The Petitioner sought judicial review of a decision of an adjudicator with the Liquor Control and Licensing Branch who had imposed a four-day suspension of the Petitioner’s liquor licence for supplying liquor to a minor. The Court dismissed the petition and held that the Adjudicator had properly exercised the discretion open to him and his decision was not unreasonable.

27. February 2007 0

Administrative law – Decisions of administrative tribunals – Liquor Licensing Board – Permits and licences – Penalties and Suspensions – Judicial review – Adjudication – Evidence – Standard of review – Patent unreasonableness – Reasonableness simpliciter

Butterworth Holdings Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2007] B.C.J. No. 10, British Columbia Supreme Court, January 3, 2007, MacKenzie J.

The Petitioner held a liquor primary licence for an establishment that focused on adult entertainment. During a routine check one morning, a police officer discovered two minors, aged 16 and 17, each seated with a glass of beer at a table near the stage. They had been allowed entry to the bar after presenting false identification. The police issued a Police Licence Premises Check, which the Liquor Control and Licensing Branch followed up with a Prevention Notice for supplying liquor to a minor contrary to s. 33 of the Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267. An adjudicator with the Board determined that the Petitioner had contravened the Act by allowing service of liquor to a minor and imposed a penalty of a four business day suspension of the Petitioner’s liquor licence.

The Petitioner applied for judicial review of the Adjudicator’s decision. The Petitioner submitted that the Adjudicator had failed to properly consider all the evidence, applied an inappropriate standard of proof, erred in the application of the defence of due diligence, erred by considering he was bound to impose a penalty, and further erred in imposing an unreasonable penalty.

The standard of review for findings of fact in this case was patent unreasonableness. The standard of review for questions of mixed fact and law was reasonableness simpliciter.

The Court first considered whether the Adjudicator failed to properly consider all of the evidence and/or applied an inappropriate standard of proof. The Court found that there was overwhelming and unchallenged evidence that the 16-year-old went to the bar, was served a pitcher of beer by the bartender, and was not asked to produce identification. The Adjudicator’s finding was based on cogent evidence that the minors had purchased alcoholic beer. The Adjudicator’s finding in this regard was not unreasonable, let alone patently unreasonable.

The Court next considered whether the Adjudicator erred in the application of the defence of due diligence. The due diligence defence is a complete defence. In a hearing under s. 20 of the Act, once the Branch establishes that the alleged contraventions occurred, the licensee bears the onus of proving on a balance of probabilities that it exercised all reasonable care to avoid the contravention.

The question of due diligence is one of mixed fact and law, reviewable on a standard of reasonableness simpliciter. The standard of review involves determining whether there are any reasons to support the decision of the Adjudicator. In this case, the licensee acknowledged that it did not require its bartender to ask for identification from persons appearing under the age of 25 before serving liquor. The only system was to check ID at the door. The hotel manager confirmed that the bar staff relied on the door staff to check ID. The Adjudicator found this policy insufficient because the obligation continues beyond the door staff to the employees within. As a result, he found that the licensee failed to establish that it was duly diligent in checking identification and preventing minors from being served alcohol in its establishment. There was no basis to interfere with the Adjudicator’s decision in this regard.

Finally, the Court considered whether the Adjudicator had erred in considering that he was bound to impose a penalty and further erred in imposing an unreasonable penalty. The Petitioner argued that the Adjudicator had fettered his own discretion by, in effect, considering himself bound to impose a penalty unless there were mitigating circumstances making the imposition of a penalty inappropriate. The Court disagreed that the Adjudicator had made a “default” decision.

Regarding the severity of the penalty, the Adjudicator had accepted that providing liquor to a minor was an activity that endangered the safety and security of the public in general and minors in particular. He considered the Petitioner’s submission that a $5,000 fine was more appropriate than a suspension. The Adjudicator disagreed and found a four-day suspension was appropriate. He made this decision in the circumstances of this case and he gave carefully considered and thorough reasons after setting out the evidence and submissions in detail.

In the result, the petition was dismissed.

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