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InterProvincial Shipping Legal Update

Here is an update on the status of the constitutional challenges to interprovincial alcohol restrictions that are currently before the courts in New Brunswick and Alberta.

Comeau Case (New Brunswick). The trial level decision found that New Brunswick\’s restrictions on the interprovincial importation of alcohol were unconstitutional. The case was then appealed directly to New Brunswick\’s Court of Appeal. The NB Court of Appeal has refused leave to appeal (i.e. they have declined to hear the appeal). This means that the lower level court decision stands and constitutes a precedent only within the Province of New Brunswick. It remains to be seen whether leave will now be sought for the case to be heard by the Supreme Court of Canada and whether such an application would be successful. CBC coverage of this decision is here: Acquittal of Cross-Border Beer Shopper Stands.

Steam Whistle, Great Western (Alberta). An injunction was issued earlier upon application by Steam Whistle (of Ontario) that prevented the application of discriminatory beer markups in Alberta which favoured in-province breweries. The Alberta government subsequently revoked the discriminatory beer markup system. However, it then instituted a \”rebate\” system for small Alberta breweries which had a similar practical economic effect. On November 9th, an Alberta court issued another injunction (upon application by both Steam Whistle and another brewery, Great Western of Saskatchewan) such that the breweries will not be affected pending resolution of the issue at a full hearing to be held in May 2017. The breweries will presumably argue that any discriminatory markup or rebate system is unconstitutional under s.121 of the Constitution which creates a \”free\” trade zone between the provinces for Canadian products. CBC coverage of the decision is here: Great Western, Steam Whistle win latest battle in Alberta beer war.

It should be noted that each of the above cases could potentially have significant effects for provincial liquor policy across the country. Most Canadian provinces currently impose some restrictions on the interprovincial transport of alcohol (see: Shipping Law Update). These could be overturned or affected by the Comeau case if it gets to the Supreme Court of Canada. In addition, many provinces (including BC) impose discriminatory liquor markups which favour their own in-province breweries, wineries or distilleries. These could be overturned or affected by the Steam Whistle/Great Western case if that case makes its way up the appellate ladder.

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