N
OEL,
J.:—This
is
an
information
in
which
the
plaintiff
claims
from
the
defendant
payment
of
the
sum
of
$2,479.22
for
sales
tax
in
respect
of
sales
of
aerial
photographs
in
the
period
December
1,
1959
to
and
including
March
31,
1960,
penalties
for
nonpayment
thereof
and
costs.
The
defendant
company
carries
on
business
in
Canada
and
has
its
head
office
in
the
City
of
Edmonton,
in
the
Province
of
Alberta.
Its
method
of
operation
is
to
have
its
photographers
fly
down
country
roads
in
the
Province
of
Alberta
and
take
pictures
of
private
homes
and
farm
buildings
from
the
air.
In
order
to
sell
the
pictures
to
the
owners
of
the
houses
or
farms,
the
photographers
must
get
the
house
or
farm
from
the
best
possible
angle.
They,
therefore,
have
the
pilot
fly
around
three
or
four
times
and
then
direct
him
to
go
down
in
that
particular
position
where
they
think
the
picture
will
be
best
after
which
they
take
the
picture.
The
photographs
are
taken
from
an
approximate
distance
of
one
thousand
feet
and
from
a
height
that
varies
between
four
hundred
and
six
hundred
feet.
The
films
are
then
developed
and
a
negative
of
each
is
printed
and
turned
over
to
the
salesman
who
calls
on
the
owners
of
the
homes
or
farms
and
tries
to
sell
them
a
picture
of
their
property
as
a
souvenir
or
for
whatever
use
the
owners
may
have.
These
photographs
are
made
available
in
various
sizes
and
can
be
either
black
and
white,
or
coloured,
or
painted
pictures.
Ninety
per
cent
of
the
defendant
company’s
sales
in
dollar
volume
are
of
coloured
and
painted
pictures
and
ten
per
cent
in
black
and
white.
However,
in
the
number
of
pictures,
the
black
and
white
would
outnumber
the
coloured.
In
the
event
the
customer
indicates
he
is
willing
to
purchase
the
picture
and
wants
to
have
it
done
in
colour,
the
salesman
has
to
mark
down
all
the
colours
of
all
the
buildings,
machinery
and
flowers,
trees
and
lawn
and
everything
that
appears
in
the
picture,
by
means
of
a
numerical
colour
key
chart,
thus
establishing
how
to
complete
the
photograph
in
accordance
with
the
wishes
of
the
customer.
The
order
is
then
forwarded
to
the
defendant’s
office,
in
Edmonton,
where
the
photographs
are
enlarged
to
the
desired
size,
mounted
on
a
masonite
backing
and
turned
over
to
a
colourist.
The
latter
is
one
of
several
employees
of
the
defendant
company,
trained
in
the
use
of
colours
by
the
president
of
the
defendant
company
and
his
wife,
and
familiar
with
the
colour
key.
Some
of
these
colourists
work
in
their
homes
and
some
in
the
defendant’s
office.
The
evidence
is
to
the
effect
that
the
work
of
a
colourist
is
a
difficult
one
and
that
out
of
twenty-five
applicants
for
the
job
of
colourist,
one
only
usually
turns
out
to
be
suitable.
Once
the
colouring
is
completed,
the
photograph
is
sprayed
with
a
clear
varnish
in
order
to
protect
the
oil
and
the
picture.
In
some
instances
the
owner
of
the
property
desires
changes
to
be
made
in
the
picture,
such
as
removing
objects
or
adding
some
and,
in
such
cases,
the
defendant
company
complies
with
such
requests
and
has
a
trained
man
for
such
retouching
Jobs.
In
some
instances,
approximately
one
in
four
or
five,
the
photographs
contain
people
who
are
attracted
by
the
noise
of
the
plane
and
come
out
for
a
look
and
in
one
in
ten
or
twelve,
they
contain
livestock.
A
consumption
or
sales
tax
of
eight
per
cent
on
the
sale
price
of
all
goods
produced
or
manufactured
in
Canada
is
imposed
by
Section
30
of
the
Excise
Tax
Act,
R.S.C.
1952,
c.
100
and
one
of
three
per
cent
is
imposed
by
Section
10
of
the
Old
Age
Security
Act,
R.S.C.
