Reasons for Judgment — Gascon J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe and Martin JJ. concurring)
Gascon J. — We would allow the appeal for the reasons of the dissenting judge in the Federal Court of Appeal, and reinstate the order of Justice McVeigh of the Federal Court that answered in the affirmative the question of law submitted by the parties, with costs throughout in favour of Callidus Capital Corporation.
The question of law at issue was formulated as follows and assumed the existence of a pre-bankruptcy liability under s. 222 of the Excise Tax Act , R.S.C. 1985, c. E-15 (“ETA ”):
Does the bankruptcy of a tax debtor and subs. 222(1.1) of the [ETA ] render the deemed trust under s. 222 of the ETA ineffective as against a secured creditor who received, prior to the bankruptcy, proceeds from the assets of the tax debtor that were deemed to be held in trust for the Plaintiff?
As a result, as it is not necessary to do so to resolve this appeal, this Court is not commenting, one way or the other, on the scope of the deemed trust or any liability under s. 222 of the ETA prior to bankruptcy.