All Posts by Dan Coles

What’s in a name? Changes coming to Food Primary Licence Naming Policy

British Columbia’s Liquor Control and Licensing Branch is reviewing its policies on naming and signage for establishments with food primary liquor licences. You can read the consultation paper here.

The current policy in British Columbia is that an establishment with a food primary liquor licence  (think restaurant rather than a bar) cannot be named in a way that is misleading and suggests the establishment’s focus is on liquor sales rather than food sales. To ensure compliance, the names and signage used by all food primary licensees must be approved by the LCLB. This is by no means a recent policy; since Prohibition successive Liquor Control and Licensing Acts, Regulations, and policies have attempted to control and influence how bars and restaurant’s identify and market themselves to the public.

The Branch considers it to be in the public interest that licensed establishments not advertise in a way that misleads the public, or encourages irresponsible consumption of alcohol. This means that an advertisement or sign for a restaurant with a food primary licence must not use terms such as “bar”, “saloon” or “tavern” in its name as these words suggest the restaurant’s primary function is to serve alcohol rather than food. While this may seem intuitive, and a reasonable restriction on how restaurants market themselves, in practice the process has proven challenging and time-consuming for LCLB staff, and caused considerable frustration for licensees.

Consider that between 2002-2015 food primary licensed establishments were permitted to operate a lounge area (essentially a bar within a restaurant) and accordingly the word “lounge” could appear in the name of restaurant’s with that type of licence. The lounge endorsement regulation was repealed in 2015, but many establishments in BC continue to refer to themselves as “lounges”. Additionally, it has long been the case in BC that it is acceptable for the word “bar” to appear in the name of a restaurant, provided it was preceded by a food reference (e.g. “Bill’s Bar” is unacceptable, but “Bill’s Burger Bar” is okay).

Complicating matters further is that while terms like “bar” and “lounge” have relatively well known and understood meanings, changes in consumer preferences and market trends make it difficult for the LCLB to develop and maintain a “definitive list of appropriate naming conventions” that are, or are not, appropriate for establishments with food primary licences. The word “craft” is a good example of this problem. In British Columbia that word is quickly becoming synonymous with beer (which is a good thing). But is it appropriate for a restaurant to use the word “craft” in its name or marketing material to suggest to consumers that the focus of its business is on beer rather than food?

Taken as a whole, BC’s policies respecting naming and signage associated with food primary liquor licences has become problematic.

Proponents of maintaining (or strengthening) the status quo believe that the LCLB should ensure that establishments with food primary licences don’t market themselves in a way that is confusing, or gives them an unfair business advantage. For example, some individuals and businesses may not mind, and indeed may appreciate, a restaurant opening on their street, whereas they may have different views about the same business calling itself a “bar”. Alternatively, the competitors of a food primary licensed establishment who have undertaken the rigorous process of obtaining a liquor primary licence, may resent that their competition is holding itself  out as a bar when they are not licensed in that capacity. It begs the question, what’s in a name?

The counter argument is that the LCLB should not concern itself with how restaurants,  or any licensed establishment for that matter, choose to name or market themselves. For some perspective on this issue, it bears highlighting that Quebec is the only other province in Canada that regulates the names of licensed establishments. Provided the name of the restaurant is not socially irresponsible, does it really matter what it is called? As liquor service becomes more innovate in British Columbia, and the division between food primary and liquor primary establishments continues to shrink, the LCLB’s attention to this issue becomes less and less meaningful.

Have a point of view? The LCLB is soliciting comments until December 15, 2017. Have concerns about your bar or restaurant’s compliance with British Columbia’s liquor laws? Contact Dan Coles at Owen Bird.

*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.

Wardak v. Froom: Is the law of social host liability about to change?

Alcohol & Advocacy has written previously about the law of social and commercial host liability; two separate but related categories of relationships that may attract legal liability. The recent decision of the Ontario Superior Court of Justice in Wardak v. Froom suggests that the categories of relationships that may attract legal liability could soon be expanding.

Wardak is a social host liability case. The lawsuit was commenced by the plaintiff Mr. Dean Wardak in 2013 relating to a 2011 single vehicle accident. The trial is set to be heard before a jury. The facts are these.