1952,
c.
200
as
amended
by
R.S.C.
1959,
ce.
14.
It
is
not
disputed
that
if
the
defendant
is
liable
therefor
the
amount
now
claimed
for
tax
is
the
amount
to
be
paid
by
the
defendant.
Indeed
the
only
point
at
issue
is
as
to
whether
the
work
done
by
the
defendant
company
comes
under
the
classification
of
portrait
photography
or
not.
If
it
does,
then
the
defendant
company
is
exempt
from
payment
of
sales
tax
during
the
period
under
review.
If
it
does
not,
it
cannot
benefit
from
the
exemption
provided
by
the
regulations
and
it
must
pay
the
tax.
These
regulations
are
established
under
authority
of
Section
34(2)
of
the
Excise
Tax
Act,
R.S.C.
1952,
¢.
100.
Regulation
11
which
applies
in
this
case
reads
as
follows
:
“11.
Small
Manufacturers
Exempt
under
Section
34,
Subsection
2.
The
following
manufacturers,
when
selling
exclusively
by
retail,
i.e.,
to
consumer
or
user,
are
classified
as
small
manufacturers
and
are
not
required
to
obtain
sales
tax
licences,—
Portrait
photographers
who
sell
exclusively
to
the
consumer
or
user.’’
In
the
1960
Statute
of
Canada,
ec.
30,
Schedule
III
of
the
Excise
Tax
Act
was
amended
and
inter
alia,
the
words
of
individuals”
were
added
to
the
words
portrait
photographers’’.
The
question
for
determination,
therefore,
is
whether
or
not
the
operations
of
the
defendant
company
fall
within
the
description
of
portrait
photography.
Mr.
Henry
Kreisel,
Ph.D.,
professor
of
English
and
head
of
the
English
Department
of
the
University
of
Alberta,
after
looking
up
the
meanings
and
uses
of
the
words
portrait,
portray
or
portraiture’’
in
a
number
of
dictionaries,
such
as
Webster’s
International
and
the
great
Oxford
English,
stated
that
the
original
meaning
of
the
word
‘‘portrait’’
was
simply
a
picture
of
an
object;
this
meaning,
however,
is
now
more
or
less
obsolete;
the
meanings
now
in
standard
use
are
a
pictorial
representation
of
a
person,
especially
of
the
face
;
also
a
likeness
;
and
then
the
dictionaries
move
on
to
the
other
meanings
which
are
also
given,
1.e.,
a
visible
representation,
an
image,
a
copy,
a
similitude,
and
finally
a
lifelike
or
realistic
representation.
He
added
that
in
the
Tamarack
Review,
some
time
ago,
he
saw
an
article
about
Montreal
and
Toronto
and
the
title
was
‘‘
Portrait
of
Two
Cities’’.
He
admits
that
the
word
‘‘portrait’’
is
certainly
at
times
used
in
this
derivative
sense.
The
meaning
of
the
word
“portrait”
was
scrutinized
in
The
Duke
of
Leeds
v.
Lord
Amherst,
60
E.R.
178.
The
Vice-Chancellor,
Sir
L.
Shadwell,
had
this
to
say
at
p.
179:
“Now,
with
respect
to
the
word
‘portrait’,
a
definition
has
been
given
in
the
course
of
the
argument;
and
I
have
looked
into
the
matter
myself
to
see
what
is
the
origin
of
the
word,
and
what
meaning
is
ascribed
to
it
not
only
in
English
but
in
French
dictionaries;
and
it
seems
that,
to
a
certain
extent,
it
is
used
in
a
more
enlarged
sense
in
the
English
than
it
is
in
the
French
language.
The
first
thing
that
I
have
to
observe
about
it
is
that,
in
an
edition
of
Richelet’s
Dictionary,
which
was
printed
in
the
year
1752,
the
author
speaks
of
the
word
‘portrait’
as
a
French
word,
and
explains
the
meaning
of
it
in
Latin,
and
then
gives
an
interpretation
of
it
in
French.
He
says:
‘Portrait:
Imago,
picta,
effiges.
Ce
mot
se
dit
des
hommes
seulement
;
et
en
parlant
de
peinture,
c’est
tout
ce
qui
représente
une
personne
d’après
nature,
avec
des
couleurs’.
