Alta. Liquor Store v. Gaming & Liquor Comm.,

• Judge: Slatter, J.
• Neutral Citation: 2006 ABQB 904
• Citation: (2006), 406 A.R. 104 (QB),2006 ABQB 904,[2007] 4 WWR 131,406 AR 104,69 Alta LR (4th) 98,58 Admin LR (4th) 22,[2006] AJ No 1597 (QL),(2006), 406 AR 104 (QB),406 A.R. 104,[2006] A.J. No 1597 (QL)
• Date: 12 October 2006
• Court: Court of Queen's Bench of Alberta (Canada)

Alta. Liquor Store v. Gaming & Liquor Comm. (2006), 406 A.R. 104 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JA.042

Alberta Liquor Store Association, Crossroads Liquor Ltd. and Country Hills Liquor Store Ltd. (applicants) v. Alberta Gaming and Liquor Commission and Costco Canada Liquor Inc. (respondents)

(0603 06675)

Alberta Liquor Store Association, Anderson's Liquor Inc. and Franklin Spirits Ltd. (applicants) v. Alberta Gaming and Liquor Commission and The Real Canadian Liquor Store Ltd. (respondents)

(0603 06678; 2006 ABQB 904)

Indexed As: Alberta Liquor Store Association et al. v. Gaming and Liquor Commission (Alta.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Slatter, J.

December 14, 2006.

Summary:

The Alberta Gaming and Liquor Commission board granted retail liquor licences to the respondents, Costco Canada Liquor and Real Canadian Liquor Store. Asserting that the respondents would not operate their liquor stores separately from other retail businesses as required by the Gaming and Liquor Act, the Alberta Liquor Store Association and four liquor retailers (the applicants) sought judicial review to quash the board's decisions and a declaration that the respondents were not entitled to liquor store licenses. The respondents challenged the applicants' standing to bring the applications and applied to strike the request for declaratory relief and to strike certain affidavits filed by the applicants.

The Alberta Court of Queen's Bench held that the applicants had sufficient standing to bring the applications. The court refused the application to strike the request for declaratory relief. The court struck two affidavits in their entirety and portions of the affidavits of a third affiant.

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - The Alberta Gaming and Liquor Commission board granted retail liquor licences to the respondents, Costco Canada Liquor and Real Canadian Liquor Store - Asserting that the respondents would not operate their liquor stores separately from other retail businesses as required by the Gaming and Liquor Act, the applicants sought judicial review - The respondents applied to strike certain affidavits - The Alberta Court of Queen's Bench struck two of the affidavits in their entirety and allowed portions of the affidavits of a third affiant - The allowed portions gave evidence regarding the applicants' standing - This was appropriate as standing had been challenged - The remaining affidavits went to the decisions' merits and were struck as attempts to introduce fresh evidence - The applicants were not entitled to turn the judicial review into a trial de novo - The court rejected the argument that the test for using evidence on a judicial review application was similar to the test for using fresh evidence on appeal - The issue before the court was whether the board's decisions met the standard of review - That decision was made on the basis of the record before the board - See paragraphs 34 to 51.

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - The Alberta Gaming and Liquor Commission board granted retail liquor licences to the respondents, Costco Canada Liquor and Real Canadian Liquor Store - Asserting that the respondents would not operate their liquor stores separately from other retail businesses as required by the Gaming and Liquor Act, the applicants sought judicial review - The respondents applied to strike certain affidavits - The Alberta Court of Queen's Bench rejected the applicants' argument that the test for using evidence on a judicial review application was similar to the R. v. Palmer (S.C.C.) test for using fresh evidence on appeal - To suggest that evidence that was not before the tribunal could be brought forward on judicial review simply because it was "fresh" within the Palmer rule confused the entire concept of judicial review - Such evidence could never be "decisive" of the application because the issues in an appeal and a judicial review were different - However, subsequently obtained evidence might be admitted on judicial review if, for example, it showed a reasonable apprehension of bias - Such evidence was not decisive of any issue that was before the tribunal, but it was a valid ground for judicial review - See paragraph 44.

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - [See Administrative Law - Topic 3345 ].

