LIQUOR LICENCE ACT, R.S.O. 1990

In the Matter of: TAMWORTH HOTEL

6 Ottawa Street

Stone Mills Township

Box 6

Tamworth, Ontario

K0K 3G0

Licensee: 1203196 Ontario Limited

Licence Number: 10380

Notice of Proposal: To REVOKE a licence

Dated January 31, 2006

(a) contrary to section 29 of the Liquor Licence Act, liquor was permitted to be sold or supplied to a person who was or appeared to be intoxicated.

(b) 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.

Hearing: Alcohol & Gaming Commission of Ontario

90 Sheppard Ave. E., 3^rd Floor

Toronto, Ontario

M2N 0A4

December 6, 2006

And

Alcohol & Gaming Commission of Ontario

Holiday Inn Waterfront

2 Princess Street

Kingston, Ontario

December 7, 2006

Presiding

Board Members: Eleanor Meslin, Member

Alex McCauley, Member

Counsel for the

Registrar: Phillip Morris

Counsel for the

Licensee: David M. Adams

Attendance: Frank Kane, witness

Dr. Inger Bugyra, Centre for Forensic Sciences

Scott Underhill, Police Constable, Ontario Provincial Police

Marni Lawson, Police Constable Ontario Provincial Police Ian Irving, Police Constable, Ontario Provincial Police Todd Daigle, witness

Scott Gargaro, witness

Ronald Kirk, witness

Kassey Knight, witness

Case Law

Presented: Canada Tavern o/a Club Galaxy v. Liquor Licence Board, unreported decision of the Divisional Court, January 9, 1998 dismissing appeal from decision of LLBO in Club Galaxy [1996] O.L.L.B.D. 226 (QL)

Sand Bar [1999] O.A.G.C.D. 64 (March 11, 1999) (QL)

Faryna v. Chorny (1952), 1951 CanLII 252 (BC CA), 2 D.L.R. 354 (B.C.C.A.)

Exhibits: #1 - Statement of Qualifications of Dr. Inger Margareta Bugyra, M.Sc., Centre for Forensic Sciences

#2 – Centre for Forensic Sciences Report Re: Marty WHITLOW. File # 05-6330 IB. Dated September 9, 2005

Preliminary Matters:

Licensee’s counsel, David Adams raised the matter of inadequate and incomplete disclosure in regards to the Registrar’s expert witness, Dr. Inger Bugyra. Mr. Adams had not received her professional curriculum vitae, nor had he received a “will say” statement, regarding her evidence. A resumé was provided to Mr. Adams outlining the qualifications of Dr. Bugyra. This would be the foundation for having her classified as an expert witness. Mr. Adams was given time to review Dr. Bugyra’s qualifications. He was content to have her presented as an expert.

The Board ruled on the non-disclosure allegation regarding the failure of the Registrar to disclose a complete “will say” statement of Dr. Bugyra’s evidence to the licensee. The Registrar would be restricted to examining Dr. Bugyra only in relation to the report from the Center of Forensic Sciences (CFS) which had been filed. All scenarios to be used with the expert witness by Registrar’s Counsel were to be restricted to information contained within the CFS report. This restriction dealt with the event that Registrar’s counsel wished to rely on extended examples which had not been provided to the licensee. There was no restriction on Registrar’s counsel drawing illustrations based on information contained within the CFS report.

There was an order excluding witnesses.

Frank Kane

The Board heard evidence from Mr. Frank Kane. On the evening of August 13-14, 2005, he had been with his friend Marty Whitlow. The two had gone out drinking on the evening of August 13, 2005. They had commenced drinking at the Tamworth Hotel in the Village of Tamworth at approximately 9:00 p.m., August 13, 2005. Mr. Kane stated that he and Marty Whitlow had consumed a large amount of alcohol while at the Tamworth Hotel and both were intoxicated when they left. They left the hotel at approximately 12:00 a.m. or later August 14, 2005. They left in a vehicle owned and operated that night by Marty Whitlow. They had not traveled far from the hotel when the driver Marty Whitlow lost control of the vehicle. The vehicle rolled over. The driver Marty Whitlow died at the scene of the accident.

Mr. Kane and Marty Whitlow were friends for 21 years. They had been together in the area working on Marty Whitlow’s cottage. The cottage is located in Arden Ontario. The two had been at the cottage for about 6 weeks.