The defendants Mr. and Mrs. Froom hosted a house party for their son, Graeme, on the occasion of his 19th birthday. The plaintiff, Dean Wardak, was a neighbour of the Frooms and a good friend of Graeme. He was 18 years of age at the time of the party, making him underage from the standpoint of consuming alcohol in Ontario. He walked to the house party. The party was “BYOB” – the Frooms did not serve liquor, but were aware that Graeme’s friends, including Mr. Wardak, were drinking.

The party was largely confined to the basement for the Froom family home. Graeme’s friends played pool, “beer pong” and listened to music. The Frooms stayed upstairs on the main floor of the house for most of the evening, watched the guests come and go, and checked in on the party from time-to-time.

At some point in the evening Dean became intoxicated, although the evidence with respect to when and just how intoxicated he was varied  Some party guests describe Dean as quite intoxicated, others describe him as less so. At 11:00 when he came upstairs to use the washroom (there was no washroom in the basement) Mr. Froom noticed Dean wobbling, and offered to walk him home. Dean declined Mr. Froom’s offer, used the washroom, and went back downstairs. Mr. Froom says he then asked his daughter and her boyfriend to keep an eye on Dean. When dean came up stairs a second time, Mr. Froom again offered to walk him home, and this time Dean became angry and was largely non-responsive.

At this juncture Mr. Froom left Dean alone momentarily to show another guest to the washroom. While out of Mr. Froom’s sight Dean abruptly left the party without his jacket or shoes. The Froom’s daughter Emelia was leaving the party at about the same time, and she and her boyfriend described Dean as looking “complete zoned out”. As they left the family home they kept a look out for Dean. When they drove by his house, which was just down the street, they saw the brake lights in Dean’s car come on and saw him drive away. They called 911.

Dean was only driving for a short time before hitting a fire hydrant and a tree. He was taken to hospital and a blood alcohol test showed 274 mg of alcohol to 100 ml of blood, more than three times the legal limit. As a result of the accident, Dean is now a quadriplegic with cognitive impairments.

Social Host Liability issues

Before the court was a motion by the Froom’s to summarily dismiss Mr. Wardak’s claim against them on the basis that there is no genuine issue for trial. Put more simply the Froom’s argued that the law in Canada currently does not make social hosts liable for injuries suffered by guests after they leave their property. The Frooms position was that because they did not serve alcohol at their party they did not owe Mr. Wardak a duty of care. They relied on the 2006 Supreme Court of Canada decision in Childs v. Desormeaux in support of that proposition. However, the central legal issue in Childs was whether social hosts owed a legal duty of care to third parties who may be injured by intoxicated guests. In Childs the injured person was a third-party motorist, not a guest.

In Childs the Chief Justice, for the Court, held that on the facts of that case the social hosts did not owe a duty of care to third parties, but left the door open for other cases, at para. 47, as follows:

I conclude that hosting a party at which alcohol is served does not, without more, establish the degree of proximity required to give rise to a duty of care on the hosts to third-party highway users who may be injured by an intoxicated guest. … [Emphasis added.]

In Wardak Justice Matheson observed that the use of the phrase “without more” allows for a duty of care to arise in other circumstances. In that regard, the Court held that a positive duty of care may exist if foreseeability of harm is present and other aspects of the relationship between the plaintiff and the defendant establish a special link or proximity. Those other aspects of the relationship “bring parties who would otherwise be legal strangers into proximity and impose positive duties on defendants that would not otherwise exist”.

In Childs, the Supreme Court noted three situations that could lead to a positive duty to act. One was a paternalistic relationship of supervision and control. Arguably such a relationship existed between the Frooms and Wardak: the Frooms decided to host and supervise a party where they knew underage drinking would be occurring. This, argued the plaintiff, was the “more” that the Supreme court in Childs was searching for. Accordingly the motions judge in Wardak held that the Supreme Court’s ruling in Childs does not preclude finding a duty of care where there is a paternalistic relationship or where the injured party is a guest rather than a third-party.

The Frooms also argued that even if they did owe Wardak a duty of care, they met the duty of care (e.g. by offering to walk him home) and so the claim should be dismissed on that basis. The court also rejected this submission on the basis that the affidavit evidence before the court was inconsistent and uncertain.

