HER MAJESTY THE QUEEN,
REASONS FOR JUDGMENT
 These appeals are from assessments
for the appellant's 1992, 1993 and 1994 taxation years. The facts
are not disputed and the point in issue is a narrow and somewhat
 The appellant was an employee of
the House of Commons. He suffers from a heart condition and
diabetes. He was hospitalised in 1988. He applied for and
received benefits from the Long Term Disability Plan of the House
of Commons (the Public Service Management Insurance Plan, or
PSMIP). The plan is funded by the employer and the employee. The
carrier is National Life Assurance Company of Canada (National
 In addition to the benefits under
the PSMIP the appellant applied for and received Canada Pension
Plan disability benefits. The CPP benefits reduced the amounts
that he was entitled to receive under the PSMIP.
 The appellant left Canada in 1989
for reasons that had to do with the quality of health care in
Canada as well as the availability of heart transplants in the
United States. He was given five years to live but that
prognosis has obviously been proved wrong. He continues to be a
non-resident of Canada.
 In 1993, National Life, based on a
report by a medical person who had never seen the appellant and
who looked only at the file, discontinued his benefits under the
PSMIP. He sued and ultimately had the benefits reinstated.
 After the settlement with National
Life, the Canada Customs and Revenue Agency wrote to the
appellant demanding that returns be filed for 1991, 1992, 1993,
1994 and 1995.
 The appellant filed returns for
1992, 1993 and 1994. Assessments were issued.
 In computing his income for those
years the appellant reported Wage Loss Replacement Plan benefits
received under the PSMIP in the amounts of $29,870.00, $30,542.00
and $23,307.00 respectively, as well as $6,943.00, $7,068.00 and
$7,202.00 received from the CPP.
 He also claimed non-refundable tax
credits for each of the years in the following amounts: basic
personal amount: $6,456.00; spousal amount: $5,380.00; pension
income amount: $1,000.00; disability amount: $4,233.00. He
claimed as well non-refundable tax credits for medical expenses
in the amounts of $20,971.00; $16,048.00 and $18,123.00
respectively. Also, he claimed $5,900.00 for charitable donations
 On assessing on October 9, 1997 for
1992, 1993 and 1994, the Minister of National Revenue deleted the
amount of the CPP disability payments from income and disallowed
all of the non-refundable tax credits except for the disability
amount. The result was that tax of $6,859.68, $7,064.75 and
$5,025.99 was assessed for those years.
 On November 10, 1997, the Minister
reassessed and applied the provisions of Article XVIII of the
Canada-U.S. Income Tax Convention (1980). This had the
effect of limiting the tax for those years to 15% of the Wage
Loss Replacement Plan benefits, or $4,480.50, $4,581.30 and
 Counsel for the respondent in her
written submissions states that the issue is whether the CPP
payments are caught by paragraph 6(1)(f) of the Income
Tax Act so that they are considered to be income from an
office or employment. I agree that that is the principal issue.
There is, however, a secondary issue with respect to the question
whether, even if the CPP payments are not income from an office
or employment, "all or substantially all of his income is
included in computing his taxable income in Canada."
 The second issue arises only if I
decide the first issue in favour of the respondent. This would
require a decision that the CPP payments are not income from an
office or employment.
 As a non-resident, the appellant is
subject to tax under Part I of the Income Tax Act on
income earned in Canada. Subsection 2(3) reads
Where a person who is not
taxable under subsection (1) for a taxation year
(a) was employed in Canada,
(b) carried on a business in Canada, or
(c) disposed of a taxable Canadian property,
at any time in the year or a previous year, an income tax
shall be paid as hereinafter required upon his taxable income
earned in Canada for the year determined in accordance with
Subparagraph 115(1)(a)(i) provides
For the purposes of this Act,
the taxable income earned in Canada for a taxation year of a
person who at no time in the year is resident in Canada is the
amount of his income for the year that would be determined under
section 3 if
(a) he had no income other than
from the duties of offices and employments performed by him in
Paragraph 6(1)(f) reads
There shall be included in
computing the income of a taxpayer for a taxation year as income
from an office or employment such of the following amounts as are
. . . . .
