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.

How does the reconsideration process work?

The reconsideration process was rolled out in Policy Directive 16-19, which can be read here. The Branch explained that under the old Act the General Manager (on whose behalf all enforcement decisions are made) had no authority to fix errors in his or her enforcement decisions and licensees who disagreed with those erroneous decisions had to apply to the B.C. Supreme Court for judicial review to obtain a correction.

The new reconsideration process was touted as a benefit to licensees. The official explanation for the new policy was that “the cost of applying for judicial review can be a barrier for licensees, and the court process can be daunting for unrepresented licensees.” This begs the question: has the reconsideration process proven to be a cheaper or otherwise more effective means of redress for licensees? Is it any less daunting than applying for judicial review?

It’s been three years since liquor licensees and permittees in British Columbia could seek a reconsideration of enforcement orders, and we are starting to see reconsideration decision being published on the Branch’s website, for example Re Kititmat Hotel, REH19-03 and Re Fets Whisky Kitchen, REH18-003. In both instances the licensee was unsuccessful in achieving a different outcome on reconsideration.

For a licensee to succeed on reconsideration, it must understand who the players are and how the process works.

Reconsideration is not an “appeal” or a new hearing

Reconsideration is not an opportunity to re-argue the case; it is not a trial de novo.

Subject to a licensee demonstrating that it is now in possession of substantial and material evidence that is new or was not discovered or discoverable at the time of the original hearing (a high threshold to meet), a reconsideration hearing is a limited review on the record of the evidence (documents, witness testimony etc.) that was before the initial decision maker. In most cases the review will be limited to errors of law, and evidence of a failure by the Branch to observe the rules of procedural fairness.

These limits are significant. Decisions of the General Manager that lead to enforcement orders tend to be fact specific. Outcomes turn heavily on findings made by the General Manager’s delegates on issues such as over-service, intoxication, due diligence and the application of those factual findings the delegates’ interpretation of the Act, the Regulation and the terms and conditions of the subject licence or permit. These are determinations reached based on the delegate’s weighing of the evidence before him or her.

If a decision maker in first instance makes findings of fact (e.g. the patron was served eight drinks) or inferences from facts (e.g. the patron exhibited signs of intoxication) those findings cannot be challenged on reconsideration.

Reconsideration submissions are made in writing

Enforcement hearings are typically conducted in person, permitting oral advocacy. Oral hearings permit licensees, or their counsel, to present their case fully and also engage meaningfully with the decision maker, answering questions or clearing up ambiguities in the record.

A reconsideration, by contrast, is typically limited to a paper review of the record, and the written submissions of the licensee.

The decision maker who decides the reconsideration application is not independent

Enforcement hearings are conducted by delegates of the General Manager of the Liquor & Cannabis Regulation Branch. They are by definition not independent from the Branch.

The Branch’s case will be put forward by a Branch advocate, who as the name suggests also works for the Liquor & Cannabis Regulation Branch. The Branch advocate will almost certainly call as witnesses one or more liquor inspectors to give evidence. Those liquor inspectors also work for the Branch.

The reconsideration decision maker is also a delegate of the General Manager. He or she is not independent of the Branch, instead he or she will have been appointed by the General Manger to exercise the General Manager’s authority under the Act.

Reconsideration is an opportunity to make legal or procedural submissions

The General Manager’s delegate deciding a licensee’s reconsideration application has a narrow mandate, and very limited discretion. Outside of the rare situation where new evidence becomes available, he or she will concern themselves with determining whether the initial decision maker made an error of law, or failed to observe the rules of procedural fairness (sometimes called natural justice).

Errors of this nature must be corrected, but identifying them and convincing a delegate of the General Manager that his or her colleague was wrong is challenging and complex work.

In Part 2, Alcohol & Advocacy will consider whether the Liquor and Cannabis Regulation Branch’s reconsideration process is structured to be cheaper and less daunting for licensees.

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.