With too much conflicting evidence, the court held that it could not make a satisfactory determination of these important factual issues without a trial. The judge went out to observe that while he did not need evidence from every single partygoer, “it is unsatisfactory to have only double hearsay, unsigned, unsworn summaries of what a number of those people said when interviewed by an unnamed person.”

Conclusion

Justice Matheson was not prepared to find that as a matter of law the Frooms, social hosts, did not owe a duty of care to Wardak. While Wardak is an interlocutory decision, and not a trial of the case on its merits, it is significant that the court is leaving the door open for a significant shift in social host liability.

Wardak may be a social, and not commercial, host liability case, but actors in the liquor and hospitality industry should nevertheless pay attention to this and similar cases. Judicial attitudes towards drinking an driving are changing rapidly, and sophisticated licensees should stay informed on any development in the law in this area.

If you or your establishment require assistance understanding British Columbia’s liquor laws contact Dan Coles at Owen Bird.

*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.

Gratuity Included: The Timothy Brown Class Action

Restaurants banning tipping and transitioning to “gratuity included” pricing is not a new concept. While such arrangements rarely last, from time-to-time news breaks of avant-garde restaurateurs who attempt to throw off the tipping yoke, and launch eateries where management (and not patrons) have control over staff compensation leading (in theory) to a more equitable workplace. The thought process is that gratuities left to wait staff, even in establishments that engage in some form of tip pooling, are rarely distributed “fairly” to the important people who work in the kitchen, clear the tables, and take the reservations. The solution? Mark-up menu prices by 20% and pay all staff a living wage.

This solution sounds nice, but the industry to date has struggled to successfully implement it. The truth is that in North America tipping is ingrained in the psyche of both patrons and wait staff; it’s a significant social convention that is not easily altered. The economics of the practice are also important to consider. Most bars and restaurants take for granted that they can pay their floor staff minimum wage, and in many jurisdictions, including British Columbia,  legislation allows for a lower minimum wage for those that sell alcohol. Paradoxically, most bars and restaurants attempt (as best as they can) to employ attractive, educated and charismatic individuals – the very same type of people who try and avoid working for minimum wage when they can. Here gratuities bridge the gap that would otherwise exist between ownership’s downward pressure on staffing costs, and the public’s desire to be waited on by motivated and knowledgeable servers and bartenders. Put more simply, the kind of people you want waiting on you are willing to work for minimum wage because the upside of collecting tips in cash each night makes it worth their while. Take that upside away, and those individuals will look for better remuneration in other lines of work.

The “gratuity included” model attempts to rework this long-standing framework by marking-up all menu items under the premise that the mark-up will be carved off from the general revenue of the restaurant and then redistributed equitably amongst the staff by benevolent management. To work, patrons are required to accept inflated prices and relinquish the control they have over their choice to leave a tip. Similarly, restaurant staff have to believe that management can be trusted to collect, account, and distribute the “gratuity included” portion of the establishment’s revenue in a manner that is more just than under the traditional regime. For kitchen staff this model is appealing, as they are largely excluded from meaningful sharing in tip money; for floor staff this model invariably results in reduced income.

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Diageo v. Heaven Hill: Passing off in the liquor industry

Earlier this summer Mr. Justice Boswell of the Federal Court of Canada released his decision in Diageo Canada Inc. v. Heaven Hill Distilleries, Inc., which resolved a trademark and passing off dispute between two significant players in the liquor industry. At issue in Diageo v. Heaven Hill is the similarity in Diageo’s Captain Morgan mark, and Heaven Hill’s Admiral Nelson mark. Both marks are used by their respective owners to identify and market their lines of rum.

Passing off exists at common law as a tort, and is prohibited under s. 7(b) and (c) of the Trade-marks Act.

What is Passing Off?

The procedural aspects of Diageo v. Heaven Hill are somewhat complex, and need not be repeated. For Alcohol & Advocacy’s purposes the salient issue is this: Has Heaven Hill been passing off its Admiral Nelson rum products as the goods of Diageo in contravention of the Trade-marks Act?