In
the
French
dictionary
which
has
been
lately
published
by
Fleming
&
Tibbins,
the
explanation
is
this:
‘Portrait:
Ressemblance
d’une
personne;’
and
there
it
stops.
The
word
is
evidently
taken
from
the
Latin
words
‘
per-
trahere’
or
‘pertractare’,
both
of
which
words
derive
their
force
from
being
compounded,
in
part,
of
the
preposition
per,
which,
when
used
in
composition,
signifies
doing
an
act
completely,
thoroughly,
or
with
labour;
as
in
our
word
‘perfect’,
and
the
Latin
word
‘perfectum’.’’
Then
at
p.
180
he
refers
to
a
definition
of
‘‘portrait’’
in
the
English
dictionaries
by
Dr.
Johnson:
‘‘A
picture
drawn
after
the
life,
that
is,
corresponding
to
the
life’’
and
by
Bailey,
which
in
his
opinion
is
a
very
good
dictionary
because
it
is
not
confined
to
words
found
merely
in
books
of
authority,
but
contains
also
words
which
are
in
common
use;
according
to
Bailey
“portraits”
(with
painters)
are
pictures
of
men
and
women
either
heads
or
greater
lengths,
drawn
from
the
life.
In
the
Duke
of
Leeds
case,
the
question
to
determine
was
whether
a
picture
of
the
Duke
represented
on
horseback
with
a
battle
in
the
distance
passed
together
with
all
the
other
portraits
by
the
bequest,
the
testator
having
bequeathed
the
portrait
of
himself,
his
grandfather
and
grandmother
and
of
the
Duke
of
Shomberg.
The
Vice-Chancellor
was
of
the
opinion
and
so
added
that
the
miniature
representation
of
a
battle,
which
is
introduced
in
the
background,
in
order
to
denote
that
the
principal
subject
was
a
great
warrior,
does
not
detract
from
its
character
as
a
portrait’’.
The
meaning
of
‘‘portrait’’
was
also
thoroughly
examined
in
Re
Layard,
115
L.T.
15.
By
his
will,
the
testator
gave
to
his
wife
a
house
in
Venice
and
in
London,
together
with
the
contents
of
those
houses
‘‘excepting
my
picture
and
excepting
certain
presentation
testimonials’’.
The
will
then
proceeded
as
follows:
As
to
all
and
singular
my
said
pictures
(except
the
portrait
of
my
late
uncle
.
.
.)
as
well
those
in
Queen
Anne-Street
as
those
at
Venice,
.
.
.
and
after
the
death
of
my
wife
I
give
and
bequeath
all
my
said
pictures
(except
portraits)
or
such
of
my
said
pictures
as
the
trustees
and
the
director
for
the
time
being
of
the
National
Gallery
may
select
unto
the
trustees
of
the
National
Gallery
and
their
successors
to
be
held
by
them
for
the
use
and
enjoyment
of
the
British
public
forever
as
part
of
the
national
collection.
But
the
portraits
of
myself
and
all
my
family
and
other
portraits
(except
the
said
portrait
of
my
said
uncle
.
.
.)
.
.
.
I
give
and
bequeath
after
the
death
of
my
said
wife,
free
of
legacy
duty,
to
my
nephew
.
.
.
for
his
absolute
use
and
benefit.’’
In
this
case,
Astbury,
J.,
at
p.
18
states
that:
“The
plaintiff’s
witnesses
have
stated,
and
I
think
rightly,
that
a
portrait
means,
or
at
all
events
includes,
a
picture
painted
from
life,
intended
to
be
a
real
representation
of
the
sitter
;
or,
secondly,
a
replica
of
a
such
picture;
or,
thirdly,
copy
of
it,
as
distinguished
from
a
picture
which,
though
painted
from
an
individual,
is
intended
to
represent
not
so
much
the
character
and
features
of
the
sitter
as
some
particular
vice,
virtue,
or
other
characteristic
or
ideal
that
the
painter
desires
to
express.”
Lord
Cozens-Hardy
in
this
case,
at
p.
23,
states
that
he
accepts
the
definition
of
Mr.