(f) the aggregate of amounts received by him in the
year that were payable to him on a periodic basis in respect of
the loss of all or any part of his income from an office or
employment, pursuant to
(i) a sickness or accident insurance plan,
disability insurance plan, or
income maintenance insurance plan
to or under which his employer has made a contribution, not
exceeding the amount, if any, by which
aggregate of all such amounts received by him pursuant to the
plan before the end of the year and
(A) where there was a preceding
taxation year ending after 1971 in which any such amount was, by
virtue of this paragraph, included in computing his income, after
the last such year, and
(B) in any other case,
(v) the aggregate of the contributions made by the
taxpayer under the plan before the end of the year and
(A) where there was a preceding
taxation year described in subparagraph (iv), after the last
such year, and
(B) in any other case, after 1967;
 The respondent's position is that the
amounts received from National Life under the Wage Loss
Replacement Plan fall squarely within
paragraph 6(1)(f) because they are paid pursuant to a
disability insurance plan under which the appellant's employer
has made a contribution. By way of contrast, the respondent
argues that the CPP payments do not fall under
paragraph 6(1)(f) because the CPP is not an insurance
plan at all; it is a pension plan. She contends that the CPP
payments are more in the nature of social security benefits and
she relies upon some observations made in Hausmann Estate v.
Canada,  4 C.T.C. 2232.
 Counsel further supports her argument
by reference to paragraph 56(1)(a) which reads in
56. (1) Without restricting the generality of section
3, there shall be included in computing the income of a taxpayer
for a taxation year,
(a) any amount received by the
taxpayer in the year as, on account or in lieu of payment of, or
in satisfaction of,
(i) a superannuation or pension
benefit including, without limiting the generality of the
(A) the amount of any pension, supplement or spouse's allowance
under the Old Age Security Act and the amount of any
similar payment under a law of a province,
(B) the amount of any benefit under the Canada Pension
Plan or a provincial pension plan as defined in
section 3 of that Act,
She argues that the specific provisions of
paragraph 56(1)(a) override the more general
provision of paragraph 6(1)(f).
 On this point despite the extremely
thorough and persuasive written argument presented by
Mr. Watts, I agree with counsel for the respondent. It is
true that at least where the recipient of CPP benefits was an
employee both the employer and the employee must contribute.
Nonetheless, I should not have thought that one could regard the
social security regime of which the CPP is so integral a part in
Canada as an insurance plan. Insurance has been defined in
different ways but I am not aware of any definition that would
encompass a government-run pension plan. As
Stone, J.A. observed in Consolidated-Bathurst Ltd.
v. The Queen,  1 C.T.C. 55 at page 63:
. . . insurance involves risk shifting and risk
In Re Bendix Automotive Ltd. and U.A.W., Local 195,
 3 O.R. 263, Pennell, J. referred to a number of
definitions of insurance. He said at pages 268-9:
There are many other
definitions of insurance appearing in textbooks and cases, all of
which are essentially the same as that found in the Insurance
Act. It would perhaps be helpful at this point to set out
some of these definitions to illustrate their similarity.
In Prudential Insurance Co.
v. Commissioners of Inland Revenue,  2 K.B. 658,
Channell, J., at p. 663, described a contract of insurance as
It must be a
contract whereby for some consideration, usually but not
necessarily for periodical payments called premiums, you secure
to yourself some benefit, usually but not necessarily the payment
of a sum of money, upon the happening of some event. Then the
next thing that is necessary is that the event sould be one which
involves some amount of uncertainty. There must be either
uncertainty whether the event will ever happen or not, or if the
event is one which must happen at some time there must be
uncertainty as to the time at which it will happen. The remaining
essential is that which was referred to by the
Attorney-General when he said the insurance must be against
something. A contract which would otherwise be a mere wager may
become an insurance by reason of the assured having an interest
in the subject-matter - that is to say, the uncertain event
which is necessary to make the contract amount to an insurance
must be an event which is prima facie adverse to the interest of
In passing, I note that this last essential was modified by
the Court of Appeal in Gould v. Curtis,  3 K.B. 84,
per Cozens-Hardy, M.R., at p. 92.