The principles behind the common law and statutory prohibition against a manufacturer passing off its goods as those of another (usually its competitor) are not difficult to understand: a manufacturer who has invested in developing goodwill (brand recognition) in its products does not want to lose business (and potentially its reputation) to a competitor who is selling its products in a way that confuses consumers into believing that its product is the “original”. Similarly, consumers have an interest in being able to readily distinguish the origin of the products they are purchasing based on the product’s packaging, design elements, or logos.

Passing off can occur in any variety of ways. Obvious examples include counterfeiting or imitating the plaintiff’s trade mark or trade name, but more subtle examples include imitation of the plaintiff’s product wrappers, labels or containers, its vehicles, the badges or uniforms of its employees, or the appearance of its place of business.

The plaintiff in a passing off action does not need to prove that the defendant was deliberately attempting to pass its products off as the plaintiff’s, rather the misrepresentation creating confusion for consumers can occur through negligence or carelessness. Put more simply: even if by complete coincidence your company’s beer, wine or spirits happen to look like a competitors, your company may still be found liable for passing off.

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Understanding Social Host Liability

Alcohol & Advocacy has previously examined the law of commercial host liability in British Columbia. Today most patrons and employees of licensed establishments are familiar with the concept of commercial host liability: bars and restaurants owe a duty or care to ensure that if their patrons become intoxicated they do not harm themselves or others who come in contact with them. The classic example of a situation where a commercial host will be found liable is when an over-served customer gets behind the wheel, and later harms another user of the road.

But what about social hosts (e.g. non commercial situations) like dinner parties or neighbourhood barbecues? Does the law hold social hosts to the same standard of responsibility for guests as it does with commercial hosts? Here we examine the law of social host liability.

In 2006 the Supreme Court of Canada in the leading decision Childs v. Desomoreaux posed the following question:  A person hosts a party.  Guests drink alcohol.  An inebriated guest drives away and causes an accident in which another person is injured.  Is the host liable to the person injured?

The court concluded that “as a general rule” a social host does not owe a duty of care to a person injured by a guest who has consumed alcohol.

Facts

The facts in Childs, like most host liability decisions, arise from a tragic car accident. In the early hours of the morning on January 1, 1999 Mr. Desmoreaux drove his vehicle into oncoming traffic, killing one of his passengers and seriously injuring three others including the plaintiff Ms. Childs. Zoe Childs, who was at the time a teenager, had her spine severed by the accident and has since been paralyzed from the waist down.

Mr. Desmoreaux was impaired at the time of the accident. Prior to getting behind the wheel he attended a house party hosted by Mr. Courrier and Ms. Zimmerman. The house party was a BYOB event; the hosts only supplied a minimal amount of alcohol (Champagne at midnight). During his two and one half hour visit to the party he consumed about 12 beer.

Mr. Desmoreaux pleaded guilty to a series of criminal charges arising from these events and received a ten-year sentence.

The central issue before the court in Childs was whether social hosts who invite guests to an event where alcohol is served owe a legal duty of care to third parties who may be injured by guests who become intoxicated. Though it has long been the law in Canada that commercial hosts, like bars or clubs, will likely be under such a duty the Childs case was the first time the Supreme Court of Canada considered the duty owed by social hosts to plaintiffs like Ms. Childs.

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Yukon Liquor Corporation Contemplating Tax Break for Local Brewers

The Yukon Party are making headlines again up north by revisiting (from the opposition benches) a plank from their unsuccessful 2016 election platform:  eliminating the government markup on locally produced alcohol and allowing producers to sell directly to retailers.

Currently the Yukon Liquor Corporation applies a 23 percent markup to packaged beer produced by the territory’s small producers like Winterlong Brewing. This means that before Winterlong’s beer is sold in its tasting room, the company has to first sell it to the Yukon Liqour Corporation and then buy its own beer back with a mark-up tacked on. Last year in Ontario the Toronto Distillery Co. unsuccessfully challenged the Liquor Control Board of Ontario’s policy that is substantially the same.

It is unclear whether a Yukon Liquor Corporation policy that would exempt local producers from a markup would be compatible with Canada’s NAFTA or other free trade agreement obligations. Similar concerns have been raised in British Columbia about the policy of permitting only locally produced wine to be sold on grocery store shelves.

The Yukon News is reporting that the Yukon Liquor Corporation intends to review its policies over the next year and consult with producers as well as the public. Alcohol & Advocacy will be monitoring the situation closely.

