B.C. winemakers and British Columbians who fear that Alberta Premier Rachel Notley will limit the flow of oil into B.C. have something to celebrate in the Supreme Court of Canada's April 19 judgment in a case known as R. vs Gerard Comeau.
Comeau, who was challenging the New Brunswick government's ability to restrict him from buying beer across a provincial boundary, lost his case as the court found that provincial monopolies are valid because they serve provincial purposes aside from restricting the free flow of goods, said Coulson Litigation founder Shea Coulson, who spoke with Business in Vancouver after the judgment was released.
That purpose could be for health and safety, for example.
The good news for free traders is that the court also ruled that any provincial measure that is either a tariff or like a tariff is unconstitutional.
"Most of the provincial [liquor] monopolies these days impose restrictions on B.C. wine and have a policy, or some sort of regulation, that is directed at prohibiting those wines from crossing the provincial border," Coulson said.
"What the wineries are going to have to do is engage legal counsel to look at what the trade barriers are in each province and whether or not that particular barrier could be challenged."
Coulson said he has already looked at every province's regulations and policies on interprovincial wine shipments and that Ontario is one example of a province that has a policy that is worth challenging because it specifically targets B.C. wine.
The court's judgment is also relevant in the dispute between B.C. and Alberta over the Kinder Morgan pipeline – a rift that has the potential to devolve into a trade war.
Indeed, Alberta introduced a bill earlier this week to give its energy minister the power to limit oil, gasoline and natural gas shipments to B.C.
Coulson said that phrasing in the court's judgment, and some analogies that the justices included, "smells a lot like Notley's permitting scheme."
Painted Rock Estate Winery Ltd. owner John Skinner said he was pleased with the judgment. His winery, along with four others, were interveners in the Comeau case and hired Coulson to represent them.
"We've coalesced a group of wineries called the Okanagan Wine Initiative – there's seven of us and our whole focus is local and international exports," he said.
"We want access to be across Canada and around the world, so we're probably the most likely group to pursue this [and challenge the Ontario government's policy.]"
Cannabis Culture was also an intervener in the case.
Coulson said it is not yet clear what the judgment means for cannabis companies.
"It depends on, when [provincial] cannabis laws are enacted, whether a portion of those laws are directed at increasing costs or creating a trade barrier to interprovincial trade," he said.
Clearly any provincial cannabis monopoly, however, could easily claim that its purpose is for the "health and safety" rationale that was mentioned in the judgment.
Cannabis Culture principal Jodie Emery told BIV that she was disappointed with the decision.
"It seemed that the court said that as long as a provincial law doesn't say 'this is designed to deny the free movement of goods,' then it is OK," she said. "[The prohibition] would be just a side effect of the legislation. It's a strange thing. I’m not a legal expert in any way, but, looking at the analysis of what other people are saying, it's a disappointing decision."
Business in Vancouver followed up this story several hours later, with a story on the mix of reactions to the Comeau decision.