Hrabinsky,
J.:—This
is
an
application
pursuant
to
Queen's
Bench
Rule
452(d)(i),
(ii),
(iii),
(ix)
and
pursuant
to
subsection
23
of
section
45
of
The
Queen's
Bench
Act,
R.S.S.
1978,
c.
Q-1,
as
amended,
for:
1.
An
Order
declaring
that
Joan
Martin
Baltzan
is
the
beneficiary
of
registered
retirement
savings
plans
owned
by
the
deceased,
Donald
Mayer
Baltzan
in
consequence
of
his
death;
2.
An
Order
declaring
that
such
registered
retirement
savings
plans
never
were
part
of
the
Estate
assets
of
the
late
Donald
Mayer
Baltzan;
This
application
comes
about
as
a
result
of
a
“Requirement
To
Pay”
served
upon
the
applicant
by
the
respondent,
The
Minister
of
National
Revenue,
Taxation,
following
the
applicant's
request
to
“roll
over"
two
registered
retirement
savings
plans
pursuant
to
the
provisions
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148,
as
amended.
Issues
The
issues
to
be
determined
are:
(1)
Does
clause
(a)
in
the
deceased's
will
entitle
the
applicant
to
demand
payment
from
The
Royal
Bank
of
Canada
of
the
proceeds
of
certain
registered
retirement
savings
plans,
including
the
amount
of
the
deceased's
contributions
to
the
plans
with
accumulated
interest
and
a
refund
of
premiums,
if
any,
and
(2)
Does
the
said
clause
permit
the
registered
retirement
savings
plans
to
flow
directly
to
the
applicant
and
"bypass"
the
administration
of
the
estate
of
the
deceased?
Facts
During
his
lifetime,
Donald
Mayer
Baltzan,
(the
deceased)
placed
the
following
registered
retirement
savings
plans
through
the
Royal
Bank
of
Canada.
(1)
Registered
Retirement
Term
Deposit
Savings
Plan
No.
500265756
and
(2)
Registered
Retirement
Self
Directed
Plan
No.
04159323.
By
the
terms
of
both
registered
retirement
savings
plans,
Guaranty
Trust
Company
of
Canada
(now
Central
Guaranty
Trust
Company
of
Canada)
is
the
trustee
of
those
plans.
Clause
1.10
of
the
Term
Deposit
Savings
Plan
reads:
1.10
Member's
Death.
Upon
the
death
of
the
Member
prior
to
the
provision
of
a
retirement
income
pursuant
hereto
and
upon
receipt
of
all
evidence
which
the
Bank
may
reasonably
require
with
respect
to
such
death
and
the
legal
representatives
of
the
Member,
remit
as
a
single
payment
to
the
legal
representatives
of
the
Member
the
RBR
Deposits
held
under
this
Plan
or
the
proceeds
thereof
together
with
any
amount
that
the
Bank
shall
have
received
from
the
Trustee
pursuant
to
Clause
2.6
as
the
proceeds
of
the
investments
held
by
the
Trustee
or,
if
permitted
by
applicable
law,
pay
such
RBR
Deposits
and/or
proceeds
to
the
person
designated
by
the
Member
as
the
beneficiary
of
the
Member's
interest
in
the
property
held
under
the
Plan,
less
in
both
cases
all
proper
charges
and
any
applicable
taxes;
and..
.
[Emphasis
added.]
Clause
1.9
of
the
Self
Directed
Plan
reads:
1.9
Member's
Death.
Upon
notification
of
the
death
of
the
Member
prior
to
the
provision
of
a
retirement
income
pursuant
hereto
and
upon
receipt
of
all
evidence
which
the
Bank
may
reasonably
require
with
respect
to
such
death
and
the
legal
representatives
of
the
Member,
remit
as
a
single
payment
to
the
legal
representatives
of
the
Member
the
proceeds
of
the
property
held
by
the
Bank
under
the
Plan
together
with
any
amount
that
the
Bank
shall
have
received
from
the
Trustee
pursuant
to
Clause
2.7
as
the
proceeds
of
the
investments
held
by
the
Trustee
or,
if
permitted
by
applicable
law,
pay
such
proceeds
as
a
single
payment
to
the
person
designated
by
the
Member
as
the
beneficiary
of
the
Member's
interest
in
the
property
held
under
the
Plan,
less
in
both
cases
all
proper
charges
and
any
applicable
taxes.
A
beneficiary
designation
can
be
made,
changed
or
revoked
only
by
written
instrument
identifying
this
Plan,
duly
signed
and
in
a
form
acceptable
to
the
Bank,
that
is
given
to
the
Bank
at
its
address
on
the
face
hereof
before
any
payment
is
made
under
this
Clause.
[Emphasis
added.]
Donald
Mayer
Baltzan
died
testate
on
November
26,
1988,
prior
to
the
provision
of
a
retirement
income.
The
pertinent
part
of
his
last
will
and
testament
dated
September
23,
1987,
reads
as
follows:
I
Give,
Devise
and
Bequeath
all
my
property
of
every
nature
and
kind
and
wheresoever
situate,
including
any
property
over
which
I
may
have
any
power
of
appointment,
unto
my
Trustees
to
hold
the
same
upon
the
following
trusts,
namely:
(a)
If
my
wife
survives
me
for
a
period
of
thirty
(30)
days
following
my
death,
to
transfer
and
assign
all
benefits
derived
from
any
Registered
Retirement
Savings
Plan
to
my
wife,
Joan
Martin
Baltzan,
absolutely.
I
Specifically
Direct
that
my
Executors
pay
to
my
wife
such
amounts
as
may
be
received
by
way
of
refund
of
premiums
arising
from
any
Registered
Retirement
Savings
Plan
owned
by
me.
The
Law
The
pertinent
words
of
clause
1.10
of
the
registered
retirement
term
deposit
savings
plan
are:
.
.
.
Or,
if
permitted
by
applicable
law,
pay
such
RBR
Deposits
and/or
proceeds
to
the
person
designated
by
the
Member
as
the
beneficiary
of
the
Member's
interest
in
the
property
held
under
the
Plan.
The
pertinent
words
of
clause
1.9
of
the
registered
retirement
self
deposit
plan
are
almost
identical
to
those
quoted
above.
They
read:
.
.
.
Or,
if
permitted
by
applicable
law,
pay
such
proceeds
as
a
single
payment
to
the
person
designated
by
the
Member
as
the
beneficiary
of
the
Member's
interest
in
the
property
held
under
the
Plan.
Since
the
deceased
was
domiciled
in
Saskatchewan
at
the
time
of
his
death,
the
“applicable
law"
is
the
law
of
Saskatchewan.
Subsection
45(23)
of
The
Queen's
Bench
Act,
R.S.S.
1978,
c.
Q-1,
before
the
amendment
effective
June
15,
1988,
read
as
follows:
23.(1)
In
this
subparagraph
and
subparagraphs
(2)
and
(3):
(a)
"investment
corporation"
means
a
corporation
that
is
approved
by
the
Governor
in
Council
for
the
purposes
of
section
146
of
the
Income
Tax
Act
(Canada)
and
that
issues
investment
contracts
as
described
in
that
section;
(b)
"planholder"
means
a
person,
not
being
a
corporation,
who
has
entered
into
a
retirement
savings
plan
with
a
trustee
or
with
an
investment
corporation;
(c)
“retirement
savings
plan”
means
an
arrangement
that
is
defined
to
be
a
retirement
savings
plan
by
the
Income
Tax
Act
(Canada)
for
the
purposes
of
that
Act;
(d)
"trustee"
means
a
corporation
that
is
a
trustee
under
a
retirement
savings
plan.
(2)
Where,
in
accordance
with
the
terms
of
a
retirement
savings
plan,
a
planholder
has
designated
a
person
or
persons
to
receive
a
benefit
payable
under
the
retirement
savings
plan
in
the
event
of
the
planholder's
death:
(a)
the
trustee
or
the
investment
corporation
that
is
a
party
to
the
retirement
savings
plan
is
discharged
upon
paying
to
such
person
or
persons
the
amount
of
the
benefit;
(b)
such
person
or
persons
may,
upon
the
death
of
the
planholder,
enforce
payment
of
the
benefit,
but
the
trustee
or
investment
corporation
that
is
a
party
to
the
retirement
savings
plan
is
entitled
to
set
up
any
defence
that
the
trustee
or
investment
corporation
could
have
set
up
against
the
planholder
or
his
personal
representatives.
(3)
A
planholder
may
from
time
to
time
make
a
designation
or
alter
or
revoke
a
designation
made
under
a
retirement
savings
plan,
but
any
such
making,
alteration
or
revocation
of
a
designation
may
be
made
only
in
the
manner
set
forth
in
the
retirement
savings
plan.
(4)
This
paragraph
does
not
apply
to
a
designation
of
a
beneficiary
to
which
The
Saskatchewan
Insurance
Act
applies.
R.S.S.
1965,
c.
73,
s.
45;
1974-75,
c.
37,
s.
1.
[Emphasis
added.]
Section
146
of
the
Income
Tax
Act
contains
the
provisions
governing
registered
retirement
savings
plans.
Until
December
1,
1980
the
issuance
of
those
plans
was
limited
to
institutions
such
as
insurance
companies
licensed
to
carry
on
an
annuities
business
in
Canada,
Canadian
trust
companies,
certain
investment
companies
and
the
Annuities
Branch
of
the
Canada
Employment
and
Immigration
Department.
Prior
to
December
1,
1980,
contributions
to
retirement
savings
plans
could
be
made
at
banks
but
the
participation
of
a
trustee
was
necessary
for
all
such
plans.
The
Banks
and
Banking
Law
Revision
Act,
1980,
S.C.
1980-81-82-83,
c.
40
came
into
force
December
1,
1980.
Part
IV
of
that
Act
is
cited
as
the
Canadian
Payments
Association
Act.
Subsection
56(1)
of
the
latter
Act
reads:
56.
(1)
A
corporation
is
hereby
established
to
be
called
the
Canadian
Payments
Association.
Subsection
57(1)
reads:
57.(1)
The
Association
shall
consist
of
the
following
members:
(a)
the
Bank
of
Canada;
(b)
every
bank;
(c)
every
savings
bank
to
which
the
Quebec
Savings
Banks
Act
applies;
and
(d)
any
other
person
who
is
entitled
under
this
Act
to
be
a
member
and
who,
on
application
to
the
Association
for
membership
in
the
Association,
establishes
that
he
is
entitled
to
be
a
member.
[Emphasis
added.]
Part
V
of
the
Banks
and
Banking
Law
Revision
Act,
1980
is
headed
“Related
and
Consequential
Amendments
and
Coming
into
Force".
Subsection
96(2)
of
Part
V
created
a
significant
amendment
to
section
146
of
the
Income
Tax
Act.
It
reads:
96.(2)
Paragraph
146(1)(j)
of
the
said
Act
is
amended
by
striking
out
the
word
"or"
at
the
end
of
clause
(ii)(A)
thereof,
by
adding
the
word
"or"
at
the
end
of
clause
(ii)(B)
thereof
and
by
repealing
the
portion
thereof
after
that
clause
and
substituting
the
following
therefor:
(C)
as
a
deposit
with
a
branch
or
office,
in
Canada,
of
(I)
a
person
who
is,
or
is
eligible
to
become,
a
member
of
the
Canadian
Payments
Association,
or
(II)
a
credit
union
that
is
a
shareholder
or
member
of
a
body
corporate
referred
to
as
a
"central"
for
the
purposes
of
the
Canadian
Payments
Association
Act,
(in
this
section
referred
to
as
a
"depositary")
to
be
used,
invested
or
otherwise
applied
by
that
corporation
or
that
depositary,
as
the
case
may
be,
for
the
purpose
of
providing
for
the
individual,
commencing
at
maturity,
a
retirement
income.
[Emphasis
added.]
The
association
created
by
the
Canadian
Payments
Association
Act
consists
of,
inter
alia,
"every
bank”.
Therefore,
as
of
December
1,
1980,
banks
were
authorized
to
issue
and
administer
certain
types
of
registered
retirement
savings
plans
directly
without
the
services
of
a
trustee.
Section
3
of
The
Queen's
Bench
Amendment
Act,
S.S.
1988-89,
c.
18
amended
subsection
23
of
section
45
of
The
Queen’s
Bench
Act
to
read
as
follows:
23.(1)
In
this
subparagraph
and
subparagraphs
(2)
and
(3):
(a)
"depositary"
means:
(i)
a
person,
as
defined
in
the
Income
Tax
Act
(Canada),
as
amended
from
time
to
time,
who
is,
or
is
eligible
to
become,
a
member
of
the
Canadian
Payments
Association;
or
(ii)
a
credit
union,
as
defined
in
the
Income
Tax
Act
(Canada),
as
amended
from
time
to
time,
that
is
a
shareholder
or
member
of
a
body
corporate
referred
to
as
a
“central”
for
the
purposes
of
the
Canadian
Payments
Association
Act
(Canada),
as
amended
from
time
to
time;
that
receives
payment
at
a
branch
or
office,
in
Canada,
as
a
deposit
for
the
purposes
of
a
retirement
savings
plan;
(a.1)
"investment
corporation"
means
a
corporation
that
is
approved
by
the
Governor
in
Council
for
the
purposes
of
section
146
of
the
Income
Tax
Act
(Canada),
as
amended
from
time
to
time,
and
that
issues
investment
contracts
as
described
in
that
section;
(b)
"planholder"
means
a
person,
not
being
a
corporation,
who
has
entered
into
a
retirement
savings
plan
with
a
trustee,
an
investment
corporation
or
a
depositary;
(c)
"retirement
savings
plan”
means
an
arrangement
that
is
defined
to
be
a
retirement
savings
plan
by
the
Income
Tax
Act
(Canada),
as
amended
from
time
to
time,
for
the
purposes
of
that
Act;
(d)
"trustee"
means
a
corporation
that
is
a
trustee
under
a
retirement
savings
plan.
(2)
Where,
in
accordance
with
the
terms
of
a
retirement
savings
plan,
a
planholder
has
designated
a
person
or
persons
to
receive
a
benefit
payable
under
the
retirement
savings
plan
in
the
event
of
the
planholder's
death:
(a)
the
trustee,
investment
corporation
or
depositary
that
is
a
party
to
the
retirement
savings
plan
is
discharged
upon
paying
to
such
person
or
persons
the
amount
of
the
benefit;
(b)
such
person
or
persons
may,
upon
the
death
of
the
planholder,
enforce
payment
of
the
benefit,
but
the
trustee,
investment
corporation
or
depositary
that
is
a
party
to
the
retirement
savings
plan
is
entitled
to
set
up
any
defence
that
the
trustee
or
investment
corporation
could
have
set
up
against
the
planholder
or
his
personal
representatives.
(3)
A
planholder
may
from
time
to
time
make
a
designation
or
alter
or
revoke
a
designation
made
under
a
retirement
savings
plan,
but
any
such
making,
alteration
or
revocation
of
a
designation
may
be
made
only
in
the
manner
set
forth
in
the
retirement
savings
plan.
(4)
This
paragraph
does
not
apply
to
a
designation
of
a
beneficiary
to
which
The
Saskatchewan
Insurance
Act
applies.
[Emphasis
added.]
The
amended
subsection
23
of
section
45
of
The
Queen's
Bench
Act
was
in
effect
June
15,
1988.
Counsel
for
the
respondent,
The
Minister
of
National
Revenue,
Taxation,
takes
the
position
that
prior
to
the
amendment
of
subsection
23
of
section
45
of
The
Queen's
Bench
Act,
that
section
did
not
permit
a
registered
retirement
savings
planholder
to
make
a
beneficiary
designation,
or
alter
or
revoke
a
designation
unless
the
plan
was
issued
by
those
institutions
then
authorized
to
issue
such
plans
which,
he
submits,
did
not
include
banks.
Counsel
for
the
respondent,
the
Minister
of
National
Revenue,
Taxation,
concedes
that
after
the
amendment
effective
June
15,
1988,
a
planholder
could
make
a
beneficiary
designation,
or
alter
or
revoke
a
designation
under
registered
retirement
savings
plans
issued
by
those
institutions
authorized
to
issue
such
plans
including
banks.
He
submits
that
because
the
deceased
testator
made
his
will
on
September
23,
1987—before
the
amendment
which
was
effective
June
15,
1988,
subsection
23
of
section
45
of
The
Queen's
Bench
Act
did
not
permit
a
beneficiary
designation
under
registered
retirement
savings
plans
issued
by
banks
and
that
therefore,
the
beneficiary
designation
in
the
will
is
invalid.
I
am
of
the
view
that
it
was
the
intention
of
the
legislature,
before
the
amendment
to
subsection
23
of
section
45
of
The
Queen's
Bench
Act,
to
permit
holders
of
registered
retirement
savings
plans
issued
by
all
institutions
authorized
to
issue
such
plans,
including
banks,
to
make
a
beneficiary
designation,
or
alter
or
revoke
a
designation.
The
fact
of
the
amendment
in
itself
assists
me
in
reaching
that
conclusion.
I
cannot
conceive
that
the
legislature
intended
that
policyholders
of
registered
retirement
savings
plans
issued
by
institutions
such
as
insurance
companies
and
trust
companies
could
make
beneficiary
designations
but
policyholders
of
registered
retirement
savings
plans.issued
by
banks
could
not.
I
find
that
the
amendment
to
subsection
23
of
section
45
is
remedial
in
nature
and
it
must
therefore
be
construed
liberally
to
ensure
the
implementation
of
the
legislature's
intention.
I
find
that
it
operates
retrospectively.
See:
C./.B.C.
Mortgage
Corp.
v.
Manson
et
al.,
[1984]
4
W.W.R.
171,
32
R.P.R.
193,
90
L.R.
(4th)
289,
32
Sask.
R.
303
(Sask.
C.A.)
which
approved
the
reasoning
in
First
City
Trust
Co.
v.
Wood,
[1984]
1
W.W.R.
762,
30
Sask.
R.
63.
On
the
particular
facts
of
this
case
there
is
another
basis
upon
which
the
same
conclusion
must
be
reached
even
if
the
amendment
to
subsection
23
of
section
45
of
The
Queen's
Bench
Act
did
not
operate
retrospectively
as
I
have
so
found.
Section
21
of
The
Wills
Act,
R.S.S.
1978,
c.
W-14
provides:
21.
Unless
a
contrary
intention
appears
by
the
will
every
will
shall
be
construed,
with
reference
to
the
real
and
personal
property
comprised
in
it,
to
speak
and
take
effect
as
if
it
had
been
executed
immediately
before
the
death
of
the
testator.
In
the
will
of
the
deceased
testator
no
contrary
intention
appears.
He
died
on
November
26,
1988.
I
find
therefore,
that
the
will
speaks
and
takes
effect
as
if
it
had
been
executed
immediately
before
the
death
of
the
testator.
Accordingly,
subsection
23
of
section
45
of
The
Queen's
Bench
Act,
as
amended
effective
June
15,
1988,
applies
in
this
instance.
The
deceased
testator
had
the
right
in
law
to
"make
a
designation
or
alter
or
revoke
a
designation"
as
he
did
with
respect
to
the
two
registered
retirement
savings
plans
in
question
held
by
the
Royal
Bank
of
Canada
with
Central
Guaranty
Trust
Company
of
Canada
as
trustee.
The
second
submission
made
by
counsel
for
the
respondent
is
that
the
words
of
the
will
do
not
specifically
say
that
the
applicant
is
the
beneficiary
of
the
registered
retirement
savings
plan
and
that
the
direction
in
the
will
is
not
a
direction
to
the
Royal
Bank
of
Canada
but
a
direction
to
the
executors.
At
the
risk
of
repetition,
I
find
it
appropriate
to
again
quote
the
pertinent
clause
of
the
will
which
reads:
I
Give,
Devise
and
Bequeath
all
my
property
of
every
nature
and
kind
and
wheresoever
situate,
including
any
property
over
which
I
may
have
any
power
of
appointment,
unto
my
Trustees
to
hold
the
same
upon
the
following
trusts,
namely:
(a)
If
my
wife
survives
me
for
a
period
of
thirty
(30)
days
following
my
death,
to
transfer
and
assign
all
benefits
derived
from
any
Registered
Retirement
Savings
Plan
to
my
wife,
Joan
Martin
Baltzan,
absolutely.
I
Specifically
Direct
that
my
Executors
pay
to
my
wife
such
amounts
as
may
be
received
by
way
of
refund
of
premiums
arising
from
any
Registered
Retirement
Savings
Plan
owned
by
me.
Clauses
1.10
and
1.09
respectively,
of
the
registered
retirement
savings
plan
of
the
deceased
testator
authorize
the
Royal
Bank
of
Canada
“if
permitted
by
applicable
law"
to
pay
the
proceeds
to
the
person
designated
by
the
member.
Clause
1.9
has
the
following
additional
condition:
.
.
.
A
beneficiary
designation
can
be
made,
changed
or
revoked
only
by
written
instrument
identifying
this
Plan,
duly
signed
and
in
a
form
acceptable
to
the
Bank,
that
is
given
to
the
Bank
at
its
address
on
the
face
hereof
before
any
payment
is
made
under
this
Clause.
I
have
already
found
that
the
deceased
testator
was
permitted
by
applicable
law
to
make
a
beneficiary
designation
or
alter
or
revoke
such
a
designation.
I
find
further
that
he
made
the
designation
by
written
instrument
which
is
duly
signed
and
that
such
designation
speaks
and
takes
effect
as
if
it
had
been
executed
immediately
before
his
death
on
November
26,
1988,
at
which
time
the
amendment
to
subsection
45(23)
of
The
Queen's
Bench
Act
was
in
effect.
Clauses
(a)
and
(b)
of
subsection
(2)
of
subsection
23
of
section
45
of
The
Queen's
Bench
Act
provide
that
where
a
holder
of
a
registered
retirement
savings
plan
has
designated
a
person
to
receive
the
benefit
under
that
plan,
in
the
event
of
the
planholder's
death
the
trustee,
investment
corporation
or
depositary
that
is
a
party
to
the
plan
is
discharged
upon
payment
to
the
designated
beneficiary
and
such
beneficiary
may
enforce
payment
of
the
benefit.
Thus,
in
this
case,
because
the
applicant
is
named
as
the
person
to
receive
all
benefits
under
the
plan
she
has
the
right
to
enforce
payment
of
those
benefits.
The
deceased
testator
gave
all
of
his
estate
to
the
trustees
of
the
estate
in
trust
upon
certain
trusts.
The
two
registered
retirement
savings
plans
were
given
to
the
trustees
in
trust
for
the
applicant
provided
she
survived
the
testator
30
days.
The
applicant
is
the
beneficial
owner
and
therefore
the
beneficiary
of
the
two
registered
retirement
savings
plans.
The
law
permits
the
testator
to
make
a
beneficiary
designation,
as
he
did,
and
the
law
permits
the
applicant
to
enforce
payment
directly
to
her.
The
two
registered
retirement
savings
plans
do
not
pass
through
the
estate.
The
final
matter
to
be
determined
is
whether
the
phrase
“all
benefits
derived
from
any
Registered
Retired
Savings
Plan”
is
a
sufficient
identification
of
the
two
registered
retirement
savings
plans.
It
is.
There
can
be
no
mistake
or
misunderstanding
as
to
the
specific
assets
of
which
the
applicant
is
named
as
beneficiary.
There
are
two
registered
retirement
savings
plans.
The
applicant
is
the
designated
beneficiary
of
both.
Pursuant
to
subsection
45(23)
of
The
Queen's
Bench
Act
the
designation
of
the
applicant,
Joan
Martin
Baltzan,
as
the
beneficiary
of
“all
benefits
derived
from
any
Registered
Retirement
Savings
Plan"
is
a
designation
which
conforms
with
the
applicable
law
and
thus
permits
her
to
demand
payment
from
the
Royal
Bank
of
Canada.
Upon
payment,
the
Royal
Bank
of
Canada
is
discharged
pursuant
to
paragraph
45(23)(2)(a).
Neither
registered
retirement
savings
plan
passes
through
the
estate.
Both
issues
are
answered
in
the
affirmative.
There
shall
be
an
order
declaring
that
the
two
RRSPs
are
not
part
of
the
estate
of
the
late
Donald
Mayer
Baltzan.
There
shall
be
a
further
order
declaring
that
Joan
Martin
Baltzan
is
the
designated
beneficiary
of
the
two
registered
retirement
savings
plans.
Counsel
may
speak
to
costs.
Appeals
allowed.
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