All Posts by Dan Coles

The Scotch Whisky Association v. Macaloney Brewer & Distillers Ltd.

In March, 2021 the Scotch Whisky Association (“SWA”), a Scotland based trade association of the Scotch whisky industry, and Whyte and Mackay Limited, a Scotland based distilling and bottling company, commenced an action in the Supreme Court of British Columbia against Macaloney Brewer & Distillers Ltd., the Victoria, BC based owner of Macaloney’s Caledonian Distillery. Macaloney’s distills, matures, bottles and sells whisky.

The SWA asserts that Macaloney’s whiskies are marketed and branded in a way that would deceive or confuse consumers into believing its product is bona fide Scotch whisky. It’s interesting to note that in their lawsuit the plaintiffs SWA and Whyte and Mackay don’t seek damages, or an order preventing Macaloney’s from distilling and bottling single malt whisky – instead they seek an injunction restraining what they call Macaloney’s “misleading branding and marketing” and an order that Macaloney’s destroy all such packaging and marketing materials.

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BOLO 2021: BE ON THE LOOK OUT FOR THESE LIQUOR LAW CHANGES IN THE NEW YEAR

Throughout 2020 British Columbia’s Liquor and Cannabis Regulation Branch issued a series of temporary relaxations of existing rules and regulations in response to COVID 19.

Certain of these time-limited measures were immediately felt by consumers such as expanded service areas and the provision for bars and restaurants to sell packaged liquor products (e.g. beer and wine) with the sale of a meal.

Other temporary licensing changes authorized this past year were more technical in nature and related to the manufacture of hand sanitizer or the granting of authority for manufacturers (think Okanagan based wineries) to direct deliver their liquor products to retail customers from their registered offsite storage locations (think warehouses located in lower mainland) rather than strictly from inventory maintained at their onsite store.

The provincial government has even gone as far as approving a temporary pricing model for hospitality licensees to purchase liquor at the BC Liquor Distribution Branch (LDB) wholesale price until March 31, 2021.

These and other policy changes have had a profound impact on how liquor is manufactured, sold and consumed in British Columbia – but for now they are just temporary.

What will 2021 hold? Alcohol & Advocacy is closely monitoring the following:

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BC’s Privacy Commissioner to audit private liquor and cannabis retailers

On November 25th BC’s Information and Privacy Commissioner Michael McEvoy announced that his office will review BC’s licensed private sector liquor and cannabis retailers’ privacy practices under the office’s Audit and Compliance Program. The news release can be read here.

The Office of the Information and Privacy Commissioner ( the “OIPC“) did not release a timeline for the investigation or the issuance of its findings.

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What is a meal? Scotch Eggs and Covid Protocols

Earlier this month British politician Michael Gove found himself in a spot of controversy over the delicate question of whether or not a Scotch Egg (a boiled egg wrapped in ground pork, breaded, and deep-fried) is a “meal” substantial enough to comply with the UK’s most recent COVID-19 Regulations that restrict pubs in the “high alert” tier to only serving alcohol with a “table meal”. The Regulations explain that a “table meal” is a meal “such as might be expected to be served as the main mid-day or main evening meal, or as a main course at either such meal”. This rather unhelpful definition can be read in its full context here.

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The Due Diligence Defence: “good intentions” are not enough

One of the defences a licensee can raise at an enforcement hearing before a Delegate of the General Manager of the Liquor & Cannabis Regulation Branch is the defence of due diligence. To be successful the licensee must satisfy the Delegate that the licensee had implemented adequate training to prevent the subject contravention and taken reasonable steps to ensure the effective application of that education and the operations of those systems.

Too many licensees appear before the tribunal without adequate evidence, organization, or submissions to satisfy the General Manager’s Delegate that they have met the due diligence standard. The Branch’s recent decision in Re: Boston Pizza Restaurant & Sports Bar is another example. You can read the decision in full here.

