Focus On

LIQUOR CONTROL - Liquor control and licensing boards - Powers - Licenses and licensing - Revocation - Conditions - Appeals and judicial review - Standard of review - Reasonableness

Wednesday, January 31, 2018 @ 6:06 AM  

Lexis Advance® Quicklaw®
Appeal by Cooper and Dell Lanes Ltd. (Dell) from the dismissal of their petition for judicial review of a decision by the General Manager (GM) of the Liquor Control and Licensing Branch (Branch), cancelling Dell’s liquor licences. Cooper was the general manger of Dell, a family business which operated a bowling alley and associated lounge and restaurant business. Cooper held just under 25% of Dell’s issued shares. Dell held two liquor licences issued under the Liquor Control and Licensing Act (Act) and until the events underlying the appeal occurred, it had never been found to violate the terms and conditions of those licences. In 2014, Cooper was convicted of sexual interference which involved him touching the breasts of a 15-year-old girl. The victim was a friend of Cooper’s daughter and also an employee of Dell at the time of the offence. The offence took place at the bowling alley and was interrupted by a third person. Cooper was subsequently charged and he pleaded guilty to touching the body of a child under the age of 16 years for a sexual purpose. He was deemed a low risk to re-offend and was given a 90-day intermittent sentence with probation and a 10-year SOIRA registration order. When it was time to renew Dell’s liquor licences, Cooper indicated on the required forms that he had been convicted of a criminal offence. The GM of the Branch had concerns about the nature of the offence and asked Cooper for more details regarding the conviction. The GM subsequently decided to cancel Dell’s liquor licences and communicated that decision to Cooper in writing. The letter stated that Cooper, as the sole shareholder in Dell, was not a fit and proper person to hold a liquor licence despite the fact that his offence was not liquor-related. She noted the victim was an employee and that Cooper committed the offence while others were in the establishment. She also considered the 10-year SOIRA order to be evidence of his risk to re-offend. Cooper and Dell filed a petition for judicial review of the GM’s decision. The chambers judge dismissed the petition. Although the chambers judge disagreed with the GM’s decision, he concluded that there was some evidence before the GM on which she could have found that despite Cooper’s completion of the sentence and related sex-offender programs, Cooper was at some risk of abusing another youthful female. The chambers judge also found that it was within the GM’s purview to take action to protect young people while on licenced premises, therefore the decision was within her jurisdiction.

HELD: Appeal allowed. The chambers judge erred in finding that the GM’s decision met the standard of reasonableness on the basis that there was some evidence that Cooper was at risk of recidivism. The question of reasonableness could not be answered conclusively by the existence of "some evidence" to support a tribunal's conclusion. Further, a question of "true" jurisdiction had not been raised by counsel and it appeared that the chambers judge addressed what he regarded as a jurisdictional issue rather than applying the reasonableness standard. The chambers judge also failed to ask whether as a whole, the GM’s decision was reasonable. The broad purposes of the Act, to ensure that persons holding liquor licences were fit and proper and that they would conduct themselves in the public interest, did not contemplate a roving investigation into the moral character of licensees or their shareholders. Nor did the statute confer responsibilities or powers like those conferred on police officers or courts under the Criminal Code. The GM’s decision was based on an incorrect assumption that Cooper was the sole shareholder of Dell, which may have led her to ignore the possibility of imposing conditions on Dell’s licences as opposed to cancelling them. She also failed to consider the likely consequences of her decision, which would remove a 52 per cent revenue stream from Dell and likely lead to its closure. The GM’s assumption that Cooper was likely to re-offend based on the SOIRA order was erroneous and led her to make a decision that was disproportionate and unnecessary. The GM’s decision was not reasonable, as it failed to strike a balance between its adverse impact on Cooper, Dell and the community and the public purpose it sought to advance. Dell’s licences were to be renewed on the conditions on which they otherwise would have been renewed, with the added condition that no female person under 19 years old would be employed in or about the licenced premises or business establishment as long as Cooper was employed in any capacity relating to Dell's business or until the GM determined the proviso was no longer necessary.

Cooper v. British Columbia (Liquor Control and Licensing Branch), [2017] B.C.J. No. 2646, British Columbia Court of Appeal, December 27, 2017. Digest No. TLD-January292018005