The taxpayer's husband was reassessed in 2002 to include $500,000 in income, but died intestate in 2007 before his appeal was heard. His estate discontinued the appeal, and the taxpayer was assessed personally in 2011 to give effect to the $500,000 inclusion. One of the taxpayer's grounds for appeal was essentially to challenge the initial $500,000 assessment. The Minister moved to strike those arguments from pleadings, as the appeal of that assessment was abandoned in 2008.
C Miller J declined to strike the pleadings challenging the initial assessment. It was not plain and obvious that they would fail - it was unclear that issue estoppel would apply (stating, at para. 8, that there was "a contentious issue as to whether a discontinuance of a matter, without further judicial determination, meets one of the requirements") and, even if it did, a judge would still have discretion to hear the issue for reasons of justice and fairness (para. 8).