The Minister assessed the taxpayers, and confirmed the assessments, on the basis that the taxpayers did not make donations of shares to charitable foundations in 1996. Three weeks before trial, the Minister wrote the taxpayers' counsel that the Minister no longer disputed that they donated the shares in December 1996; but asserted that the valuation of the donated shares was still an issue. No motion was brought to amend the Minister's pleadings.
C. Miller J. held that as this new position of the Minister was so fundamentally different from the reassessments at issue and the pleadings, and resulted in a far different tax liability, that s. 152(9) could not and should not be engaged. The taxpayers' appeals were allowed.