Re the Cambie: The Supreme Court & Liquor Branch Requests
On April 23, 2015 the Supreme Court of British Columbia released its reasons in The Cambie Malone’s Corporation v. British Columbia (Liquor Control and Licensing Branch).
Re the Cambie was an application for judicial review (appeal) of a May 8, 2014 decision of the Liquor Control and Licensing Branch where the adjudicator found the Cambie in Nanaimo to be in contravention of both Section 43(2)(b) of the Liquor Control and Licensing Act for permitting an intoxicated person to remain in the establishment, as well as and Section 73(2)(a) of the Act for failing to promptly provide documents requested by a liquor inspector.
The Supreme Court upheld the Branch’s decision, and in doing so reinforced the Branch’s message to the Cambie, as well as other licensees – when the Branch writes, respond quickly and thoroughly. Whether you operate a bar or a brewery, communications with the Branch are not something to be treated lightly, or dealt with only when it is convenient. The fine the Branch imposed on the Cambie for failing to promptly provide documents was $7,500. With the proper systems in the place the fine could have been avoided.
Section 73 of the Act provides that in order to obtain information respecting the administration or enforcement of the Act or the Regulations, a liquor inspector or some other person designated by the general manager of the Branch may require a licensee to produce any prescribed document, record or sample, and do so promptly when requested.
On April 2, 2013, the Cambie was issued a contravention notice by the Branch for allegedly permitting an intoxicated person to remain in the establishment. In order to further investigate the contravention, on April 3, 2013 the Branch wrote to the Cambie by registered mail seeking the following information to assist in the Branch’s investigation*:
- A list of all personnel working at the establishment on March 30, 2013 along with a copy of each employee’s Serving it Right certificate;
- Any staff training manual or document that provides guidance in respect of intoxicated patrons;
- A record of the actual operating hours of the bar; and
- The incident book of the establishment.
(*If the licensed establishment you own or manage could not promptly provide a liquor inspector with these records you ought to reconsider whether you are doing enough to comply with the terms of your licence)
The correspondence was sent to the Cambie’s premises in Nanaimo, which was the contact address the Branch had on file for the liquor licence. An employee of the Cambie received the correspondence on April 4, 2013. The Branch required the Cambie respond with the requested documents on or before April 12, 2013.
Having not received a response to the letter of April 3, 2013, on April 18, 2013 the liquor inspector issued a second contravention notice to the licensee, under s. 73(2)(a) of the Act for failing to promptly provide documents to the Branch when requested. This second contravention notice was also sent by registered mail to the licensee’s address, with the same employee signing for the delivery.
It was not until May 3, 2013 when the licensee responded to the liquor inspector. He acknowledged that he had received the earlier correspondence, but reminded her that he had previously told her that he required all Branch correspondence be sent to his business address in Vancouver, rather than the Cambie’s address in Nanaimo. In a follow-up letter of May 22, 2013 the licensee enclosed some but not all of the requested documents.
At issue before the adjudicator, and the Supreme Court on judicial review, was the licensee’s submission that because he had provided the liquor inspector with his business card, and told her to contact him at the telephone number and mailing address on the card (and not at the address affiliated with the Cambie’s liquor licence), he should not be liable for a contravening the Act by failing to respond to the Branch’s request promptly. According to the licensee, because he had informally provided the liquor inspector with this “change of address” she should not have sent urgent or official correspondence to the Cambie – but rather to his Vancouver office.
The adjudicator rejected the licensee’s submissions on this point. The adjudicator held that providing a liquor inspector with a business card with a Vancouver address is not sufficient notice to the Branch of a change of mailing address. Moreover, the licensee is responsible for hiring and training his employees and when the licensee is not on the premises of his establishment he is responsible for ensuring his employees respond immediately to mail from the Branch. Accordingly the adjudicator found that the licensee contravened section 73(2)(a) of the Act by not promptly producing and submitting for inspection any record, thing or sample requested by a person acting under the authority of that section.
For licensees the takeaways from Re the Cambie are significant:
- Ensure that your contact details with the Branch are current so that correspondence is sent to a location where it will be received by the appropriate individuals.
- Be sure your staff understand that any and all correspondence from the Branch needs to be treated seriously.
- Even if you are friendly with your local liquor inspector, that does not mean you are relieved from strict compliance with the Act.
- Be sure your records are kept in an organized and accessible manner so that a response to a demand for documents can be made quickly.
If you have received correspondence from the Liquor Control and Licensing Branch related to a contravention notice or a notice of enforcement action, and are unsure how to proceed, you should consider retaining legal counsel. If the Branch has already levied a fine or licence suspension against your establishment, and you are considering appealing that decision, you should contact counsel immediately.
*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.
