B.C. wineries 'disappointed' by provincial trade ruling, but door opens for future challenges

B.C. wineries and business owners say they're disappointed by the Supreme Court of Canada's decision upholding the constitutional right of provinces to limit the cross-border flow of goods.

But the lawyer who represented West Coast wineries in the case says the ruling could be a good thing, as it creates a new opportunity to challenge old barriers.

Thursday's decision effectively preserves the current trade rules, saying provinces have the power to enact laws that restrict commerce if there is another overriding purpose — like maintaining public safety or a monopoly.

The decision dashes the hopes of many Canadians who were hoping to have easier access to cheaper and sought-after products — particularly beer and wine — from other provinces.

It's also a defeat for five small B.C. wineries that joined the case as third-party intervenors, hoping to have the national market thrown wide open.

Christine Coletta, co-owner of the Okanagan Crush Pad winery in Summerland, B.C., led the group of vintners and said she's disappointed by the decision.

"[This case] was a lost opportunity to really open up the provincial trade barrier and have Canada positioned as one market," said Coletta. "We should be able to freely do business across our home country."

She explained that Canadian wineries are disadvantaged by their inability to ship their product between provinces without restrictions — unlike the U.S., for example, where states can trade freely with one another.

Coletta said she and the other intervenors "will get their heads together" in coming days to process the ruling.

A silver lining

Shea Coulson, the lawyer who represented the B.C. intervenors, is more optimistic about the ruling.

The ruling allowing interprovincial barriers as long as the primary goal of the restriction is not to impede trade or "punish" another province.

So, it's now unconstitutional to enact a law or a policy that, as its primary purpose, imposes a tariff or "tariff-like" measure on another province's products.

Coulson says that means the door has been opened for B.C. wineries to challenge existing laws that explicitly make it difficult for their wine to get into provinces like Ontario, which has a policy saying an Ontarian cannot import B.C. wine.

"These sorts of measures are in place across the country and I think we're going to see a whole bunch of legal challenges now, and governments are going to have to respond to this decision," Coulson said.

"For all B.C. wineries, this is a very positive decision."

Consequences for pipeline battle

Coulson also said the ruling comes at interesting time in provincial trade, given B.C. and Alberta's trade relationship being sullied in the ongoing battle over the Trans Mountain pipeline project.

Under this ruling, the lawyer said, Alberta's ban of B.C. wine — enacted by Premier Rachel's Notley solely to pressure B.C. over the Trans Mountain pipeline expansion — would "almost certainly be unconstitutional."

He said the same would "unequivocally" apply to Bill 12, which seeks to give Alberta's energy minister new powers to limit energy exports to B.C. or fine companies $10 million by the day.

Gerard Comeau was the man at the centre of the cross-border trade case. He's a New Brunswick retiree, who drives from his home in Tracadie — some 160 kilometres north of Moncton — to Quebec, where it's cheaper to buy beer and liquor.

RCMP fined him $292.50 for having 14 cases of beer, two bottles of whisky and one bottle of liqueur in his vehicle at the New Brunswick-Quebec border in 2012.

In an interview before the decision came down, Comeau said he expected the court to eliminate barriers altogether.