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07-1S-2013

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COURT OF APPEAL OF ALBERTA

Form AP-1
[Rules 14.8 and 14.12]

COURT OF APPEAL FILE NUMBER: V'

TRIAL COURT FILE NUMBER: 1501 15056

JUL 2018
REGISTRY OFFICE: CALGARY o

PLAINTIFF/APPLICANT: STEAM WHISTLE BREWING

Of
INC.

STATUS ON APPEAL: Respondent

DEFENDANT/RESPONDENT; ALBERTA GAMING AND

LIQUOR COMMISSION

STATUS ON APPEAL: Appellant

SEE ATTACHED
SCHEDULE"A"

DOCUMENT: CIVIL NOTICE OF APPEAL

APPELLANT'S ADDRESS FOR Alberta Justice, Constitutional Law

SERVICE AND CONTACT 4'^ Floor, 9833- 109 Street
INFORMATION: Edmonton, AB T5K2E8
Lawyer: Robert Normey
Phone: (780)422-9532
Fax: (780)425-0307
Email: Robert.Normev@aov.ab.ca

WARNING

To the Respondent: If you do not respond to this appeal as provided for in the Aiberta
Rules of Court, the appeal will be decided in your absence and without your input.
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1. Particulars of Judgment, Order or Decision Appealed From:

Date pronounced: June 19, 2018
Date entered:

Date served:

Official neutral citation of reasons for decision, if any;

(do not attach copy) Steam Whistle Brewing Inc. v Alberta Gaming and Liquor
Commission, 2018 ABQB 47Q
(Attach a copy of order or judgment: Rule 14.12(3). If a copy Is not attached, indicate
under Item 14 and file a copy as soon as possible: Rule 14.18(2).)
2. Indicate where the matter originated:
Court of Queen's Bench
Judicial Centre; Calgary
Justice: Gillian D. Marriott

On appeal from a Queen's Bench Master or Provincial Court Judge?:

No

3. Details of Permission to Appeal, if required (Rules 14.5 and 14.12(3)(a)),

Permission not required.
4. Portion being appealed (Rule 14.12(2)(c)); ^
All of the judgment except for the conclusion that Alberta's Mark-ups are valid
proprietary charges, and not taxes.
5. Provide a brief description of the issues:
With respect to the 2016 Mark-up, and the 2016 Grant Program that were
challenged, the issues are:
a) Whether or not the trial justice made palpable and overriding errors of fact
respecting payment of the Mark-up and the Incidence of the Mark-up, once it is paid
to the Crown by a retailer, and whether these led to legal errors;
b) Whether or not a proprietary charge could ever come within the ambit of s. 121 of
the Constitution Act;

c) Whether or not the justice In her ruling impermissibly reduced or eradicated ,

without any legal authority, the powers that the Crown possesses with respect to Its
property In liquor;
d) Whether or not a mark-up applied equally to all could violate s. 121 of the
Constitution Act;
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e) Whether or not a provincial grant, being an exercise of the Crown's spending

power, could violate s. 121;
f) Whether or not the provincial grant program that was challenged violates s. 121,
in light of Its purpose within the context of the current market place;
g) Whether or not the justice's determination of each of these issues involved a
proper application of the jurisprudence from the Supreme Court on the meaning and
Intent of s. 121;

h) Whether or not the justice erred in failing to consider evidence in the form of a
number of affidavits adduced by the Crown pertaining to the change to the Mark-up
in 2016 and to the grant program, pertaining to the purpose and character of the
grant program;

i) Whether or not, if the Grant program were to violate s. 121, the justice erred by
proceeding to declare that both the Grant program and the 2016 Mark-up were
contrarytos. 121;

j) Whether or not, on the facts and the general law. the justice erred in applying the
principles of restitution to conclude that these applicants were entitled to monies;
k) Whether or not, in these circumstances, if a remedy were to be required, the
justice should have only applied a public law remedy;
i) Whether or not, if the Markup is contrary to s. 121, the Crown has defences to
any argument that it should owe monies to these parties;

m) Whether or not the justice erred in concluding that "the whole of the Mark-up" is
contrary to s. 121, notwithstanding that "the whole of the Mark-up, consisting of
Individual mark-ups on a range of products, was not challenged in the pleadings that
were filed and that this issue was not argued before the justice and further, whether
she erred In any event as a rhatter of law, in holding that the actions of the Crown
result in "the whole of the Mark-up " being contrary to s. 121. This issue also
includes the question of whether the justice could have granted standing to the
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applicants to challenge "the whole of the markup" and whether she erred with
respect to the process she followed in this regard.