William
Roberts
that
a
portrait
means:
‘‘a
picture
which
has
been
painted
from
the
life
as
a
likeness
or
presentment
of
the
person
or
persons
the
subject
of
the
picture’’
or
a
replica
or
a
copy
of
such
a
picture.
In
the
above
ease,
in
view
of
the
context
of
the
will,
the
word
“portrait”
was
held
to
have
the
narrow
meaning
of
family
portraits
as
distinct
from
old
masters
and
pictures
of
great
artistic
merit,
but
the
definitions
of
the
word
here
are,
however,
of
some
assistance
in
our
present
query
in
determining
what
is
the
meaning
of
portrait
photography.
Indeed
it
would
appear
here
that
it
deals
mostly
or
preponderantly
with
persons
or
individuals.
The
dictionaries
give
the
following
definitions
of
“portrait”:
Larousse:
“Image
d’une
personne
reproduite
par
la
peinture,
le
dessin,
la
photographie,
ete.:
Hyacinthe
Rigaud
a
laisse
de
remarquables
portraits.
Objet
d’une
ressemblance
parfaite:
enfant
qui
est
le
portrait
de
son
père.
Littér.
Description
des
traits
ou
d’un
caractère,
d’une
époque,
etc.:
La
Bruyère
excelle
dans
les
portraits.
Portrait
en
pied,
portrait
qui
représente
la
personne
tout
entière.
Portrait
parlant,
portrait
si
expressif
qu’il
semble
parler.
Portrait
de
famille,
celui
qui
représente
un
des
aïeux
de
la
famille.
Pop.
Figure
:
endommager
le
portrait
d’un
rival.”
Nouveau
Larousse
Illustré
:
“Ressemblance
de
quelqu’un,
obtenue
par
un
procédé
artistique
ou
industriel
:
Portrait
à
l’huile,
au
pastel,
au
crayon.
—
Souvenir,
profondément
gravé,
des
traits
d’une
personne:
Une
mère
garde
toujours
vivant
le
portrait
de
l’enfant
qu’elle
a
perdu.
—
Description
des
traits
ou
du
caractère
d’une
personne:
Les
portraits
de
La
Bruyère.
Description
quelconque:
Un
portrait
tout
à
fait
satisfaisant
de
l’esprit
français.
(Ste
Beuve).
—
Pop.
Figure:
Endommager
le
portrait
d’un
rival.
—
Loc.
div.:
Portrait
en
pied,
Portrait
qui
représente
la
personne
tout
entière.
Portrait
parlant,
Portrait
si
ressemblant,
si
expressif,
qu
’il
semble
qu
’on
ait
sous
les
yeux
l’original
prêt
à
parler.
Portrait
de
famille,
Celui
qui
représente
un
des
aïeux
de
la
famille.”
Littré
:
“.
.
.
Portrait
en
pied,
portrait
qui
représente
une
personne
entière.
Portrait
parlant,
portrait
si
ressemblant
qu’il
semble
parler.
Portrait
flatté,
portrait
qui
atténue
ce
qu’il
y
a
de
mal
dans
le
modèle.
Portrait
chargé,
portrait
qui
exagère
les
défauts
du
modèle.
.
.
.
Représentation
exacte
d’un
objet
quelconque.”
Quillet
:
‘Image
d’une
personne
faite
à
l’aide
du
dessin,
de
la
peinture,
de
la
photographie,
ete.
Portrait
à
l’huile.—Portraits
de
famille,
portraits
des
aïeux.
—
Portrait
en
pied,
portrait
qui
représente
une
personne
entière,
debout
ou
assise.—Fig.
C’est
son
portrait,
tout
son
portrait,
se
dit,
au
physique
et
au
moral,
de
toute
personne
qui
ressemble
beaucoup
à
une
autre.
Par
anal.
Description,
soit
de
l’extérieur
ou
du
caractère
d’une
personne,
soit
d’une
chose
quelconque.
Portraits
littéraires.
’
’
Funk
&
Wagnails
:
“1.
A
likeness
of
an
individual,
especially
of
the
face,
produced
by
an
artist
in
oils,
watercolor,
etc.,
or
by
photography.
2.
Hence,
a
vivid
description
of
something
or
someone
having
existence.
Portraiture:
1.
