Woods J. found that the taxpayer had a due diligence defence against s. 162(7) penalties in his 2008 taxation year given that the taxpayer had no tax payable for that year. She agreed with the taxpayer that it is "common knowledge" that a taxpayer is allowed to file a return late if no tax is payable (para. 11). Moreover, the taxpayer had complied with the instructions on the T1135 form, which stated that the taxpayer should "complete and file this statement with your tax return...", when he included the T1135 with his return in 2010. Woods J. stated (at para. 14):
Although the penalty in subsection 162(7) is strict and Parliament has not provided for a due diligence defence, this Court has held that even strict penalties should not be applied if a taxpayer has taken all reasonable measures to comply with the legislation... .