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.

However judicial independence is the high water mark of independent decision making. Generally speaking, administrative decision makers – like the General Manager’s delegates who conduct enforcement hearings and make reconsideration decisions – are not held to the exacting standard of judicial independence. Such a standard would not be feasible, or even desired, in many contexts. Administrative tribunals are designed to provide flexible, affordable, and in many cases expert decision making in niche industries and sectors. For most tribunals, especially those that include senior members of the regulated industry or profession on its boards, creating true independence would be impossible.

These competing concepts raise a difficult issue for the liquor and hospitality industry in British Columbia: if employees or agents of the Liquor and Cannabis Licensing Branch investigative, prosecute and decide contraventions, isn’t the Branch being the judge in its own cause?

If you are reading this, and feel that way, you are not alone. Back in 2001 Squamish’s very own Ocean Port Hotel and Bar took this very issue to the Supreme court of Canada. That decision, Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, can be read in full here.

Evidently the Ocean Port Hotel had run into some difficulties with intoxicated patrons and minors, and was on the receiving end of a two-day licence suspension. Madam Justice Huddart of the British Columbia Court of Appeal found that BC’s then Liquor Appeal Board lacked independence, and set its decision aside.

On the further appeal to the Supreme Court of Canada, Chief Justice McLachlin addressed the issue squarely in the very first paragraph of the judgment:

This appeal raises a critical but largely unexplored issue of administrative law: the degree of independence required of members sitting on administrative tribunals empowered to impose penalties.  As the intervening Attorneys General emphasize, this is an issue that implicates the structures of administrative bodies across the nation.

In Ocean Port Hotel the Supreme Court of Canada court confirmed that in the world of administrative law, the practice of the executive branch of government wearing several hats (e.g investigator, prosecutor, decision maker) is not only common but acceptable, provided it is different individuals fulfilling each role.

The court confirmed that ultimately it is up to Parliament or the provincial legislatures to determine the nature of an administrative tribunal’s relationship to the executive. For instance, in British Columbia section 5 of the (current) Liquor Control and Licensing Act confirms that the General Manager may delegate his or her authority under the Act, including the authority to conduct enforcement and reconsideration hearings, to employees or other persons.

The British Columbia legislature, having determined expressly the parameters for the delegation of the General Manager’s powers and duties, it would not be appropriate for the court to second guess that process.  The court explained its reasoning as follows:

• Superior courts, by virtue of their role as courts of inherent jurisdiction, are constitutionally required to possess objective guarantees of both individual and institutional independence. 

• Administrative tribunals, by contrast, lack this constitutional distinction from the executive.  They are, in fact, created precisely for the purpose of implementing government policy.  Implementation of that policy may require them to make quasi-judicial decisions. They thus may be seen as spanning the constitutional divide between the executive and judicial branches of government. 

• It is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it. 

• While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not.  Thus, the degree of independence required of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected.

What does it all means?

It is important that licensees in British Columbia, at every step of the enforcement process, from inspection/investigation, to contravention hearing, to reconsideration hearing, understand the procedures and their rights and responsibilities along the way.

The Branch’s current reconsideration practices and policies do not provide licensees with access to a truly independent and separate decision maker – at least not for the time being.

The General Manager could choose to delegate his or her decision-making authority to a different panel of individuals to conduct reconsideration hearings, and provide those decision makers with resources and directions to ensure a greater degree of independence and administrative separation from the other arms of the Branch.

Administrative independence vs bias

Finally, it is worth stressing that a tribunal’s lack of independence from the executive branch of government does not mean its decision makers are necessarily bias to any one particular outcome, or lack impartiality.

Independence and impartiality are related but distinct concepts. When Alcohol & Advocacy discusses the independence of a tribunal, in this instance the General Manager’s delegates who make reconsideration decisions, the discussion is limited to the status of that decision-making body and its relationship with the other actors within the Branch.

Whether or not any particular decision maker is bias to a particular outcome, or there is a reasonable apprehension of the decision maker’s bias , requires a fact specific analysis distinct from an assessment of the status of a tribunal as a whole.

The law with respect to bias in the administrative context will be the subject of a future post.

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.