Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.), (2001) 155 B.C.A.C. 193 (SCC)

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 22, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2001), 155 B.C.A.C. 193 (SCC);2001 SCC 52;[2001] 2 SCR 781;[2001] SCJ No 17 (QL);[2001] ACS no 17;155 BCAC 193;34 Admin LR (3d) 1;[2001] 10 WWR 1;204 DLR (4th) 33;274 NR 116;108 ACWS (3d) 3;93 BCLR (3d) 1

Ocean Port Hotel v. Liq. Control (2001), 155 B.C.A.C. 193 (SCC);

    254 W.A.C. 193

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: [2001] B.C.A.C. TBEd. SE.020

The General Manager, Liquor Control and Licensing Branch (appellant) v. Ocean Port Hotel Limited (respondent) and The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Manitoba and Her Majesty the Queen in right of Alberta and the Minister of Justice and Attorney General for Alberta (interveners)

(27371; 2001 SCC 52)

Indexed As: Ocean Port Hotel Ltd. v. Liquor Control and Licensing Branch (B.C.)

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

September 14, 2001.

Summary:

A Senior Inspector, acting with the dele­gated functions of a General Manager under s. 20(1)(a) of the Liquor Control and Licensing Act, imposed a two day suspen­sion of a hotel's liquor licence. The hotel appealed. The Liquor Appeal Board, on an appeal de novo, dismissed the appeal. The hotel, with leave, appealed. The hotel argued, inter alia, that the Board lacked sufficient indepen­dence to make the ruling and impose the penalty of the licence sus­pension.

The British Columbia Court of Appeal, in a decision reported 125 B.C.A.C. 82; 204 W.A.C. 82, allowed the appeal and set aside the licence suspension. The court held that the appointees to the Board lacked the se­curity of tenure necessary to ensure their independence. The court did not consider the other grounds of appeal. The General Man­ager of the Liquor Control and Licensing Branch appealed.

The Supreme Court of Canada allowed the appeal and remitted the matter to the Court of Appeal to decide the issues which it did not address. The court held that the Board met the standard of independence required by the Liquor Control and Licensing Act.

Administrative Law - Topic 8868

Boards and tribunals - Members - Inde­pendence and impartiality - The Supreme Court of Canada discussed the degree of independence required of members sitting on administrative tribunals empowered to impose penalties - See paragraphs 1 to 45.

Administrative Law - Topic 8868

Boards and tribunals - Members - Inde­pendence and impartiality - The Liquor Appeal Board (B.C.), sus­pended a hotel's liquor licence for two days - The British Columbia Court of Appeal set aside the decision, holding that the Board lacked sufficient independence, in particular se­curity of tenure - The Chair and members of the Board were appointed at the pleas­ure of the Lieutenant Governor-in-Council - Members were appointed for a one year term pursuant to an Order-in-Council and served on a part-time basis - All members but the chair were paid on a per diem basis - The chair established panels of one or three members to hear matters before the Board - The General Man­ager of the Liquor Control and Licensing Branch appealed - The Supreme Court of Canada allowed the appeal, hold­ing that the Board met the standard of independence required by the Liquor Con­trol and Licensing Act - See paragraphs 1 to 45.

Administrative Law - Topic 8868

Boards and tribunals - Members - Inde­pendence and impartiality - The Supreme Court of Canada stated that "it is well-established that, absent constitutional con­straints, the degree of independence required of a particular government deci­sion-maker or tribunal is determined by its enabling statute. It is the legislature or Parliament that determines the degree of independence required of tribunal mem­bers. The statute must be construed as a whole to determine the degree of indepen­dence the legislature intended. Confronted with silent or ambiguous legislation, courts generally infer that Parliament or the legi­slature intended the tribunal's process to comport with principles of natural justice ... In such circumstances, administrative tribunals may be bound by the requirement of an independent and impartial decision-maker, one of the fundamental principles of natural justice" - See paragraphs 20 and 21.

Administrative Law - Topic 8868

Boards and tribunals - Members - Inde­pendence and impartiality - The Supreme Court of Canada stated that "... like all principles of natural justice, the degree of independence required of tribunal members may be ousted by express statutory lan­guage or necessary implication ... Ulti­mately, it is Parliament or the legislature that determines the nature of a tribunal's relationship to the executive. It is not open to a court to apply a common law rule in the face of clear statutory direction. Courts engaged in judicial review of administra­tive decisions must defer to the legislator's intention in assessing the degree of inde­pendence required of the tribunal in ques­tion. This principle reflects the funda­men­tal distinction between administrative tribunals and courts" - See paragraphs 22, 23.

