Enforcement Hearing Rules
The purpose of these Rules are:
- to assist licensees and permittees in understanding the enforcement hearing process;
- to ensure a consistent approach in enforcement hearings; and
- to ensure the fair and efficient adjudication of alleged contraventions.
2. Effective Date
The Rules apply to Notices of Enforcement Action issued on or after January 15, 2001.
In these Rules:
- “Act” means the Liquor Control and Licensing Act, as amended from time to time;
- “Branch” means the Liquor Control and Licensing Branch;
- “Branch advocate” means the person appointed by the general manager of the Branch to represent the Branch in enforcement proceedings;
- “Expert report" or "expert evidence" means evidence expressing an opinion based on education, training or experience;
- “Hearing delegate” means the general manager of the Branch and any person to whom the general manager has delegated his or her powers, duties and functions under the Act and Regulation for the purpose of dealing with enforcement hearing cases;
- “Licensee” means “licensee” , “deemed licensee” and "former licensee" as defined in the Regulation;
- “Permittee” means “permittee” and “former permittee” as defined in the Regulation;
- “Proceeding” includes an oral hearing, a hearing by written submission, pre-hearing conference, or any other form of hearing, conference or meeting directed by the general manager, registrar or the hearing delegate;
- "Produce" in relation to a document or other thing, means provide by mail, courier, fax transmission or e-mail so that the document or other thing to be produced is actually received at the address for delivery of the recipient by 4:00 p.m. on the date that the document or other thing is required to be provided, or means provide to the recipient and be received by the recipient as specified in a direction of the hearing delegate or registrar;
- "Registrar" means the person to whom the general manager of the Branch has delegated his or her powers, duties and functions under the Act and Regulation for the purpose of administering hearing proceedings;
- “Regulation” means the Liquor Control and Licensing Regulation, as amended from time to time. “Rules” means these enforcement hearing rules;
- “Waiver Notice” means a notice in form and content satisfactory to the general manager, by which the licensee or permittee expressly and irrevocably:
- agrees that the licensee or permittee committed the contravention;
- accepts the specified enforcement actions;
- waives the opportunity to have an enforcement hearing on the matter; and
- agrees that the finding of contravention and the specified enforcement actions will form part of the compliance history of the licensee or permittee.
4. Extension or Reduction of Time
At any time, the hearing delegate or registrar may extend or reduce the time for an application or the performance of any obligation under the Rules as long as it does not alter any time limits set out in the Act or Regulation.
The licensee or permittee may be self-represented, represented by legal counsel or represented by any person who has written authority to act for the licensee or permittee.
6. Notice of Enforcement Action
A Notice of Enforcement Action, sent to notify the licensee that enforcement action may be taken for an alleged contravention(s) of the Act, Regulation, and/or the terms and conditions of the license, will contain information about:
- the alleged contravention(s) and the proposed enforcement action;
- the facts upon which the alleged contravention(s) and proposed enforcement action are based; and
- information about the waiver, the enforcement hearing process, the licensee or permittee’s option to sign a waiver, and what that means if they sign it.
The licensee or permittee may sign a waiver at anytime, up until the time the hearing is set to begin. Once the hearing begins however, the licensee or permittee relinquishes their option to sign a waiver.
8. Hearing Date
- If the licensee or permittee does not waive the opportunity for a hearing, the registrar may set a date for a hearing. The registrar will make reasonable efforts to accommodate the participants' schedules.
- The registrar will confirm the date and location of the hearing with all participants, via a letter, fax, or email.
- If the licensee or permittee does not attend the hearing, the hearing delegate may proceed without the licensee or permittee or adjourn the hearing to a later date.
9. Applications for Hearing Postponement
- The registrar may postpone a hearing on his or her own initiative or in response to an application for postponement at any time before the hearing has started.
- The registrar will only grant a postponement if, in his or her opinion, there are exceptional circumstances.
- An applicant seeking a postponement must contact the registrar in writing at least fourteen (14) days before the date of a hearing. The applicant must say why they are asking to have the hearing postponed, keeping in mind that the registrar will only postpone the hearing under exceptional circumstances.
- In determining whether to grant a postponement, the registrar may consider, but is not limited to:
- the reasons for the request and any objections to the postponement;
- the number of postponements that have already been granted;
- whether the postponement will needlessly delay or impede the conduct of the hearing;
- whether the purpose for which the postponement is sought will contribute to the resolution of the matter;
- whether the postponement is required to ensure a fair opportunity to be heard;
- the degree to which the need for the postponement arises out of the intentional actions or the neglect of the applicant; and
- whether the branch and the licensee or permittee agree to the postponement.
- The registrar may set any terms and conditions respecting scheduling, attendance at pre-hearing conferences, production of documents, or any other matters which may assist with the timely, fair and efficient conduct of the postponed hearing.
10. Pre-Hearing Disclosure
- The branch advocate and the licensee or permittee shall exchange copies of anything they will submit as evidence at the hearing at least fourteen (14) days before the hearing, unless the registrar orders otherwise.
- The branch advocate and the licensee or permittee will let each other know the names of any witnesses who will be called to testify at the hearing, and the nature of the evidence they will present, at least fourteen (14) days before the hearing, unless the registrar orders otherwise.
- Unless otherwise directed by the registrar, at least twenty-one (21) days before the commencement of the hearing, the branch advocate will provide the licensee or permittee a copy of any expert report(s) the branch intends to submit as evidence at the hearing. If the branch advocate intends to call an expert witness without a report, the branch will produce a written statement of the opinion to be given, the facts upon which the opinion is based and the qualifications of the expert witness.
- Unless otherwise directed by the registrar, at least twenty-one (21) days before the commencement of the hearing, the licensee or permittee will provide the branch advocate with a copy of any expert report(s) the licensee or permittee intends to submit as evidence at the hearing. If the licensee or permittee intends to call an expert witness without a report, the licensee or permittee will produce a written statement of the opinion to be given, the facts upon which the opinion is based and the qualifications of the expert witness.
11. Pre-Hearing Procedures
- The registrar may set guidelines or provide direction for the fair and efficient conduct of a hearing, including convening a pre-hearing conference.
- The registrar may direct that a pre-hearing conference be held in person, by telephone conference or by some other method.
- At a pre-hearing conference, the registrar may:
- provide information to the licensee regarding the enforcement hearing process and the allegations;
- assist in clarifying and narrowing the issues that are in dispute;
- determine whether an enforcement hearing is required and if so, in what format;
- add alleged contraventions to be heard at the hearing;
- clarify and discuss the evidence (including witnesses) that will be presented at the enforcement hearing;
- set out the requirements for pre-hearing disclosure of evidence, including requiring the production or access to evidence that will be entered at the hearing;
- require the licensee to prepare and produce a list of witnesses’ and a written summary of a witness’ evidence;
- require presentation of written submissions;
- schedule the enforcement hearing;
- impose time limitations and terms and conditions on the production of documents, expert reports, agreed statements of fact, written submissions or any other process necessary for the fair and efficient management of the hearing;
- report the results of the pre-hearing conference, including a summary of the issues and any directions made at that pre-hearing conference; and
- set procedures to ensure a timely, fair and efficient hearing.
- The registrar may issue summons for the attendance of witnesses.
12. Hearing Procedures
- The registrar or the hearing delegate may direct that a hearing be conducted by oral hearing, written submissions, telephone conference, or any combination of these. Hearings that relate only to the penalty to be applied (penalty-only hearings) will generally occur by way of written submissions.
- The hearing delegate may establish his or her own practices and procedures for hearings and may:
- determine the procedures for the enforcement hearing;
- make determinations regarding the admissibility of evidence;
- require the production of evidence;
- proceed in the absence of the licensee or permittee or other party or in the absence of any submissions from the licensee or permittee or other party when the party has had notice of the proceeding;
- ask questions to clarify issues or facts;
- ask questions of a witness in the nature of direct examination or cross-examination;
- place time limitations on the examination or cross-examination of witnesses or presentation of opening or closing submissions;
- require presentation of written submissions; and/or
- adjourn a hearing.
- The registrar will determine the location of the enforcement hearing.
13. Recording Hearings
- In general, the branch does not record enforcement hearings.
- If a licensee or permittee wishes to record the hearing, they must obtain the registrar’s consent.
- A request to record the hearing must be made at least seven (7) calendar days before the commencement of the hearing.
- If the registrar agrees that the licensee or permittee may record the hearing, the licensee or permittee must:
- record the hearing at their own expense;
- provide a copy of the audio recording to the general manager, if requested to do so; and
- if a transcript is produced, direct the reporter to provide a copy to the general manager upon request of the general manager.
- The licensee or permittee and the general manager are each responsible for the costs of obtaining their own copy of the transcript.
- Once the hearing has commenced, the hearing delegate may determine the procedure and conditions under which the hearing may be recorded.
- A recording made under this Rule is not part of the official record of the general manager's proceedings.
- Subject to subsection (2), the hearing delegate has discretion to admit and consider evidence whether or not the evidence would be admissible in a court of law.
- Nothing is admissible in evidence before the hearing delegate that is inadmissible in a court by reason of a privilege under the laws of evidence.
- The hearing delegate will determine, on a balance of probabilities, whether the licensee has contravened the Act, Regulation or a term or condition of the licence.
- Subject to Rule 10 and unless the hearing delegate otherwise orders, expert evidence may be presented.
- Once the hearing has commenced, the hearing delegate may adjourn a hearing on his or her own initiative or upon application.
- The hearing delegate will not grant an adjournment of a hearing unless there are exceptional circumstances to justify an adjournment.
- In determining whether to grant an adjournment the hearing delegate may consider, but is not limited to, the following factors:
- the reasons for the request and any objections to the adjournment;
- the number of postponements or adjournments that have already been granted;
- whether the adjournment will needlessly delay or impede the conduct of the hearing;
- whether the purpose for which the adjournment is sought will contribute to the resolution of the matter;
- whether the adjournment is required to ensure a fair opportunity to be heard;
- the degree to which the need for the adjournment arises out of intentional actions or the neglect of the applicant; and
- whether the branch and the licensee or permittee agree to the adjournment.
16. Hearing Decisions
- The hearing delegate is not bound by previous decisions made pursuant to subsection 20(2) of the Act.
- The hearing delegate may rule on the alleged contravention at the hearing with written reasons to follow or reserve the decision and forward a written decision at a later date.
- If the hearing delegate determines that a licensee or permittee has contravened the Act, Regulation and/or the terms and condition of its license, the hearing delegate may:
- take the proposed enforcement action recommended in the Notice of Enforcement Action; or
- take any other enforcement action allowed under the Act and the Regulation.
If the licensee or permittee is dissatisfied with an enforcement order, they may apply within 30 days for reconsideration. Please see the page on Reconsideration Process for more information.