Jenks, A Digest of English
Civil Law, 3rd ed. (1938), at p. 285, defines insurance
705. A contract of insurance is a contract
whereby one party ("the insurer") agrees with another ("the
insured"), in consideration of a payment or series of payments
("premium"), to pay to the latter or to his representatives or
nominee a sum or sums of money conditionally on death or the
happening of any uncertain event, which it is contemplated will
or may cause loss or expense to the insured or such nominee
('interest" or "insurable interest").
Another judicial definition may
be found in a judgment of Lawrence, J., in Lucena v.
Craufurd (1806), 2 Bos. & Pul. (N.R.) 269 at p. 301,
127 E.R. 630:
. . . insurance is a contract by which the one party in
consideration of a price paid to him adequate to the risk,
becomes security to the other that he shall not suffer loss,
damage, or prejudice by the happening of the perils specified to
certain things which may be exposed to them.
Counsel for the applicant also
relied upon Livingstone v. Western Assurance Co. (1868),
14 Gr. 461, per Spragge, V.-C., at p. 463;
reversed by 16 Gr. 9, but without affecting the passage cited,
and Mitchell v. City of Toronto (1921), 50 O.L.R. 585 at
p. 592, 64 D.L.R. 569 at pp. 574-5, per Hodgins,
J.A., dissenting. No purpose would be served by quoting from
these cases which in essence set out similar definitions to those
The basic elements which are
common to all of these definitions may be stated as follows:
i) an undertaking of
ii) to indemnify another
iii) for an agreed consideration;
iv) from loss or liability in respect of an
v) the happening of which is
 Insurance is essentially a contractual
arrangement between an insured and an insurer and involves an
obligation by an insurer, upon payment of premiums, to pay an
amount upon an event whose occurrence is uncertain. The statutory
regime administered by the CPP contains none of those elements.
The payments under it are therefore not income from an office or
employment as described in paragraph 6(1)(f) of the
Income Tax Act. Rather, they are taxable as income by
reason of paragraph 56(1)(a).
 The right of Canada to tax these two
types of payments is limited by the Canada-U.S. Income Tax
Convention, (1980), Article XVIII reads in part as
1. Pensions and annuities arising in a
Contracting State and paid to a resident of the other Contracting
State may be taxed in that other State, but the amount of any
such pension that would be excluded from taxable income in the
first-mentioned State if the recipient were a resident thereof
shall be exempt from taxation in that other State.
(a) pensions may also be taxed in the Contracting
State in which they arise and according to the laws of that
State; but if a resident of the other Contracting State is the
beneficial owner of a periodic pension payment, the tax so
charged shall not exceed 15 per cent of the gross
amount of such payment; and
(b) annuities may also be taxed in the
Contracting State in which they arise and according to the laws
of that State; but if a resident of the other Contracting State
is the beneficial owner of an annuity payment, the tax so charged
shall not exceed 15 per cent of the portion of such
payment that would not be excluded from taxable income in the
first-mentioned State if the beneficial owner were a
3. For the purposes of this Convention, the term
"pensions" includes any payment under a superannuation, pension
or retirement plan, Armed Forces retirement pay, war veterans
pensions and allowances and amounts paid under a sickness,
accident or disability plan, but does not include payments under
an income-averaging annuity contract or any benefit referred to
in paragraph 5.
4. For the purposes of the Convention, the term
"annuities" means a stated sum paid periodically at stated times
during life or during a specified number of years, under an
obligation to make the payments in return for adequate and full
consideration (other than services rendered), but does not
include a payment that is not a periodic payment or any annuity
the cost of which was deductible for the purposes of taxation in
the Contracting State in which it was acquired.
5. Benefits under the social security legislation
in a Contracting State paid to a resident of the other
Contracting State shall be taxable as follows:
(a) such benefits shall be taxable only in that
(b) notwithstanding the provisions of
subparagraph (a), one-half of the total amount
of any such benefit paid in a taxable year shall be exempt from
taxation in that other State.
