Excerpt from the Official Report of
DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)


April 3, 2014

Further questions on Bill 15 The Liquor Control and Licensing Amendment Act

Simpson: It's good to be back, talking about Bill 15 again, the amendments to the Liquor Control and Licensing Act. Under section 4, section 7 is amended, and it strikes out a "store manager or a licensee who holds a prescribed class or category of licence" when referencing this.

Could the minister explain what the purpose for doing that is?

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S. Simpson: Does that mean that with the changes to the previous section around delegation and around the ability, I believe it said, to delegate to employees or other persons, that now covers this off, and that means that the manager could delegate that authority? Could they delegate it sort of on some permanent basis so the store managers could act within the context of this without going back to get approval? Would they have that authority? Is that what this would do?

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S. Simpson: Section 7(b) is adjusted by repealing subsection (2) and replacing it with the following. This is a section, for anybody who's watching us, that deals with approvals of licensing for special occasions, primarily around charitable purpose. It reads: "(a) the purpose of the special occasion is to raise funds for a charitable purpose, and (b) the recipient of the funds and its purposes are charitable."

Could the minister tell us how that changes what the current practice is?

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S. Simpson: Well, it talks about charitable purposes. Could the minister define "charitable" for these purposes? Is that registered charities? Is it some other kind of broader interpretation of charitable purpose?

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S. Simpson: Could the minister maybe just enlighten us a little bit on that, since this is where it arrives, and tell us again: is this registered charities? Or is it a broader definition? Who would be included and captured under that umbrella of charitable purpose, and who might be excluded?

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S. Simpson: If we go down under section 4 again, 4(d), it adds a paragraph related to "the occasion in relation to which the special occasion licence was issued could pose a threat to public safety." Could the minister explain how…? Is that a change from the current practice or the current regulation, and how is this different from what the current practice or regulation is?

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S. Simpson: Could the minister explain how she envisions that would occur? This, I believe, has provided authority to law enforcement and that. Is the expectation of the minister that if the law enforcement officials in some given jurisdiction felt that an event was creating some risk, they would just then be able to go and cancel that in the name of the general manager?

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S. Simpson: Is there any appeal process available to the applicant here over and above judicial review, which, as we know, is somewhat narrow, but seems to be the appeal process largely engaged in the act? Is there any appeal process over and above that?

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S. Simpson: I assume, though, that if there was a case where the applicants were clearly of a different view about any risk, then that might be the concern of the general manager — that in fact, they may want some kind of process of appeal. Just to be clear again, to the minister: is there any appeal process available to people who don't agree with that ruling other than judicial review?

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S. Simpson: We'll talk about this more, but as the minister knows, judicial reviews don't tend to overturn things. They send things back and tell the people involved that they should talk about it again and reconsider.

They don't overturn decisions, and they don't provide solutions. They send things back and say: "Look at it again." There's nothing that would stop the general manager from taking exactly the same position again. So a judicial review, unlike tribunals, in many, many situations doesn't provide the same kind of appeal process. I'll take it from the minister that there is no appeal process available to people in this situation.

Moving to the next question, still under section 4, which is around 7(5). The current language has been repealed, and new language has been put in place. The current language, I believe, says that the general manager "must" provide information around licences to the chief constable in the jurisdiction or authority and is obliged to provide that information.

This language doesn't oblige the general manager to send anything to anybody. It says that they "may send" it or require somebody to whom a licence is issued under this section to send it to anybody that the general manager deems appropriate to get it. I certainly don't have any question about if they feel that there's some need to broaden the scope past the chief constables in a given jurisdiction. That makes some sense.

I guess, though, that if I look at the section we just talked about, where we talked about the chief constable or law enforcement in an area being able to make a decision that a permit wouldn't go forward because they had concern for public safety, why is this section not going to oblige the general manager? In fact, it's going to change the language to not oblige the general manager to send that licence information to the chief constable in any given authority. How do we have assurances that they'll get it?

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S. Simpson: You never know about that wedding.

I think, though, that the reality is…. The current language says it must be provided. Then I would assume it should become the discretion of the chief constable and of the police force to decide whether this is a matter that they're going to want to pay any attention to or whether they're going to file that and not worry about it unless something untoward happens. But why should that be their call? That's what the section said to me before — that it was their call, essentially, to decide whether to act on that or not.

Now it's the general manager's call. What is the logic for saying the general manager is a better judge of a local public safety matter than the local authorities, in terms of what's going to occur?

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S. Simpson: Chair, I think that at this point I'm going to let you pass a couple of sections here.

Sections 4 to 9 inclusive approved.

On section 10.