Prior to going to the Tamworth Hotel on the date in question, Mr. Kane stated that neither he or Marty had consumed any alcohol for at least 7 days. Mr. Kane stated that Marty Whitlow had previously used marijuana, a restricted drug. When he had the drug he would smoke 2 to 3 marijuana cigarettes (joints) a day. Mr. Kane stated that Marty was out of marijuana and had not smoked any for at least 7 to 10 days before the visit to the Tamworth Hotel and the subsequent accident.

Mr. Kane described Marty Whitlow as being 37 or 38 years of age at the time of his death. He was described as 5’7” to 5’8” tall and weighing 150 to160 pounds and had a general build of short and stocky.

Mr. Kane stated that he had seen Marty Whitlow intoxicated in the past. He described his actions when intoxicated as swaying, and stumbling and that he usually would lean against a wall or some other brace to control his swaying.

Mr. Kane stated that upon arriving at the Tamworth Hotel they sat at the bar. They were initially served by Todd the bartender. Neither man had ever been to the Tamworth Hotel before.

Mr. Kane stated that he and Marty drank “drink for drink” - his recollection being that he and Marty each drank 8 beers and 6 shots of liquor while at the Tamworth Hotel.

A blonde waitress showed up after Todd and she also served them. Mr. Kane stated they were drinking beer and black Sambuccas. He said they were running a tab.

Local patrons began to show up and one of them made a joke about where Marty had parked his red pickup truck

The waitress informed them that their tab had reached $100.00 and per company policy it would have to be cleared before more could be added. Mr. Kane stated that at that point Marty left the bar and went outside to access a banking machine and that he returned 10 minutes later and paid the tab. Mr. Kane stated that prior to Marty leaving the bar to get the cash to pay the tab; neither man had left the bar. After paying the tab they had at least two more drinks each prior to leaving.

Mr. Kane described Marty Whitlow as being very intoxicated- he was swaying, his eyes were glassy, and he was burping, hiccupping, and leaning against the bar for support. At this point Marty went outside for air; staff at that point said nothing. While Marty was outside the waitress said to Mr. Kane that Marty shouldn’t drive because he had too much to drink, and that she would get Todd to drive them home. After this exchange Mr. Kane went outside to check on Marty. He tried to get the keys from Marty, but Marty wouldn’t give them up. He attempted to explain to Marty that he didn’t have to drive and that Todd was going to drive them home.

Todd came out of the bar; he took the child seat out of his truck and put it in the back. Mr. Kane got into the truck beside Todd and they tried to talk Marty into getting in but he wouldn’t. After about 10 minutes Todd got frustrated, said “I don’t have time for this”, and went back into the bar.

Mr. Kane and Marty Whitlow were outside for between a half-hour and forty-five minutes. During that time Marty had tried to get into his truck and Mr. Kane tried to stop him. They ended up in a pushing match, and Mr. Kane walked away intending to walk home. He got to the intersection and realized how dark it was and how far he would have to walk and decided to go back to the truck. He got into the truck with Marty and Marty started to drive off at a high rate of speed. Mr. Kane buckled his seat belt all the while yelling at Marty to slow down. Marty had the truck up to between 120 and 140 Km/H when they got to the first curve a short distance from the hotel. They had only been driving a minute to three minutes when Marty lost control of the truck, it went into a skid, and ultimately flipped over coming to rest on its roof. Mr. Kane was hanging upside down from his seat-belt. Marty was unresponsive. Mr. Kane freed himself from the vehicle, and began calling for help. He was assisted initially by nearby residents, and ultimately taken to hospital by EMS teams. He was aware that Marty Whitlow had died in the accident.

Mr. Kane after being released from hospital was transported by police vehicle to the OPP detachment where he gave a formal statement to police officers there. In addition to his formal statement he had conversations with the police officers regarding the accident, and the matters surrounding the circumstances of that accident.

Mr. Kane stated that at no time did he or Mr. Whitlow consume alcohol outside the premises of the Tamworth Hotel before or after their attendance there on August 13–14, 2005, nor had either taken a narcotic substance.

Mr. Kane stated that neither he nor Marty went out of the hotel for 20 minute intervals on at least two occasions. He reiterated that with the exception of Marty going out for cash they never left the bar until they ultimately left for the evening.

