1994 Legislative Session: 3rd Session, 35th Parliament
FIRST READING


The following electronic version is for informational purposes only.
The printed version remains the official version.


HONOURABLE COLIN GABELMANN
ATTORNEY GENERAL

BILL 54 -- 1994

LIQUOR DISTRIBUTION AMENDMENT ACT, 1994

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

1 Section 1 of the Liquor Distribution Act, R.S.B.C. 1979, c. 238, is amended by adding the following definitions:

"acquired liquor" means liquor to which the government holds title acquired under section 2.4 (1) or (3);

"allowable shrinkage" means, in relation to acquired liquor for which a manufacturer, manufacturer's agent, distributor or authorized importer is required to account under section 2.2 (3), the quantity of that acquired liquor that, in the opinion of the general manager having regard to all of the applicable circumstances, could reasonably be expected to be lost by breakage, spillage or otherwise while that acquired liquor was at the risk of that manufacturer, manufacturer's agent, distributor or authorized importer;

"authorized importer" means a person, other than a manufacturer, manufacturer's agent or distributor, who

(a) brings liquor or causes liquor to be brought within the boundaries of the Province, and

(b) is authorized by the general manager to possess that liquor in the Province;

"authorized vendor" means

(a) the branch or an agent of the branch, including, without limitation,

(i) a warehouse or distribution centre owned or operated by or leased to the branch or an agent of the branch, and

(ii) a liquor store,

(b) a person whom the minister appoints as agent or contracts with to act as agent under section 8 (5),

(c) a person, other than a manufacturer, to whom a licence is issued under section 11 of the Liquor Control and Licensing Act,

(d) a duty free liquor store, including a ship chandler, or

(e) in relation to a manufacturer, manufacturer's agent or distributor, any other person to whom the manufacturer, manufacturer's agent or distributor is, under this section or an agreement in force between that person and the branch, entitled to sell or otherwise dispose of liquor;

"distributor" means a person, other than a manufacturer's agent, appointed by a manufacturer or by a manufacturer's agent for the purpose of doing one or more of the following:

(a) ordering liquor through the branch;

(b) storing or distributing liquor;

(c) selling liquor as the agent of the branch;

(d) conducting financial matters relating to a matter referred to in paragraph (a), (b) or (c);

"independent importer" means a person who

(a) brings liquor or causes liquor to be brought within the boundaries of the Province, and

(b) contrary to section 2.2 (1), possesses that liquor in the Province;

"manufacture" includes, in relation to liquor,

(a) the packaging or other enclosing of the liquor in containers in or out of which the liquor is intended to be distributed to consumers,

(b) the blending of the liquor,

(c) the flavouring of the liquor, and

(d) the brewing, distilling or fermenting of the liquor but does not include, in relation to prescribed liquor, any of the processes referred to in paragraphs (a) to (d) or any other manufacturing processes;

"manufacturer" means, in relation to liquor, the person who manufactures the liquor;

"manufacturer's agent" means a person who

(a) is an agent within the meaning of the Liquor Control and Licensing Act, and

(b) holds a valid agent's licence under section 52 of that Act;

"retail price" means, in relation to liquor, the price fixed under section 8 (1) as the price at which liquor of that type is to be sold at a liquor store;

"unlicensed manufacturer" means a person who manufactures liquor that the person is not licensed to manufacture under section 57 or 58 of the Liquor Control and Licensing Act; .

2 The following sections are added:

Application of the Act

2.1 This Act does not apply to or prevent the manufacture, importation, sale, purchase or possession of

(a) a pharmaceutical preparation referred to in section 60 (1) (a) of the Liquor Control and Licensing Act,

(b) a proprietary medicine under the Food and Drug Act (Canada),

(c) wood alcohol or denatured alcohol to which the Liquor Control and Licensing Act does not apply under section 60 (1) (c) of that Act,

(d) vinegar,

(e) a medicinal preparation referred to in section 62 (1) of the Liquor Control and Licensing Act,

(f) a preparation referred to in section 62 (3) of the Liquor Control and Licensing Act, and

(g) wine referred to in section 63 of the Liquor Control and Licensing Act.

