Registrar v. Liisa Emilia Whalley O/A Velvet Elvis Coffeehouse & Bar, 2007 CanLII 37842

Editor’s Note : Corrigendum released August 15, 2007. Original judgment has been corrected accordingly.

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The :

Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

B E T W E E N:

Registrar, Alcohol and Gaming Commission Ontario

Registrar

-and-

Liisa Emilia Whalley O/A Velvet Elvis Coffeehouse & Bar

Licensee

DECISION

Panel: Beryl Ford, Member Allan Higdon, Member

Decision Date: July 30, 2007

Hearing Location: Toronto, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone (416) 326-0366 Fax (416) 326-5566 Website:www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Bryna Kaplan, Representative Liisa Emilia Whalley, Licensee ) On her own behalf

Allegations

1. A hearing into a Notice of Proposal dated July 11, 2006 to revoke liquor license number 809839 (the Licence) issued to Liisa Emilia Whalley operating as Velvet Elvis Coffeehouse and Bar (The), 221 King Street East, Oshawa, Ontario, L1H 1C5 on the basis of an alleged violation of section 6 of the Liquor Licence Act (LLA) was held on July 24, 2007 in the City of Toronto.

Preliminary Matters

2. The Licensee stated that she was unrepresented but would like to engage counsel as she did not realize how serious the issue was until her recent conversation with Registrar’s Counsel.

3. Ms. Kaplan replied that the Licensee has had this matter adjourned at least twice before and was specifically told by the panel at the last hearing that no further consideration would be granted. The Licensee has had ample opportunity to hire a lawyer and her request for yet another adjournment is simply a delaying tactic.

4. The Board reviewed the previous adjournments granted to the Licensee and denied the adjournment request.

5. The Licensee stated she would continue without counsel.

Witness for the Registrar

6. Jennifer Brake has been a field collection officer with the Ministry of Revenue for fourteen years. She is familiar with the Licensee’s file.

7. The witness stated that collection proceedings were begun against the Licensee in August, 2004 due to non-remission of Retail Sales Tax. Upon expiry of the licence in January, 2005, the Licensee signed a Memorandum of Understanding with the Ministry in February, 2005 in which she undertook to pay $1,300 in cash immediately, $1,000 a month for six months, and $2,000 a month thereafter until all outstanding obligations were paid. The Licensee was in default of her signed obligation by July 2005.

8. Other commitments were made to the Ministry and not honoured such that by November, 2006, funds owing to the Ministry amounted to $57,300. Another attempt was made by the Ministry to develop a payment plan in January, 2007. The Licensee undertook to make an immediate payment of $20,000 and pay $2,500 a month thereafter. The Ministry did not receive the funds.

9. A payment was made by the Licensee in March, 2007 of $2,000 but no money has been received since then. In addition, no returns have been filed for April, May, and June, 2007.

10. The Ministry does not believe the Licensee to be fiscally responsible based on her payment history.

11. In cross-examination, the Licensee stated that she did not refute any of the facts presented by the witness.

Witness for the Licensee

12. Liisa Whalley, Licensee, stated she has not been on top off things financially since her father died seven years ago. All her money went to paying her mother’s bills which amounted to $136,000. The witness plans to sell her mother’s house and pay off the debt. She presented Exhibit #2, a letter, in which her lawyer said the Licensee would pay $15,000 by the end of this week.

13. In cross-examination, the witness stated she expects her mother’s house would sell for $250,000, which would provide enough to cover the Licensee’s debts. The Licensee stated her problems started when she initially did not file her monthly returns and was assessed a big sum after being audited. She has never caught up.

14. It was confirmed that the current amount owed by the Licensee to the Ministry was $60,392.06. In addition, the returns for April, May, and June of 2007 have not been submitted. This would amount to an additional sum of approximately $2,000.

Registrar’s Submissions

15. Ms. Kaplan stated the Licensee was in arrears of $60,392.06, in addition to the three latest months in which she did not file. The Licensee has been a problem since inception of her tenure. She has consistently not filed monthly reports, has made commitments to the Ministry she did not keep, and has misused money collected in trust

for the Government of Ontario. The Licensee has not paid her debts and is an on-going risk. Her licence should be revoked immediately to prevent a further accumulation of debt.

Licensee’s Sumissions

16. The Licensee stated she has paid off all her mother’s debts and intends to pay off her own. She will be able to do this when she sells her mother’s home. If her licence is revoked she will not be able to pay off her debts.

Registrar’s Reply

17. In rebuttal, Registrar’s Counsel stated the money collected for Retail Sales Tax was not intended to help pay off anybody’s debt. It belongs to the taxpayers and is collected and held in trust by Licensees and submitted to the Ministry. This has not been done over a long period of time. Consequently, the Licensee is in breach of the LLA and her licence should be revoked.

DECISION

18. The panel has taken into consideration the testimony of both parties. The Licensee does not dispute the facts presented by the Ministry of Revenue witness and Registrar’s Counsel.

19. However, the Board is prepared, despite significant reservations, to allow the Licensee one last opportunity to pay the outstanding debt owed to the Ministry.

20. Therefore the Board FINDS that the Licensee is in breach of section 6 of the LLA as alleged in the Notice of Proposal dated July 11, 2006 and ORDERS that licence #809839, issued to Liisa Emelia Whalley, operating as Velvet Elvis Coffeehouse & Bar (The) be REVOKED at 5:00 pm on August 31, 2007 unless the Board receives written notification from the Ministry of Revenue that all delinquent filings have been submitted and that remittances and outstanding debt have been paid in full up to that date. This amount includes the full payment of the July, 2007 remittance.

21. If the Licensee fails to comply with the terms of the Board's order set out in paragraph 20 she may, no later than 5 pm on August 31, 2007, request the Board reconvene the hearing by telephone conference call to permit her to explain the reasons for her failure and why the licence should not be revoked. The telephone hearing will be held within 15 days of the Licensee's request.

DATED AT Toronto this 30th day of July 2007.

ALLAN HIGDON, MEMBER BERYL FORD, MEMBER

AH/mw