COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

The Sex Party v. The General Manager, Liquor Control and Licensing Branch,

 

2006 BCCA 252

Date: 20060515


Docket: CA033338

Between:

The Sex Party

Appellant

(Petitioner)

And

The General Manager,

Liquor Control and Licensing Branch

Respondent

(Respondent)


 

 

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Hall

The Honourable Mr. Justice Mackenzie

Oral Reasons for Judgment

J.G. Ince

Counsel for the Appellant

B.A. Mackey

Counsel for the Respondent

Place and Date:

Vancouver, British Columbia

15 May 2006

 

 

[1]                MACKENZIE, J.A.:  The appellant, The Sex Party, is a registered political party under the B.C. Election Act, R.S.B.C. 1996, c. 106. 

[2]                Prior to the 2005 provincial election, the appellant planned a fundraising activity featuring a “facilitated discussion of sexual politics and sexuality” and an “erotic arts show” consisting of several installations.  The appellant wished to host the event in a licensed venue where alcoholic beverages could be served.  Its president, John Ince, became aware that licensed establishments had certain conditions placed on their licences and he wished to determine whether those conditions would prohibit the appellant from including the sexually explicit aspects of the arts show as part of the fundraising event.  He began an exchange of correspondence with employees of the provincial Liquor Control and Licensing Branch (the "Liquor Branch”) in which he described the proposed erotic arts show and enquired whether they would offend the regulations governing the liquor licence of the establishment under the Liquor Control and Licensing Act, R.S.B.C. 1996, c. 267.  Mr. Ince received replies from the deputy general manager and the manager stating that the proposed erotic art installations appeared to be prohibited in a licensed establishment. 

[3]                Mr. Ince then enquired of the deputy general manager about a special event liquor licence of an unlicensed venue.  She responded, noting s. 12 of the Act which provides that the general manager may impose terms and conditions on a special occasion licence, and stating that the sexually explicit acts as described by Mr. Ince would not be permitted.  The reply discussed other aspects of the proposed event that could come within the description of contact sports .  It concluded by indicating the details that would be required in an application for a special occasion licence. 

[4]                The appellant did not submit an application for a liquor licence to the Liquor Branch and the appellant’s fundraiser proceeded as an unlicensed event. 

[5]                The appellant’s petition for judicial review followed.  The Attorney General applied to strike the petition under Rule 19(24) of the Supreme Court Rules on the ground that no decision had been made that would be amenable to judicial review.  The chambers judge granted the application and struck the petition.  She concluded that there had been no exercise of a “statutory power” or “statutory power of decision” as required for judicial review pursuant to the Judicial Review Procedure Act , R.S.B.C. 1996, c. 241, relying on Hayes v. British Columbia (Minister of Labour), [2000] B.C.J. No. 2423, paras. 16 to 22, and Thorne’s Hardware Ltd. v. The Queen (1983), 143 D.L.R.(3d) 577 (S.C.C.) at 580. 

[6]                The appellant submits that the chambers judge erred by limiting her consideration to the correspondence related to the special occasion licence and failed to address the earlier correspondence related to holding the fundraiser at an already licensed establishment..  It submits that the Liquor Branch’s response to that earlier inquiry was the exercise of a statutory power of decision amenable to judicial review. 

[7]                In my view, that submission involves the same fatal weakness, namely that there was no application by a licensed establishment to hold the fundraiser that would require the Liquor Branch to decide whether it would be permitted under the terms of its licence and thereby establish a foundation for judicial review.  The appellant’s inquiry was general and not made on behalf of any particular establishment.  The general manager of the Liquor Branch clarified the position explicitly:  “As a decision of the General Manager is specific to Licensees, my letter to you does not constitute a decision.  The letter was intended to clarify the terms and conditions that apply to Licensees.”  That letter stated: 

… a licensee must ensure that any event held within a licensed establishment complies with the Liquor Control and Licensing Act, regulations, and terms and conditions of the licence.  Two of the specific events you proposed appear to be prohibited in a licensed establishment.  Licensees who are considering hosting your proposed event will need to ensure they are in compliance with both their terms and conditions of the licence and with the relevant municipal bylaws regarding entertainment. 

[Emphasis added.]

The correspondence moved on to the inquiry about a special occasion licence and the appellant did not further pursue holding the event at a licensed establishment.  

[8]                In my view, there was no statutory power of decision exercised at any stage of the correspondence between Mr. Ince and the Liquor Branch and there was therefore no foundation for judicial review.  I would therefore dismiss the appeal. 

[9]                NEWBURY, J.A.:  I agree.

[10]            HALL, J.A.:  I agree. 

[11]            NEWBURY, J.A.:  Thank you, gentlemen.  The appeal is dismissed. 

“The Honourable Mr. Justice Mackenzie”