Mr. Kane stated that neither he nor Marty were seated in Marty’s truck passing a bottle back and forth and drinking from it.

Mr. Kane advised they had a roast beef dinner at the cottage before going to the bar.

On the drive to the bar Marty never had a problem with the vehicle, and there was no problem with Marty’s driving.

Mr. Kane stated that at no time was he or Marty “cut off” in the bar. Mr. Kane admitted to being intoxicated but stated that he knew what was happening and was able to speak coherently.

Cross examination:

Mr. Kane stated he could not recall for sure if he was unconscious as a result of the accident. He stated it was possible that he hit his head during the crash.

Mr. Kane stated he had full recollection of events before the accident- the accident itself was the only “blurry” part.

Mr. Kane did not recall speaking to Cst. Underhill at the accident scene. He recalled being escorted to the OPP detachment office from the hospital, and once there he gave a statement to a female officer at the detachment office, which she wrote and he signed.

In answer to prompting from licensee’s counsel, Mr. Kane stated that he may have mentioned to an officer at the scene to “ask Todd how much we had”.

Mr. Kane stated he had never been to the Tamworth Hotel prior to the night in question and had never met Todd Daigle before.

Mr. Kane recalled speaking to police officers after leaving the hospital on the way to the police detachment, and speaking informally to an officer outside the detachment office while smoking and he recalled giving a formal statement to the female police officer. The formal statement was dictated to the officer and she wrote it down.

That night Mr. Kane was allowed to sleep in an unlocked jail cell at the detachment because he had nowhere to go.

Mr. Kane stated he had no problem recollecting minor details after the accident, although at the scene of the accident he stated he was very upset and did not recall specifics of the accident scene. He stated he was drunk, on a 1 to 10 scale he couldn’t say, but he knew he was too intoxicated to drive.

Mr. Kane stated he was never concerned about being charged by the police.

Mr. Kane stated that had it been up to him he would have preferred to buy a case of beer and drink at home. He did not want Marty to have to drink and drive.

In Mr. Kane’s view Marty was not a hardened alcoholic.

He remembered making the statement to the police officers that “the blonde waitress should have cut us off”.

Mr. Kane stated that outside the bar he had tried to get Marty to give up the keys to the truck. He was never successful in obtaining the keys, and never displayed the vehicle keys to the bartender.

Mr. Kane recalled meeting a male person named Scott in the bar. He described Scott as friendly. He did not know of any relationship between Scott and the female bartender. Mr. Kane recalled the environment inside the bar that evening as friendly.

Mr. Kane had no recollection of Marty ever being “cut off” by the server. He stated that at the end of the evening Marty went outside on his own to get some air. He did recall telling police that they were “cut off” after their tab reached $100.00, but once that was paid they were served again.

Mr. Kane was adamant that they arrived at the Tamworth Hotel sober. Neither had ingested alcohol or drugs prior to entering the establishment that night.

Mr. Kane stated it was possible they may have arrived at the Hotel at seven or seven-thirty that evening.

Mr. Kane was adamant that they were not served food that night at the Tamworth, or that there was any food packaged for them to take home.

After going out to check on Marty, Mr. Kane stated that it is possible he re-entered the hotel, perhaps to see if Todd was ready to drive them home.

Mr. Kane was adamant that there was no beer in Marty’s truck, and that they had not been consuming alcohol in the truck.

Mr. Kane stated he had no recollection of Marty having any discussions with the waitress prior to him leaving the establishment for air. As well he did not recall Marty breaking anything in Todd’s truck. He further stated that Todd was only outside with him and Marty for 5 to 10 minutes.

Redirect:

Mr. Kane stated that he never showed the waitress the keys to Marty’s truck.

Dr. Inger Bugyra, M.Sc.:

Dr. Bugyra is a forensic toxicologist employed by the Centre of Forensic Sciences. Her statement of qualifications was submitted and became Exhibit #1 in the proceedings.

Dr. Bugyra, based on her qualifications was accepted as an expert witness in the area of pharmacology and toxicology of drugs and toxins.

Dr. Bugyra’s evidence centered on the analysis of blood and urine from the deceased Marty Whitlow. The process used and the analysis submitted were in regard to a report submitted by

Dr. Bugyra. This report was dated September 9, 2005. It was a Center of Forensic Sciences (CFS) report file # 05-6330 IB, originator file #05-A79-CO. This report was received as Exhibit #2 in the proceedings.

