LIQUOR LICENCE ACT, R.S.O. 1990
In the Matter of: ANDY KAPPS PUB 924 Oxford Street East Unit 4 London, Ontario N5Y 3J9
Licensee: Club 924 Social Group Licence Number: 806801
Notice of Proposal: To REVOKE a licence Dated December 11, 2006.
The Proposal alleges that:
(a) contrary to subsection 15(1) of Ontario Regulation 719/90 under the Liquor Licence Act, the licence holder contracted out the sale and service of liquor to a third party.
(b) contrary to subsection 44(1) of Ontario Regulation 719/90 under the Liquor Licence Act the licence holder failed to ensure that no person was allowed to enter behind the bar of the licensed premises while liquor was being sold or served.
(c) contrary to subsection 45(1) of Ontario Regulation 719/90 under the Liquor Licence Act, the licence holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises or in the areas under the control of the licence holder.
(d) contrary to subsection 30.1(1) under the Liquor Licence Act, the licence holder failed to display the Fetal Alcohol Spectrum Disorder warning sign while selling or supplying liquor or offering to sell or supply liquor.
(e) contrary to section 52 of Ontario Regulation 719/90 under the Liquor Licence Act, the licence holder failed to post the licence in a conspicuous place in the premises to which the licence applies.
(f) contrary to subsection 17(2) of Ontario Regulation 719/90 under the Liquor Licence Act (the “O. Reg.”), the licence holder failed to ensure that the sale and service of liquor was supervised by an authorized employee.
(g) contrary to subsection 45(2) of the Liquor Licence Act (“LLA”), the licence holder failed to facilitate an inspection relevant to the licence.
Hearing: Station Park All Suite Hotel 242 Pall Mall Street, London, ON January 19, 2007.
Presiding
Board Members: Alex McCauley, Member Brian J. Ford, Member
Appearances: Brad Alton, Registrar’s Representative Barry Card, Licensee’s Representative
Authorities: Baker v. Canada [1999] J.S.C.R. 817 Dictionary of Canadian Law (2nd ed.) Carswell Black’s Law Dictionary (8th ed.) Thomson
Exhibits: #1 – Liquor licence of Andy Kapps (copy)
A hearing of the Alcohol & Gaming Commission of Ontario (“AGCO”) was convened on January 19, 2007 at the Station Park All Suites Hotel, 242 Pall Mall Street, London, Ontario pursuant to a Notice of Proposal dated December 11, 2006 to revoke the licence issued to Club 924 Social Group operating as Andy Kapps Pub, 924 Oxford Street East, Unit 4, London, Ontario, N5Y 3J9, licence number 806801.
Preliminary Matters
Mr. Card requested an adjournment of the matter. Mr. Card argued that 15 days had not passed since he had served notice of constitutional question pursuant to the Canadian Charter of Rights and Freedoms and he was entitled to this time period under the Courts of Justice Act.
The Courts of Justice Act sets out the 15 day time period in order to ensure that all parties have been advised of a Charter application, including the provincial and federal Attorneys General, who may choose to intervene. Neither level of government chose to exercise that right. The time period in the Act is procedural for the benefit of these other parties or potential parties. It is not a time allowance for the applicant. The request for adjournment was denied.
Evidence of the Registrar
John Purvis has been an AGCO Liquor Inspector for six years. He attended Andy Kapps Pub on September 15, 2006 at approximately 22:35 hours to conduct a liquor licence inspection. He was accompanied by Ontario Smoking Health Unit members Adam Richard and Robert Murray.
To enter the front door of the establishment you need to use a key pad. The Smoking Health Unit Members keyed the pad and they entered the establishment. Patrons were present.
The establishment appeared to be busy. People were sitting at the bar and two men were at the cash behind the main service bar. Inspector Purvis spoke to the man at the bar and asked where the owner, manager or bartender was. Inspector Purvis was asked to identify himself and explain how he got in. He did so and again asked to see the person in charge. The male identified himself as Steve Longlad and explained he was a volunteer. He spoke to one of the two men behind the bar, who identified himself as Mike Slade. Mr. Slade also stated he was a volunteer. The other male, identified as Pete, was paying off his bar tab.
While Inspector Purvis was questioning Mr. Slade, a male patron came and sat near them. He kept interrupting Inspector Purvis’s conversation with Mr. Slade. He had bloodshot eyes, slurred speech and also advised the Inspector he was a volunteer. Mr. Slade asked him to move away. Under cross-examination, Mr. Purvis admitted their conversation was limited to the patron’s statement that he was a volunteer.
Another male patron came over. He was unsteady on his feet, also had slurred speech and interrupted the conversation of Inspector Purvis and Mr. Slade. This male also advised that he was a volunteer. Mr. Slade asked this person to move away.
Inspector Purvis testified that the Fetal Alcohol Syndrome (FASD) warning sign was covered by another sign. However, in cross-examination he admitted the sign was only 10% covered and he had not checked to see if other FASD signs were posted. The Inspector stated that the liquor licence was covered by a poster but admitted, in cross-examination, it was 90% visible and he did not look if another copy of the licence was displayed. He did not move about and examine the premises.
Inspector Purvis left the establishment at 23:15 hours. He advised Mr. Slade to have the owner call him. Inspector Purvis advised that he did not receive a call but admitted that it was possible that he did and he could not remember for sure.
In cross-examination Inspector Purvis agreed joint AGCO/Smoking Health Unit inspections were common. Inspector Purvis admitted he did not ask Mr. Slade, Mr. Longlad or Pete if they were authorized by the licence or Smart-serve trained. He stated that, when asked their position they all said they were volunteers. He also noted that, when asking people to move away from their conversation, Mr. Slade appeared to have sway with people in the establishment. He did not recall alcohol being served.
Inspector Purvis testified he had dealt with other non-profit organizations that used volunteers and that they normally had a Special Occasion Permit. He admitted that those events are staffed by volunteers. Inspector Purvis said that he had never met a volunteer in a bar before. He has inspected at Legions and has not asked whether there were paid employees. Asked to define employee, he responded “a person who works and is paid.” He admitted later that a person in charge of an establishment may not be an employee.
Licensee’s Evidence
Mike Slade is a volunteer at Andy Kapps. Mr. Slade advised the Board that he is a garage door installer and that he is member of Club 924, a social club. He stated that members of the club get together, talk, have fun, and smoke. He stated that he pays a membership fee of $20.00 once a year.
Mr. Slade admitted he does serve alcohol at the club. When he is called to volunteer he is involved with the service of alcohol. However he attends at other times not as a volunteer. Mr. Slade said that to be a volunteer and serve liquor, he had to become familiar with the legislation, and had to have the Smart Serve training. He does not get paid for serving alcohol.
He was involved with the service of alcohol on September 15, 2006, when Inspector Purvis was there. He stated that he arrived at the establishment at 8:30 pm and left at 2:00 am. Mr. Slade advised the Board that Inspector Purvis did talk to him. He was asked if he was an employee and he replied he was a volunteer. Mr. Slade stated that he was not asked by Inspector Purvis who was in charge. Had he been asked that question he would have said that he was.
Asked about the two allegedly intoxicated patrons, Mr. Slade stated that he did not remember them. He did note that when members of the club have had too much to drink they take care of them and make sure they get home safely. On September 15, 2006, one person was taken home at his own request. This person was named Andy who had two drinks and asked for a ride home. In cross-examination Slade admitted he was not aware how many drinks were served to Andy prior to Slade’s arrival at 8:30 and confirmed he had only served two beers to Andy. Andy was one of the males who talked to Inspector Purvis.
Asked about the Fetal Alcohol poster, Mr. Slade stated that there are two posters; one was partially blocked but the other, located on the east wall, was not blocked. With respect to the liquor licence, he admitted it was also blocked, but added that there was another copy on the same wall at the other end of the bar that was not blocked. Inspector Purvis did not ask if there was another copy of the Fetal Alcohol poster or liquor licence present.
Mr. Slade advised the Board that the owner of Andy Kapps is Mr. Ken Moore. He confirmed that Mr. Moore purchased the liquor for the Club. He cannot change prices because he was not the owner of the Club. The owner is not present when Slade volunteers, the owner is present and serving during the daytime.