A
representation
of
an
object.
2.
The
act
or
art
of
portraying;
especially,
the
art
or
practice
of
making
portraits.
3.
Portraits
or
pictures
collectively.
Portray
:
To
represent
naturally
and
vividly,
whether
by
drawing,
painting,
etc.,
or
by
verbal
description
or
by
acting
;
depict.
See
synonyms
under
IMITATE.
1.
The
act
of
portraying
by
any
method
of
depiction
or
delineation
;
as,
the
portrayal
of
a
character
on
the
stage.
2.
The
making
of
a
likeness
of
persons,
places,
or
things;
picturing.
3.
A
portrait.
’
’
Shorter
Oxford:
“1.
A
figure
drawn,
painted,
or
carved
upon
a
surface
to
represent
some
object;
spec,
(now
almost
always)
a
likeness
of
a
person,
esp.
of
the
face,
made
from
life
by
drawing,
painting,
photography,
engraving,
ete.
A
solid
image,
a
statue—1638.
fig.
An
image,
representation,
type
;
likeness,
similitude
1577.
A
verbal
picture
;
a
graphic
description
1596.
Portray:—1.
To
make
a
picture,
image,
or
figure
of.
transf.
To
make
(a
picture,
image,
or
figure)
;
to
draw,
paint,
or
carve;
to
trace—1604.
To
paint
or
adorn
(a
surface)
with
a
picture
or
figure
1667.
To
picture
to
oneself;
to
fancy.
To
represent
(e.g.
dramatically),
esp.
To
represent
in
words,
describe
graphically,
set
forth,
late.’’
Webster:
“1.
A
picture
of
an
object.
2.
Specif.,
a
pictorial
representation
of
a
person
esp.
of
the
face,
painted,
drawn,
engraved,
photographed,
or
the
like;
a
likeness,
esp.
one
painted
from
life.
3.
A
carved
or
molded
figure;
a
statue
;
a
sculpture.
4.
Portraiture;
esp.
painting
of
persons
from
or
as
from
life.
5.
A
visible
representation
or
likeness;
an
image;
a
copy;
a
similitude;
a
picture
(sense
4).
‘Where
that
sad
portraict
Of
death
and
dolour
lay.
halfe
dead’.
Spenser.
6.
Lifelike
or
realistic
representation
;
unidealized
delineation,
description,
etc.;
as,
a
painting
that
fails
as
a
portrait;
a
fair
portrait
of
an
age.
Portray:—1.
To
represent
by
drawing,
painting,
engraving,
etc.;
to
make
a
picture
or
image
of;
delineate;
depict;
as,
to
portray
a
king
on
horseback.
Take
a
tile
.
.
.
and
portray
upon
it
the
city.
2.
To
describe
or
depict
in
words;
to
describe
vividly;
also,
to
represent
dramatically;
to
act.
3.
To
draw,
paint,
carve,
etc.
To
adorn
with
or
as
with
pictures.
To
image
mentally;
to
imagine;
picture.
To
form;
frame;
fashion.’’
From
all
this
I
have
no
hesitation
in
saying
that
although
one
of
the
meanings
of
‘‘portrait”’
(in
English)
appears
to
be
that
of
a
representation
of
an
object,
the
predominant
meaning
is
that
of
a
representation
of
a
person
either
of
his
face
or
even
of
his
whole
person.
Should
I,
in
view
of
this,
have
any
hesitancy
in
arriving
at
this
finding,
I
could,
and
I
believe
that
I
should,
turn
towards
the
popular
sense
of
the
word
‘‘portrait’’
or
even
its
meaning
by
usage
in
the
trade.
Mr.
Bertran
C.
Hollingshead,
manager
for
twenty-two
years
of
McDermid
Studios
Ltd.,
portrait
and
commercial
photographers,
commercial
artists,
photographers,
one
of
the
larger
photography
businesses
in
Edmonton,
states
that
his
interpretation
of
the
word
‘‘portraits’’
in
the
advertisements
to
be
found
in
the
yellow
pages
of
the
Edmonton
telephone
directory,
is
that
it
would
be
the
photographing
of
people,
mainly
faces,
but
that
it
could
be
full
length.
