COADY
J.:—The
plaintiff
claims
the
sum
of
$71.84
for
sales
tax
on
gas,
manufactured
from
coal,
and
supplied
by
the
plaintiff
to
the
defendant.
By
the
Special
War
Revenue
Act,
R.S.C.
1927,
e.
179,
and
amending
Acts
and
the
regulations
thereunder
a
sales
tax
is
payable
on
gas
when
used
for
cooking
or
other
domestic
purposes
in
dwellings,
and
the
selling
utility
is
authorized
to
collect,
such
tax
from
the
consumer.
By
s.
85,
para.
(g),
of
the
Act
[added
by
1939,
(2nd
Sess.),
c.
8,
s.
2]
"dwelling"
is
defined
as
follows:
<(
(g)
‘dwelling’
shall
include
business
premises
where
the
supply
of
gas
or
electricity
for
both
the
business
and
living
quarters
is
metered
through
a
single
meter,
or
where
a
flat
charge
is
made
to
cover
both
the
business
and
living
quarters.’’
The
question
here
is
whether
or
not
the
gas
is
supplied
to
a
"‘dwelling’’
as
above
defined.
On
the
ground
floor
of
the
defendant’s
premises
is
a
cafe
operated
by
the
defendant,
and
upstairs
a
bedroom
used
by
the
defendant,
an
office
and
store
room,
both
used
by
the
defendant
in
connection
with
the
cafe
business
and
an
additional
room
used
by
the
cafe
employees
for
changing
clothes
when
coming
to
and
going
from
work.
There
is
also
what
the
defendant
de-
eribes
as
a
corridor
or
hallway
in
which
is
located
a
gas
stove.
This
gas
stove
the
defendant
says
is
not
used
by
him
and
was
already
installed
there
when
he
became
a
tenant
of
the
premises
in
1933.
There
is
one
gas
meter
downstairs
through
which
all
gas
used
on
the
premises
is
metered.
On
the
evidence
I
find
as
a
fact
that
this
stove
has
not
been
used
and
is
not
now
being
used
by
the
defendant
although
it
is
piped
for
gas
and
could
apparently
be
used
by
the
defendant
if
he
so
wished.
The
defendant,
while
having
his
living
quarters
upstairs,
does
no
housekeeping
or
cooking
there
and
takes
his
meals
in
the
cafe
below.
I
am
of
the
opinion
that
the
second
part
of
the
definition
dealing
with
a
flat
rate
has
no
application
here.
There
is
a
minimum
monthly
charge
of
$50
payable
by
the
defendant
pursuant
to
his
contract
with
the
plaintiff
but
not
a
flat
charge,
and,
furthermore,
it
appears
to
me
that
this
part
of
the
definition
has
application
where
no
meter
is
installed
to
measure
the
gas
consumed.
The
first
part
of
the
definition,
it
appears
to
me,
is
intended
to
cover
the
case
where
there
is
a
supply
of
gas
metered
through
for
both
the
business
premises
and
the
living
quarters.
If
in
fact
no
gas
is
used
in
the
living
quarters,
which
is
the-case
here,
then
it
appears
to
me
the
premises
would
not
fall
within
the
definition.
The
fact
that
gas
can
be
used
in
the
living
quarters,
but
is
not
so
used,
does
not
bring
the
premises
within
the
definition
of
"‘dwelling,''
from
which
it
follows
that
no
tax
is
payable.
The
action
will,
therefore,
be
dismissed.
Costs
on
the
County
Court
scale.
Action
dismissed.
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