S. Simpson: Section 10 deals with questions around liquor storage and issues around what a licensee can do, what reasonable measures they can take around improving their operation by being able to move product around.

But could the minister maybe explain a little bit about how this section changes the current rules and what the thinking of the government was for doing this?

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S. Simpson: Maybe, because this section…. I think I understand where it's going, and I think it makes sense to do this. But just for clarity's sake, what are the limits? Maybe this is reflected in (n), which says: "require a licensee to take reasonable measures to ensure that the operation of the establishment does not disturb persons in the vicinity of the establishment."

What was the thinking of the minister on what kinds of activities we are concerned about that have to be reasonable, that might cause that kind of concern? What was the minister's thinking and the drafters' thinking when they incorporated that particular clause?

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S. Simpson: Would this allow, for example, an owner of a pub or a facility or maybe one of the breweries…? We have lots of great new craft breweries appearing across the province. I know I have a number of them in my constituency, and I visit them. Some of them are growing very quickly because of the success of the craft beer industry. It's really growing, and I think that's fabulous. It's a great thing, and I'm very supportive of that.

Many of them now have facilities that are starting to get stretched as they increase demand and put in new equipment. Space that they might have thought was storage space for them all of a sudden becomes production space, because they're not quite in the place to move and expand that quickly.

Could the minister tell me what kinds of things…? Would they be able to store all their product now in another place? Or would a pub that may have limited storage be able to store its kegs in another place and then bring them in as they need them? Is that what this does?

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S. Simpson: Section 11 deals primarily with section 13 of the act, and training is a key piece of this. Sections (3) to (5) have been repealed, and they've been substituted with sections (3) and (4). Could the minister tell us what those changes do in material terms?

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S. Simpson: The training that we all know about is the Serving It Right training for people who are serving. Could the minister tell us what other training programs might be envisioned here, either existing ones or ones that the minister would like to see put in place?

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S. Simpson: To be clear, the expectation of the minister is that essentially that's the program that this is talking about — I appreciate this — with kind of a Serving It Right–lite, for lack of a better term, for people who are doing a private event or something, that wedding in the backyard. Other than that — which would have the Serving It Right–lite, we'll call it, for lack of a better term — is that what's envisioned in terms of training requirements to meet the obligation of this clause?

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S. Simpson: I don't know this, so it's a bit of an inquiry about something that I'm not aware of. It talks about recertification here in the clause. Are there recertification
requirements around Serving It Right currently? Are people who have Serving It Right required every couple of years or something to fill out a form or take a test, or whatever?

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S. Simpson: I appreciate the minister said that that piece isn't fully fleshed out yet. Maybe the minister could tell us what the thinking is around putting recertification in place now and how that is envisioned to work. Particularly, I'm thinking about current employees of establishments who have been certified now. What's the expectation about current employees having to go back? Is it every couple years? What is the thinking here?

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S. Simpson: Those presumably will be done through regulation. Are they able to be done through regulation, or will we be seeing that next year, if this more substantive rewrite of the act is to take place?

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S. Simpson: Section 12. This starts to head into a whole variety of sections that seem to be a significant part of this legislation, which is some review and change to the authority of the general manager to be able to oversee operations. There're a fair amount of clauses in here, and we'll be going through a number of those around use of licence by transferees, actions against licensees. This is a pretty substantive piece of this legislation. We'll get to the detail of those as we walk through those pieces.

I have a bit broader question that covers section 12 — in this case, 17.1 — but other sections to come as we move forward. Could the minister talk a little bit about her view of the current enforcement capacity of the general manager and the ability to deal with licensees, the ability to take action when it's warranted and to move forward?

What is the current situation that the minister has found the need to look at and amend, in some cases, in order to meet government objectives? Could the minister talk about that broadly on the enforcement? Then we'll get some specific questions in the sections.

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S. Simpson: One of the things this section seems to do as well is that it clearly gives, and rightly so, the general manager the ability to suspend a licence in some circumstances for some period — order that the licence be transferred within the period specified to a person who's at arm's length from the proposed transferee or cancel the licence altogether.

Could the minister give us some idea of the kinds of circumstances that might warrant that kind of a decision from a transferee who's presumably getting this licence? They haven't actually had much time to operate the place yet. They're figuring it out. What might be the circumstances to warrant that?

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S. Simpson: We spoke about this before in another instance. Other than, again, a judicial review, which I know gets referenced here, is there any form of appeal process available to somebody who the general manager has deemed either not to be eligible for the licence or has cancelled it or has told them that they need to find somebody else to operate it on their behalf?