His
interpretation
of
the
word
“commercial
photography”
is
the
photographing
of
objects,
of
houses,
or
buildings,
scenes
.
.
.”
but
ordinary
commercial
photography,
as
he
interprets
it,
is
pictures
taken
of
objects
other
than
people.
At
p.
32
of
the
transcript
he
was
asked:
“Q.
If
you
were
asked
by
someone
to
photograph
a
garden,
their
garden,
what
would—how
would
you
classify
that
kind
of
photography
?
A.
We
would
elassify
that
as
commercial
photography.
Q.
If
the
people
themselves
wanted
to
be
in
the
picture,
in
the
garden,
how
would
you
classify
that?
A.
This
would
depend
on
whether
or
not
the
people—if
the
people
were
the
most
predominant
thing
in
the
picture,
then
we
might
classify
this
as
portraiture
;
that
is,
if
the
people
were
the
most
important
thing,
because
then
we
would
have
very
little
but
background
in
the
garden,
it
would
just
be
a
backgorund;
but
if
we
were
taking
in
the
garden,
taking
in
the
whole
yard,
with
the
people
in
the
background,
then
we
would
clases
this
as
commercial
photography.”
The
division
into
commercial
and
portrait
photography
is,
according
to
this
witness,
recognized
throughout
the
photography
business.
Mr.
Arnskov
Neilsen,
president
of
Continental
Air
Photo,
the
defendant,
implicitly
recognizes
this
when
he
admits
that
his
company
is
not
listed
under
the
classification
of
portrait
photographers”
because
it
only
does
aerial
photography
and
does
not
do
portrait
photography.
Indeed,
at
p.
24
of
the
transcript,
he
Says:
A.
They
would
probably
come
expecting
to
get
a
picture
taken
of
themselves,
which
we
did
not
set
up
to
do,
or
the
children.”
The
evidence
discloses
also
that
when
McDermid
Studios
Ltd.
do
aerial
photography
of
industrial
plants
or
areas
under
construction,
they
always
send
a
commercial
photographer.
The
1961-62
Directory
of
Professional
Photography,
produced
as
Exhibit
B,
contains
a
listing
of
members
with
this
classification,
the
top
one
with
a
“P”
opposite
for
portraiture
(including
studios,
homes,
passports,
schools,
groups,
children)
and
then
there
is
a
different
classification
for
commercial
photography.
According
to
Mr.
Hollingshead,
portraiture
in
the
trade
is
associated
with
people
posing,
either
full
length
or
head
and
shoulders,
with
proper
lighting
to
bring
out
certain
features
and
perhaps
hide
certain
features,
or
subdue
them,
and
with
the
subject
person’s
knowledge.
He,
however,
admits
that
sometimes
the
word
‘‘portrait’’
can
be
used
in
connection
with
a
pet,
such
as
a
dog
or
a
horse,
if
there
was
a
great
deal
of
skill
used
in
the
lighting
of
the
head.
In
cross-examination,
however,
he
finally
admitted
that
what
he
has
done
is
to
arbitrarily
divide
the
skill
employed
by
the
people
who
take
the
picture
between
‘‘commercial’’,
“portraiture”
and
‘‘industrial’’.
With
respect
to
the
question
as
to
whether
the
distance
at
which
the
picture
is
taken
is
of
any
importance
in
determining
the
nature
of
the
photography,
he
has
this
to
say:
4
It
ceases
to
be
a
portrait
when
the
distance
between
is
such
that
the
operator
could
not
tell
the
person
being
photographed
what
he
wanted
him
to
do,
how
he
wanted
him
to
move,
what
action
he
wanted
him
to
take.”
If
we
revert
to
the
case
of
The
Duke
of
Leeds
v.
Lord
Amherst,
I
believe
that
we
can
safely
say,
as
argued
by
Counsel
for
the
Crown,
that
if
a
44
portrait”
was
a
representation
of
any
object,
then
there
would
have
been
no
difficulty
in
that
case
nor
any
hesitancy
in
finding,
although
there
was
a
battle
in
the
background
of
the
picture
of
the
Duke
on
horseback,
that
the
picture
was
a
portrait.
There
is
no
definition
of
the
word
44
portrait”
in
the
Excise
Tax
Act
or
the
Regulations,
nor
is
it
defined
in
any
other
Acts
in
pari
materia.