 I have omitted the technical
explanations of each of these provisions. The result is that the
Wage Loss Replacement Plan payments by National Life are caught
by paragraph 6(1)(f) of the Income Tax Act.
Moreover, they fall within the definition of pension as provided
in paragraph 3 of Article XVIII of the Canada-U.S.
Income Tax Convention (1980) and Canada may therefore tax
them. Under paragraph 2 of Article XVIII, Canada's
right to tax is limited to 15%.
 So far as the CPP payments are
concerned, they are, by reason of paragraph 5 of Article
XVIII, taxable only in the United States because they are,
in my view, benefits under the social security legislation of
 I have concluded therefore that the
Wage Loss Replacement Plan payments are income from an office or
employment and are subject to tax by Canada at 15%. The CPP
payments received by the appellant, a non-resident, are not
taxable by Canada.
 Section 118.94 of the Income Tax
Actreads as follows
Sections 118 and 118.2, subsections 118.3(2) and (3) and
sections 118.6, 118.8 and 118.9 do not apply for the purpose of
computing the tax payable under this Part for a taxation year by
an individual who at no time in the year is resident in Canada
unless all or substantially all of the individual's income for
the year is included in computing the individual's taxable income
earned in Canada for the year.
The remaining question therefore is whether all or
substantially all of the appellant's income is included in
computing his taxable income earned in Canada. Counsel for the
respondent argues that for 1993 and 1994 if the CPP payments are
excluded from the appellant's income, the answer to the question
 The appellant's income from the two
sources as declared in his income tax return was
(a) Wage Loss
(d) Percentage that
(a) is of
 However, in attachments to his income
tax return he stated that his world income was slightly different
for 1992, 1993 and 1994 - $34,309.00; $39,624.00 and $31,157.00,
respectively. If I accepted these numbers it would change the
percentages to 87%, 77% and 74.8%. The Crown has conceded the
appellant's position for 1992 with respect to the medical
expenses but not with respect to the pension amount (because of
his age). Do the differences in the percentages justify a
different treatment for 1993 and 1994? I shall proceed upon the
basis that the correct percentages are 81.139%, 81.207% and
76.309%. These figures result from a comparison of the Wage Loss
Replacement Plan benefits with the aggregate of those benefits
and the CPP payments. There is simply no evidence of any
additional income (or of its nature) in 1993 and 1994 or any loss
for 1992 from other sources. There is no assumption pleaded with
respect to income or loss from other sources.
 There has been a fair amount written
about the somewhat imprecise term "all or substantially all". The
unofficial departmental position is 90% but the meaning of the
expression should not be decided on the basis of an arbitrary
 In Pronovost v. The Queen, 2003
TCC 139, it was observed that
 In Ruhl (W.) v.
Canada,  G.S.T.C. 4, and in
Lim (J.H.) v. Canada,
 G.S.T.C. 1, the meaning of
"substantial" or "substantially all" was
considered. In Ruhl it was observed that they are terms of
some elasticity and that "an unsatisfactory medium for
carrying the idea of some ascertainable proportion of the whole.
They do not require a strictly proportional or quantitative
 The 90% rule used by the
CCRA has no statutory basis although it may be necessary that
some sort of rigid criterion be applied administratively. That
does not mean that the court must follow it. The 90% rule, even
if it had some basis in law, is itself defective because it
leaves unanswered the question "90% of what? time? mileage?
number or weight of passengers or goods carried?"
 In Lim v. The Queen, I commented
further on the meaning of "substantial" or "substantial
 I shall, however, deal
briefly with the concept of "substantial completion".
The words "substantial" or "substantially"
appear in a number of statutes, including the Income Tax
Act and mechanics' lien statutes of the provinces. They
have been the subject of a certain amount of judicial commentary.
Their meaning in a particular statute has often occasioned some
difficulty. The terms are somewhat flexible and relative, and
their meaning is derived from the context in which they are used
and the facts of the particular case.
