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.
Recommendation 15 was as follows:
15. Applicants and licensees seeking a review of LCLB decisions should have access to a new and separate decision-making body outside the licensing branch. The Ministry of Justice should review current processes and determine how best to provide independent decision-making for those seeking appeal.
Unfortunately for licensees and permittees in British Columbia, Mr. Yap’s recommendation for an independent appeal process, outside of the licensing branch itself, was not implemented in the new Act and the related reconsideration policy. As described in Part 1, the reconsideration process is not a “separate decision-making body outside of the licensing branch” nor is the decision maker truly independent of the government body that investigated and commenced the underlying enforcement action. Curiously, the provincial government has declared that the recommendation has been “implemented”. See the Liquor Policy Review Implementation Table here.
The reality is that by creating the reconsideration process the Liquor and Cannabis Regulation Branch has in fact made it more difficult and costly for licensees to obtain access to separate and independent decision-making through the judicial review process. This is because, generally speaking, before a party is entitled to seek judicial review of an administrative decision (like an enforcement order) they must exhaust internal review/appeal processes first.
When announcing the reconsideration process the Branch touted it as a benefit to licensees: “The cost of applying for judicial review can be a barrier for licensees, and the court process can be daunting for unrepresented licensees.” On its face this statement is of course true: judicial reviews are undeniably expensive to prepare for and are best conducted by experienced counsel.
However, the limited parameters of the reconsideration process means that the only issues that an aggrieved licensee can raise on reconsideration (error of law, error in process) are exactly the sort of errors a licensee would raise in a petition for judicial review. This means the that most significant difference between the two processes (reconsideration vs. judicial review) is that a reconsideration application is decided by a delegate of the General Manager, whereas a petition for judicial review is decided by a justice of the Supreme Court of British Columbia.
Is the reconsideration process really cheaper or easier than going to court?
The Branch’s policy “explanation” indicates that the cost of applying for a judicial review of an enforcement decision can be a barrier for licensees and the process can be “daunting”. This suggests that the reconsideration process should be both cheaper, and more user friendly, than judicial review. The policy does not provide a factual basis or explanation for this statement. Three issues come to mind:
- the cost of filing a petition for judicial review is $200. The cost of filing an application for reconsideration is $500;
- preparing submissions to convince one delegate of the General Manager, that a fellow delegate made an error of law, or the Branch conducted itself in a manner that was not procedurally fair requires a considerable amount of work, and legal research. Just because a licensee is making those submissions to a delegate of the General Manager, rather than a Supreme Court justice, doesn’t mean that corners can be cut; and
- by virtue of section 53.1(9) of the Act, the Reconsideration Decision replaces the initial decision. This means it’s important for licensees to put their best foot forward in their written reconsideration submissions so that the appropriate record is created, should a judicial review of the reconsideration decision become necessary.
Ultimately it is for the licensees and permittees of British Columbia to determine if the reconsideration process has proven to provide the procedural and cost savings benefits outlined in Policy 16-19.
If this hasn’t been licensees’ experience, the reconsideration process will have only increased the cost, delay, and red tape standing between a licensee seeking a review of a LCRB decision and a truly independent and separate decision-making body (judicial review).
In Part 3, Alcohol & Advocacy will review the meaning and limits of independence in the context of administrative tribunals.
If your establishment has received a contravention notice, notice of enforcement action, or has been unsuccessful at an enforcement hearing and is considering applying for reconsideration, 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.