Registrar, Alcohol and Gaming Commission Ontario v. Paul Kobak, 2007 CanLII 26981

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The Gaming Control Act, 1992, as amended

B E T W E E N:

Registrar, Alcohol and Gaming Commission Ontario

Registrar

-and-

Paul Kobak

Applicant

DECISION

Panel: Kirsti Hunt, Vice Chair Guy Maurice, Member

Decision Date: June 26, 2007

Hearing Location: Hamilton, Ontario

Appearances

Registrar, Alcohol and Gaming Commission: Ed Wren, Representative Mr. Paul Kobak, Applicant: On his own behalf

Allegations

1A hearing into a Notice of Proposed Order dated December 29, 2006, to refuse the registration of Paul Kobak (the Applicant), 82 Dundurn Street North, Hamilton, Ontario, L8R 3E3, as a gaming assistant, registration number 137747, on the basis of alleged violation of section 11 of the Gaming Control Act (GCA), was held on May 25, 2007, in the City of Hamilton.

Decision

2After considering all the evidence and submissions, the Board confirms the Notice of Proposed order to refuse registration of Paul Kobak as a gaming assistant in the class of croupier. Reasons to follow.

Preliminary Matters

3The Registrar’s Book of Documents was made Exhibit #1.

4The resume of Paul Kobak was made Exhibit #2.

5Mr. Kobak agreed to the facts as set out in the Particulars of the Notice of Proposed Order (Exhibit 1, tab 1, pages 2 to 4, paragraphs 1 to 6) but wished to make a presentation to the Board.

Registrar’s Evidence

6The Registrar’s case is set out in the Particulars of the Notice of Proposed Order (Ex. 1, tab 1, pages 2 to 6). The Particulars detail a history of convictions and suspensions under the Highway Traffic Act (HTA), a conviction under the Criminal Code of Canada and the failure to disclose all convictions and suspensions on the application form.

Applicant’s Evidence

7By way of explanation, Mr. Kobak testified that he responded “no” to question 4(c) on the application because he was told by a person at the CNE, where he had applied for employment, that the AGCO didn’t consider what happened more than 9 years ago so he answered accordingly and sent in a letter of explanation (Ex 1, tab 1, paragraph 3). For 5(a) he explained that he was convicted of drinking and driving but got the date wrong and he explained about his criminal record. He testified that he answered “no” to question 4(c) because he had a momentary lapse and was confused. He could not remember everything. Mr. Kobak submitted his resume (Ex 2) and asked the Board to consider all he has done and have that form the basis of its judgment. Since he lost his record store 3 years ago, he attended casino school for 5 months. He is of sound character and should be granted the registration so he can work at the CNE in August.

8On cross-examination, Mr. Kobak agreed that he had an HTA offence every year from 1981 to 1990. The suspension in 1985 was for unpaid fines. He explained that he had an accident on January 17, 1997, when he hit black ice with his van which then rolled over. There was alcohol in the van and everything was smashed and the officer assumed he had been drinking. His licence was suspended on the spot and he was convicted the following month. To the best of his recollection, he had not been drinking. He agreed that he had been drinking on June 13, 1997, and was convicted of driving while over the legal limit and his licence was suspended of a year.

9For question 5(a), he sent in an explanation about one conviction for impaired driving. He agreed that he had been found guilty under the HTA but at the time he had the idea that the AGCO did not want his traffic record. He agreed that he did not report his convictions because someone told him not to do so but because he was careless.

10In question 4(c), he should have said “yes” and reported the licence suspensions and he intended to do so but he could not remember why he did not. He could not remember all the particulars of his driving record.

11On January 23, 2006, he was charged with Communicate Prostitution. The charges were stayed and he had to complete a course.

12Mr. Kobak explained that he has no infractions but for ones mostly from a long while ago. The Board should be reassured by what he has done in life which shows him to be a decent person who has made mistakes and been in situations now and then. He is a good person who just wants to resume his career in the casino industry.

Submissions

13Mr. Wren submitted that the Registrar’s concerns are based on Mr. Kobak’s past conduct and disclosure issues. Mr. Kobak has a string of HTA offences from 1981 to 1990, which, while somewhat dated, they are part of a pattern of behaviour when taken together with the behaviour in 1997 and 2006, raises doubt about how the individual will perform in future.

14With regard to disclosure, Mr. Kobak did not believe what he had been told by the person at the CNE because he disclosed one offence for impaired driving. When Mr. Kobak read question 5(a) at the hearing, there was no issue of confusion or not understanding. He was very careless in filling out the application and carelessness is not an acceptable excuse. A person acting with honesty would disclose convictions and suspensions and add an explanation that he could not remember all of them. Mr. Kobak wants to work in the casino industry and the CNE is a stepping stone to the industry. In filling out his application, at best he was careless and at worst he was dishonest.

15Based on the past conduct, some of which is recent, and the lack of disclosure, there are reasonable grounds to uphold the Notice of Proposed Order to refuse registration.

Applicant’s Reply

16Mr. Paul Kobak submitted that we were dealing with his background on paper. Most of the offences happened some time ago and people learn and change their ways. The incident in 2006 happened after his house burned down and he escaped with the coat on his back. Three of his friends died and he had difficulty dealing with it all. Three weeks later he was caught in a police sting. It was a rare occurrence for him.

17His resume shows that from 1994 he owned a retail store which folded in 2004. He has been on welfare since. He tried to become an English teacher and got accepted to teach in China and Moscow but he did not have the airfare to pursue that. He had worked in a casino so he took a course at Niagara College in customer service in the casino industry. He spent 5 months last year in casino school in Hamilton before applying to the CNE.

18The pros in his background outweigh the cons. Yes, he was careless on the application and he has a grey background but he is a good person who has tried to be meaningful in society.

Analysis

19The Board reviewed the evidence before it. It shares the Registrar’s concern about the Applicant’s past conduct as it relates to a very lengthy record of convictions and suspensions under the HTA some of which are recent and which, taken together, form a pattern of behaviour of breaking the law which is unacceptable. The Board finds the Applicant’s explanation about the motor vehicle accident in 1997 and his evidence that, to the best of his recollection, he had not been drinking considering that he pled guilty in court to operating a motor vehicle while having a blood alcohol level above the legal limit, evasive at best.

20The disposition of the charge under the Criminal Code for Communicate Prostitution occurred on January 23, 2006, and is recent. The matter may have resulted from stresses in the Applicant’s life, but the Board finds cavalier the explanation that “I simply have to attend ‘John School’ ... and the matter will be disposed with.”

21Of further concern is the failure to disclose convictions and licence suspensions on the application form. Being careless in filling out the application or not remembering are not an acceptable defence. The fact that there were so many convictions and suspensions that memory blurs does not speak favourably about the Applicant acting within the law. Furthermore, the Applicant did not appear to take seriously the HTA offences or even the offence under the Criminal Code merely describing his past history as his “background on paper”.

22The applicant indicated that people learn from their mistakes and change their ways and that may be the case for this Applicant. However, given the lengthy pattern of past behaviour and the recency of the latest offences as well as the disclosure concerns on the application, the Board finds that there are reasonable grounds to refuse this application for registration at this time. However, once the Applicant establishes a record of acting within the law, he does have the opportunity in future to apply again for registration.

Order

23For the above reasons, the Board CONFIRMS the Proposed Order of the Registrar dated December 29, 2006 to REFUSE registration as a gaming assistant to Paul Kobak of 82 Dundurn Street North, Hamilton, Ontario L8R 3E3.

DATED AT TORONTO THIS 26th DAY OF JUNE, 2007.