An application for judicial review of a decision of an adjudicator appointed by the general manager of the Liquor Control and Licensing Branch, was dismissed. The adjudicator’s decision that the petitioner had violated its Liquor Primary License was based on a correct interpretation of the regulations and was reasonable.

Administrative law – Decisions of administrative tribunals – Liquor Licensing Board – Permits and licences – Primary licences -Take away service – definition – Judicial review – Standard of review – Correctness – Reasonableness simpliciter – Compliance with legislation – Evidence – Burden of proof – Procedural requirements and fairness

Liquor Stores Limited Partnership v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2008] B.C.J. No. 1779, 2008 BCSC 1264, British Columbia Supreme Court, September 18, 2008, E.M. Myers J.

This case involved an application for judicial review of a decision and order of an adjudicator appointed by the general manager of the Liquor Control and Licensing Branch. The adjudicator decided that the petitioner, owner of a pub in Vernon, B.C., was in violation of its Liquor Primary License because it was operating the pub contrary to the primary purpose set out in its license.

The first issue before the Court was the appropriate standard upon which the adjudicator’s decision was to be reviewed.

The parties agreed, correctly in the Court’s view, that the standard which applies to findings of fact or mixed law and fact is reasonableness.

With respect to questions of law, the petitioner argued that the standard is one of correctness. The respondent argued that it is reasonableness. Both positions were based on differing interpretations of the majority judgment in Dunsmuir v. New Brunswick, 2008 SCC 9.

The legal question before the adjudicator was the meaning of “take away service” within the adjudicator’s home regulation, i.e., Liquor Control and Licensing Regulation, B.C. Reg. 244/2002 (“Regulation”). That issue related specifically to the liquor licensing regime and therefore was not one of general law. The respondent argued that because the matter determined by the adjudicator was not one of “general law” in that it was not “of central importance to the legal system and outside the specialized area of expertise of the administrative decision maker”, the appropriate standard of review was reasonableness.

While the Court agreed with the respondent that the issue was not one of general law, the Court noted that the standard had already been determined by prior cases to be correctness based on the “pragmatic and functional analysis” (532871 B.C. Ltd. dba Urban Well v. British Columbia, 2005 BCCA 416). Because it could not be said that the standard had not been previously determined in a “satisfactory manner”, based on Dunsmuir, the standard of correctness previously determined was held to apply to issues of law decided by the adjudicator.

Applying the standard of correctness to the determination of the meaning of the phrase “take-away service” in the Regulation, the Court concluded that an establishment is not a “liquor primary” establishment if its primary business is serving food or alcohol or both for consumption off-premises. Because the petitioner’s establishment’s primary business was “take-away service”, the Court concluded that the adjudicator correctly found the petitioner in violation of its Liquor Primary License.

The petitioner’s argument that it was not afforded the required level of procedural fairness because it did not make submissions on the interpretation of “take-away service” was rejected by the Court. The issue was moot following the Court’s decision that the adjudicator’s interpretation was correct.

Further, the petitioner’s argument that the required standard of proof for a liquor license violation is uncertain and that the proper standard should be proof beyond a reasonable doubt, was rejected, the Court finding the standard to be a civil standard of proof.

Lastly, the Court concluded that there was ample evidence upon which the adjudicator’s decision was reached, and the decision was reasonable.

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