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - The Alberta Gaming and Liquor Commission board granted retail liquor licences to the respondents, Costco Canada Liquor and Real Canadian Liquor Store - Asserting that the respondents would not operate their liquor stores separately from other retail businesses as required by the Gaming and Liquor Act, the applicants, including four liquor retailers, sought judicial review - At issue was the retailers' standing - The respondents asserted that the retailers were not "persons aggrieved" because they were merely trying to protect their competitive position - The Alberta Court of Queen's Bench rejected the argument - The essence of the dispute was whether the regulation of competition was part of the regulatory scheme - The applicants raised a legitimate issue regarding whether the board erred in asserting that competitive issues had no bearing on the licensing decision - To deny the applicants standing on the basis that these assertions were wrong would be to prejudge their applications - Further, as holders of retail liquor licences, the applicants had to comply with the regulatory regime - They had a legitimate interest in ensuring that all other participants also played by the rules - This was enough to make them "aggrieved" - See paragraphs 16 to 18.

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - The Alberta Gaming and Liquor Commission board granted retail liquor licences to the respondents, Costco Canada Liquor and Real Canadian Liquor Store - Asserting that the respondents would not operate their liquor stores separately from other retail businesses as required by the Gaming and Liquor Act, the Alberta Liquor Store Association, a non-profit association of independent liquor retailers, and four liquor retailers (the applicants) sought judicial review - At issue was the Association's standing - The respondents asserted that the Association was not aggrieved by the board's decisions because it did not operate any liquor stores and was not a participant in the industry - The Alberta Court of Queen's Bench rejected the argument - The courts increasingly recognized the validity and desirability of collective action - There was no reason to refuse standing to a society like the Association, particularly where the Association was a long-standing representative of industry members and could be expected to have the expertise and resources to mount a responsible challenge to the questioned acts - See paragraphs 19 to 20.

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - The Alberta Gaming and Liquor Commission board granted retail liquor licences to the respondents, Costco Canada Liquor and Real Canadian Liquor Store - Asserting that the respondents would not operate their liquor stores separately from other retail businesses as required by the Gaming and Liquor Act, the applicants sought judicial review - The respondents asserted that the applicants should be denied standing because they had never before actively challenged the issuance of licences to retailers affiliated with large grocery stores although the Commission had been issuing such licences for 13 years - The Alberta Court of Queen's Bench rejected the argument - An applicant might not realize that an administrative act was vulnerable to challenge or might not realize the implications of an administrative act - However, if the tribunal later made similar decisions and the applicant then realized the error or the implications, the applicant was well within its rights to challenge the more recent decisions - This was so even if the passage of time protected the earlier flawed decisions - See paragraphs 21 to 23.

Administrative Law - Topic 4603

Judicial review - Declaratory action - Practice - Claiming declaratory relief along with other relief - The Alberta Gaming and Liquor Commission board granted retail liquor licences to the respondents - Asserting that the respondents would not operate their liquor stores separately from other retail businesses as required by the Gaming and Liquor Act, the applicants sought judicial review to quash the board's decisions and a declaration that the respondents were not entitled to liquor store licenses - The respondents applied to strike the request for declaratory relief as inappropriate because (i) the declaration would constitute a decision on the merits of whether the licenses should have been issued and (ii) certiorari and a declaration, as alternative remedies, could not be sought in the same application - The Alberta Court of Queen's Bench refused to strike the request for declaratory relief - It was theoretically possible that the applicants could be entitled to a declaration - Limiting the relief that might be granted by the chambers judge who heard the application was not appropriate at this stage - Further, with the addition of Part 53.1 to the Rules of Court in 1987, prerogative relief and a declaration could be applied for simultaneously - See paragraphs 52 to 54.

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status - To appear before the courts when its decisions are under judicial review - The Alberta Liquor Store Association and four liquor retailers (the applicants) sought judicial review of the Alberta Gaming and Liquor Commission board's decisions granting retail liquor licences to Costco Canada Liquor and the Real Canadian Liquor Store - At issue was the Commission's standing - The applicants asserted that the Commission's role in the proceedings should be limited - The Alberta Court of Queen's Bench indicated that it was not appropriate to set in advance firm rules that the Commission had to follow - Factors relevant to the determination of appropriate involvement included the nature of the issue and proceedings and the interests of the parties - Here, where all parties were well-informed, there was less need for the Commission's involvement - Further, where the decisions' merits were challenged, the tribunal should avoid defending its decisions - The board had the opportunity to justify its decision in its reasons - However, it was appropriate for the Commission to have input regarding the standard of review, the meaning and scope of policy and, in some cases, the parties' standing - See paragraphs 25 to 33.