With respect to the action involving a challenge to the 2015 Mark-up, the same or
similar issues arise, except issues pertaining to the grant program, which are not
relevant for this particular action.

6. Provide a brief description of the relief claimed:

Granting the Appeal and dismissing all actions against the Appellant; costs.
7. Is this appeal required to be dealt with as a fast track appeal?(Rule 14.14)
No.

8. Does this appeal involve the custody, access, parenting or support of a child?
(Rule 14.14(2)(b))
No.

9. Will an application be made to expedite this appeal?

Yes.

10.1s Judicial Dispute Resolution with a view to settlement or crystallization of

issues appropriate? (Rule 14.60)
No.

11.Could this matter be decided without oral argument?(Rule 14.32(2))

No.

12.Are there any restricted access orders or statutory provisions that affect the
privacy of this file?(Rules 6.29, 14.12(2)(e),14.83)
No.

13.List respondent(s)or counsel for the respondent(s), with contact information:

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Andrew E. Stead Douglas C. Hodson, Q.C.

McMillan LLP MLTAIklns LLP
1700, 421 - Avenue S.W. 1500 Saskatoon Square
Calgary, AB T2P 4K9 410-22 Street East
Phone: 403-531^700 Saskatoon, SK S7K 5T6
Fax; 403-531-4720 Phone: 306-975-7100
Email: Andrew.Stead(®.McMlllan.ca Fax: 306-975-7145
Counsel for the Respondent, Steam Email: dhodsonOSmltaikins.com
Whistle Brewing Inc. Counsel for the Respondent, Great
Western Brewing Company Ltd

Ifspecified constitutional Issues are raised, service on the Attorney General Is

required under s. 24 of the Judicature Act: Rule 14.16(1)(c)(viii}.

14.Attachments

Order not yet available.

If any document is not available, it should be appended to the factum, or included

elsewhere in the appeal record.
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SCHEDULE "A''

TRIAL COURT NUMBER: 1601 13790

REGISTRY OFFICE: CALGARY

APPLICANT: STEAM WHISTLE BREWING INC.

STATUS ON APPEAL: RESPONDENT

RESPONDENT: HER MAJESTY THE QUEEN IN RIGHT OF

ALBERTA as represented by the ALBERTA GAMING
AND LIQUOR COMMISSION

STATUS ON APPEAL: APPELLANT

TRIAL COURT NUMBER: 1601 13768

REGISTRY OFFICE: CALGARY

APPLICANT: GREAT WESTERN BREWING COMPANY LTD.

STATUS ON APPEAL: RESPONDENT

RESPONDENT: HER MAESTY THE QUEEN IN RIGHT OF ALBERTA

AS REPRESENTED BY THE ALBERTA GAMING
AND LIQUOR COMMISSION

STATUS ON APPEAL APPELLANT

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Fax Document Filing Request

Court Services
Please submit only one Document Filing Request per CourtFile
Submitted by Alberta Justice, Copstitutional Law Account No, n/a

City/Town 4th Floor,9833 - 109 Street, Edmonton Your File No.

Office Phone 780-422-5137 No. of Pages 7 Fax Number 780-425-0307

Action No. Style of Cause

Plaintiff(s) STEAM WHISTLE BREWING INC.
1501 15056 etal
vs.

Defendant{s) AJLBERTA GAMING AND LIQUOR COMMESSON .

instructions
L PLEASE JTLE CIVIL NOTICE OF APPEAL IN COURT OF QUEEN'S BENCH OF
ALBERTA.
2. PLEASE FILE CIVIL NOTICE OF APPEAL IN COURT OF APPEAL OF ALBERTA.
3. ONCE FILED WITH BOTH COURTS,PLEASE RETURN,VIA FAX,ASAP,THE
STAMPED FILED COVER PAGE OF THE CIVIL NOTICE OF APPEAL.
THANK YOU! ANY PROBLEMS OR QUESTIONS,CALL JACKY AT 780-422-5137

Signature

Clerks' Office Use Only Invoice No.

Filing Fee Completed by

Certified Copies @10.00
Fax Fee pages@ $1.00 per page
Clerk
Total Fees Charged To Account
Judicial Centre

Document Title

Has been filed by the Clerks' Office, but Has not been filed by the Clerks' Other Instructions:
we suggest you amend your document Office for the following reasons:
for the following reasons: