532871 B.C. Ltd. v. Liquor Control and Licensing Branch (B.C.), (2005) 215 B.C.A.C. 265 (CA)

• Judge: Prowse, Huddart and Saunders, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: March 16, 2005
• Jurisdiction: British Columbia
• Citations: (2005), 215 B.C.A.C. 265 (CA);2005 BCCA 416

532871 B.C. v. Liquor Control (2005), 215 B.C.A.C. 265 (CA);

    355 W.A.C. 265

MLB headnote and full text

Temp. Cite: [2005] B.C.A.C. TBEd. AU.033

532871 B.C. Ltd. d.b.a. Urban Well (appellant/petitioner) v. General Manager Liquor Control and Licensing Branch (respondent/respondent)

(CA032081; 2005 BCCA 416)

Indexed As: 532871 B.C. Ltd. v. Liquor Control and Licensing Branch (B.C.)

British Columbia Court of Appeal

Prowse, Huddart and Saunders, JJ.A.

August 17, 2005.

Summary:

The General Manager, Liquor Control and Licensing Branch, found that a restaurant had contravened the conditions associated with its liquor licence on 12 occasions between November 2001 and March 2002. The General Manager suspended the restaurant's licence for a total of 45 days. The restaurant applied for judicial review.

The British Columbia Supreme Court, in a decision reported at [2004] B.C.T.C. 127, quashed the General Manager's determination with respect to one contravention and the associated four day suspension. The court otherwise dismissed the application. The restaurant appealed.

The British Columbia Court of Appeal, Prowse, J.A., dissenting in part, allowed the appeal to the extent of quashing the suspension. The court remitted the matter to the General Manager for a redetermination of the appropriate penalties.

Liquor Control - Topic 4282

Licensing - Denial, suspension, transfer or termination of licence - Grounds - Failure to comply with statute - Section 17(2) of the Liquor Control and Licensing Regulation provided that a class "B" licence was for the issuance to "a dining establishment that is primarily engaged in the service of food during all hours of its operation" and required that, subject to certain exceptions, a patron who ordered liquor was to be served food from a reasonable selection of menu items available at all hours of operation - The British Columbia Court of Appeal held that s. 17(2) permitted an allegation of contravention of its general language and held that the General Manager, Liquor Control and Licensing Branch, could take enforcement action under s. 20(1)(a) for not being primarily engaged in service of food during all hours of operation - Section 38(3) prohibited selling liquor not in accordance with the Act, Regulation and terms and conditions of the licence - The general criteria of a licence were terms of the licence - Selling liquor in contravention of the general criteria was a contravention of s. 38(3) and permitted action under s. 20(1)(a) - Further, under s. 20(1)(d), the General Manager could take action for a circumstance that would prevent a licence from issuing or being renewed - A failure to comply with the Regulations that prevailed at the time of renewal, could preclude renewal - See paragraphs 22 to 26.

Liquor Control - Topic 4282

Licensing - Denial, suspension, transfer or termination of licence - Grounds - Failure to comply with statute - The General Manager, Liquor Control and Licensing Branch, issued a Notice of Enforcement Action to a restaurant with a class "B" licence - The notice described two of the charges as "not primarily engaged in the service of food" and referred to item 1 from Schedule 4 of the Liquor Control and Licensing Regulation, which, under the heading "Operating Outside of Licence Class" described item 1 as "Operating the licensed establishment in such a way that it differs in nature from the class ... to which the licence is intended to apply" - The British Columbia Court of Appeal held that item 1 included the violation "not primarily engaged in the service of food during all hours", the general descriptive of an establishment with a Class "B" licence - The penalty provision of the Regulation, referred to in the Notice of Enforcement Act by item number was applicable to the two contraventions - Accordingly, the General Manager was entitled to penalize as allowed by item 1 of Schedule 4 - See paragraphs 27 to 29.