Raymond Kenneth Moore is the President of the Club. The bar is actually owned by Mr. Moore’s mother who rents the Premises to the Licensee. He stated that he has been in the bar business for approximately twenty-one years and has a Smart Serve certificate. He has been associated with the pub for approximately eight years. Mr. Moore advised the Board that Andy Kapps was a public bar prior to becoming a private club.
The Club, known as Club 924 Social Group, has been in operation for two years, has approximately 285 members who pay a yearly membership fee, and is not open to the public at any time. Mr. Moore stated that the Club does not have any employees and is run by volunteers. Between forty and fifty members attend the Club on a weekly basis. Prior to opening the private club, Mr. Moore sought legal advice to transfer Andy Kapps from a public enterprise to a private, not-for-profit club. Mr. Moore noted that he tends bar from time to time. He takes care of the Club’s business, does all the ordering and scheduling. There is a Board of Directors which sets the prices for alcohol served in the Club. Only four of the approximately 285 members are involved in serving alcohol.
Mr. Moore identified several clubs in the London area, such as the Eagles club and the local Legion, which use volunteers to run the club and serve alcohol. He was advised volunteers could be used as long as they were Smart Serve trained.
If Club members were intoxicated, they were asked to leave and given a ride home. Mr. Moore testified posters regarding Fetal Alcohol Syndrome are on the east wall behind the bar and in the women’s washroom. A copy of the liquor licence is posted in two locations at the bar.
Asked if the Inspector contacted him regarding the inspection on September 15, 2006, Mr. Moore replied he called the Inspector on September 21, 2006 and left a message. Inspector Purvis called him back and talked about the inspection but did not mention what he had found or if there were any charges.
Under cross-examination, Mr. Moore confirmed he does not receive a salary but leases the bar equipment belonging to Andy Kapps to Club 924 Social Group. Andy Kapps Ontario Limited makes a profit on the leasing of the bar equipment and Premises. The corporation, Andy Kapps Ontario Limited, is in his mother’s name. The main purpose of the Club is to allow people to smoke.
Registrar’s Submissions
With respect to the requirement to have an authorized employee Mr. Alton submits that the LLA does not define what an employee is. Absent a definition in the statute, the rules of statutory interpretation tell us that we should look at the plain meaning of a word for its definition. He argued that the plain meaning of an employee is someone who is employed by, and works for, another.
The Dictionary of Canadian Law (2nd ed.) provides the following definitions of employee:
Any person employed by an employer and includes a dependent contractor and a private constable, but does not include a person who performs management functions or is employed in a confidential capacity in matters relating to industrial relations. (Canada Labour Code)
Includes an officer.
Any person who is in receipt of or entitled to compensation for labour or services performed for another.
Any person who performs duties and functions that entitle that person to compensation on a regular basis.
A person who is in receipt of or entitled to wages.
Includes an officer or director of a corporation or of an unincorporated organization and an agent acting for a principal on a substantially full-time basis.
Includes a dependent contractor. (Labour Relations Act)
Black’s Law Dictionary (8th ed.) defines employee as:
a person who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance.
Black’s defines volunteer as:
A voluntary actor or agent in a transaction; esp., a person who, without an employer’s assent and without any justification from legitimate personal interest, helps an employee in the performance of the employer’s business.
Using these definitions Mr. Alton submits that a volunteer cannot be an employee as the hallmark of being an employee is being compensated or entitled to compensation for services rendered. Further, there must be an employee for a volunteer to “help in the performance of an employer’s business”. As there were no employees in Andy Kapps the volunteers working on the Premises do not fall within the Black’s definition. In addition, Mr. Alton notes that the condition on the licence requires servers of liquor to be employees as they must complete the server-training program within 90 days of commencing their employment. He agreed that while volunteers can be Smart Serve trained, they do not have a commencement of employment date. In his view this also confirms the intention that an employee be in the establishment.
While Mr. Moore testified he knew of several groups and organizations that operate with “volunteers” and not employees he could not state whether those groups and organizations held liquor sales licences or Special Occasion Permits (SOP). Holders of SOPs are subject to different regulatory requirements. Subsection 33(1)(a) of Ontario Regulation 389/91 precludes entry behind the bar by anyone other than “an employee or other person authorized by the permit holder”. By contrast subsection 44 (1)(a) of Ontario Regulation 719/90 limits entry behind the bar during hours of service to “an employee authorized by the licence holder”.