Government to maintain control of liquor in the Province

2.2 (1) No person shall possess liquor in the Province unless

(a) the person is, in respect of the liquor, the person referred to in section 55 (2) of the Liquor Control and Licensing Act,

(b) the liquor was manufactured in the Province but has not been packaged or otherwise enclosed in containers in or out of which the liquor is intended to be distributed to consumers, and the person possessing the liquor is the manufacturer of the liquor or intends to further manufacture the liquor,

(c) the liquor is acquired liquor and

(i) the person is the manufacturer of that liquor, or

(ii) the person is a manufacturer's agent or distributor and acquires and retains possession of the liquor in that capacity,

(d) the liquor is liquor referred to in section 3 (2) of the Importation of Intoxicating Liquors Act (Canada),

(e) the liquor was purchased from an authorized vendor,

(f) the liquor was sold and released to the person by a customs officer under section 8.1 (3),

(g) the person is, under terms and conditions specified by the general manager, authorized by the general manager to possess the liquor in the Province, or

(h) the liquor is, in prescribed circumstances, in the possession of a prescribed person or of a member of a prescribed class of persons.

(2) Each person who possesses in the Province liquor referred to in subsection (1) (d), each person who has control of liquor referred to in subsection (1) (d) while that liquor is in the Province, each independent importer who possesses in the Province liquor in relation to which the person is an independent importer and each authorized importer who possesses in the Province liquor in relation to which the person is an authorized importer shall

(a) immediately after that liquor comes within the boundaries of the Province, notify the branch of the importation of that liquor, and

(b) where that person is authorized to export that liquor from the Province, notify the branch of the exportation of that liquor immediately after that liquor leaves the Province.

(3) Each manufacturer of acquired liquor, each person who is appointed as a manufacturer's agent or distributor in relation to that acquired liquor, the authorized importer of the liquor and every other person who at any time had possession or control of that acquired liquor shall keep records accounting for that acquired liquor in the manner and with the content required by the general manager.

(4) The general manager may provide to an independent importer or an unlicensed manufacturer directions respecting the liquor in relation to which that person is an independent importer or unlicensed manufacturer, as the case may be, including, without limitation, directions that the independent importer or unlicensed manufacturer destroy or otherwise dispose of that liquor, and the independent importer or unlicensed manufacturer

(a) shall, promptly after receiving directions from the general manager under this subsection, comply with those directions, and

(b) shall not make any use whatsoever of the liquor in relation to which that person is the independent importer or unlicensed manufacturer other than a use specifically authorized by the general manager.

(5) The directions provided to and the obligations imposed on an independent importer or unlicensed manufacturer under subsection (4) do not relieve that person from any other liability.

Agreements

2.3 The branch may, on behalf of the government, enter into an agreement with any person respecting any matter relating to or arising from the acquisition, possession or disposition of liquor by that person or by any other person on that person's behalf, including, without limitation, an agreement with any one or more of the following:

(a) a person who is or will be the manufacturer of the liquor;

(b) a person who is or will be appointed as manufacturer's agent or distributor in relation to the liquor;

(c) a person who does or may possess the liquor in the Province.

Government acquires title to liquor

2.4 (1) The government acquires title to any liquor coming within the boundaries of the Province at the earlier of

(a) the time that that liquor comes within the boundaries of the Province, and

(b) the time that the government acquires title to the liquor under any agreement entered into by the branch in relation to the liquor under section 2.3.

(2) Subsection (1) does not apply to liquor referred to in section 3 (2) of the Importation of Intoxicating Liquors Act (Canada).

(3) The government acquires title to any liquor manufactured in the Province if and at the time that that liquor, while in the Province, is packaged or otherwise enclosed in containers in or out of which the liquor is intended to be distributed to consumers.

(4) Acquisition by the government of title to liquor under this section does not prevent the manufacturer of that liquor, a manufacturer's agent or distributor in relation to that liquor or an authorized importer of that liquor from doing any one or more of the following:

(a) selling and delivering the liquor to a purchaser outside of the Province;

(b) using the liquor in a manner provided for in any applicable agreement entered into by the branch and that person under section 2.3;

(c) using the liquor in the manufacture by that person of liquor to which the government will acquire title under subsection (3);

(d) delivering the liquor to or to the order of a manufacturer for the use by that manufacturer in the manufacture of liquor to which the government will acquire title under subsection (3).

