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.