All Posts by Dan Coles

Liquor Control and Licensing Branch clarifies “ID Checking Misconceptions”

In the Spring 2018 edition of Liquor Line, the Liquor Control and Licensing Branch’s biannual newsletter, the LCLB affirmed the basic principle that licensees are responsible for making sure their staff do not provide liquor to minors, but also clarified situations where it is “ok” for staff not to check ID.

The Branch clarified that staff members observed not asking a youthful looking person for ID is not itself a contravention of the Liquor Control and Licensing Act, or the terms and conditions of a licence – it is the act of selling or serving liquor to a minor that is a contravention. The Branch provided the following examples to clarify the point:

  • If your staff member happens to know that a youthful looking person is 19 years of age or older, and a liquor inspector observes them not asking that person for ID, that is not a contravention provided that the patron can satisfying the inspector they are 19 or older;
  • Staff are permitted to refuse service when they believe an individual is a minor, even if they don’t ask that person for ID.

The Branch stressed that where there is any doubt, requesting two pieces of ID remains the best practice.

As Alcohol & Advocacy has previously discussed, staff are also entitled to refuse service when they believe an individual is intoxicated, or has been previously asked to leave.

For licensees, providing ongoing training for staff on the basics of asking for and inspecting identification is of paramount importance. Not only is it the responsible thing to do, but a meaningful and thorough staff training regimen with ongoing reinforcement of the Serving It Right curriculum goes a long way towards mounting a successful defence of contravention enforcement action.

Despite the LCLB’s ongoing efforts to educate licencees on the importance of preventing the sale and service of alcohol to minors, contraventions for the same remain the leading cause of enforcement action against licensees. The penalty for a first contravention of serving a minor is a 10 day licence suspension or a $7,500 fine.

If your establishment has been served with a contravention notice, or is facing enforcement action, contact Dan Coles at Owen Bird for assistance.

*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.

Hughes v. Liquor Control Board of Ontario: 2000 Beer Framework Agreement

The trend of Canadian consumers and licensees challenging how provincial governments regulate, tax, and sell alcohol is alive and well in 2018. The anticipation in advance of the Supreme Court of Canada’s decision in R. v. Comeau, and the widespread media attention following its release, speaks for itself. From coast-to-coast Canadians are dissatisfied with the regimes in place in their respective provinces that tax and restrict the sale of alcohol. The ink spilled over Comeau tells us something else too: very few Canadians actually understand how the liquor licensing and retail regimes in their respective provinces operate.

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Brew Street Craft and Kitchen: Permitting an intoxicated person to remain

St. Patrick’s Day is a big source of business for the liquor industry. While all owners and managers hope that the day will run smoothly, and profitably, the failure by staff to comply with the terms of the Liquor Control and Licensing Act, namely by over-service, can put a damper on the festivities. Regrettably, the Brew Street Craft and Kitchen learned this the hard way last year.

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Cooper v. British Columbia: Court of Appeal rebukes Liquor Control and Licensing Branch

British Columbia’s Court of Appeal ended 2017 with a stinging rebuke of the Liquor Control and Licensing Branch’s October, 2016 decision to cancel the liquor licences of Dell Lanes, a family-operated bowling alley in Surrey, B.C.  Madam Justice Newbury, after being left with a “sense of unease” concerning the decision-making process followed by the Branch ordered that the bowling alley’s licences be renewed, albeit with some additional conditions.

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Should I sign a Liquor Control and Licensing Branch waiver notice?

If a liquor inspector or police officer observes a contravention of the Liquor Control and Licensing Act, Regulation or the terms and conditions of your establishment’s licence, they will issue a contravention notice. If the contravention is a recurring problem or a threat to public safety, the inspector may recommend enforcement action. At that point you as licensee will be given the option of signing a waiver notice or proceeding to an enforcement hearing. Licensees should discuss this important election with counsel at the earliest opportunity.

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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.

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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.

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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.

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