Liquor Control - Topic 4282

Licensing - Denial, suspension, transfer or termination of licence - Grounds - Failure to comply with statute - The General Manager, Liquor Control and Licensing Branch, found that a restaurant with a class "B" licence was not engaged primarily in the service of food contrary to ss. 16 and 20 of the Liquor Control and Licensing Act and s. 17(2) of the Liquor Control and Licensing Regulation - The General Manager found that the restaurant had altered its character from a food primary focus to a liquor primary focus on two specified dates - Section 17(2) provided that a class "B" licence was for the issuance to "a dining establishment that is primarily engaged in the service of food during all hours of its operation" - The restaurant applied for judicial review - The restaurant asserted that an establishment could not be said to be operating outside of its licence class on a single occasion and that s. 17(2) should not be interpreted to require that an establishment be primarily engaged in the service of food each and every hour of operation - The British Columbia Court of Appeal rejected the assertions - "All hours of its operations" meant that patrons, for all hours of an establishment's operation, were primarily those to whom food was, or had been, served - See paragraphs 51 to 54.

Liquor Control - Topic 4282

Licensing - Denial, suspension, transfer or termination of licence - Grounds - Failure to comply with statute - The General Manager, Liquor Control and Licensing Branch, found that a restaurant, on 12 occasions, had contravened the conditions which its liquor licence was subject to under Liquor Control and Licensing Regulations - The General Manager suspended the restaurant's licence for a total of 45 days (reduced to 41 on judicial review because of a reversal of one contravention finding) - On appeal, the restaurant asserted that the General Manager misinterpreted the Regulation when she concluded that each violation required a suspension and that they were required to be cumulative - The British Columbia Court of Appeal quashed the suspensions - In the interest of fairness and the avoidance of abuse, the permissive language of s. 20 of the Liquor Control and Licensing Act and s. 52 of the Regulation had to read so as to maintain the General Manager's discretion to decline to impose a penalty - The General Manager appeared to have recognized this flexibility, but then referred to the absence of mitigating circumstances and adopted a default position that assumed imposition of a suspension - This eroded the full exercise of her discretion - The General Manager was required to ask as her first question in imposing a penalty, whether the circumstances, both individually on the contravention and with other suspensions that might issue, justified a suspension for the particular infraction - The first question in the exercise of her discretion should be whether a suspension or fine should be imposed, not whether such a penalty should not be imposed - See paragraphs 56 to 65.

Liquor Control - Topic 4282.1

Licensing - Denial, suspension, transfer or termination of licence - Grounds - Failure to comply with conditions of licence - [See all Liquor Control - Topic 4282 ].

Liquor Control - Topic 4290

Licensing - Denial, suspension, transfer or termination of licence - Appeals - General - Scope or standard of review - The General Manager, Liquor Control and Licensing Branch, found that a restaurant was not engaged primarily in the service of food contrary to ss. 16 and 20 of the Liquor Control and Licensing Act and s. 17(2) of the Liquor Control and Licensing Regulation - The General Manager found that the restaurant had altered its character from a food primary focus to a liquor primary focus on two different dates - The restaurant applied for judicial review - The British Columbia Court of Appeal stated that the General Manager's interpretation of s. 17(2) was to be reviewed on the standard of correctness - Her decision that the restaurant's actions constituted a violation of the section was to be reviewed on the standard of reasonableness - See paragraphs 41 to 50.

Cases Noticed:

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193; 11 Admin. L.R.(3d) 1, refd to. [para. 38].

Zodiac Pub Ltd. v. Liquor Control and Licensing Branch (B.C.), [2004] B.C.T.C. 96; 2004 BCSC 96, refd to. [para. 38].

Barrie Public Utilities et al. v. Canadian Cable Television Association et al., [2003] 1 S.C.R. 476; 304 N.R. 1; 2003 SCC 28, refd to. [para. 46].

Statutes Noticed:

Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267, sect. 20(1), sect. 20(2) [para. 9].

Liquor Control and Licensing Act Regulations (B.C.), Liquor Control and Licensing Regulation, B.C. Reg. 608/76, sect. 17(2) [para. 13]; sect. 52(1) [para. 56].

Liquor Control and Licensing Regulation - see Liquor Control and Licensing Act Regulations (B.C.).

Counsel:

D.G. Butcher, for the appellant;

N. Poole, for the respondent.

This appeal was heard on March 16, 2005, by Prowse, Huddart and Saunders, JJ.A., of the British Columbia Court of Appeal. The decision of the court was released on August 17, 2005, with the following opinions:

Saunders, J.A. (Huddart, J.A., concurring) - see paragraphs 1 to 65;

Prowse, J.A., dissenting in part - see paragraphs 66 to 73.