The Court of Appeal upheld the Utility and Review Board’s decision rejecting a licensed restaurant’s application to acquire unrestricted entertainment privileges. The legislation requires that the Board be satisfied that the operation of the premises to be licensed will not interfere with the quiet enjoyment of neighbouring properties, either public or private. The Board’s determination under this legislative provision was largely fact-driven. The Board’s finding that, on a balance of probabilities, permitting live entertainment on the premises would not be consistent with the quiet enjoyment provisions of the Regulations was reasonable. The Court of Appeal also held that even if the matter was a question of law, the Board’s decision satisfied the “correctness” standard.

Administrative law – Decisions of administrative tribunals – Utility and Review Board – Jurisdiction – Judicial review – Permits and licences – Compliance with legislation – Standard of review – Correctness

Whiskey’s Lounge Ltd. v. Nova Scotia (Utility and Review Board), [2007] N.S.J. No. 399, Nova Scotia Court of Appeal, October 2, 2007, E.A. Roscoe, J.W.S. Saunders and J.E. Fichaud JJ.A.

A licensed restaurant (the “Restaurant”) sought to amend the terms of its licence by acquiring unrestricted entertainment privileges which included live entertainment, on any night, up to 2:00 a.m. The Restaurant’s application was denied by the Nova Scotia Utility and Review Board (the “Board”). The Board made its finding after hearing from counsel on behalf of the Restaurant and others supporting the extension of the licence as well as many individuals, including residents of a downtown condominium complex opposing the extension of the licence.

The Board made its decision under section 6(c)(b)(i) of the Liquor Control Act Liquor Licensing Regulations which state that the Board had jurisdiction to extend the licence if it was satisfied that “the operation of the premises to be licensed will not interfere in any way with the quiet enjoyment of neighbouring properties, either public or private”.The Board made a finding of fact from the evidence presented at the Hearing, as well as its own recognisance of the premises that, on a balance of probabilities, permitting live entertainment on the premises would not be consistent with the quiet enjoyment provisions of the Regulations.

The Court of Appeal agreed with the Board. The discretion given to the Board by the Regulations allowed the Board to make findings of fact on whether or not the extension of the hours of entertainment would offend the quiet enjoyment provisions of the Liquor Licensing Regulations. The Court of Appeal also held that even if the interpretation of the statute in question was a question of law, the Board satisfied the standard of “correctness”.

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