It was Mr. Alton’s position that the law is clear and there is no ambiguity in this regard. The Legislature has turned its mind to the difference between an SOP and a liquor sales licence and only an “employee” is permitted behind the liquor service bar during the hours that liquor is being sold in a licensed establishment.
Mr. Alton argued that, while not an issue before the Board, Mr. Moore is using the position of a not-for-profit organization utilizing volunteers to circumvent the Smoke-Free Ontario Act enacted by the Province of Ontario. If Mr. Moore had employees in Club 924, then Andy Kapps would be a workplace and smoking would not be permitted.
The Board cannot make a finding that the “volunteers” were employees as the “volunteers” consistently denied that they were employees. In his view the Licensee can have as many volunteers as they like so long as they have an employee on hand to supervise the sale and service of liquor in the establishment as required by the LLA.
With respect to the alleged violation of subsection 15(1) of the O. Reg., Mr. Alton submitted the evidence is clear that the licence holder contracted out the sale and service of liquor to a third party. In support of this submission he noted the licence holder was not present on the premises and nor were any authorized employees as required under the LLA. The people on the premises dispensing alcohol were volunteers who denied being employees. No one would admit to being in charge when asked by the liquor inspector. Subsection 17(2) requires an authorized employee must supervise the sale and service of alcohol. Based on the fact that no authorized employee was supervising the sale and service of alcohol and only volunteers were in evidence, there is clear evidence of contracting out to a group of volunteers thereby breaching subsection 15(1) of the O. Reg.
With respect to subsection 44(1) of the O. Reg., Mr. Alton submits that Inspector Purvis’s uncontested evidence is that he saw two males behind the liquor service bar: Mike Slade and Pete. Neither was an employee and only an employee is allowed behind the bar under the LLA.
With respect to subsection 45(1) of the O. Reg., Inspector Purvis’s evidence was that a patron repeatedly interrupted his conversation with the "volunteers", was unsteady on his feet and had slurred speech. This person displayed the classic signs of intoxication. A second person was observed whose speech was slurred as well. While Mr. Slade did not remember the drunken patrons, he testified that he called a cab for a person named Andy who had one too many. Mr. Slade also stated that there was a policy for getting people who had had one too many home.
With respect to subsection 30.1(1) of the LLA regarding the posting of fetal alcohol spectrum disorder (FASD) sign, Inspector Purvis found that the sign was partially covered by another sign thereby defeating the purpose of the Act. Even if a sign was displayed in the women’s washroom it would not meet the criteria of the Act therefore breaching this section of the Act.
With respect to section 52 of the O. Reg., the liquor licence was partially covered by another sign. It cannot be posted in a conspicuous place if it could not be read in full. While the Licensee testified another copy existed somewhere else in the small licensed facility, Inspector Purvis did not observe it during his 40 minutes in the premises. As such, Mr. Alton submitted, it was not posted in a conspicuous place therefore breaching this section of the Regulation.
With respect to subsection 17(2) of the O. Reg., it is clear that an “employee” must supervise the sale and service of liquor in the premises. An “employee” is defined to be a person who is in the employ of an employer. The person at the premise repeatedly claimed to be a “volunteer”. No employee was present to supervise the sale and service of liquor thereby breaching this section of the Regulation.
Finally, with respect to subsection 45(2) of the LLA, the licence holder failed to facilitate an inspection by having no employee present to assist the AGCO liquor inspector at the time of his inspection. The only people available were “volunteers” of the social club who refused to acknowledge they were employees of the licence holder or were in charge. Despite Inspector Purvis’s repeated requests to speak to the person in charge (a manager, owner, or bartender) nobody would admit to being anything more than a “volunteer”, thus failing to facilitate the inspection and breaching the LLA.
Based on the evidence and on a balance of probabilities, Mr Alton submitted there was sufficient evidence to prove that breaches of these seven sections occurred and asked the Board to find in favour of the Registrar.
Licensee’s Submissions
With respect to contracting out, Mr. Card noted that Inspector Purvis was not able to offer any evidence concerning the allegation that the licence holder had contracted out the sale and service of liquor to a third party. There was also no evidence available from either of the licensee’s witnesses to support this contention. The Registrar’s counsel deals with this issue by suggesting that proof of contracting out:
is evidenced by the fact that the licence holder was not present on the premises and neither were any authorized employees as required under the Act.