(5) The government ceases to hold title to acquired liquor

(a) if the liquor is sold and shipped to a purchaser outside of the Province, at the time that the liquor ceases to be within the boundaries of the Province,

(b) at the time that the liquor is sold or otherwise disposed of by the branch,

(c) at the time that the liquor is sold or otherwise disposed of by

(i) the manufacturer of the liquor who packages or otherwise encloses the liquor in containers in or out of which the liquor is intended to be distributed to consumers, or

(ii) a person who is appointed as manufacturer's agent or distributor in relation to the liquor in accordance with the terms of an applicable agreement entered into by the branch and that person under section 2.3,

(d) at the time that the liquor is sold or otherwise disposed of to

(i) an authorized vendor referred to in paragraph (b) of the definition of "authorized vendor" other than a manufacturer of the liquor, or

(ii) an authorized vendor referred to in paragraphs (c) or (d) of the definition of "authorized vendor", or

(e) at the time that the liquor is used or delivered in accordance with subsection (4) (c) or (d).

Government not liable

2.5 (1) In this section "government representative" means an individual appointed to a position with or otherwise employed in the government.

(2) Notwithstanding the acquisition of title to liquor by the government under section 2.4, until the liquor is delivered to an authorized vendor in accordance with the instructions of the branch, neither the government nor any government representative is liable for any loss, costs, damages, liability or expenses of any kind in any way relating to the liquor including, without limitation,

(a) any loss or theft of the liquor or any container in which it is or is to be placed,

(b) any damage to or destruction of the liquor or any container in which it is or is to be placed,

(c) any loss, damage, injury or death resulting from or arising out of any manufacture, consumption or other use of the liquor, and

(d) any loss, damage, injury or death resulting from or arising out of any damage to or loss, theft or destruction of the liquor or any container in which it is or is to be placed.

(3) Nothing in section 2.4 or this section renders the government or any government representative liable for any loss, costs, damages, liability or expenses of any kind in any way relating to liquor that the government or the government representative would not have been liable for had section 2.4 or this section not been brought into force.

(4) Notwithstanding the acquisition of title to liquor by the government under section 2.4, the government is not obligated to pay any money in respect of the liquor to any person until

(a) the date set for payment under any applicable agreement entered into by the branch and that person under section 2.3, or

(b) where there is no date set for payment in accordance with paragraph (a), the date set for payment in the regulations.

(5) Notwithstanding subsection (4), the government is not obligated to pay any money in respect of liquor that is treated as allowable shrinkage for the purposes of section 2.7 (2) (d).

Government may sell liquor

2.6 (1) Without limiting any other rights of the government, the government may, in respect of acquired liquor, do one or more of the following:

(a) sell a quantity of that liquor to the manufacturer of that liquor;

(b) sell a quantity of that liquor to a person appointed as manufacturer's agent in relation to that liquor;

(c) sell a quantity of that liquor to a person appointed as distributor in relation to that liquor;

(d) sell a quantity of that liquor to the person who is the authorized importer of that liquor.

(2) A manufacturer, manufacturer's agent, distributor or authorized importer to whom liquor is sold under subsection (1) shall purchase the liquor in accordance with section 2.8.

Liquor not accounted for

2.7 (1) Where the general manager determines, from a review of the records kept by a manufacturer, manufacturer's agent, distributor or authorized importer, that a quantity of acquired liquor is unaccounted for, the general manager may treat the quantity of the acquired liquor that is unaccounted for as having been sold to that manufacturer, manufacturer's agent, distributor or authorized importer under section 2.6.

(2) For the purposes of subsection (1), the quantity of acquired liquor that is unaccounted for in relation to a manufacturer, manufacturer's agent, distributor or authorized importer is that quantity of the acquired liquor for which the person is required to account under section 2.2 (3) less the aggregate of the following:

(a) the quantity of that liquor that is accounted for to the satisfaction of the general manager as having been delivered to an authorized vendor in accordance with the instructions of the branch;

(b) the quantity of that liquor that is accounted for to the satisfaction of the general manager as having been

(i) sold and delivered,

(ii) used, or

(iii) delivered in accordance with section 2.4 (4);

(c) the quantity of that liquor that is accounted for to the satisfaction of the general manager as being in the inventory of that person;

(d) the quantity of the allowable shrinkage in respect of that liquor for that person.

(3) Where the general manager decides, under subsection (1), to treat a quantity of liquor as having been sold to a manufacturer, manufacturer's agent, distributor or authorized importer under section 2.6, the general manager shall give written notice of that decision to that person.