Liquor Control - Topic 4111

Licensing - Grant of licence - Judicial review - [See all Administrative Law - Topic 3347 and Administrative Law - Topic 8843 ].

Practice - Topic 220

Persons who can sue and be sued - Individuals and corporations - Status or standing - Respecting validity of administrative action by government officials or public body - [See first and third Administrative Law - Topic 3347 ].

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing (incl. requirements of) - [See second Administrative Law - Topic 3347 ].

Cases Noticed:

Friends of the Oldman River Society et al. v. Association of Professional Engineers, Geologists and Geophysicists (Alta.) et al., [1998] 5 W.W.R. 179; 208 A.R. 28; 55 Alta. L.R.(3d) 373; 2 Admin. L.R.(3d) 206 (Q.B.), revd. [2001] 8 W.W.R. 405; 277 A.R. 378; 242 W.A.C. 378; 199 D.L.R.(4th) 85; 93 Alta. L.R.(3d) 27; 2001 ABCA 107, refd to. [para. 8].

Reimer Express Lines Ltd. v. Motor Transport Board (Alta.) et al. (1988), 99 A.R. 276 (Q.B.), refd to. [para. 9].

Peters (I.) Transport Ltd. and Jade Transport Ltd. v. Motor Transport Board (Man.) (1981), 17 Man.R.(2d) 359; 128 D.L.R.(3d) 529 (C.A.), refd to. [para. 9].

Maheu v. IMS Health Canada et al. (2003), 226 F.T.R. 269; 24 C.P.R.(4th) 70; 2003 FCT 1, affd. (2003), 314 N.R. 393; 29 C.P.R.(4th) 425; 2003 FCA 462, refd to. [para. 9].

Lee & Lee Enterprises Ltd. v. British Columbia (Attorney General) et al., [2004] B.C.T.C. 1546; 2004 BCSC 1546, refd to. [para. 9].

Northeast Bottle Depot Ltd. et al. v. Beverage Container Management Board (Alta.) et al., [2000] 11 W.W.R. 331; 269 A.R. 248; 82 Alta. L.R.(3d) 346; 25 Admin. L.R.(3d) 73; 2000 ABQB 572, refd to. [para. 9].

Canadian Union of Public Employees, Local 30 v. WMI Waste Management Canada Inc. (1996), 178 A.R. 297; 110 W.A.C. 297; 34 Admin. L.R.(2d) 172 (C.A.), refd to. [para. 10].

Toronto-Dominion Bank v. Real Estate Council of Alberta, [2002] 6 W.W.R. 276; 316 A.R. 280; 1 Alta. L.R.(4th) 154; 2002 ABQB 69, disagreed with [para. 10].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338; [1987] 1 W.W.R. 603, refd to. [para. 13].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241; 88 D.L.R.(4th) 193, refd to. [para. 13].

McConnell v. Rabin (1986), 13 C.P.C.(2d) 184 (Ont. H.C.), refd to. [para. 14].

Sweeney v. Nova Scotia (Attorney General) (2002), 209 N.S.R.(2d) 68; 656 A.P.R. 68; 2002 NSCA 121, refd to. [para. 14].

Friends of Toronto Parkland v. Toronto (City) et al. (1991), 53 O.A.C. 376; 6 O.R.(3d) 196; 86 D.L.R.(4th) 669 (Div. Ct.), refd to. [para.17].

Canadian Telecommunications Union, Division No. 1 of the United Telegraph Workers v. Canadian Brotherhood of Railway, Transport and General Workers et al., [1982] 1 F.C. 603; 42 N.R. 243 ; 126 D.L.R.(3d) 228 (F.C.A.), refd to. [para. 17].

Village Bay Preservation Society v. Mayne Airfield Inc. (1982), 136 D.L.R.(3d) 729 (B.C.S.C.), refd to. [para. 19].

Sea Shepherd Conservation Society v. British Columbia (1984), 55 B.C.L.R. 260; 11 Admin. L.R. 190 (S.C.), refd to. [para. 19].

