Liquor Law Appeals Part 2 – The Cambie Malone’s Corporation
On April 13, 2016 the British Columbia Court of Appeal released its reasons in The Cambie Malone’s Corporation v. British Columbia (Liquor Control and Licensing Branch).
The Cambie Malone’s decision related to two appeals by the Cambie Malone’s corporation of two separate judicial review decisions made in March and April 2015. Both appeals were dismissed. British Columbia’s highest court does not often get the opportunity to weigh-in on liquor law disputes, so when it does stakeholders in the industry should take notice.
In Part 1 of Liquor Law Appeals Alcohol & Advocacy reviewed the basic principles of judicial review. Here in Part 2 Alcohol & Advocacy highlights how the courts apply those principles.
On April 8, 2013 the Branch issued a Notice of Enforcement Action against the Victoria location of Cambie Malone’s for permitting an intoxicated patron to remain on its premises. At a pre-hearing conference in June, 2013 counsel for Cambie Malone’s advised the Branch it was in possession of a video surveillance tape from the time of the alleged contravention – which it said proved there was not an intoxicated person in the premises at the material time. The Branch requested that Cambie Malone’s turn over the tape as soon as possible, and that failure to do so could result in the tape being inadmissible at the hearing. The Branch initially set February, 2014 as the deadline for disclosure of the evidence, but as a result of an adjournment request by Cambie Malone’s, the Branch set a new disclosure date of April, 2014.
On May 5, 2014, the day before the hearing was scheduled to commence, Cambie Malone’s sought consent from the Branch’s advocate to introduce into evidence the still undisclosed video. The Branch’s advocate refused to consent to the late disclosure of evidence, and the hearing adjudicator refused to allow it.
The adjudicator found that Cambie Malone’s failure to comply with the pre-hearing requirement for production of documents must be taken seriously, that such behaviour amounted to ignoring the rules, and that admission of late evidence would ultimately make the hearing unfair for the Branch.
The hearing continued without the video evidence. The adjudicator found that the contravention had been established, and imposed a four-day licence suspension.
Cambie Malone’s sought a judicial review of the decision on the basis that it was procedurally unfair that it was not permitted to adduce the video into evidence. The judge hearing the judicial review dismissed the application finding that the decision to not admit the video was an exercise of discretion, and no grounds had been shown warranting interference with that decision.
On this issue the Court of Appeal held that Cambie Malone’s cannot complain of procedural unfairness when it ignored the rules governing disclosure of evidence before the hearing – the very rules designed to promote fairness at the hearing itself. The Court of Appeal also observed that Cambie Malone’s on the appeal was arguing issues that were not raised before the judge hearing the judicial review, and so those arguments were not considered.
On April 2, 2013 the Branch issued a Contravention Notice against Cambie Malone’s Nanaimo location for permitting an intoxicated person to remain on the premises. Alcohol & Advocacy has already discussed the facts of this judicial review in detail here. In brief, the facts were as follows: after serving the Nanaimo location of Cambie Malone’s with a Contravention Notice the Branch followed-up demanding the production of certain records – namely Serving it Rights certifications, staff training manuals, and the establishment’s incident book. Cambie Malone’s refused to provide the requested materials in a timely fashion, and at the hearing various contraventions (including failing to provide requested records to the Branch) were proven.
Before the tribunal Cambie Malone’s argued that the Branch should not have sent demands for documents to its official mailing address on file with the Branch, but rather correspondence should have been sent directly to the Cambie Malone’s owner, who at some prior date had provided the relevant liquor inspector with his business card. The adjudicator rejected this submission, and awarded a monetary penalty against Cambie Malone’s for failing to provide the requested records. The Court on judicial review did not disturb the decision.
Before the Court of Appeal Cambie Malone’s attempted to revisit the finding of contravention in relation to permitting an intoxicated person to remain in the premises (an issue abandoned on the hearing of the judicial review) as well as challenging on the harshness of the penalty (even though at the judicial review it previously conceded that the penalty was appropriate if the contravention was proven) and lastly it raised new arguments about natural justice and bias that had not been previously raised. The Court of Appeal determined that each of these arguments were inappropriate and merit-less.
The Court of Appeal, after dismissing both appeals, took the unusual step of commenting that neither appeal had any substantial merit and that although the Liquor Control and Licensing Branch did not seek an award of costs against Cambie Malone’s, and so the Court did not make such an award, the Court does have authority to sanction parties who bring merit-less appeals. The Court warned that “litigants in Cambie’s situation should govern themselves in the future with this in mind.”
Licensees considering their options after receiving a fine or suspension from the Branch should do so carefully, and consult with a lawyer familiar with British Columbia’s liquor laws.
A successful appearance before the Branch, or the Court on judicial review, takes considerable planning and work on behalf of the licensee and counsel. Though it may be tempting for a licensee to represent themselves before the Branch, or retain the services of a consultant rather than a lawyer to assist them with gathering evidence and preparing submissions, a failure to properly present the necessary evidence and arguments at the outset of a dispute with the Branch will likely prevent a licensee from revisiting the issues later before the court.
Licensees should take away the following reminders from the Court of Appeal decision:
- At the first sign of a dispute with the Branch or a liquor inspector understand what is required from you, review the related correspondence closely, and then respond promptly.
- Gather evidence and identify relevant facts and witnesses early. Don’t wait until the hearing date has been set before you begin organizing your defence.
- When served with a Contravention Notice, or a Notice of Enforcement Action, isolate the facts that you agree with, and those that are genuinely in dispute.
- Put your best foot forward at the initial hearing, you cannot hold back arguments to raise them at judicial review.
- Speak with a lawyer early to ensure you understand the tribunal process.
- Seriously consider the merits of pursuing a judicial review of an adverse decision.