Purchase of liquor sold by government

2.8 A manufacturer, manufacturer's agent, distributor or authorized importer referred to in section 2.6 (2) shall, promptly after the sale referred to in section 2.6 (1), and a manufacturer, manufacturer's agent, distributor or authorized importer referred to in section 2.7 (1) shall, promptly after the date of the notice given under section 2.7 (3), pay to the branch in respect of the sale

(a) the retail price for the liquor that is the subject matter of the sale or such other price for that liquor as may be provided for in any applicable agreement entered into by the branch and that manufacturer, manufacturer's agent, distributor or authorized importer under section 2.3, or

(b) at the option of the branch, the difference between the amount payable for that liquor under paragraph (a) and the amount, if any, owing by the government to that manufacturer, manufacturer's agent, distributor or authorized importer.

Inspections

2.9 (1) For the purpose of ensuring compliance with this Act and the regulations, the general manager or a person authorized by the general manager may conduct an inspection, including an audit, under this section and may, for that purpose,

(a) require any person who has possession of or control over any records and things that may be relevant to the inspection to produce those records and things,

(b) inspect any of the records and things produced under paragraph (a), and

(c) remove any of the records and things produced under paragraph (a) for the purpose of making copies or extracts.

(2) A person conducting an inspection under this section

(a) may enter the business premises of a manufacturer, manufacturer's agent, distributor, authorized importer or independent importer during business hours for the purposes of

(i) inspecting any records and things that may be relevant to the inspection, and

(ii) ascertaining the quantities of liquor on hand or sold by the manufacturer, manufacturer's agent, distributor, authorized importer or independent importer, and

(b) shall, on request, present identification to the owner or occupant of the premises.

(3) A person referred to in subsection (1) (a) shall produce all records and things that a person conducting an inspection under this section may require for the purposes of this section and shall answer all questions of the person conducting the inspection regarding the matters relevant to the inspection.

(4) A person conducting an inspection under this section may request the production of all records of a manufacturer, manufacturer's agent, distributor, authorized importer or independent importer that may be relevant to the inspection, including, without limitation,

(a) accounting books,

(b) cash, negotiable instruments or other receipts or evidence of payments received,

(c) bank account records,

(d) vouchers,

(e) correspondence,

(f) contracts entered into with clients,

(g) manufacturing, production, inventory, shipping and receiving records,

(h) advertising contracts and related records and material,

(i) bonding and insurance records and contracts, and

(j) any other records that touch on any of the matters referred to in sections 2.2 to 2.8.

(5) A person conducting an inspection under this section who removes any records or things

(a) may make copies of, take extracts from or otherwise record them,

(b) shall give a receipt for them to the person from whom they are taken, and

(c) shall return them within a reasonable time.

(6) No person shall obstruct a person conducting an inspection under this section or withhold, destroy, tamper with, conceal or refuse to produce any information, record or thing that is required by the person conducting the inspection or that is otherwise relevant to any of the matters in respect of which the inspection may be conducted.

3 Section 8.2 is amended by striking out "Her Majesty in right of the Province," and substituting "the government,".

4 The following section is added:

No refunds - money paid in respect of liquor

26.1 (1) A person who after May 29, 1984 and before the coming into force of sections 2.2 to 2.9 of this Act paid money to the government under this Act in respect of liquor that was brought within the boundaries of or sent into or received in the Province for use, sale or other disposition by the person in or in relation to the person's commercial airline business, is not entitled, whether or not the use, sale or other disposition occurred or was intended to occur within the boundaries of the Province, to a refund of or any restitution for the money that was so paid.

(2) For the purpose of subsection (1), a person paid money to the government under this Act where the person paid the money as though there were a legal liability to pay the money under this Act, whether or not there was such a liability to pay it.

(3) Subsection (1) applies notwithstanding any enactment or any judgment, order, direction or declaration of a court in Canada to the contrary, and no action or other proceeding shall be brought or continued to recover any refund of or restitution for the money referred to in that subsection.

(4) Money referred to in subsection (1) is deemed to be the property of the government.

Commencement

5 Sections 1 to 3 come into force by regulation of the Lieutenant Governor in Council.

 
Explanatory Notes

SECTION 1: is self explanatory.

SECTION 2: amends the Liquor Distribution Act by

SECTION 3: harmonizes the reference to the Crown in section 8.2 of the Liquor Distribution Act with the other references to the Crown in that Act.

SECTION 4: confirms that the money paid in respect of liquor to the government by airline operators under the markup scheme in place before the coming into force of this Bill is not to be refunded to those operators.


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