Mr. Card asserted that the absence of an employee is being tendered as evidence of contracting out. The absence of an employee is dealt with directly under clause “f” of the proposal. It is respectfully submitted by Mr. Card that the employee is a discreet item, which cannot fairly be recast and repeated in the form of these “separate” allegations. It is clear from the evidence that these are not separate allegations at all. They are manifestations of a single issue, namely whether or not those responsible for the sale and service of alcohol can be considered “employees” for the purposes of this legislation.
The other element of the alleged proof was, Mr. Card noted, the fact that the licence holder was not present on the premises. The licence holder is “Club 924 Social Group”. It was common ground that the licence holder is a corporation without share capital. It is trite law, Mr. Card noted, that a corporation is a creation of the law, sometimes referred to as a “legal person” which is incapable of direct “presence”. A corporation without share capital is comprised of members. No person found on the premises by Inspector Purvis lacked this essential characteristic; every person present was a member of the Social Group. The person involved in the sale and service of alcohol was a bona fide member of the Social Group and was performing these services on a volunteer basis. Moreover, there was no involvement by any third party. Mr. Card believes it is clear from the evidence that there was never any factual basis for the “contracting out” allegation.
With respect to unauthorized persons behind the bar, Mr. Card contends that Inspector Purvis, during evidence, stated that he did not observe any liquor being sold or served during the time he was present. Mr. Card noted that Registrar’s Counsel refers to the fact that Inspector Purvis “walked in and saw two males behind the liquor service bar”. It is contended that since neither of these males were employees of the Licence holder, an offence must have occurred. This in, Mr. Card’s view, is incorrect for two reasons:
Once again, the employment issue has been stirred into a supposedly independent count. It is fundamentally wrong for the Registrar to present a single concern under a number of guises. The fact that everyone who was responsible for handling alcohol had smart serve training. Those behind the bar were members, authorized by the Social Group to be there. Whether or not these people were employees is a separate question.
As mentioned above, liquor was not being sold at the time. The member who was paying his bar tab had been trained on, and was showing the bartender, how to operate a newly installed debit card reading machine. These members, while not “employees” in the conventional sense, had smart serve training.
Mr. Card noted that it is apparent that, from time to time, there will be persons other than those involved in the sale and service of liquor behind a bar. These people will be performing construction, maintenance or other activities that have to do with the operation of the licensed facility. The requirement of the legislation is that these activities not occur when liquor is being sold and served. Mr. Card believes that fundamental requirement was not offended in this case and it is clear from the evidence of Inspector Purvis that alcohol was not being sold. There was no breach.
With respect to the conduct of patrons, Mr. Card noted that Inspector Purvis did not observe any riotous, quarrelsome, violent or disorderly conduct. He formed his opinion on the basis of a few spoken words exchanged with two members of the Club that a patron had been “over served” and was intoxicated. Mr. Card noted that the bartender at the time was the only person who had sold or served alcohol since 8:30 pm on the date in question and had only served two drinks to the person believed to be intoxicated.
With respect to the posting of warning signs, Mr. Card noted that Registrar’s counsel alleges that a Fetal Alcohol Spectrum Disorder warning sign was not posted. However, the evidence, he pointed out, is that Inspector Purvis viewed a sign which was posted behind the bar. A notice to members covered a small portion of the sign. He noted that the Inspector did not ask if there were other copies of the sign posted. However, Mr. Card noted that the evidence of the Licensee’s witnesses was that there were two other copies posted and that these signs were not obscured in any way.
With respect to the posting of the liquor licence, Mr. Card noted that the Registrar’s counsel points to the evidence that the licence was partially covered. Evidence of the Licensee is that there was another copy of the licence at the other end of the bar; however the Inspector did not see it.