Association des Proprietaires des Jardins Tache v. Entreprises Dasken Inc., [1974] S.C.R. 2, refd to. [para. 19].

Bence v. Okanagan-Similkameen (Regional District), [2002] B.C.T.C. 478; 31 M.P.L.R.(3d) 56; 2002 BCSC 478, refd to. [para. 19].

Independent Contractors and Business Association et al. v. Canada (Minister of Labour) et al. (1998), 225 N.R. 19; 6 Admin. L.R.(3d) 92; 39 C.L.R.(2d) 121 (F.C.A.), refd to. [para. 19].

Greater Victoria Concerned Citizens Association v. British Columbia (Provincial Capital Commission) (1990), 46 Admin. L.R. 74 (B.C.S.C.), refd to. [para. 64].

Saanich Inlet Preservation Society v. Cowichan Valley (Regional District), [1983] 4 W.W.R. 673; 147 D.L.R.(3d) 174; 44 B.C.L.R. 121 (C.A.), refd to. [para. 20].

Urban Development Institute, Alberta Division v. Leduc (City) (2006), 399 A.R. 357; 2006 ABQB 62, refd to. [para. 20].

Zajes v. Leduc (1987), 84 A.R. 361; 54 Alta. L.R.(2d) 396 (C.A.), refd to. [para. 20].

Leduc (County) No. 25 v. Alberta (Local Authorities Board) - see Zajes v. Leduc.

Urban Development Institute v. Rockyview No. 44 (Municipal District), [2003] 2 W.W.R. 140; 321 A.R. 253; 8 Alta. L.R.(4th) 273; 2002 ABQB 651, refd to. [para. 20].

Frank v. Valleyview (Town) et al., [2006] A.R. Uned. 49; 2006 ABCA 131, refd to. [para. 22].

Essex Incorporated Congregational Church Union v. Essex County Council, [1963] A.C. 808 (H.L.), refd to. [para. 22].

Medicine Hat (City) et al. v. Wilson et al., [2001] 2 W.W.R. 601; 271 A.R. 96; 234 W.A.C. 96; 191 D.L.R.(4th) 684; 87 Alta. L.R.(3d) 25; 2000 ABCA 247, refd to. [para. 22].

LeBar v. Canada, [1989] 1 F.C. 603; 90 N.R. 5; 22 F.T.R. 160; 33 Admin. L.R. 107; 46 C.C.C.(3d) 103 (F.C.A.), refd to. [para. 23].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449; 89 D.L.R.(3d) 161, refd to. [para. 25].

Paccar of Canada Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers, Local 14, [1989] 2 S.C.R. 983; 102 N.R. 1; 62 D.L.R.(4th) 437; 40 Admin. L.R. 181, refd to. [para. 26].

Imperial Oil Ltd. et al. v. Alberta (Minister of Environment) et al. (2003), 338 A.R. 1; 20 Alta. L.R.(4th) 107; 2003 ABQB 388, refd to. [para. 27].

I.M.S. Health Canada Ltd. v. Information and Privacy Commissioner (2005), 376 A.R. 336; 360 W.A.C. 336; 53 Alta. L.R.(4th) 201; 34 Admin. L.R.(4th) 94; 19 C.P.C.(6th) 280; 2005 ABCA 325, refd to. [para. 34].

White v. Workers' Compensation Board Appeals Commission (Alta.) (2006), 400 A.R. 183; 57 Alta. L.R.(4th) 282; 41 Admin. L.R.(4th) 141; 2006 ABQB 359, refd to. [para. 40].

Western Canada Wilderness Committee v. British Columbia (Ministry of Forests) et al. (2002), 45 Admin. L.R.(3d) 161; 50 C.E.L.R.(N.S.) 56; 2002 BCSC 1260, affd. (2003), 185 B.C.A.C. 58; 303 W.A.C. 58; 15 B.C.L.R.(4th) 229; 2003 BCCA 403, refd to. [para. 41].

Syndicat canadien de la fonction publique, section locale 301 v. Montréal (Ville), [1997] 1 S.C.R. 793; 210 N.R. 101, refd to. [para. 41].

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) et al., [2006] 2 W.W.R. 197; 371 A.R. 62; 354 W.A.C. 62; 44 Alta. L.R.(4th) 13; 43 C.C.E.L.(3d) 1; 2005 ABCA 235, refd to. [para. 43].

