Noel,
J.:—Continental
Air
Photo
Ltd.,
the
suppliant
in
this
case,
is
a
body
corporate
incorporated
under
The
Companies
Act
of
the
Province
of
Alberta
with
head
office
in
the
City
of
Edmonton,
Province
of
Alberta,
where
it
carries
on
the
business
of
photographing
homes
and
farms
from
the
air.
Its
method
of
operation
is
to
have
its
photographers
fly
down
country
roads
and
take
pictures.
In
order
to
sell
the
pictures
to
the
owners
of
the
homes
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
they
direct
him
to
go
down
in
that
particular
position
where
they
think
the
picture
will
be
best,
afterwards,
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
is
printed
and
turned
over
to
a
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
uses
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
suppliant
company’s
sales
in
dollar
volume
are
of
coloured
or
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
chart,
thus
establishing
how
to
complete
the
photograph
in
accordance
with
the
wishes
of
the
customer.
The
order
is
then
forwarded
to
the
supplant’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
suppliant
company,
trained
in
the
use
of
colour
by
the
president
of
the
company
and
his
wife
and
familiar
with
the
colour
key.
Some
of
these
colourists
work
in
their
homes
and
some
in
the
suppliant’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
suppliant
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.
During
a
period
extending
from
June
30,
1958,
to
December
31,
1959,
the
suppliant
company
remitted
to
the
Department
of
National
Revenue,
Excise
Tax
Division,
the
sum
of
$16,161.40
purportedly
in
payment
of
sales
tax
on
the
sales
or
aerial
photographs.
Section
5
of
the
petition
sets
out
the
gist
of
the
action.
It
reads
as
follows:
‘‘o.
Your
Suppliant
now
states
that
the
said
sum
of
Sixteen
Thousand
One
Hundred
and
Sixty-one
Dollars
and
Forty
Cents
($16,161.40)
was
remitted
by
it
during
the
period
June
30th,
A.D.
1958
to
December
31st,
A.D.
1959
under
mistake
of
law
or
fact
as
it
was
during
this
entire
period
exempted
from
the
payment
of
such
taxes
under
the
provisions
of
the
Excise
Tax
Act,
R.S.C.
1952,
Chapter
100
as
amended,
specifically
Section
34(2)
of
the
said
Excise
Tax
Act
and
the
regulation
of
the
said
Excise
Tax
Act
under
Section
34(2)
as
contained
in
Department
of
National
Revenue
Excise
Division
circular
E.T.
1,
Section
2(3)
(a)
and
(b).”’
At
the
trial
the
suppliant
admitted
that
his
reference
in
his
pleading
to
circular
E.T.
1,
Section
2(3)
(a)
and
(b)
was
incorrect
and
that
the
proper
reference
was
Regulation
11
entitled
“Small
Manufactures
Exempt
under
Section
34(2)’’.
To
this
the
respondent
replies
that
the
suppliant
‘‘upon
the
sale
and
delivery
of
the
said
goods
became
indebted
to
Her
Majesty
in
the
amount
of
$16,161.40
under
the
provisions
of
the
Excise
Tax
Act,
R.S.C.
1952,
c.
100,
as
amended,
and
under
the
provisions
of
the
Old
Age
Security
Act,
R.S.C.
1952,
ce.
200,
as
amended,
and
paid
to
Her
Majesty
the
said
amount.
A
consumption
or
sales
tax
of
eight
per
cent
on
the
sales
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,
ce.
200,
as
amended
by
R.S.C.
1959,
e.
14.
It
is
not
disputed
that
if
the
suppliant
is
liable
therefor,
the
amount
now
claimed
as
a
reimbursement
or
refund
is
the
amount
the
suppliant
had
to
pay.
Indeed,
the
only
point
at
issue
is
whether
the
work
done
by
the
suppliant
company
comes
under
the
classification
of
portrait
photography
or
not.
If
it
does,
then
the
suppliant
is
exempt
from
payment
of
sales
tax
during
the
period
under
review
and
is
entitled
to
a
refund.
If
it
does
not,
it
cannot
benefit
from
the
exemption
provided
by
Regulation
11
and
the
payment
as
made
must
stand.
For
the
reasons
set
out
in
a
decision
of
this
Court
under
number
167487
[The
Queen
v.
Continental
Air
Photo
Ltd.,
[1962]
C.T.C.
495]
involving
the
same
parties
but
where
Her
Majesty
the
Queen
is
plaintiff
and
the
suppliant
company
is
the
defendant,
I
arrive
here
also
at
the
same
decision
and
find
that
the
suppliant
company’s
operations
do
not
fall
within
the
classification
of
“portrait
photography”
and,
therefore,
it
cannot
benefit
from
the
exemption
provided
under
the
Regulations
for
portrait
photography
and
doth
order
and
adjudge
that
Continental
Air
Photo
Limited
is
not
entitled
to
the
relief
sought
by
its
petition,
and
that
Her
Majesty
the
Queen
recover
from
the
said
Continental
Air
Photo
Limited
her
costs
to
be
taxed,
if
any.
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