With respect to the authorized employee, Mr. Card noted that it is common ground that no paid employee was present on the premises at the time of the inspection. He also noted that the term “employee” is not defined by the Act. Mr. Card submits that whether a person who serves alcohol is an employee is irrelevant to compliance with the LLA or its regulations. It is clear that there are persons involved in the sale and service of alcohol who do not receive a wage. Inspector Purvis acknowledged business owners who are licence holders do not necessarily pay themselves a wage. The payment of wages and the amount of such wage is irrelevant to the LLA. For the purposes of the LLA “employee” should be defined as embracing any person whose function it is to discharge applicable responsibilities in the legislation. The standard dictionary definition is not applicable in the circumstances; in this context, “employee” should be defined as a person who assumes responsibility for the sale and service of liquor under a licence pursuant to the LLA. It is the uncontradicted evidence of the witnesses for the Licensee that the Members who sell and serve alcohol are volunteers and receive no compensation for these activities. Every volunteer who handles the sale and service of alcohol has Smart Serve training. He also noted that every person who assumes responsibility for the sale and service of alcohol operates in a manner which is consistent with the principles of Smart Serve training. These individuals assume responsibility for compliance with the legislation. It is entirely possible for and reasonable in Mr. Card’s belief for a person described by Mr. Alton as a volunteer to discharge all pertinent responsibilities imposed on licensees under the Act.
With respect to failing to facilitate an inspection, Mr. Card asserted that the liquor Inspector was not impeded by the licensee or any member of the social club. He noted that the Inspector did not wish to engage in conversation with any member of the club other than the person in charge, who he took to be the bartender. The Inspector asked the bartender to have other members excluded from his conversation with the bartender, which the bartender complied with. Mr. Card notes the bartender complied with every request made upon him by Inspector Purvis.
Submissions on Constitutional Question
If the Board finds that an employee is required in the establishment, the Licensee challenges the constitutional validity of subsection 17(2) of Ontario Regulation 719/90 made under the Liquor Licence Act which requires liquor be “served only under the supervision of an employee”. The Licensee claims that the right of its members to organize and associate is infringed by this requirement contrary to section 2(d) of the Canadian Charter of Rights and Freedoms and is not saved by the provisions of section 1 of the Charter.
Mr. Alton argues there is no violation of section 2(d) and that the right to associate protects only the right to pursue collectively actions which can be lawfully pursued by an individual. The Licensee’s impugned activities cannot be lawfully pursued by either an association or an individual as they are contrary to both the LLA and the O.Reg. Further, section 2(d) protects only the associational activity aspect of an activity and not the activity itself. The legislation in question does not prevent the Members from meeting, associating, drinking, or smoking. However, where they wish to meet in a licensed premises they must abide by the law. Drinking and smoking are not constitutionally protected rights.
Board Decision
Interpretation of “Employee” (ss.17(2) LLA)
It is accepted that no “paid” employee of the licence holder was present at the time of inspection. Members of the club volunteer their services for shifts at the club where they sell and serve liquor to the members in attendance. They receive no monetary compensation for their volunteer activities; their reward is in making the club viable for themselves and the other members. Ken Moore is the President of the Club and appeared to the Board as the directing mind and will of the establishment. He schedules the working shifts of the volunteers, including Mr. Slade, and orders all the liquor for the establishment. Prices are set by the Club’s Board of Directors. Mr. Moore was not on the premises when the inspection took place but tends the bar on a regular basis. Mr. Slade testified he was “Smart Serve” trained and Mr. Card confirmed that all volunteers involved with the sale and service of alcohol are so trained.
The question facing the Board is whether, given these facts, the persons volunteering at Andy Kapps Pub fall within the meaning of “employee” as intended by the LLA. There is no definition of employee in the LLA. The Board tends to agree with Mr. Card that the Legislature’s purpose in crafting the Act was to ensure that there is someone accountable at all times for the sale and service of alcohol in a licensed establishment rather than imposing a particular type of relationship on licence holders and persons who sell and serve alcohol. At the same time, the Board agrees with Mr. Alton that the Legislature chose to use the term employee and that payment is a component of the common understanding of an employment relationship.
The Dictionary of Canadian Law definition suggests that payment to an “employee” may be in the form of wages or undefined “compensation”. If compensation is interpreted to include any kind of consideration, it is entirely possible that benefits of membership in the Social Club constitute compensation for supervision services performed by Mr. Slade and other Members. The Board notes the membership fee is nominal.
