The taxpayer, who employed both his wife and two part-time employees in his medical practice, deducted $150,000 and $247,691 for contributions he made in 1996 and 1997, respectively, to a health plan trust which he established only for her. The Minister reassessed to deny these deductions and to include the income subsequently generated from the plan assets in the income of the taxpayer under s. 75(2). The trial judge found that these contributions were not made for the purpose of earning income from the taxpayer's medical practice. In affirming the trial judge's finding that the plan was not a trust described in para. (a.1) of the definition of trust in s. 108(1), so that the exclusion from the application of s. 75(2) to the plan income in s. 75(3)(b) did not apply, Dawson J.A. stated (at para. 36):
Counsel argued that the Judge failed to consider the phrase "because of, an office or employment." Counsel argued that the Judge failed to consider whether the benefits were provided "in respect of" Dr. Labow's wife's office or employment. However, given the Judge's finding of fact that the benefits were provided because of Dr. Labow's wife's marital status, it cannot be said the benefits were provided wither "because of" or "in respect of" her office or employment.