Administrative Law - Topic 8868

Boards and tribunals - Members - Inde­pendence and impartiality - The Supreme Court of Canada stated that "historically, the requirement of judicial independence developed to demarcate the fundamental division between the judiciary and the executive. It protected, and continues to protect, the impartiality of judges -- both in fact and perception -- by insulating them from external influence, most notably the influence of the executive ... Adminis­tra­tive tribunals, by contrast, lack this consti­tutional distinction from the execu­tive. They are, in fact, created precisely for the purpose of implementing government policy. Implementation of that policy may require them to make quasi-judicial deci­sions. They thus may be seen as spanning the constitutional divide between the ex­ecutive and judicial branches of govern­ment. However, given their primary pol­icy-making function, it is properly the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it. While tribunals may sometimes attract Charter requirements of indepen­dence, as a general rule they do not. Thus, the degree of independence required of a particular tribunal is a matter of discerning the intention of Parliament or the legisla­ture and, absent constitutional constraints, this choice must be respected" - See para­graphs 23, 24.

Cases Noticed:

2747-3174 Québec Inc. v. Régie des permis d'alcool du Québec et autres, [1996] 3 S.C.R. 919; 205 N.R. 1, dist. [para. 9].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 12].

Coopers and Lybrand v. Minister of Na­tional Revenue, [1979] 1 S.C.R. 495; 24 N.R. 163, refd to. [para. 21].

Law Society of Upper Canada v. French, [1975] 2 S.C.R. 767; 3 N.R. 410, refd to. [para. 21].

Katz v. Vancouver Stock Exchange et al., [1996] 3 S.C.R. 405; 207 N.R. 72; 82 B.C.A.C. 29; 133 W.A.C. 29, refd to. [para. 21].

Innisfil (Township) v. Vespra, Township of; South Simcoe Estates et al., [1981] 2 S.C.R. 145; 37 N.R. 43, refd to. [para. 22].

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, refd to. [para. 22].

Ringrose v. College of Physicians and Surgeons of Alberta, [1977] 1 S.C.R. 814; 9 N.R. 383, refd to. [para. 22].

Kane v. Board of Governors of the Uni­versity of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 22].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 23].

Beauregard v. Canada, [1986] 2 S.C.R. 56; 70 N.R. 1; 30 D.L.R.(4th) 481, refd to. [para. 23].

Preston v. British Columbia (1994), 46 B.C.A.C. 161; 75 W.A.C. 161; 92 B.C.L.R.(2d) 298 (C.A.), refd to. [para. 26].

Latimer (W.D.) Co. v. Bray (1974), 6 O.R.(2d) 129 (C.A.), refd to. [para. 27].

Attorney-General for Ontario v. Attorney-General for Canada, [1947] A.C. 127, refd to. [para. 33].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 41].

R. v. Silveira (A.), [1995] 2 S.C.R. 297; 181 N.R. 161; 81 O.A.C. 161, refd to. [para. 44].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 44].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 11(d) [para. 29].

Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12, sect. 23 [para. 9].

Constitution Act, 1867, preamble [para. 16].

Liquor Control and Licensing Act, R.S.B.C. 1979, c. 237, sect. 2, sect. 3, sect. 20, sect. 30 [para. 15].

Counsel:

George H. Copley, Q.C., and Neena Sharma, for the appellant;

Howard Rubin and Peter L. Rubin, for the respondent;

Donald J. Rennie and Anne M. Turley, for the intervener the Attorney General of Canada;

Dennis W. Brown, Q.C., and Lucy Mc­Sweeney, for the intervener the Attorney General for Ontario;

Shawn Greenberg and Rodney G. Garson, for the intervener the Attorney General of Manitoba;

Timothy Hurlburt and Sean McDonough, for the interveners Her Majesty the Queen in right of Alberta and the Minis­ter of Justice and Attorney General for Alberta.

Solicitors of Record:

The Ministry of the Attorney General, Vancouver, British Columbia, for the appellant;

Howard Rubin, Vancouver, British Col­umbia, for the respondent;

The Department of Justice, Ottawa, Ontario, for the intervener the Attorney General of Canada;

The Ministry of the Attorney General, Toronto, Ontario, for the intervener the Attorney General for Ontario;

The Department of Justice, Winnipeg, Manitoba, for the intervener the Attorney General of Manitoba;

Alberta Justice, Edmonton, Alberta, for the interveners Her Majesty the Queen in right of Alberta and the Minister of Justice and Attorney General for Alberta.

This appeal was heard on March 22, 2001, before McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada. The following decision was delivered in both official lan­guages, for the court, by McLachlin, C.J.C., on September 14, 2001.