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Supreme Court: LCLB Policy Cannot Restrict Discretion

A BC Supreme Court decision released on Tuesday (Northland Properties vs. BC Liquor Control & Licensing Branch) has found that the LCLB cannot use \”policy\” to restrict its obligations to properly consider discretionary decisions made under the Act and Regs. This case dealt with an application for discretion to waive the distance requirements for the transfer of an LRS to a new location. The Regulations (s.14(6)) state that the General Manager has the discretion to waive the distance requirements without outlining specific criteria for doing so. The court found that the LCLB had improperly created restrictive \”policy\” which limited its review process to a consideration of a few factors and prevented a full and correct consideration of all the relevant factors which might warrant the exercise of that discretion.

This case deals with an important issue because it is a vital principle of law that \”policy\” must always be consistent with the statute and regulations. The statute and regulations are the law: \”policy\” cannot be implemented in a manner which modifies the law or restricts it. In my view, this case also reflects a couple of longstanding problems: 1) there is too much discretion in the Act and Regs which makes it difficult for the LCLB to properly regulate, and 2) the LRS distance requirements are not really workable in any event (as I have said before, why is the government involved in regulating the distance between private businesses?). The issue of law vs. policy will be covered in more detail at the upcoming Wine Law in British Columbia conference on March 29, 2011 (50% discount on tuition for the wine industry!).

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