Houlden, JA [ORALLY]:—The respondent was charged by an information sworn February 1, 1983, that it:
. . . between the 1st day of December 1982 and the 31st day of January 1983, at the Municipality of Metropolitan Toronto, in the Judicial District of York, unlawfully did being required to pay sales tax imposed by Part V of the Excise Tax Act, RSC 1970, Chapter E-13, and amendments thereto, fail to pay within the time prescribed by Section 50(3) of the said Act the sales tax payable for the month of October 1982, in the amount of ONE THOUSAND SIX HUNDRED AND TWO DOLLARS AND THIRTY THREE CENTS ($1,602.33) and did thereby commit an offence contrary to Section 55(1) of the said Act and amendments thereto,
AND FURTHER
between the 1st day of January 1983 and the 31st day of January 1983, at the Municipality of Metropolitan Toronto, in the Judicial District of York, unlawfully did being required to pay sales tax imposed by Part V of the Excise Tax Act, RSC 1970, Chapter E-13, and amendments thereto, fail to pay within the time prescribed by Section 50(3) of the said Act the sales tax payable for the month of November 1982, in the amount of ONE THOUSAND FIVE HUNDRED AND SIXTY EIGHT DOLLARS AND FIFTY SIX CENTS ($1,568.56) and did thereby commit an offence contrary to Section 55(1) of the said Act and amendments thereto.
On March 15, 1983, the respondent pleaded guilty to the two charges. Crown counsel advised the trial judge that with respect to the amount referred to in count one, the tax was paid in full on February 15, 1983; and with respect to the amount referred to in count two, the sum of $500 was paid on March 3, 1983, leaving a balance owing at the date of trial of $1,068.56.
The trial judge imposed a fine on count one of $25 and on count two of $25 plus the amount still owing for tax at the date of trial.
The Crown appealed to the County Court against the amount of the fine, but the appeal was dismissed. In dismissing the appeal, the County Court Judge said:
The appeal is dismissed. There is nothing in Section 55 of the Excise Tax Act which states that the amount of unpaid tax upon which the fine is levied is not the amount unpaid as of the date of trial.
The relevant sections of the Excise Tax Act are the following:
50. (3) The return required by this section shall be filed and the tax payable shall be paid
(a) in a case where the return is required to be filed in accordance with subsection (1) or (2), not later than the last day of the first month succeeding that in which the sales were made;
(b) in a case where the return is authorized to be filed in accordance with a regulation made under paragraph (2. l)(a), not later than the thirty-first day following the end of the perid to which the return relates; and
(c) in a case where the return is authorized to be filed in accordance with a regulation made under paragraph (2.1)(b) or (c), not later than the last day of the first month following the end of the period to which the return relates.
54. (1) The amount of all penalties, except as herein otherwise provided, belong to Her Majesty for the public uses of Canada and form part of the Consolidated Revenue Fund.
(2) Where a penalty calculated by reference to the amount of the tax that should have been paid or collected or the amount of stamps that should have been affixed or cancelled is imposed and recovered under or pursuant to this Act, the Minister may direct that the amount thereof be applied on account of the tax that should have been paid or collected or the indebtedness arising out of the failure to affix or cancel the stamps.
55. (1) Every person who, being required, by or pursuant to this Act, to pay or collect taxes or other sums, or to affix or cancel stamps, fails to do so as required is guilty of an offence and, in addition to any other penalty or liability imposed by law for such failure, is liable on summary conviction to a penalty
(a) not being less than the aggregate of twenty-five dollars and an amount equal to the tax or other sum that he should have paid or collected or the amount of stamps that he should have affixed or cancelled, as the case may be, and
(b) not exceeding the aggregate of one thousand dollars and an amount equal to
the aforesaid tax or other sum or aforesaid amount of stamps, as the case may be;
and in default of payment thereof to imprisonment for a term of not less than thirty days and not more than twelve months.
69. (1) Notwithstanding any other statute or law, the court in any prosecution, suit or proceeding under this Act, has no power to impose less than the minimum penalty or punishment prescribed by this Act and the court has no power to suspend sentence.
The respondent committed an offence under subsection 55(1) when on the day following the last day of the applicable period it failed to pay the tax payable under the Act. By pleading guilty to the charges contained in the information, the respondent admitted that the amounts set out in the information should have been paid but were not paid within the times prescribed by subsection 50(3). By subsection 69(1) the court must impose the minimum penalty prescribed by the Act. Under paragraph 55(l)(a) the minimum penalty is $25 plus an amount equal to the tax that should have been paid.
The lower court judges erred by taking into consideration the amounts paid on account of tax subsequent to the commission of the offences. Subsection 54(2) confers a discretion on the Minister to direct that the amount of the penalty based on the amount of the taxes that should have been paid shall be applied on account of the tax, but that is a matter for ministerial discretion, not for the court.
Leave to appeal is granted, the appeal allowed, and on count one the penalty will be increased to $25 plus $1,602.33 and on count two to $25 plus $1,568.56.