*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.

Contravention Notice:  Failing to promptly produce and submit a record

A licensee in British Columbia may receive a Contravention Notice from the Liquor Control and Licensing Branch for a variety of reasons; serving minors and over-serving patrons are two of the most common. However, another issue arises with more frequency than most managers and owners probably realize: failing to promptly produce a record or thing for inspection.

On February 7, 2017 the General Manager of the Liquor Control and Licensing Branch released its reasons in Re Liquid Zoo Show Lounge EH16-095. In Re Liquid Zoo the Branch fined the licensee $10,000 for its failure to promptly produce requested information.

The Liquid Zoo is a strip club and lounge in Kelowna that operates under a liquor primary licence. The Liquid Zoo’s licence contains a number of unique “special” terms and conditions that include onerous requirements concerning the mandated use of video surveillance throughout the establishment, and providing liquor inspectors and police with unhindered access to the same.

On July 14, 2016 a liquor inspector issued the Liquid Zoo a Notice to Provide Records that required the licensee produce employee records and certain days’ worth of video surveillance footage. The licensee failed to produce the requested information promptly and the liquor inspector issued a contravention notice.

Section 73 of the old Liquor Control and Licensing Act, and section 42 of the new Act, give the Liquor Control and Licensing Branch broad powers to demand from licensees records that the licensee is required to keep under the Act as well as any other “record, thing or sample.” Put simply, to further an investigation into a suspected violation of the Act, or a term or condition of licence, a liquor inspector can ask the management of a bar, restaurant or manufacturer to produce just about anything.

Section 34 of the old Regulation, now section section 80 of the new Regulation, sets out the type of record-keeping licensees are required to maintain for a period of at least 6 years. These records include: liquor purchase and sale records, food sale records, contacts with other licensees, management contracts, employee records (including name, salary, addresses, shift schedules) and records of incidents.

Licensees should note that in Re Liquid Zoo the liquor inspector declined to state the specific nature of the alleged contravention of the Act being investigated. In his reasons the General Manager’s delegate held that “ the fact that the [ contravention notice ] did not identify the specific nature of a possible contravention does not affect the reasonableness of the timeline or the validity of the request.” He went on to find that “the [ contravention notice ] is clear on its face as to what was required” and that “it is the licensee’s responsibility to ensure that he provides all the records required by the branch.”

Alcohol & Advocacy has written about the importance of complying with a liquor inspector’s demands for documents promptly and thoroughly before. It is a subject the Branch takes very seriously. The Branch deems a failure by a licensee to provide records  a “serious contravention that undermines the regulatory compliance and enforcement regime.” Without access to records associated with the operation of a licensed establishment, the Branch considers itself unable to identify serious contraventions that pose an unacceptable risk to public safety.

If a liquor inspector asked your manager or bookkeeper to produce employee records, sales information, or an incident report from six years ago could they? If the answer is “no” you should revisit with your staff how your licensed establishment is managed and operated. If you have questions about how to avoid receiving a contravention notice, or complying with the Liquor Control and Licensing Act contact Dan Coles at Owen Bird.

*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.

So you want to become an Import Agent?

All imported beverage alcohol sold in British Columbia must be registered with the Liquor Distribution Branch (LDB) and represented by an agent licensed by the Liquor Control and Licensing Branch who holds a valid letter of authorization from the manufacturer.

Prior to 2017 British Columbia manufacturers of beer, wine and spirits were required to obtain a separate agent licence to market their products within the province, or retain a licensed third-party agent. This is no longer the case; under the new Liquor Control and Licensing Act manufacturers can now solicit and take orders for their own products without additional licensing requirements. However, some manufacturers continue to retain the services of a third-party agent (e.g. smaller breweries or distilleries in remote regions who require representation in Vancouver. Others may simply prefer to rely on the expertise and industry connections of existing agents rather than employing their own sales and marketing team).

The role of liquor agent in British Columbia is somewhat unusual: agents cannot directly sell to the public or import products.  Only the Liquor Distribution Branch is permitted to commercially import alcohol in British Columbia, and only licensed establishments and retail stores can sell alcohol directly to the public.

So what exactly do import agents do?

