Liquor Law Appeals Part 1 – Judicial Review
British Columbia’s liquor licensing regime is administered by the general manager – an individual appointed under the Public Service Act by the cabinet minister responsible for the Liquor Distribution Branch, which is currently part of the Ministry of Small Business portfolio. The general manager, and the staff he or she delegates powers and responsibilities to, have significant impact on the way liquor laws are developed and applied in British Columbia.
Every day the Liquor Control and Licensing Branch makes decisions that affect the way liquor is manufactured, sold and served throughout the province. Alcohol & Advocacy has previously discussed the administrative regime here.
Many of the day-to-day decisions the general manager makes are not controversial – like issuing a liquor licence to a new restaurant, or amending the terms of a liquor primary licence to increase the establishment’s hours of service. Other times, the general manager’s decisions will be controversial, like refusing to issue a liquor licence or suspending a licence for a significant period of time. These latter decisions have a significant and negative impact on the affected business, and owners are managers are often left wondering what to do next?
Most licensees in British Columbia will be surprised to learn that the Liquor Control and Licensing Act does not provide licensees with the right to appeal decisions of the general manager. Prior to 2002, there was a Liquor Appeal Board that heard appeals of the general manager’s decisions, but in the early part of 2002 the Act was amended, and the Liquor Appeal Board was eliminated.
Licensees may regain the ability to appeal decisions of the Branch when the new Liquor Control and Licensing Act comes into force. Recommendation #15 of the 2014 Yap Report recommends:
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.
According to the Branch’s website this recommendation is in “progress” and at this time the Branch has not released any further information.
Under the current liquor law regime in British Columbia a licensee who believes it has been unfairly treated by the Liquor Control and Licensing Branch or the Liquor Distribution Branch must apply to the B.C. Supreme Court for a judicial review of the decision to obtain relief. That means hiring a lawyer familiar with not only British Columbia’s liquor laws, but also the practice of administrative law.
If your business has received a negative decision from the Branch, contact a lawyer who practices in the area of liquor law immediately to better understand your rights. Your failure to act promptly may result in an inability to later challenge the decision.
What is a Judicial Review?
Many business owners, and even lawyers who do not regularly practice administrative law, don’t fully appreciate what a judicial review is. A judicial review is not a rehearing of the adverse decision, nor is it an opportunity for a “do over” from the initial hearing or application where new evidence or arguments can be raised. Put another way, the judge hearing the judicial review is not concerned about whether he or she would have decided the issue differently. Instead the judge is limited to deciding whether the Branch had the authority to make the decision at issue, and whether the tribunal exercised that authority properly.
If the judge hearing the case agrees with the licensee, and finds that there was a procedural or substantive error, the remedy provide by the court is normally limited to sending the matter back to the Branch for a re-hearing or reconsideration rather than the court itself making a final determination of the issue. This means that even if a licensee “wins” the judicial review, they may face the same outcome when the issue is presented to the general manager again – albeit with some instruction coming from the court.
The government of British Columbia delegated authority over the licensing and regulation of liquor in British Columbia to the Liquor Control and Licensing Branch, and in doing so authorized the Branch to interpret and enforce those liquor laws. A judge hearing an application for a judicial review of a decision of the Branch is required to recognize that the Branch is a specialized decision maker with expertise in interpreting and applying British Columbia’s liquor laws under the Act. Because of that expertise, and the government’s express delegation of authority, the courts will not lightly interfere with the Branch’s decision making.
For a judge to interfere with a decision of the Branch, a licensee must prove that the general manager acted without authority, acted unreasonably, or did not treat the licensee fairly. These are high thresholds to meet. A mere technical error by the general manager, or a decision that is harsh – but not unreasonable, will not be sufficient for a judge to set-aside the Branch’s decision and order a new hearing.
How to approach Judicial Review?
Administrative tribunals, like the one established under the Liquor Control and Licensing Act to hear and decide enforcement issues, are intended to be less formal than traditional court proceedings. This is a good thing: it allows hearings to be conducted more swiftly than trials, and makes the process more accessible for licenses who wish to represent themselves before the Branch. However just because the enforcement hearing process is less formal than the court process does not mean a licensee can afford to approach the hearing casually.
It is of paramount importance that a licensee put its best foot forward at an enforcement hearing. This means hiring knowledgeable counsel early in the process.
In Liquor Law Appeals Part 2 Alcohol & Advocacy will examine a recent decision of the Court of Appeal in The Cambie Malone’s Corporation v. British Columbia (Liquor Control and Licensing Branch), and consider how the Court of Appeal applied the concepts of judicial review to enforcement action taken by the Branch against pubs in Victoria and Nanaimo.
*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.