85

H.—ll

Two questions of law of great importance were argued in this appeal: — (1.) Is a restaurant a "shop" within the meaning of the Shops and Offices Acts, 1904 and 1905? (2.) If it is, does the recommendation of the Board of Conciliation, and which, in consequence of the omission of the employers to refer the dispute within the statutory time to the Court of Arbitration for settlement, now operates as an industrial agreement, override the provisions of section 4 of " The Shops and Offices Act, 1904 "1 As to the first question: "Shop" is interpreted by section 2 of the Act as meaning any building or place in which goods are kept or exposed or offered for sale, or in which any part of the business of the shop is conducted, but does not include a warehouse doing exclusively a wholesale business. If there were no other provision in the statute by which an extended meaning can be given to the term " shop," it would, I think, be doubtful whether a restaurant or refreshmentroom, where the meals are consumed on the premises, could be brought within this definition. In The London and Suburban Land and Building Company t>. Field (1881, 16 Ch.D. 645), however, Cotton, L.J., said, "A 'shop ' means a place where goods are sold by retail ; a 'beer-shop,' therefore, means a place where beer is sold by retail, and it does not matter whether the beer is consumed on the premises or not," (p. 648). But in Coombs t>. Cook (Cal. and Ell. 75), Huddleston, 8., observed, "A tavern would not come within the definition of 'shop.' It is true that beer is sold there. But a tavern is also a place of entertainment, and travellers have a right to food and refreshment there." And in the Savoy Hotel Company v. London County Council (1900, 1 Q.B. 668), Channell, J., said, " Neither a licensed publichouse nor a refreshment-house comes within the ordinary meaning of the word ' shop.' ' That case was an appeal from a decision of a metropolitan Magistrate convicting the appellant of a breach of " The Shop Hours Act, 1892," for employing a young person at the Savoy Hotel for a longer time than the statutory hours, and the conviction was sustained because the definition of " shop " in that Act expressly included licensed publichouses and refreshment-houses of any kind. A restaurant is a place where refreshments or meals are provided for payment; it is also defined in the dictionaries as the dining-room of an hotel conducted on the European plan; a dining-saloon or eating-house cafe. It is, therefore, a refreshment-house, or a refreshment-room. The definition of " shop " in section 2of " The Shops and Offices Act, 1904," is not necessarily exclusive. The definition only applies where it is not inconsistent with the context of the Act. This is stated in the introductory words of the section, and without these introductory words the same rule of construction applies: Per Lord Selborne in Meux v. Jacobs (L.R. 7H. of L. 481, 493). In The Queen v. The Justices of Cambridgeshire (7 A. and E. 480), the Court (Lord Denman, C.J., Patteson, Williams, and Coleridge, JJ.) said that an interpretation clause was " not to be taken as strictly defining what the meaning of a word must be under all circumstances." An Act of Parliament is to receive such a fair, large, and liberal construction as will best insure the attainment of the object of the Act, and of every provision or enactment thereof, according to its true intent, meaning, and spirit: " Interpretation Act, 1888," section 5, subsection (7). A " shop-assistant " is also defined in section 2. Such an assistant is a person (whether a member of the occupier's family or not) who is employed by the occupier of a shop in or about the business of a shop. Section 4 prohibits the employment of a "shop-assistant " in or about the business of a shop for more than fifty-two hours excluding meal-times. Section 9 prescribes that all shops (except those specially provided for in later sections of the Act) shall be closed on one working-day of each week at the hour of 1 p.m. Section 15 of the Act is as follows: " The provisions of section 9 relating to the closing of shops on the statutory closing-day shall be subject to the exceptions and modifications following: (a) (1) In the case of any shop wherein is exclusively carried on any one or more of the businesses of a fishmonger, a fruiterer, a confectioner, a refreshment-room keeper, a baker, or a bookstallkeeper on a railway-station or wharf, the occupier shall not be required to close his shop on anj working-day : Provided that the provisions of this subsection shall not affect the light of any shop-assistant employed in any such excepted shop to a half-holiday for the remainder of the day from 1 o'clock in the afternoon of such working-day in each week as the occupier in the case of each shop-assistant thinks fit." A refreshment-room keeper is defined in the section to mean " a person whose business it is to sell meals, but does not include an hotelkeeper." The amendment Act, 1905, repeals section 3 of the Act of 1904, a section which provided a statutory hour for closing " shops " within the four central districts of the Dominion, and enacts substituted provisions, among which is a provision that in or about any shop in which any one or more of the trades or businesses mentioned in the schedule to the Act are exclusively carried on, the iatesi hour up to which a shop-assistant may be employed is the time stated in the schedule: and among the businesses mentioned in the schedule is that of a' : refreshment-room keeper." Notwitustnnding, there/fore, that the interpretation clause does not in terms include within the definition of a " shop " a restaurant or refreshment-room, it is, in my opinion, clear that the Legislature intended to do so, and that upon the proper construction of the Act restaurants or refreshment-rooms are included, except where these businesses are expressly exempted from any particular clause. In such case special provisions are made. The effect of sections 9 and 15 of the principal Act, and of sections 3, 4, and 7, and of the schedule to the amendment Act, is, in my opinion, to enable me to read section 4, which is the general section applicable to all shops, as including refreshmentrooms. Mr. Myers has submitted that if refreshment-rooms are within section 4, still, refreshmentrooms where the meals sold are consumed on the premises are not. In my opinion this cannot be the , proper construction of the Act. A refreshment-room is a place where meals are sold. It does not affect the question whether the meals sold are consumed on or off the premises. The sale takes place in each instance. It is a matter of common knowledge that the greater proportion of the business of a refreshment-room keeper is the supply of meals to be consumed on the premises, and to limit the provisions of the Acts of 1904 and 1905 to restaurants where meali or refreshments