COVID-19 Update: Liquor an Essential Service – Regulators in AB, BC, ON and SK make changes to assist industry

In this brief update, we outline recent restrictions and relaxations brought forward by the governments of Alberta, Ontario, British Columbia and Saskatchewan related to the production and sale of liquor products in response to the ongoing COVID-19 pandemic. We will continue to update this page to reflect any further changes that may be implemented as these and other provincial governments continue to respond to the pandemic conditions.

For more information about the contents of this update, or if you have any concerns about your rights and obligations as a liquor licensee during the COVID-19 pandemic, please contact one of the authors.

For up-to-date information on COVID-19 and McCarthy Tétrault’s perspective on the legal issues it presents, please visit our dedicated hub here.

The information in this update is current as of March 30, 2020.

In general, where provincial governments have ordered the closure of all or some non-essential businesses in response to the ongoing pandemic, most licensed participants in the liquor supply chain, including manufacturers, retailers and restaurants, have been declared “essential” or otherwise permitted to continue operations. However, liquor-primary licensees (e.g., bars and nightclubs where the primary function is liquor service and minors are not permitted) have faced closure in Alberta, British Columbia, Ontario and Saskatchewan, including due to the difficulty of maintaining social distancing in those settings.

Another general trend is a relaxation of regulations to allow licensed restaurants to begin engaging in off-sales (selling of packaged, sealed liquor products for consumption off-premises) and delivery services. These measures have been implemented in Alberta, British Columbia, Ontario and Saskatchewan; however, each province has taken different approaches to the terms and conditions applicable to these off-sales and delivery services, with different obligations being placed on the licensees and their agents.

The measures taken by each of these provinces are described in greater detail below.

Alberta

On March 17, 2020, the Government of Alberta declared a state of public health emergency pursuant to the Public Health Act. Under this order, which continues in effect, the government has restricted mass gatherings, prohibited attendance at public and private recreational facilities, limited occupancy at restaurants and cafés, and prohibited Albertans from attending at premises holding Class A – Minors Prohibited liquor licenses (e.g. bars and nightclubs). See our previous post, addressing the powers available to the provincial government under the state of public health emergency, here. On March 27, 2020, the Government of Alberta announced the closures of non-essential businesses and released a list of “essential services”. This list expressly includes:

AGLC [Alberta Gaming, Liquor and Cannabis Commission], beer, wine and liquor stores and alcohol producers, and stores that sell beer and wine through arrangements with authorized producers ...

Additionally, the AGLC has taken a number of proactive measures in response to the COVID-19 pandemic, including as follows:

Off-sales and Deliveries by Class A Licensees

  • On March 17, 2020, the Government of Alberta ordered that holders of Class A liquor licenses (i.e., restaurants, bars, and nightclubs) issued by the AGLC are now authorized to sell liquor through off-sales and delivery services – with or without the purchase of food. Specifically, pursuant to section 129 of the province’s Gaming, Liquor and Cannabis Act, (the “Act”) the provincial Cabinet ordered that section 35 of the Gaming, Liquor and Cannabis Regulation be amended to broaden Class A liquor licenses to include the ability “to sell or provide liquor from the licensed premises for consumption off the licensed premises”. These changes are also reflected in the AGLC’s Liquor Licensee Handbook (sections 3.1, 3.2 and 5.3) and Liquor Manufacturer Handbook (sections 3.7, 3.8 and 7.3).
  • Note that while permitted to engage in off-sales and delivery of liquor products, holders of Class A – Minors Prohibited licenses are prohibited, as per the March 17 order, from allowing the public into their premises.
  • All off-sales and delivery products must be in sealed containers. Where reusable containers are being used, such as beer growlers, they must be sealed in such a way as to indicate they have not been opened in transport.
  • Licensees and their staff engaging in liquor deliveries must continue to provide responsible service. In particular, all licensee staff engaging in liquor deliveries must have undergone ProServe (responsible liquor service) training offered by the AGLC, and abide by ProServe policies and procedures. Further, delivery staff must:
    • Ensure that liquor is not delivered to a minor, including by checking the identification of any purchaser or delivery recipient who appears to be under 25 years of age (see further discussion of identification requirements, below);
    • Refuse delivery to intoxicated persons; and
    • Only deliver liquor that is in a sealed, commercial container (i.e. mixed drinks are not allowed).

