor, in this case the Employer, has not transferred any amount from its patrimony. In our opinion, the conditions of Article 1260 of the Civil Code of Québec would not be satisfied. Indeed, according to this Article, in order to conclude that a trust exists, there must be a transfer of property from the settlor's patrimony to the trustee.