New Brunswick (Minister of Public Safety) v. 504174 N.B. Ltd., 2005 NBCA 18

• Judge: Ryan, Deschênes and Richard, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: Thursday February 10, 2005
• Jurisdiction: New Brunswick
• Citations: 2005 NBCA 18;(2005), 279 N.B.R.(2d) 307 (CA)

N.B. v. 504174 N.B. Ltd. (2005), 279 N.B.R.(2d) 307 (CA);

    279 R.N.-B.(2e) 307; 732 A.P.R. 307

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2004] N.B.R.(2d) TBEd. FE.031

504174 N.B. Ltd. doing business as Choo Choo's (respondent/appellant) v. The Minister of Public Safety (applicant/respondent)

(25/04/CA; 2005 NBCA 18)

Indexed As: New Brunswick (Minister of Public Safety) v. 504174 N.B. Ltd.

New Brunswick Court of Appeal

Ryan, Deschênes and Richard, JJ.A.

February 10, 2005.

Summary:

An adjudicator appointed under s. 124.1(1) of the Liquor Control Act (N.B.), after ruling that the due diligence defence was not made out, found that a licensee permitted a person under the age of 19 years to enter, be in, or remain, in a licensed lounge contrary to s. 126(3). The adjudicator imposed a $1,000 fine and suspended the licensee's license for two days. The licensee appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Administrative Law - Topic 8315

Administrative powers - Powers of cancel­lation, suspension or revocation - Due diligence defence - The New Brunswick Court of Appeal stated that the defence of due diligence was available in certain circumstances in the context of adminis­trative processes - See paragraphs 14 to 26.

Liquor Control - Topic 3580

Offences and penalties - Licensed retailers - Admission and serving of minors - De­fences - The New Brunswick Court of Appeal saw no reason why the defence of due diligence was not available to a person responding to an allegation that he or she violated s. 126(3) of the Liquor Control Act (N.B.) by permitting an underage patron to remain in licensed premises - See paragraphs 14 to 27.

Liquor Control - Topic 3580

Offences and penalties - Licensed retailers - Admission and serving of minors - De­fences - An adjudicator ruled that the due diligence defence was not made out and found that a licensee permitted an under­age person to be on its premises, contrary to s. 126(3) of the Liquor Control Act (N.B.) - The adjudicator held that the licensee had not established, on a prepon­derance of evidence, that it had taken all reasonable care to prevent the presence of underage patrons on its premises - The New Brunswick Court of Appeal, applying the standard of reasonableness simpliciter, upheld the adjudicator's decision - See paragraphs 34 to 48.

Liquor Control - Topic 4290

Licensing - Denial, suspension, transfer or termination of license - Appeals - General (incl. scope or standard of review) - An adjudicator ruled that the due diligence defence was not made out and found that a licensee permitted an underage person to be on its premises, contrary to s. 126(3) of the Liquor Control Act (N.B.) - The ad­judicator imposed a $1,000 fine and sus­pended the licensee's license for two days - The licensee appealed - The New Bruns­wick Court of Appeal held that an appeal was available where the question of wheth­er the facts as presented constituted due diligence was a question of mixed law and fact - The court added that the standard of review was reasonableness simpliciter - The court dismissed the appeal - See para­graphs 28 to 48.

Cases Noticed:

Gargoyles Lounge Inc. v. New Brunswick (Minister of Finance) et al. (1996), 183 N.B.R.(2d) 216; 465 A.P.R. 216 (C.A.), refd to. [para. 6].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 6].

Gordon Capital Corp. v. Ontario Securities Commission (1991), 50 O.A.C. 258; 1 Admin. L.R.(2d) 199 (Div. Ct.), consd. [para. 20].

Whistler Mountain Ski Corp. v. Liquor Control and Licensing Branch (B.C.) (2002), 171 B.C.A.C. 231; 280 W.A.C. 231; 43 Admin. L.R.(3d) 294 (C.A.), consd. [para. 21].

Papa's Holdings Ltd. v. Liquor Licensing Board (N.W.T.), [1987] N.W.T.R. 82 (C.A.), refd to. [para. 21].

Canada (Attorney General) v. Consolidated Canadian Contractors Inc. (1998), 231 N.R. 92 (F.C.A.), consd. [para. 22].

R. v. Aberdeen Paving Ltd. (1981), 45 N.S.R.(2d) 344; 86 A.P.R. 344 (C.A.), refd to. [para. 30].

R. v. Clark (J.) and Son Ltd. (1979), 25 N.B.R.(2d) 448; 51 A.P.R. 448 (Prov. Ct.), refd to. [para. 30].

R. v. Kurtzman (1991), 50 O.A.C. 20; 4 O.R.(3d) 417 (C.A.), refd to. [para. 30].

R. v. Higgins (1981), 46 N.S.R.(2d) 80; 89 A.P.R. 80; 10 M.V.R. 157 (C.A.), refd to. [para. 30].

R. v. Rio Algom Ltd. (1988), 29 O.A.C. 349; 46 C.C.C.(3d) 242 (C.A.), refd to. [para. 30].

R. v. Goebel (W.) (2003), 338 A.R. 201 (Q.B.), refd to. [para. 30].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 31].

Dr. Q. v. College of Physicians and Sur­geons (B.C.) - see Dr. Q., Re.

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201, refd to. [para. 32].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, consd. [para. 36].

Counsel:

David R. Oley, for the appellant;

C. Clyde Spinney, Q.C., for the respon­dent.

This appeal was heard on June 16, 2004, by Ryan, Deschênes and Richard, JJ.A., of the New Brunswick Court of Appeal.

The decision of the Court of Appeal was delivered in both official languages on Feb­ruary 10, 2005, by Deschênes, J.A.