 It is useful to read what
Viscount Simon said in Palser v. Grinling,  A.C. 291
at pages 316-317:
(5.) What does "substantial portion" mean? It
is plain that the phrase requires a comparison with the whole
rent, and the whole rent means the entire contractual rent
payable by the tenant in return for the occupation of the
premises together with all the other covenants of the landlord.
"Substantial" in this connexion is not the same as
"not unsubstantial," i.e., just enough to avoid the
"de minimis" principle. One of the primary meanings of
the word is equivalent to considerable, solid, or big. It is in
this sense that we speak of a substantial fortune, a substantial
meal, a substantial man, a substantial argument or ground of
defence. Applying the word in this sense, it must be left to the
discretion of the judge of fact to decide as best he can
according to the circumstances in each case, the onus being on
the landlord. If the judgment of the Court of Appeal in
Palser's case were to be understood as fixing
percentages as a legal measure, that would be going beyond the
powers of the judiciary. To say that everything over 20 per cent.
of the whole rent should be regarded as a substantial portion of
that rent would be to play the part of a legislator : if
Parliament thinks fit to amend the statute by fixing percentages,
Parliament will do so. Aristotle long ago pointed out that the
degree of precision that is attainable depends on the subject
matter. There is no reason for the House to differ from the
conclusion reached in these two cases that the portion was not
substantial, but this conclusion is justified by the view taken
on the facts, not by laying down percentages of general
 The Department of National
Revenue uses the percentage of 90% as a test to determine
substantial completion. As an administrative rule of thumb it may
well be a commendable attempt to add some precision to an
imprecise concept, but it is difficult to apply in practice. One
question that arises is: 90% of what? time? money?
appearance? I think we should bear in mind Viscount Simon's
admonition about the use of percentages.
 The term has been considered in other
cases, notably Australian. In A. E. Terry's Motors
Ltd. v. Rinder,  S.A.S.R. 167 at 180, Mayo J.
'What is meant by "a substantial part" and "the remaining
part" of the premises? "Substantial" is not a word with a
fixed meaning in all contexts. In certain associations it can be
taken to stress the quality of solidarity or strength. It may be
related to the appearance of some physical object. With other
concepts it may refer to weight, volume, or area. Again it may be
used to indicate worth, or stability. Used in a
comparative setting, "a substantial part" as against "the
remaining part", it suggests a dichotomy into the substantial
part, and the not-substantial, a contrast, according to cubic
contents, or area, between the greater and the less, as between
the essential and the subordinate or incidental. In his satiric
view of the modern use of language entitled What a Word,
A P Herbert treats "substantial" in a quantitative
sense, as the modern colloquial equivalent of "much" or even
"some". It is an unsatisfactory medium for carrying the idea of
some ascertainable proportion of the whole.'
Similarly, Deane J. in Tillmanns Butcheries Pty. Ltd. v.
Australasian Meat Industry Employees' Union and Others,(1979)
42 F.L.R. 331 at 348, said
'The word "substantial" is not only susceptible of ambiguity:
it is a word calculated to conceal a lack of precision. In the
phrase "substantial loss or damage", it can, in an appropriate
context, mean real or of substance as distinct from ephemeral or
nominal. It can also mean large, weighty or big. It can be used
in a relative sense or can indicate an absolute significance,
quantity or size. The difficulties and uncertainties which the
use of the word is liable to cause are well illustrated by the
guidance given by Viscount Simon in Palser v Grinling
[supra] where, after holding that, in the context there under
consideration, the meaning of the word was equivalent to
"considerable, solid or big", he said: "Applying the word in this
sense, it must be left to the discretion of the judge of fact to
decide as best he can according to the circumstances of each
case." . . . In the context of s 45D(1) of the [Trade Practices]
Act 1974-1986 (Cth), the word "substantial" is used in a
relative sense in that, regardless of whether it means large or
weighty on the one hand or real or of substance as distinct from
ephemeral or nominal in the other, it would be necessary to know
something of the nature and scope of the relevant business before
one could say that particular, actual or potential loss or damage
was substantial. As at present advised, I incline to the view
that the phrase, substantial loss or damage, in s 45(D)(1)
includes loss or damage that is, in the circumstances, real or of
substance and not insubstantial or nominal.'
