Our Constitutional Fight
Help Toronto Distillery Co. fight for our collective constitutional rights! Specifically Section 53 of the Constitution, which protects Canadians from having to pay taxes based on the whim of an official. Right now, Ontario doesn’t have a spirits tax, and instead the LCBO is imposing its markup – which is designed to cover their own overhead – on our retail store. No legislators ever voted for this tax, making it unconstitutional. We’ll post our legal filings here, and at the bottom of this page we’re accepting contributions from those who’d like to help but aren’t in a position to swing by our retail store! For everyone who contributes $10, we’ll add your name to our Constitutional Defenders wall to be hung proudly in our distillery.
- 2015-07-23: filed our Notice of Application + Supporting Affidavit (where we tell our story – PDF, 1.8MB)
- 2015-07-24: story written at Ben’s Beer Blog
- 2015-07-27: Aaron Binder, Ontario is in the Middle of a Booze Revolution, Huffington Post
- 2015-07-27: Marco Chown Oved, Distillery Sues LCBO over its Markup, Toronto Star
- 2015-07-27: filed Notice of Constitutional Question (PDF)
- 2015-07-28: Toronto Distillery Company sues LCBO over markup, Metro News Toronto
- 2015-07-28: Chuck speaks with Jerry Agar on NEWSTALK 1010, July 28 Jerry Agar Show
- 2015-07-29: We have 36 names so far for our Constitutional Defenders Wall! <3
- 2015-07-31: Notice of Appearance from Alcohol & Gaming Commission (PDF)
- 2015-08-05: Notice of Appearance from LCBO (PDF)
- 2015-08-05: Notice of Appearance from Ontario Attorney General (PDF)
- 2015-08-17: Order granting leave to Charles Benoit to represent Toronto Distillery Co. in this proceeding. (PDF)
- 2015-09-14: Order in Civil Practice Court setting litigation schedule and hearing date of January 21st, 2016. (PDF)
- 2015-10-02: Affidavit from AGCO (PDF, exhibits not included)
- 2015-10-02: Affidavit from LCBO (PDF, exhibits not included)
- 2015-11-20: We filed out Factum (PDF, 885kb), which details our legal arguments as to why the Mark-up payments we make to the LCBO are an unconstitutional tax because they did not originate in legislation.
- 2015-12-21: Factum of the AGCO (PDF)
- 2015-12-21: Factum of the LCBO (PDF)
- 2015-12-21: Factum of the Attorney General of Ontario (PDF)
- 2015-12-22: Notice of Apperance (PDF, our good high school friend Lauchlin MacEachern is now our lawyer!)
- 2016-01-12: Reply Factum of Toronto Distillery Co. (PDF)
- 2016-01-20: Peter Kuitenbrouwer, Toronto Distillery Co. challenges Ontario rules that force it to sell liquor at markup for LCBO, National Post
- 2016-01-21: Hearing in Courtroom 6-3 at 361 University Ave. Scheduled all day beginning at 10am.
- 2016-01-22: Peter Kuitenbrouwer, Toronto Distillery Co. challenge has ‘ramifications across the province,’ judge says, National Post
- 2016-01-28: Letter from Tim Hudak, MPP to The Hon. Charles Sousa, MPP
- 2016-02-25: (Victory?!) Government of Ontario 2016 Budget calls for legislated spirits tax to replace LCBO mark-up system.
- 2016-04-01: Justice Akhtar’s Reasons for Judgment (the trial decision – PDF, 1.38MB)
- 2016-04-02: Statement by Toronto Distillery Co.: Losing a Battle, Winning the War?
- Next: Notice of Appeal
What the Supreme Court has said just back in 2008 about Section 53 of the Constitution:
This principle is found in s. 53 of the Constitution Act, 1867, which mandates that bills imposing any tax shall originate in the House of Commons. In Eurig Estate (Re),  2 S.C.R. 565, Major J. explained the rationale underlying s. 53, at paras. 30-32:
The provision codifies the principle of no taxation without representation, by requiring any bill that imposes a tax to originate with the legislature. My interpretation of s. 53 does not prohibit Parliament or the legislatures from vesting any control over the details and mechanism of taxation in statutory delegates such as the Lieutenant Governor in Council. Rather, it prohibits not only the Senate, but also any other body other than the directly elected legislature, from imposing a tax on its own accord.
In our system of responsible government, the Lieutenant Governor in Council cannot impose a new tax ab initio without the authorization of the legislature. As Audette J. succinctly stated in The King v. National Fish Co.,  Ex. C.R. 75, at p. 83, “[t]he Governor in Council has no power, proprio vigore, to impose taxes unless under authority specifically delegated to it by Statute. The power of taxation is exclusively in Parliament.”
The basic purpose of s. 53 is to constitutionalize the principle that taxation powers cannot arise incidentally in delegated legislation. In so doing, it ensures parliamentary control over, and accountability for, taxation. As E. A. Driedger stated in “Money Bills and the Senate” (1968), 3Ottawa L. Rev. 25, at p. 41:
Through the centuries, the principle was maintained that taxation required representation and consent. The only body in Canada that meets this test is the Commons. The elected representatives of the people sit in the Commons, and not in the Senate, and, consistently with history and tradition, they may well insist that they alone have the right to decide to the last cent what money is to be granted and what taxes are to be imposed.