Liquor agents have exclusive rights to promote and market their products throughout British Columbia and in doing so are permitted to take wholesale orders for liquor and request and that LDB import products on their behalf. The LDB describes this process as agents facilitating the movement of products from manufacturer to customer via a “promotional strategy.”

Promotional strategies include conducting product tastings and information sessions,  purchasing advertisements, sponsoring events, and distributing branded promotional items.

An import agent may (and many do) represent a variety of brands and products, and hire employees as “marketing representatives”.  The licensee is responsible to ensure that its staff follow British Columbia’s liquor laws and the terms and conditions of the agent licence.

So who actually imports the alcohol?

The LDB along with the Liquor Control and Licensing Branch are responsible for supplying and managing the beverage alcohol industry in British Columbia.

The Liquor Distribution Act gives the LDB the sole right to purchase beverage alcohol for resale within British Columbia and from suppliers and manufacturers outside the province, in accordance with the federal Importation of Intoxicating Liquors Act. Section 3 provides that:

…no person shall import… or cause to be imported… any intoxicating liquor… except such as has been purchased by or on behalf of… Her Majesty…

As the sole buyer and re-seller of liquor in the province’s mixed public-private model, the LDB is one of the largest purchasers of beverage alcohol in the world. Every year, the LDB buys alcohol from more than 1,000 Canadian and international suppliers and manufacturers, supplying product to hospitality and retail customers across the province.

Once the alcohol is imported to British Columbia it will be stored at the LDB warehouse or a bonded warehouse until it is distributed to bars, restaurants and retailers.

Role and Responsibility of Liquor Agent established by contract

In addition to the terms and conditions of licence, and the applicable statutes and regulations, the role of the liquor agent in British Columbia’s hospitality and retail sector is largely governed by contract, and a series of forms provided by the LDB.

Liquor agents have contracts with the manufacturers that they represent (who may be located in BC, other parts of Canada, or anywhere in the world), and also contracts with the LDB and others that set out the terms of how the products they represent will be imported, paid for, stored and distributed.

The following agreements and forms must be completed before a liquor agent can conduct business:

Liquor Warehouse Agreement

  • Contains the terms and conditions under which liquor is imported into BC and stored at an approved excise licensed warehouse (wine and spirits) or a custom bonded warehouse (beer) until the liquor is transferred to the LDB’s Distribution Centre or privately distributed.

Supplier Authorization Agreement

  • Identifies the agent as the sole distributor and purchaser of that brand of alcohol in BC (through the LDB).

Product Registration Form

  • Sets out product label information , allergens declaration, unit cost and packaging size etc.

Interested in becoming a liquor agent or importing liquor into British Columbia?  Need assistance navigating the licensing process, or incorporating your firm? Contact Dan Coles at Owen Bird for assistance obtaining an agent licence.

*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.

Wolf in the Fog caught in Minors as Agent Program Investigation

Recently the Liquor Control and Licensing Branch released its reasons in Re Wolf in the Fog EH16-096, confirming that even high-end restaurants will be targeted by British Columbia’s liquor inspectors conducting minors as agent program (MAP) investigations.

The Wolf in the Fog is a fine dining establishment located in the popular surf and tourism town of Tofino, British Columbia. In 2014 it was the recipient of the “best new restaurant in Canada” award and in 2015 it was ranked 38th in the country. In the words of its management, the establishment is not “a dive bar, diner or casual family restaurant.”

The Wolf in the Fog operates under a food primary licence.

On February 23, 2017 the Liquor Control and Licensing Branch’s delegate conducted a hearing into the allegation that on July 6, 2016 an employee of the Wolf served alcohol to a 16 year-old, who at the time was acting as an agent of the Branch as part of the Branch’s ongoing MAP inspection. Supplying liquor to a minor is a contravention of the Liquor Control and Licensing Act that under the old Act carried a minimum monetary penalty of $7,500.

At the hearing the representatives of the Wolf did not dispute that its employee served a minor. Rather, they submitted that the establishment had taken all necessary steps possible to prevent the contravention from occurring. In legal parlance this is known as a due diligence defence.

