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.