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Licensees Beware: BC’s Liquor & Cannabis Regulation Branch Complaint Process

The Liquor & Cannabis Regulation Branch makes a point of inspecting all licensed establishments in BC at least once or twice a year with higher risk establishments being inspected more frequently. As there are considerably more licensed establishments and special events in BC then there are liquor inspectors, the Branch must allocate its resources to ensure that the time liquor inspectors spend in the field is used efficiently. Accordingly, establishments without compliance history (a history of contravening the Liquor Control and Licensing Act) or significant complaint history (the Branch tracks the number and types of complaints it receives against an establishment) are treated as a low priority for inspection.

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McCormick v Plambeck: The end of social host liability?

On June 12, 2020 Chief Justice Hinkson of the Supreme Court of British Columbia issued reasons for judgment in McCormick v. Plambeck, the latest word on social host liability in British Columbia and Canada more broadly. The Court’s reasons for judgment (all 91 pages) can be read in full here.

In a lengthy and detailed decision, the Chief Justice dismissed the plaintiff’s claim to fix the adult hosts of a house party attended by high school students with liability for his injuries under the emerging doctrine of social host liability. By rejecting the plaintiff’s claim on the basis that the “social hosts” did not owe him a duty of care, and that even if they did they met it by acting responsibly in all the circumstances, the Chief Justice has provided considerable clarity to this previously undeveloped area of tort law. While the door is not closed on injured persons in the future attempting to make such a claim, presumably on facts different enough to distinguish it from this case, the standard is such that (at least in British Columbia) it will be an uphill battle for these future plaintiffs.

For anyone who has ever hosted a party where alcohol was consumed, or plans to again in the future, the decision and legal analysis in McCormick v. Plambeck will be well received.

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Enforcement Order Reconsideration Part 3: Administrative Independence

In Parts 1 & 2 of the reconsideration series, Alcohol & Advocacy observed that the delegates of the General Manager of the Liquor and Cannabis Licensing Branch who decide enforcement hearings and make reconsideration decisions are not truly independent – that is to say that as employees (or agents) of the Branch they lack, or give the appearance of lacking, true administrative detachment from the very body that investigated and chose to prosecute an alleged contravention of the Liquor Control and Licensing Act.

When Canadians think about “independent” decision makers, we often thing about judges who enjoy security of tenure (lifetime appointments), financial security (full time employment, benefits, etc.), and administrative independence (judges work out of courthouses, not government offices). With these hallmarks of judicial independence in place, persons appearing before the court can feel comfortable that the judge deciding their case is able to decide it on the merits, without interference or influence of any kind from any source, including another branch of government. Importantly judges are also required to appear independent.

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Enforcement Order Reconsideration Part 2: Is the reconsideration process fair and efficient?

In Part 1 of this three-part series on the reconsideration process, Alcohol & Advocacy explained the mechanics of the reconsideration process. Now we delve a little deeper.

Six years ago Parliamentary Secretary John Yap submitted his Final Report on liquor law and policy review to the Attorney General and Minister of Justice. His report made 73 recommendations calling for “substantive reforms” to modernize British Columbia’s liquor laws, distilled from his consultations with members of the public and industry stakeholders, albeit limited by his terms of reference. The report in fall can be read here.

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Enforcement Order Reconsideration Process Part 1: How does reconsideration work?

British Columbia’s “new” Liquor Control and Licensing Act, which came into effect January, 2017 introduced a new internal review process for licensees on the receiving end of enforcement orders. This process, called “reconsideration” allows a liquor licensee or permittee to apply to have the decision made against them reconsidered if it meets one of the three prescribed grounds:

  • there is substantial and material evidence that is new or was not discovered or discoverable at the time of the original hearing;
  • there was an error of law (other than a constitutional error of law regarding cannabis reconsideration); or
  • there was a failure to observe the rules of procedural fairness.

The grounds listed above are the only basis that a decision may be reconsidered.

Over the course of three articles Alcohol & Advocacy will explore the mechanics of this new procedure.

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