Clarifications regarding identification procedures

  • The obligation on licensees and their staff to verify the age of an alcohol purchaser who appears to be under the age of 25 remains in place. However, in light of the potential for COVID-19 transmission via surfaces, the AGLC has issued updated guidance for licensees, including the following, to preserve social distancing and avoid contact with contaminated identification:
    • Licensees and their staff may allow customers to hold their identification out for review of both the front and back of the licence (avoiding the need for staff to handle the licence).
    • Alternatively, a customer may place the identification card on a flat surface for inspection.
  • The AGLC also noted that Albertans with birth dates between March 17 and May 14, whose identification expires this year, will have until May 15, 2020 to renew their identification, per direction from Service Alberta.
  • Sales must be refused to individuals carrying out-of-province or other identification where the validity of the identification cannot be determined.

Production of Hand Sanitizer

  • Although the AGLC does not regulate the manufacture of non-potable alcohol products, including hand-sanitizer, it has issued guidance for Class E licensees (i.e. manufacturers) wishing to use their facilities to produce hand-sanitizer.
  • Including to avoid cross-contamination between potable and non-potable product, the AGLC advises licensees to maintain clear records in respect of all materials used and the final product that leaves the facility, in addition to adhering to all federal government requirements.
  • While no markup pursuant to the Act or its regulations can be applied to the sale of hand sanitizer, the AGLC has indicated that hand sanitizer can be distributed through licensed retail liquor stores and invites manufacturers to contact the AGLC in respect of product registration and sales.

British Columbia

The Province of British Columbia has not yet issued an order mandating closure of non-essential businesses. However, the Provincial Health Officer (the “BC PHO”) has made several orders that affect licensed establishments. Although non-essential businesses have not yet been ordered to close, the BC government has, as of March 27, 2020, included retail liquor establishments and “restaurants and other facilities that prepare and serve food, if operating under rules for social and physical distancing or other recommendations from the [BC PHO]” as a part of their essential services list.

On March 17, 2020, the BC PHO ordered all liquor primary licensees (e.g. bars and nightclubs) to close. However, on March 20, 2020, the PHO directed that licensed restaurants and bars offering meal service may remain open provided that they only provide take-out or delivery service and maintain strict compliance with social distancing guidelines including capacity limits.

The BC Liquor and Cannabis Regulation Branch (the “BC LCRB”) has introduced several measures, including easing restrictions on off-sales and delivery, in response to the COVID-19 pandemic.

