M. Jill Dougherty and Lara Kinkartz, for Liquor Control
Board of Ontario.
 Endorsement BY THE COURT: — The appellant is a small
distillery. The Alcohol and Gaming Commission of Ontario
(“AGCO”) granted it a manufacturer’s licence and retail store
authorization to sell its spirits to the public on-site on condition
that it enter into a contract with the Liquor Control Board of
 The LCBO’s contract was non-negotiable and required the
appellant to first sell its spirits to the LCBO before putting the
spirits up for sale in the distillery store. The distillery would
then sell the spirits to the public as the LCBO’s agent. The contract also granted the LCBO the power to set markup and
commission rates on the spirits sold. The total markup, 139.7
per cent, insured that prices at the distillery store were the same
as prices at LCBO stores. The contract provided the appellant
would receive a 13 per cent commission for acting as the LCBO’s
agent in selling the spirits.
 On July 23, 2015, the appellant brought an application for
a declaration that the LCBO’s markup was an unconstitutional
tax. It argued it was an unconstitutional tax because under
ss. 53 and 90 of the Constitution Act, 1867, taxes must be
imposed by Parliament or the provincial legislature. Regulatory
bodies cannot be empowered to impose taxes.
 The application judge dismissed the application. He found
that the markup fit within the criteria set out in Lawson v.
Interior Tree Fruit and Vegetable Committee of Direction, 
S.C.R. 357,  S.C.J. No. 84 and Eurig Estate (Re) (1998), 40
O.R. (3d) 160,  2 S.C.R. 565,  S.C.J. No. 72. But he
went on to find the levy escaped classification as a tax because it
was a proprietary charge. In making this finding, he relied on
Ontario Cancer Treatment and Research Foundation v. Ottawa
(City) (1998), 38 O.R. (3d) 224,  O.J. No. 552 (C.A.), at
p. 251 O.R.; Labourers’ International Union of North America v.
Ontario Construction Secretariat (1996), 31 O.R. (3d) 261, 
O.J. No. 4086 (Div. Ct.), at para. 16; Air Canada v. Ontario (
Liquor Control Board) (1997), 33 O.R. (3d) 479,  2 S.C.R. 581,
 S.C.J. No. 66; and 620 Connaught Ltd v. Canada (
Attorney General),  1 S.C.R. 131,  S.C.J. No. 7.
 The appellant seeks to avoid this result by urging a particular interpretation of the distinction between proprietary charges
and taxes that Rothstein J. made in 620 Connaught Ltd.
Rothstein J. said, at para. 49: