Two months after their marriage, the taxpayer received (on January 8, 1993) from her husband (“CC”) the transfer of a property valued in excess of his subsequently assessed tax liabilities for various taxation years including his 1988 and 1989 years (as a result of losses from a partnership investment being denied). After the Minister assessed the taxpayer under s. 160, the taxpayer challenged the validity of waivers that CRA had received respecting those two taxation years.
Owen J found (based on Gaucher) that she was not precluded from disputing the validity of the assessments of her under s. 160(2) on the grounds that the waivers proffered by CRA were invalid, even though this issue had not been raised in the unsuccessful group appeal by CC and others of the denial of the partnership losses. He similarly found that there was no abuse of process in her doing so, and that res judicata did not apply, given inter alia that the appeal of her husband was regarding a different issue (i.e., that of another taxpayer) than her own appeal of her s. 160(2) assessment, notwithstanding her representative status as executrix during the continuance of his appeal by his estate.