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S. Simpson: I will come back to talk about the appeal in a little bit. Just on the formal hearing. Under this, is the general manager…? If a transferee is rejected or limits are put on them based on the legislation, and they want to be heard, do they then trigger that formal hearing? Can they say, "I want to be heard," and the general manager is obliged to hold that hearing, or is it at the general manager's discretion as to whether that hearing occurs?

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S. Simpson: Section 13 affects section 18 of the act, which deals with tied houses. I know there's been a lot of work done on this. I know that the previous minister has done work on this. I know that some of the folks in my constituency who own food-primary establishments and own breweries were happy that they are able to now get some of their own beverage into their own facilities, houses.

Could the minister tell us what this does to section 18 by repealing (1.1), (1.2) and (1.3) and then making these following changes under section (b)? Could the minister tell us: what does that essentially do to tied houses?

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S. Simpson: I thank the minister for the clarification. I appreciate that practice is one thing and that the current general manager has the practice of saying: "If somebody asks and it's a significant issue, I'm going to hear them." But as the minister says, it's not a requirement of the legislation that somebody has the right to be heard in a hearing with the manager.

Could the minister tell us why the decision has been made not to make that a requirement, particularly if, as the minister says, it also provides some protection or cover in relation to a potential judicial review and those questions of process that a judicial review may look at?

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S. Simpson: I appreciate that. As much as practice is a critical part of all of the operations of government and administration, practice and requirement are two different things. I would encourage the minister — if not now, maybe next year — to look at making this a requirement so people always have…. If they don't have a formal appeal option, they at least are guaranteed the right to be heard over a matter that could affect their livelihood.

With that, I'll sit and let the minister answer on 13.

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S. Simpson: The practice around tied houses has tended to be…. For example, I think of one in my constituency. I'm going to mention them, and I'll probably get a call at some point about whether they like it or not.

The people who own a very successful brewery now, Parallel 49 — one of the more successful craft breweries, growing both in stature and size — also own St. Augustine's, which is a food-primary restaurant. I think it's a restaurant. It might be liquor primary. I'm pretty sure it's food primary.

They have 20 or 25 taps in there, all craft beers from Canada, the United States, elsewhere. That's their speciality — craft beers. For a period of time when they first were opening Parallel 49, they didn't have the ability to actually tap their own beers. They now have some ability.

Could the minister tell us: what's the thinking about limits and how this is going to work with tied houses? I think that there was some legitimate thinking about the problems that arose. I know it goes back a number of years.

Sometimes there were practices where major brewers would essentially buy the rights in a bar to monopolize all the taps in a bar through exchanges for advertising, promotion, whatever. They would buy that right from bartenders, and that's a problem. So there was some protection put in place, and I think that that made good sense.

What's the thinking now, though, about how the tied-house system will work, how the determination will be made that you need X amount of taps in order to have a couple with your own product but you need to sell other taps? How does it work around how you price that so that you're not giving some advantage to your own product over other products?

Just a sense of how that works as we make these changes — which I think are good changes and which I support — around tied houses, understanding the mechanics of how that's expected to work.

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S. Simpson: Just so I'm clear, then. This has no effect for craft brewers or craft distillers and how they operate? This won't affect them in any way at all?

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S. Simpson: This section deals with action against a licensee. Again, it's a pretty significant section with a number of clauses — at least ten different clauses and subclauses. Could the minister maybe walk us through a little bit about what the action against a licensee does, how that is a change from current practice and why the changes have been pursued with this legislation?

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S. Simpson: I would note here…. As the minister says, it's not a change, but again, under section 20(2) it says, "If the general manager has the right under subsection (1) to take action against a licensee, the general manager may do one or more of the following, with or without a hearing," and then it lists a whole series of potential actions the general manager could take.

I would just come back and reference and remind the minister that this becomes part of the problem. It's pretty explicit here, as it is in the current legislation, that the general manager has no obligation for any kind of a hearing, even if they take an action against a licensee.

I would again suggest to the minister that as part of fair process, people should at least have the right to be heard when something as strong as maybe losing their business might be in play or a significant fine up to $50,000. Somebody should have the right to be heard if they're facing that, particularly since there's no appeal process other than a judicial review available here. That would be the comment.

I just want to go, though, to the change that the minister talked about in 20(6), where it says now that an employee is not responsible for an employer's action. What are the instances where that occurs? I'm a server. I serve somebody who I think is of age. Apparently, they are not of age. There's a responsibility that comes back on me and comes back on the bar. Am I responsible as the employee and the server, or is that obligation now all with the bar?

http://www.leg.bc.ca/hansard/40th2nd/20140403am-Hansard-v10n1.htm


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