Under an RSU plan established by the U.S. public-company parent (“USCo”) of CanCo, awards of RSUs are made to participants, including CanCo employees, each February. The RSUs vest on a pro-rata basis over a three-year period and are payable upon vesting in common shares of USCo, except that USCo may, in its discretion, settle RSUs in cash
CRA indicated that the discretion of USCo to settle in cash meant that s. 7(3)(b) did not prohibit the deduction by CanCo of the recharge payments. It cited Transalta for the proposition that “a discretionary arrangement that does not give employees the right to require that equity-based compensation be paid in the form of shares rather than cash is not an agreement to sell or issue shares for purposes of section 7.”