It
is
an
ordinary
word
in
everyday
use
and
is
therefore
to
be
construed
according
to
its
popular
sense.
In
Craies
on
Statute
Law,
4th
edition,
p.
151,
reference
is
made
to
Grenfell
v.
C.I.R.
(1876),
1
Ex.
D.
242-248,
in
which
Pollock,
B.,
stated
that
if
a
statute
contains
language
which
is
capable
of
being
construed
in
a
popular
sense
such
44
a
statute
is
not
to
be
construed
according
to
the
strict
or
technical
meaning
of
the
language
contained
in
it,
but
is
to
be
construed
in
its
popular
sense,
meaning
of
course,
by
the
words
4
popular
sense’
that
sense
which
people
conversant
with
the
subject
matter
with
which
the
statute
is
dealing,
would
attribute
to
it’’.
In
Attorney-General
v.
Bailey
(1847),
1
Ex.
281,
it
was
held
that
the
word
‘‘spirits
being
a
word
of
known
importance
.
.
.
is
used
in
the
Excise
Tax
in
the
sense
in
which
it
is
ordinarily
understood’’.
In
that
case
the
Court
said
that
in
common
parlance,
the
word
‘‘spirit’’
would
be
considered
as
comprehending
a
liquid
like
‘‘sweet
spirits
of
nitre’’
which
is
itself
a
known
article
of
commerce
not
ordinarily
passing
under
the
name
of
‘
spirit”.
As
also
stated
by
Craies
on
Statute
Law,
p.
152,
the
rule
is
that
the
particular
words
used
by
the
legislature
in
the
denomination
of
articles
are
to
be
understood
according
to
the
common
commercial
understanding
of
the
terms
used,
and
not
in
their
scientific
or
technical
sense.
There
is
some
authority
to
the
proposition
that
if
there
is
a
difference
in
meaning
between
the
definition
of
the
word
in
the
dictionary
and
the
usage
by
persons
who
are
familiar
with
the
subject
matter
of
the
legislation,
or
whether
there
is
any
doubt
about
which
definition
in
the
dictionary
is
to
be
preferred,
then
the
meaning
given
to
the
word
by
the
persons
who
are
familiar
with
the
subject
matter
of
the
legislation
should
be
preferred.
Cf.
Unwin
&
Hanson,
[1891]
2
Q.B.
115,
and
The
King
v.
Planters
Nut
and
Chocolate
Company
Limited,
[1951]
Ex.
C.R.
126;
[1951]
C.T.C.
16,
366.
Mr.
Hollingshead
who,
as
we
have
seen,
has
considerable
experience
in
the
photography
business,
stated
that
there
is
in
the
trade
a
definite
and
distinct
usage
for
the
words
“portrait
photography’’
and
the
words
‘‘commercial
photography’’
and
that
persons
in
the
photography
business
would
not
regard
Continental
Air
Photo
Ltd.,
the
defendant,
as
portrait
photographers.
Regulation
No.
11,
quoted
above,
which
establishes
the
exemption
for
portrait
photographers,
differentiates
between
portrait
photographers,
commercial
photographers
and
industrial
photographers,
thus
giving
effect
to
the
division
adopted
by
the
trade.
Indeed,
this
regulation
gives
two
exemptions
for
photographers,
one
is
for
portrait
photographers
who
sell
exclusively
to
the
consumers
or
users,
and
they
are
entirely
exempt,
and
the
other
exemption
is
for
commercial
or
industrial
photographers
or
any
manufacturer
or
commercial
or
industrial
photographers
and
this
exemption
applies
only
if
the
sales
do
not
exceed
$3,000.
We
are
not
dealing
here
with
a
tax
charging
section
but
with
an
exemption
provision,
and
therefore,
if
there
is
any
doubt
as
to
which
of
the
two
possible
conclusions
should
be
preferred,
the
narrowest
and
strictest
should
be
adopted
in
order
to
give
the
benefit
of
exemption
to
the
narrowest
group,
consistent
with
the
meaning
to
be
given
to
the
words
“portrait
photography’’.
Authority
for
this
can
be
found
in
W.
A.
Sheaffer
Pen
Company
of
Canada
Limited
v.
