Court ruling corks B.C. vintners’ hopes

VANCOUVER — The Supreme Court of Canada ruling upholding interprovincial trade laws may have other implications for trade, including for the Trans Mountain pipeline expansion, says a lawyer who represented some British Columbia wineries at the trial.

Shea Coulson said the unanimous decision issued Thursday in Ottawa is “going to shape our federation in many ways that we don’t yet know.”

The ruling upholds Section 121 of the Constitution Act, 1867, which says anything grown or produced in one province should be “admitted free” into any other province.

The decision restores a $240 fine and fees issued to New Brunswick resident Gerard Comeau under that province’s Liquor Control Act for being in possession of a large amount of alcohol he bought outside the province and was trying to bring home.

In confirming the penalty, the Supreme Court supports provincial legislation that Coulson said has a higher purpose of controlling liquor supplies and protecting health and safety.

He said it is important to distinguish between the finding against Comeau and the court’s comments about the constitution in general.

The decision is “progressive,” Coulson said, because its wording liberalizes safeguards “against the kind of protectionist behaviour that we have been seeing lately in B.C. and Alberta in their (pipeline) disputes.”

Coulson said the high court has created a test that will help determine if a province is creating a trade barrier that is a tariff or similar to one.

“If the primary purpose of the law is to create a trade barrier, or to punish another province or to protect a local industry, then that would not be permissible,” he said of his interpretation of the ruling.

“I think Trans Mountain was in their mind because at paragraph 111 of the judgment . . . they explicitly say that punishing another province is probably not OK,” he said, adding he has never

seen such wording in previous decisions.

Coulson said he believes the decision has positive implications for the five B.C. wineries he represented in the court.

He said it aims to limit a province from offering more favourable treatment to local businesses at the expense of any outside its boundaries. As an example, he pointed to Ontario’s refusal to allow B.C. wineries to sell directly to Ontario consumers, while Ontario vintners don’t face the same limits.

“The judgment explicitly says protecting your local industry can be a strong indicator that you are creating a trade barrier that is impermissible,” said Coulson.

However, the president and chief executive officer of the British Columbia Wine Institute, which represents all B.C. wineries, called the decision a disappointment.

Miles Prodan said the institute had hoped the high court would instead clear the way for B.C. wineries to begin shipping their products directly to consumers in other provinces.

“We are going to have to continue to work with the provinces and the federal government to come up with a solution. We can’t rely on the court to impose that,” said Prodan in an interview Thursday from Kelowna.