Off-sales and Delivery

  • On March 20, 2020, the BC LCRB released Policy Directives 20-05 and 20-06, which provide for delivery and off-sales by licensed food-primary and liquor-primary establishments and introduce temporary terms and conditions (the “Temporary Terms”) for the same, effective until July 15, 2020. The Temporary Terms can be found in their entirety in the BC LCRB’s Food Primary Terms and Conditions and Liquor Primary Terms and Conditions.
  • The Temporary Terms include the following:
    • All restaurants and bars with existing liquor licenses may provide off-sales or delivery of packaged liquor (in the manufacturer’s original packaging) or growlers with a meal. This is in contrast to the AGLC policy effective in Alberta, which allows for delivery and off-sales of liquor without meal purchase;
    • Hours for accepting off-sales or delivery orders end at 11 p.m. or the normal operating hours of the establishment, whichever is earlier;
    • Prices may be adjusted but must be at or above the minimum prices as set out in the Temporary Terms; and
    • Effective April 20, 2020, all workers engaged in liquor deliveries must possess Serving It Right certification (the BC LCRB’s responsible liquor service training).
  • The Temporary Terms also require any establishment engaging in off-sales or delivery to comply with existing delivery regulations, which provide, among other things, that:
    • Liquor must only be delivered to: (i) a place where liquor can be legally consumed (e.g. a private residence); (ii) an individual over the age of 19 (the BC ID requirements still apply); and (iii) an individual who is not intoxicated;
    • The cost of the meal, liquor and delivery charges must be recorded separately and the customer must be informed of each of these charges when they place an order;
    • All deliveries must be completed by half an hour after the expiry of the time that the licensee is legally allowed to provide off sales or placing orders for delivery;
    • The transaction record, including the date, time and address of each delivery, products purchased, prices charged, delivery fees and total amount paid, must be kept for at least six years;
    • All liquor must come from the licensed establishment itself (no sales from a warehouse or off-site storage facility);
    • The order must be prepared and processed in the establishment;
    • The licensed establishment is responsible for ensuring all workers and third-party delivery services follow the Delivery Regulations; and
    • If a licensee is using unlicensed online portals, such as third-party food delivery services, to facilitate their liquor delivery, they must ensure that the establishment’s name, licence number and establishment’s address are displayed prominently on their page in the online portal. Restaurants and bars can also sell liquor for delivery through their own website provided that the specific location of the establishment along with that location’s licence number are displayed in a prominent place on the website.

Production of Hand Sanitizer

On March 19, 2020, the BC LCRB issued Policy Directive No. 20-03 allowing all distillers in the province of BC to manufacture alcohol-based hand sanitizer and either sell or donate the hand sanitizer.

Ontario

On March 23, 2020, the government of Ontario ordered the closure of all non-essential business. Businesses engaged in liquor retail and supply chains were declared essential. 

On March 26, 2020, the Alcohol and Gaming Commission of Ontario (the “AGCO”) issued Information Bulletin No. 61, permitting licensed bars and restaurants in Ontario to engage in liquor off-sales and deliveries, subject to certain guidelines, including:

  • All orders must be received between 9 a.m. and 11 p.m.;
  • At all times, the liquor licensee is accountable for the responsible and safe delivery of liquor products, including ensuring that purchasers are of legal drinking age and not intoxicated;
  • The licensee or its staff engaged in the delivery of alcohol must have completed Smart Serve training (Ontario’s responsible alcohol service training);
  • Where the licensee has engaged a third party agent to conduct deliveries, the AGCO expects the parties to have an agreement addressing how the agent will meet the requirements for responsible sale and service (which includes, but is not limited to, smart serve certification, etc.); and
  • The licensee must keep records of all sales, including: the name and address of the person who paid for the order, the kinds and amounts of liquor purchased, the date of delivery, the address to which the liquor was delivered, the price paid for the liquor, any delivery fee charged and the name of the individual completing the delivery.

Saskatchewan

As with the other provinces canvassed above, Saskatchewan has imposed restrictions regarding which businesses are permitted to remain open in an effort to reduce the spread of COVID-19.  All restaurants and bars have been ordered closed, with the exception of takeout and delivery orders, and licensed retail stores “selling beer, wine, liquor” have been listed as “Allowable Business Services” that may continue to operate.

The Saskatchewan Liquor and Gaming Authority (“SLGA”) is allowing licensed restaurants to provide off-sales and delivery services for liquor products, with or without an accompanying food order. Licensees engaging in off-sales or deliveries do not require any special permit beyond their existing restaurant permits. In this regard, the SLGA has provided the following guidance:

  • Delivery can be made by an employee of the bar or restaurant, or can be contracted out to a business holding a “Home Delivery Liquor Permit”, a special-use permit available to persons wishing to conduct home delivery of liquor products. Deliveries cannot be contracted out to person not in possession of a valid Home Delivery Liquor Permit.
  • Liquor products can only be delivered to private residences, and only between the hours of 9:30 a.m. and 3 a.m. As with table service, liquor cannot be delivered to persons under the age of nineteen, or to intoxicated persons.

Should you wish to discuss other legal issues arising in your organization’s response to COVID-19, please contact Lara Nathans or Trevor Lawson.

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