M.N.R.,
[1953]
Ex.
C.R.
251;
[1953]
C.T.C.
345.
In
this
case,
Thorson,
P.,
says:
“While
the
appellant’s
submission
appears
attractive
at
first
sight
and
merits
consideration
I
am
of
the
opinion
that
it
is
unsound
and
must
be
rejected.
There
are
several
reasons
for
this
conclusion.
While
it
is
well
established
that
all
charges
must
be
imposed
by
clear
and
unambiguous
language
and
that
a
person
is
not
to
be
subjected
to
tax
unless
the
words
of
the
taxing
statute
expressly
impose
it
and
he
is
caught
by
them;
vide
Partington
v.
Attorney-General
and
Tennant
v.
Smith
and
numerous
decisions
of
this
Court
such
as
Connell
v.
M.N.R.
;
David
Fasken
Estate
v.
M.N.R.;
it
should
be
noted
that
in
the
present
case
there
is
no
question
of
imposition
of
any
charge.
Here
the
appellant
seeks
the
benefit
of
a
right
of
deduction
to
which
it
would
not
be
entitled
except
for
Section
5(p)
the
opening
words
of
which
refer
to
the
exemptions
and
deduc-
tions
to
which
what
would
otherwise
be
taxable
income
is
subject.
The
manner
in
which
an
exempting
provision
in
a
taxing
statute
should
be
construed
has
been
dealt
with
in
a
number
of
cases/’
And
he
refers
to
Wylie
v.
City
of
Montreal
(1885),
12
S.C.R.
286.
Sir
W.
J.
Ritchie,
C.J.,
of
the
Supreme
Court,
at
p.
386,
where
he
said:
“I
am
quite
willing
to
admit
that
the
intention
to
exempt
must
be
expressed
in
clear
unambiguous
language;
that
taxation
is
the
rule
and
exemption
the
exception,
and
therefore
to
be
strictly
construed
;’’
Attention
was
called
to
the
change
in
Schedule
III
(Statutes
of
Canada
1960,
c.
30)
by
the
addition
of
the
words
‘‘of
individuals”
and
it
was
argued
that
the
amendment
shows
that
a
change
was
intended
to
be
made.
That
this
is
not
the
case
appears
by
subsections
(2)
and
(3)
of
Section
121
of
the
Inter
prêt
ait
ion
Act,
R.S.C.
1927,
c.
158:
“
(2)
The
amendment
of
any
Act
shall
not
be
deemed
to
be
or
to
involve
a
declaration
that
the
law
under
such
Act
was
or
was
considered
by
Parliament
to
have
been
different
from
the
law
as
it
has
become
under
such
Act
as
so
amended.”
(3)
A
repeal
or
amendment
of
any
Act
shall
not
be
deemed
to
be
or
to
involve
any
declaration
whatsoever
as
to
the
previous
state
of
the
law.
’
’
I
must
conclude
that
the
amendment
to
remove
all
possibility
of
ambiguity
was,
I
think,
merely
declaratory
of
what
was
always
the
true
intendment
of
the
previous
words.
My
finding
must,
therefore,
be
that
the
defendant
company’s
operations
do
not
fall
within
the
exemption
provided
under
the
term
‘‘portrait
photography’’.
In
the
result,
the
plaintiff
is
entitled
to
judgment
against
the
defendant
in
the
amount
claimed
for
sales
tax,
namely
$2,479.22
;
the
sum
of
$28.69
for
penalties
for
non-payment
of
the
sales
tax
as
prescribed
by
subsection
(4)
of
Section
48
of
the
Excise
Tax
Act,
R.S.C.
1952,
c.
100
as
amended
for
the
months
of
January,
February,
March
and
April,
1960,
and
in
the
amount
of
$16.53
for
each
month
thereafter
from
and
including
the
month
of
May,
1960
to
and
including
the
date
of
payment
of
the
said
sum
of
$2,479.22
and
for
costs
to
be
taxed.
The
penalties
provided
in
Section
48(4)
are
mandatory
in
the
event
of
non-payment
within
the
time
provided
for
in
Section
48(4)
and
there
is
no
power
in
this
Court
to
waive
such
penalties.
Judgment
accordingly.
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