Bullard Estate v. The Queen, 2004 DTC 2717, 2004 TCC 249

After agreeing with counsel for both parties that under s. 32 of the Interpretation Act (Canada) "defects in form are acceptable but defects in substance are not", the Court went on to find that the failure of the taxpayer to correctly specify the adjusted cost base of property she had disposed of in an election under s. 110.6(19), and to specify the portion of the gain that was in respect of non-qualifying real estate, were defects that went "to the very heart of form T664 and affect it substantively" (p. 2725).

Campbell J. found that because the deceased taxpayer did not make a s. 45(2) election in a return for 1990, she was prevented from doing so at a later date due to the wording of s. 45(2) and went on to state (at p. 2724):

"If the Appellant had properly filed an election in 1990, to elect the property for the principal residence exemption, but continued to treat the property as a rental property including a claim for capital cost allowance, I believe the election would be valid but she simply would have been reassessed at some point and prevented from making the rental deductions."