Alberta Union of Provincial Employees v. Alberta (Provincial Health Authorities), 2006 ABCA 356, refd to. [para. 43].

Memorial University of Newfoundland v. Canadian Union of Public Employees, Local 1615 (2000), 194 Nfld. & P.E.I.R. 203; 584 A.P.R. 203; 29 Admin. L.R.(3d) 100 (Nfld. T.D.), refd to. [para. 43].

Paccar of Canada Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers, Local 14, [1989] 2 S.C.R. 983; 102 N.R. 1; 62 D.L.R.(4th) 437; 40 Admin. L.R. 181, refd to. [para. 43].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 44].

Siksika Nation v. Walji Holdings Ltd. et al. (2004), 350 A.R. 324; 2004 ABQB 37, refd to. [para. 44].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 45].

R. v. Century 21 Ramos Realty Inc. and Ramos (1987), 19 O.A.C. 25; 58 O.R.(2d) 737; 37 D.L.R.(4th) 649 (C.A.), refd to. [para. 48].

Smith et al. v. Canada Post Corp. (1994), 75 O.A.C. 15; 20 O.R.(3d) 173; 118 D.L.R.(4th) 454; 29 Admin. L.R.(2d) 246 (Div. Ct.), refd to. [para. 48].

Bloom (Albert) Ltd. et al. v. Bentinck (Township) et al. (1996), 1 O.T.C. 1; 29 O.R.(3d) 681; 33 M.P.L.R.(2d) 53 (Gen. Div.), refd to. [para. 48].

R. v. G.S. (1988), 31 O.A.C. 161; 67 O.R.(2d) 198; 46 C.C.C.(3d) 332 (C.A.), refd to., [para. 48].

Ontario Federation of Anglers and Hunters et al. v. Ontario (Minister of Natural Resources) et al. (2001), 143 O.A.C. 103; 32 Admin. L.R.(3d) 282 (Div. Ct.), refd to. [para. 48].

Camden v. Commissioners of Inland Revenue, [1914] 1 K.B. 641 (C.A.), refd to. [para. 48].

Canadian National Railway Co. v. Volker Stevin Contracting Ltd. et al. (1991), 120 A.R. 39; 8 W.A.C. 39; 1 Alta. L.R.(3d) 167 (C.A.), refd to. [para. 49].

R. v. Manuel (1982), 38 O.R.(2d) 321; 136 D.L.R.(3d) 302; 67 C.C.C.(2d) 385 (C.A.), refd to. [para. 49].

885704 Alberta Ltd. et al.v. Oxford Properties Group Inc. et al. (2005), 371 A.R. 178; 354 W.A.C. 178; 55 Alta. L.R.(4th) 237; 34 R.P.R.(4th) 159; 2005 ABCA 274, refd to. [para. 49].

Board of Education of Edmonton Catholic School District No. 7 v. Edmonton (City), Court of Revision of Edmonton (City) and Jones, [1977] 3 W.W.R. 603; 3 A.R. 151; 75 D.L.R.(3d) 443 (S.C.), dist. [para. 54].

Sommers v. Edmonton (City) and Scott, [1978] 5 W.W.R. 204; 10 A.R. 48; 88 D.L.R.(3d) 204; 6 M.P.L.R. 267 (C.A.), affing. (1976), 10 A.R. 74; 72 D.L.R.(3d) 370 (T.D.), dist. [para. 54].

Authors and Works Noticed:

Blake, Sara, Administrative Law in Canada (4th Ed. 2006), p. 198 [para. 42].

Cromwell, Thomas A., Locus Standi: A Commentary on the Law of Standing in Canada (1986), pp. 106-8 [para. 8]; 107-8 [para. 11].

Jacobs, L.A., and Kuttner, T.S., Discovering What Tribunals Do: Tribunal Standing Before the Courts (2002), 81 Can. Bar Rev. 616, generally [para. 25].

Counsel:

N.J. Pollock, Q.C., for the applicants;

D.J. Ross, Q.C., for the respondent, Alberta Gaming and Liquor Commission;

A.Z. Breitman, for the respondent, Costco Canada Liquor Inc.;

V.C. Olson, for the respondent, The Real Canadian Superstore Ltd.

This application was heard on October 12, 2006, by Slatter, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on December 14, 2006.