The Licensee’s evidence with respect to the direction and control of the work performed by the volunteers was not seriously challenged by the Registrar. Direction and control of the work performed is an important element of the definition of employee. It is expressly referred to in Black’s definition and implicit in the references to dependent contractors contained in the Dictionary of Canadian Law. In this respect, the Board finds the standard definitions of employee and the legislative objective coincide: the person is in charge and accountable to the licence holder.
The Board is aware from its experience of other matters before it that some licensed non-profit organizations, for example the Royal Canadian Legion, utilize member volunteers to supplement and, in some cases, supervise paid employees. Small family run licensed establishments may have no paid employees at all. The reality is that applying the restrictive definition of employee proposed by the Registrar will have a negative effect on these sorts of establishments notwithstanding they are otherwise well run and in compliance with the requirements of the LLA. On the other hand, the Licensee’s suggestion that employee means a person who “assumes responsibility for the sale and service of liquor under a licence pursuant to the applicable legislation” is too broad. The person must be fully accountable and under the licensee’s direction and control. In this case the evidence is the volunteers were under the direction of the licensee, were scheduled at the instigation of the licensee, had no personal autonomy with respect to setting of prices, were required to have Smart Serve training, and, as Members, had a shared interest in the proper running of the Club.
In all of these circumstances the Board is satisfied that the volunteers working in Andy Kapps Bar & Grill on the night in question were employees within the meaning of the regulation. The Board cautions that this decision interpreting “employee” in this way is not to be viewed as a general interpretation of this section of the regulation. It is the Board’s view that this interpretation fits the situation and circumstances of this case. Other cases will be assessed on their own facts and the outcome may differ. The alleged breach of ss.17(2) of the O.Reg. is dismissed.
Having so found, it is unnecessary to consider the Charter issue as the matter in dispute has been resolved under the principles of administrative law and statutory interpretation. (Baker v. Canada, [1999] J.S.C.R 817, L’Heureux-Dubé, J. at p. 832)
Contracting out sale and service of liquor to a third party (ss.15(1) O. Reg.)
The Registrar asserts that because the licence holder was not present on the premises and volunteers are not employees of the Licensee, there was a contracting out of the sale and service of liquor to a third party. The Board’s ruling with respect to the definition of employee for the purposes of the regulation in these circumstances determines this issue. Further, the Board notes Mr. Card’s submission that the licence holder is the Club 924 Social Group, a corporation without share capital, members of which were present during the Inspection.
The Board is satisfied there is no evidence of contracting out and therefore DISMISSES this allegation.
Entry Behind Bar (ss. 44(1) O. Reg).
With respect to subsection 44(1) of the O. Reg., Mr. Alton submits that Inspector Purvis’s uncontested evidence is he saw two males behind the liquor service bar: Mike Slade and Pete. Neither was an employee and only an employee is allowed behind the bar under the LLA. Mr. Card submits that Inspector Purvis did not observe any alcohol served during the time he was present.
Given the Board’s finding with respect to the status of the persons observed behind the bar the Registrar’s argument must fail. Further, the Board agrees the evidence does not establish there was service of alcohol while the Inspector was present and thus a constituent element of the offence has not been established. The Board DISMISSES the alleged breach of subsection 44(1) of the O.Reg.
Permit Drunkenness (ss.45(1) O. Reg)
Mr. Alton submitted that a patron repeatedly interrupted Inspector Purvis’ conversation with the "volunteers", was unsteady on his feet and had slurred speech. These are classic signs of intoxication. A second person was observed whose speech was slurred as well. While Mr. Slade did not remember the drunken patrons, he testified that he called a cab for a person named Andy who had one too many. Mr. Slade also stated that there was a policy for getting people who had had one too many home.
Mr. Card notes that Inspector Purvis did not observe any riotous, quarrelsome, violent or disorderly conduct. He formed his opinion on the basis of a few words exchanged with two members of the Club that a patron had been “over served” and was intoxicated. The bartender at the time was the only person who had sold or served alcohol since 8:30 pm on the date in question and had only served two drinks to the person believed to be intoxicated.
