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Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 SCR 781 (Link)

Facts:

The LCLB made a ruling imposing a penalty on Ocean Port Hotel (OP). OP argued that this was a judicial process and therefore: “Serving at the pleasure” indicated that there was insufficient independence on the part of the General Manager of the LCLB. If the board members made a ruling unfavourable to the government, they could be easily fired.

LCLB argued that: absent a constitutional challenge, a statutory regime prevails over common law principles of natural justice -- and there was no constitutional challenge here.

The Court of Appeal ruled in favour of OP: There was insufficient independence required of administrative decision makers imposing penalties. the LCLB appealed.

Issue(s):

What is the degree of independence required of members sitting on administrative tribunals empowered to impose penalties? (Are Board members serving “at the pleasure” of the executive sufficiently independent?)

Ratio:

The sufficiency and structure of a tribunal’s independence is determined by statute and is generally not subject to the Charter requirement of judicial independence.

Analysis:

The court ruled that the LCLB can carry on without changes.

Statute prevails over common law rules and natural justice: Parliament determines the degree of independence required.

The LCLB Tribunal is part of the executive branch of government. Therefore, the requirement of judicial independence that results from the separation of powers is not applicable here.

At para 24, "[a]dministrative tribunals ... lack this constitutional distinction from the executive. They are, in fact, created precisely for the purpose of implementing government policy. Implementation of the policy may require them to make quasi-judicial decisions." Administrative agencies have a primary policy-making function: "It is property the role and responsibility of Parliament and the legislatures to determine the composition and structure required by a tribunal to discharge the responsibilities bestowed upon it."

As a rule, tribunals do not attract Charter requirements of independence. However there are exceptions depending on the agency's powers over e.g. security of the person with regards to mental health tribunals.

Holding:

Decision in favour of LCLB.


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