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LIQUOR CONTROL - Liquor control and licensing boards - Powers - Procedure - Appeals and judicial review

Tuesday, February 07, 2017 @ 10:16 AM  

Appeal by Scholten’s Hanwell Ltd. (Sholten’s) from the dismissal of its application for judicial review of a 2014 policy of the N.B. Liquor Corporation (Corporation), permitting agency stores to be set up in some small communities where the Corporation would not otherwise establish liquor stores. In 2014, Scholten’s, the unsuccessful bidder in a request for proposals from the Corporation, successfully obtained judicial review of the Corporation’s decision to appoint Power Plus Technology Inc. an agent for a liquor store location in Hanwell. Prior to seeking judicial review, Scholten’s had communicated with the Ombudsman requesting a review of the Request for Proposals process, and had received confirmation from the Minister of Finance that he intended to request that the Ombudsman independently review the Corporation’s process for assessing proposals. Following the court ruling, the Corporation reviewed its process and agency store policy. Scholten’s filed the current application in August 2014, seeking an order that the Corporation wait for recommendations from the Ombudsman before adopting a new agency store policy. Days later, the Corporation adopted a new policy and, pursuant to that policy, issued a Request for Proposals for the appointment of an agent in Hanwell. Scholten’s argued that the new policy was ultra vires the Corporation because it provided for no limitations on the Corporation’s exercise of discretion to approve agency locations.

HELD: Appeal dismissed. The judge was correct in rejecting the argument that section 40.1(1) of the New Brunswick Liquor Corporation Act was ambiguous. There was no need to resort to a review of legislative debates preceding the enactment of section 40.1(1) in determining that the new policy was a reasonable exercise of the discretion conferred by the section. The fact that the discretion conferred was broad did not render the section ambiguous. There was no reason to read into the section limitations on distance between store locations as Scholten’s desired. Had this been the intent of the Legislature, it would have been simple to include such restrictions in the section. Scholten’s failed to establish it had a legitimate expectation that the Minister was committed to requesting a review of the Corporation’s processes by the Ombudsman that was not fulfilled prior to the Corporation’s adoption of the new policy.

Scholten's Hanwell Ltd. v. New Brunswick Liquor Corp., [2017] N.B.J. No. 1, New Brunswick Court of Appeal, K.A. Quigg, B.V. Green and R.T. French JJ.A., January 5, 2017. Digest No. 3637-008