The Wolf outlined for the Branch the following steps it takes to prevent its staff from serving minors:

  • All new hires are required to have Serving-It-Right training
  • The employee manual contains information dealing with the need to identify minors
  • A whiteboard that contains the day’s food special contains a reminder of the date on which anyone being served alcohol must be born before
  • Management-led meetings held at the start of each shift confirm the importance of not serving minors
  • Shift managers supervise staff to ensure they ask patrons for identification

However, on cross-examination the Wolf’s representatives conceded that:

  • Management does not go through the employee manual with new employees, instead the new employees merely sign a form verifying their review of the same
  • Employees are in fact hired without Serving-It-Right; those without SIR act as hosts
  • There are no testing protocols or written policies with respect to testing staff on their knowledge about liquor law
  • No signage around the establishment warns against serving minors – as those signs would disrupt the fine dining aesthetic
  • The employee who served the minor was suspended rather than being fired

The Branch concluded that the Wolf’s training regime fell short of being adequate. The Branch highlighted the licensee’s concession that there were “no written policies regarding training standards or processes.” Overall the Branch found the licensee’s training regime to be largely ad hoc and therefore not duly diligent. The Branch’s delegate ordered that the Wolf pay a $7,500 penalty.

The Branch’s decision in Re the Wolf in the Fog is a reminder to all licensees that liquor inspectors can and do investigate licensed establishments of all stripes: from nightclubs to high-end restaurants in remote locations.

At the hearing a liquor inspector advised the Branch that the reason for the minors as agent program inspection was because at an earlier inspection conducted in April of that year the liquor inspector was concerned about the number of young people being served alcohol without being asked for identification. MAP inspections are usually conducted in response to complaints or perceived risk.

Licensed establishments that are consistently operated in accordance with the terms of licence and the Act are unlikely to be subject to significant attention from liquor inspectors. On the other hand, as evidence by the liquor inspector’s comments in Re Wolf in the Fog, if your establishment is perceived as being casual about its obligations it will invite greater scrutiny from liquor inspectors.

If your bar or restaurant is facing enforcement action by the Branch, or has recently received a notice of contravention, contact Dan Coles at Owen Bird.

*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.

2016 Compliance and Enforcement Inspection Statistics

Previously Alcohol & Advocacy reported on B.C’s Liquor Control and Licensing Branch compliance and enforcement statistics for January – October, 2016. The Compliance and Enforcement division has now made more statistics from 2016 available, including the “Top Ten Contraventions Pursued” which are as follows:

  1. Selling liquor to a minor
  2. Overcrowding beyond occupant load
  3. Contravening a term and condition
  4. Allowing liquor to be removed from establishment
  5. Operating contrary to primary purpose – food primary
  6. Permitting prohibited entertainment
  7. Employee consuming liquor while working
  8. Failing to promptly provide a record, thing or sample
  9. Selling or giving liquor to an intoxicated person
  10. No proof of prescribed server training.

In total the Branch conducted 11,950 inspections of licensed premises. 444 of the inspections involved the Minor as Agent program.

The list of most common contraventions pursued by the Branch is informative:

  • if other licensed establishments are making these mistakes, your staff and management may do the same;
  • it indicates where liquor inspectors are focusing their investigations; and
  • it indicates which contraventions of the Liquor Control and Licensing Act the Branch pursues (rather than dealing with informally).

The sale of liquor to minors unfortunately remains the most contravened section of the Act, and owners and operators of licensed establishments should make the ongoing education of their staff on this subject a top priority. Only the most rigorous and thorough training regimes will be successful if raised as a due diligence defence at a hearing before the Branch.

Other contraventions on the list such as overcrowding, allowing liquor to be removed from the establishment, and selling or giving liquor to an intoxicated person, relate to areas that traditionally fall into the domain of “security” at larger establishments. If your bar or club uses a security company or employs a doorman to maintain safe numbers and ensure intoxicated persons do not enter or remain into your establishment, are they provided with ongoing training on the Act and the terms and conditions of licence applicable to your establishment?

Alternatively, if you bar or restaurant does not have a dedicated doorman or security service, who is responsible for doing head counts or ensuring patrons do not leave with alcohol?

If you have questions about how the Liquor Control and Licensing Act applies to your establishment, or are facing enforcement action, contact Dan Coles at Owen Bird.

*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.

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