The Due Diligence Defence: “good intentions” are not enough
One of the defences a licensee can raise at an enforcement hearing before a Delegate of the General Manager of the Liquor & Cannabis Regulation Branch is the defence of due diligence. To be successful the licensee must satisfy the Delegate that the licensee had implemented adequate training to prevent the subject contravention and taken reasonable steps to ensure the effective application of that education and the operations of those systems.
Too many licensees appear before the tribunal without adequate evidence, organization, or submissions to satisfy the General Manager’s Delegate that they have met the due diligence standard. The Branch’s recent decision in Re: Boston Pizza Restaurant & Sports Bar is another example. You can read the decision in full here.
The General Manager’s Delegate, in finding that the licensee had not established the defence of due diligence and confirming the contravention of serving a minor in contravention of section 77(1)(a) of the Liquor Control and Licensing Act, was at pains to acknowledge that the licensee takes its responsibilities seriously and has “sincere and good intentions to prevent the sale of liquor to minors.” Unfortunately for the Boston Pizza licensee – good intentions are not enough. The Delegate went on to be critical of the nature and focus of its staff orientation and training materials and its significant failures in making, keeping and presenting adequate evidence of its due diligence efforts.
To successfully raise the defence of due diligence a licensee must:
- In fact have been duly diligent in the implementation and follow through of a training regimen; and
- Come before the tribunal with the necessary documents and witnesses to satisfy the General Manager’s Delegate that the training and education in place at the establishment was both adequate and effective.
Providing your employees with comprehensive and ongoing training on BC’s liquor laws and responsible service is important – but if you can’t prove it when a licence suspension or hefty fine is on the line it won’t do you much good. Evidence and advocacy is everything.
In Re: Boston Pizza Restaurant & Sports Bar the Liquor & Cannabis Regulation Branch alleged that on October 28, 2019 Boston Pizza contravened Section 77(1)(a) of the Liquor Control and Licensing Act by selling liquor to a minor. In this instance, the minor was employed by the Branch as part of its Minors as Agent program. Alcohol & Advocacy has previously written about the MAP program here and here.
The minor agent attended the Boston Pizza at about 3:00 p.m. in the afternoon, a time when the establishment was not busy and took a seat at the bar in the lounge area. Two liquor inspectors subsequently entered the establishment and were seated at a table in the lounge area about ten feet away from the minor.
The minor agent ordered, and was served, a house white wine. The server did not ask the minor for identification. The liquor inspectors subsequently identified themselves to management of the Boston Pizza, took possession of the white wine and obtained a receipt for the purchase.
On December 17, 2019 the Branch issued a notice of enforcement action.
A first contravention of this type calls for a penalty of a 7 – 11 day licence suspension and/or a $7,000 – $11,000 monetary penalty.
Boston Pizza admitted that its employee sold liquor to the minor agent, but disputed the finding of a contravention on the basis that it had been duly diligent in adequately training it server not to serve alcohol to minors.
Boston Pizza gave evidence through two representatives, Danny and Ryan MacEachern. Both men testified that they have served as RCMP reserve constables and that they take the responsible service of liquor seriously.
For industry observers it’s also interesting to note that the licensee was not represented at the hearing by legal counsel but rather used an “advisor” to make submissions.
The thrust of the licensee’s due diligence submissions was that it has a policy that servers must request identification from anyone who looks under the age of 30, and that this policy and other training related to preventing the service of alcohol to minors is explained and reinforced with staff through extensive workplace orientation, training, shift meetings, workplace signage and similar initiatives. Taken at face value this summary of the licensee’s efforts is compelling.
Unfortunately for the licensee, upon the Delegate’s closer examination of the evidence much of the orientation and training Boston Pizza provides to its staff focuses on matters other than asking patrons for identification. While these other topics are no doubt important to the efficient operation of the business, they are of little assistance in mounting a due diligence defence.
Worse still, at the hearing the licensee did not lead documentary evidence to prove that the aspects of its in-house training that did relate to serving minors were adequately implemented. For example:
- no checklist of matters covered during a new server’s two weeks of training was either kept by the licensee or tendered by it at the hearing;
- the licensee uses an in-house communication tool, a “Jolt” tablet, to communicate to staff the importance of checking patron identification. The licensee did not provide the General Manager’s Delegate with a record of these communications at the hearing;
- one of the licensee representatives gave evidence about regular meetings the licensee’s general managers have to discuss major topics, but no records were provided at the hearing related to the agenda or notes taken during these initiatives; and
- the licensee’s general manager conducts daily pre-shift meetings with servers that reminds them to check ID when serving alcohol, but those meeting agendas are not kept.
As mentioned above, the General Manager’s Delegate acknowledged that the licensee takes it responsibilities seriously and has sincere and good intentions to prevent the sale of liquor to minors. Nevertheless, in rejecting the licensee’s defence of due diligence the General Manager’s Delegate was critical of the licensee’s “lack of documentation to support its oral evidence and the lack of focus in the documents presented on the need to avoid serving minors and how to do that by requesting and assessing proper identification.”
In issuing her decision the General Manager’s Delegate took the unusual step of recommending to the licensee that moving forward it take minutes of its staff meetings so that they can be shared with staff unable to attend, and substantiate in the future the fact that such a program is in place.
At a hearing the onus is on the licensee to establish, on a balance of probabilities, that it has exercised all reasonable care by establishing adequate training and other systems and ensuring the effective application of them. This is high, but not impossible, standard to meet.
In Re: Boston Pizza, the General Manager’s Delegate received evidence from the licensee’s representatives on a variety of initiatives that at first blush were intended to address preventing the service of alcohol to minors. Had these programs been more carefully executed and documented, they very well could have satisfied the due diligence threshold.
Having found that the licensee failed to establish a defence of due diligence, the General Manager’s Delegate found that the licensee contravened the Act and ordered a monetary penalty in the amount of $7,000.
Although enforcement hearings before a Delegate of the General Manager are considerably more casual than proceedings in courtrooms they are nevertheless adversarial in nature: witnesses are examined and cross-examined, documents are tendered and scrutinized by a decision maker, and submissions are made on the facts and the law.
It’s crucial that licensees appearing at enforcement hearings come prepared with organized and comprehensive evidence setting out in detail their due diligence efforts, along with persuasive submissions explaining the efficacy of these programs. Sincere and good intentions on their own are not enough.
If your bar or restaurant is facing enforcement action by the Branch, or has recently received a notice of contravention, 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