The Board is satisfied, based on Inspector Purvis’s evidence of his observations of the first male who approached him and was unsteady on his feet and spoke with slurred speech, that, on a balance of probabilities, this individual was drunk and the licence holder did nothing to remove him from the premises. The evidence with respect to the second patron is less clear. Inspector Purvis’s conversation with this person was only that he said he was a volunteer and he did not observe the individual walking. The contact with this person was too limited, only two or three words were spoken and there were no other obvious signs of intoxication. Bloodshot eyes could have resulted from the smoke in the room.
In the circumstances the Board FINDS a single breach of ss.45(1) of the O.Reg to have occurred.
Fail to Facilitate Inspection (ss.45(2) LLA)
Mr. Alton contends the Licensee failed to facilitate an inspection by having no employee present to assist the AGCO Inspector at the time of his inspection. The only people available were “volunteers” of the Club who refused to acknowledge they were employees of the licence holder or were in charge. Despite Inspector Purvis’s repeated requests to speak to the person in charge (a manager, owner, or bartender) nobody would admit to being anything more than a “volunteer”.
Mr. Card submits the Inspector was not impeded in carrying out his inspection by the Licensee or any member of the Club. He noted that the Inspector did not wish to engage in conversation with any member of the Club other than the person in charge, who he took to be the bartender (Mr. Slade). The Inspector asked the bartender to have other members excluded from his conversation with him. Mr. Slade complied. In fact, Mr. Card noted that bartender complied with every request made by Inspector Purvis.
The evidence is that Mr. Slade did whatever he was asked to do by the Inspector. Mr. Slade also asked the Inspector what he could do for him during their conversation. Mr. Slade’s evidence was that he was not asked who was in charge only whether he was an employee. He stated that he would have said he was in charge had he been asked. Inspector Purvis’s evidence differs. The Board is satisfied that both Mr. Slade and Inspector Purvis were credible witnesses. There seems to be an innocent misunderstanding of the importance or the meaning of Inspector Purvis’s inquiries. The Board is satisfied that Mr. Slade at no time intended to obstruct the liquor inspection and that, in fact, the inspection was carried out with virtually no difficulties at all. There is no evidence of an overt obstruction of the inspection.
The alleged breach of subsection 45(2) of the LLA is DISMISSED.
Failure to post (ss.30.1(1) LLA/s.52 O.Reg)
Regarding the posting of FASD sign, Inspector Purvis found that the sign was partially covered by another sign thereby defeating the purpose of the Act. Mr. Alton submits that even if a sign was displayed in the women’s washroom it would not meet the criteria of the Act.
With respect to section 52 of the O. Reg., Mr. Alton submits the liquor licence was partially covered by another sign. It is not posted in a conspicuous place if it cannot be read in full. While the Licensee testified another copy existed somewhere else in the small licensed facility, Inspector Purvis did not observe it during his 40 minutes in the premises.
Mr. Card points out that Inspector Purvis viewed a FASD sign posted behind the bar. A notice to members covered a small portion of the sign. The Inspector did not ask if there were other copies of the sign posted. Licensee’s witnesses testified there were two other copies posted and neither was obscured in anyway. Registrar’s counsel agrees the liquor licence was posted but partially covered. Licensee’s evidence was that another copy of the licence is posted at the other end of the bar.
In considering this evidence the Board notes the Inspector’s admission he did not look around the premises and stayed in only one portion of the bar. He made no inquiries about other signs or postings. There is no evidence to refute the Licensee’s testimony that another copy of the licence was in plain view at the other end of the bar and copies of the FASD were also posted in the premises as required by the Act. The copies of the FASD and licence which the Inspector did observe were only minimally obscured. In the circumstances, on a balance of probabilities, the Board finds that copies of both the FASD and liquor licence were properly displayed in the Premises and DISMISSES the alleged breaches of subsection 30.1(1) of the LLA and section 52 of the O.Reg.
Conclusion
The Board invites written submissions on disposition from the respective parties. Registrar’s Representative shall serve and file his submissions within seven (7) days from the date of this decision. Licensee’s Representative shall serve and file his submissions within seven (7) days from receipt of the Registrar’s Representative’s submissions. Registrar’s Representative shall have an additional three (3) days to file a reply, if any.
DATED AT TORONTO THIS 17th DAY OF July 2007.
BRIAN J. FORD, MEMBER ALEX MCCAULEY, MEMBER
BJF/AM/mw