 I think it would be absurd to conclude
that the appellant's rights under the Income Tax Act
should depend on the assignment of an arbitrary percentage to the
words "all or substantially all". This mechanical exercise runs
counter to common sense.
 In Re Olympia & York and Hiram
Walker, 59 O.R. (2d) 254, Montgomery J. quoted with
approval from a case from the Delaware Chancery Court, Gimbel
v. Signal Companies, Inc., 316 A.2d 599 at pp. 605 and 608 as
. . . Again, it is not necessary to go beyond the statute. The
statute requires shareholder approval upon the sale of "all or
substantially all" of the corporation's assets. That is the sole
test to be applied. While it is true that the test does not lend
itself to a strict mathematical standard to be applied in every
case, the qualitative factor can be defined to some degree
notwithstanding the limited Delaware authority. But the
definition must begin with and ultimately necessarily relate to
our statutory language.
Montgomery J. then went on to say
It is fallacious to
suggest that when a holding company that has three distinct
divisions and sells one of three divisions for 2.6 billion
dollars out of a total worth of six billion dollars, it could
possibly fall within s. 183(3).
His judgment was affirmed by the Ontario Divisional Court.
 I mention parenthetically that in
Gimbel, the Delaware Chancery Court referred to another
Delaware Chancery decision of Philadelphia National Bank v.
B.S.F. Co., 41 Del.Ch. 509, in which the Court held that
75% of a corporation's assets constituted "substantially all" of
 There are many cases in this Court that
have considered the meaning of "all or substantially all". They
consistently comment on the elasticity and ambiguity of the
expression and on the inadvisability of using an arbitrary
percentage, such as 90%. For example, Rip J. in McDonald v.
The Queen, 98 DTC 2151 stated at p. 2154
 The word
"substantially" is not defined in dictionaries as a fixed portion
of a whole. The so-called "90% rule" is a rule of thumb that is
no doubt convenient to assessors and tax advisors in determining
a reasonable standby charge.
 The Oxford
English Dictionary defines "substantially" to mean, among
b. essentially, intrinsically
c. actually, really
 The same dictionary
defines the word "substantial" to include "of ample or
considerable amount, quantity or dimensions."
 In the French
version of subsection 6(2), the words "all or substantially all"
are "la totalité, ou presque". The word "presque" is
defined by Le Petit Robert as "à peu près".
The Collins-Robert French-English,
English-French Dictionary does not include the words
"substantial" or "substantially" in the English meaning of the
word "presque". The words included are: "almost" and "nearly".
The word "substantially" is translated in
Collins-Robert as "considérablement" in the
context of "considerably" and "en grande partie" when the word
"substantially" means "to a large extent".
 These dictionary
definitions confirm that the word "substantially", as Bowman,
J.T.C.C. remarked in Ruhl v. Canada, is elastic and an
unsatisfactory medium for conveying the concept of an
ascertainable proportion of the whole. The words "substantially
all" in the context of paragraph 6(2)(d) need not be
interpreted as 90% or more but may be a lesser proportion of the
whole depending on the facts. In the case at bar, at least 85% of
the distance travelled was in connection with Mr. McDonald's
employment and in my view that is substantially all of the
distance travelled by the automobile in the total days it was
available to Mr. McDonald.
 See also Keefe v. M.N.R.,
2003 DTC 1526, where Sheridan J. held that 81% was "all or
substantially all". In the following cases 80% has held to be
"all or substantially all". McKay v. R., 2000
G.S.T.C. 93 and Ruhl (W.) v. Canada, 
 The difference between 81, 77 and 76
(or 81, 81 and 76) percent is not large enough to justify a
different treatment in the three years. In the circumstances of
this case the amounts received as Wage Loss Replacement Plan
benefits under the PSMIP represent substantially all of his
income for the three years.
 The appeals are allowed and the
assessments are referred back to the Minister of National Revenue
for reconsideration and reassessment in accordance with these
reasons. The appellant is entitled to his costs, if any, in
accordance with the tariff.
Signed at Ottawa, Canada, this 19th day of August