The taxpayers lived on a reserve and were employed at a sawmill built on former reserve land, which had been ceded for the sake of establishing the sawmill. The taxpayers' assessments for 1985-2002 were made on the basis that, as the taxpayers did not work on reserve land, their income was not exempt under s. 87 of the Indian Act. In the Boubard decision in 2008, it was found that s. 87 did apply and the taxpayers' assessments for 2000-2002 were varied. The taxpayers then applied in 2009 for discretionary relief under s. 152(4.2) of the Income Tax Act in respect of the remaining years. (The version of s. 152(4.2) in force during the relevant years did not have a limitations period.) The application was denied in respect of 1985-1998 on the basis that the Minister would presumably not have exempted the taxpayers' employment income from tax in those years.
In the course of affirming the Minister's decision to deny relief (and reversing the decision at trial), Stratas J.A. stated that the wording of s. 152(4.2) invites a "year-by-year examination of the state of the law" (para. 61). The Court found that it was reasonable for the Minister's delegate to evaluate the state of the law in 1985-1998 by reference to the state of the jurisprudence - and until the Amos decision the jurisprudence held that income earned in the taxpayers' circumstances was not exempt under s. 87 of the Indian Act.