Dr. Bugyra defined the term BAC to mean Blood Alcohol Concentration. This refers to the blood alcohol level in the body at the time of collection.

There is generally no change in the Blood Alcohol Concentration (BAC) in the body after death, unless there has been putrefaction taking place. In the case of Marty Whitlow this had not occurred.

The Board was satisfied that Dr. Bugyra had properly received the samples of cardiac blood seal # 2C95016, urine seal# 2C95018 and femoral blood seal #2C95019 collected from the deceased Marty Whitlow by the pathologist Dr. C. Goetz and that there had been no contamination of the samples from the time of collection to the time of analysis. The analysis used was headspace gas chromatography.

The analysis revealed the following results:

• Blood (femoral) seal # 2C95019, a BAC of 303mg of alcohol in 100ml of blood

• Urine seal # 2C95018, a BAC of 356mg of alcohol in 100ml of blood.

Marty Whitlow was described as a male weighing between 150-160lbs.

The legal limit to operate a motor vehicle pursuant to the Criminal Code of Canada is 80mg of alcohol in 100ml of blood.

A standard drink is referred to as 12 ounces of beer with a 5% alcohol content, 5 ounces of wine with an alcohol content of 12%, or 1.5 ounces of spirit with an alcohol content of 40%.

The samples from Marty Whitlow and forwarded for analysis would have contained the same alcohol concentration as at the time of death.

Dr. Bugyra was asked to do certain calculations based upon information from her report, as it related to Marty Whitlow. The calculations were around certain scenarios as put to the witness.

Possible scenarios included:

1. How many bottles of beer would have been in Marty Whitlow’s system at the time of death? Answer: 10.5 to 11 bottles of beer at 12 ounces per bottle with an alcohol content of 5%.

2. Time of death was at approximately 1:11 a.m. and the last drink was at 12:00 a.m., what would Marty Whitlow’s BAC have been at 12:00a.m.? Answer: 303 to 328 mg of alcohol in 100ml of blood. This is based on no consumption after 12:00 a.m. Allowing for a plateau to be reached which is 1 hour after consumption and based on a rate of elimination of between 10 and 20 mg of alcohol in 100ml of blood per hour.

3. 9:00p.m. no alcohol. How many standard drinks to get to the 12:00 a.m. and 1:11 a.m., BAC readings respectively? Answer: midnight, 12 bottles of beer, 1:11 a.m. 14.5 bottles of beer. The beer being standard 12 ounce at 5% alcohol concentration.

4. If Marty Whitlow had started drinking at 7:00 p.m., how many drinks would he have consumed to reach a BAC of 303 mg of alcohol in 100ml of blood at 1:11 a.m.? Answer: 12 to 15 ¾ bottles of beer. Standard 12 ounce bottles at 5% alcohol content.

5. If Marty Whitlow had consumed 4 to 6 beers or mixed drinks before coming to the bar, what would his BAC have been upon entering the bar at 9:00 p.m.? Answer: If his BAC were 303mg of alcohol in a 100ml of blood at 1:00 a.m., and he had consumed 5 or 6 beers prior to 9:00 p.m., his BAC at 9:00 p.m. would have been 150-275mg of alcohol in a 100ml of blood. In a light to moderate drinker at this blood alcohol concentration the subject would be displaying signs of intoxication.

Dr. Bugyra stated that consumption of food does not affect the BAC.

Dr. Bugyra stated in a light to moderate drinker that a 303mg BAC would have severe effects on the subject. She stated the effects would not be as profound on a person who is continually consuming large amounts of alcohol on a regular basis.

Dr. Bugyra stated that regular marijuana use will not influence your ability to tolerate alcohol, but can create intoxication.

Cross Examination:

In cross examination Dr. Bugyra stated that a light to moderate drinker would have very obvious signs of intoxication at 303mg, perhaps even sleeping or in a coma. In a light to moderate drinker a BAC in excess of 300mg of alcohol in a 100ml of blood could lead to death.

Dr. Bugyra stated that a heavier person than that described in her scenarios would have to consume additional alcohol than what was consumed by Marty Whitlow to achieve the same blood alcohol level as he had.

When asked about a person at approximately 180lbs. how that would have affected the outcome of her calculations in the previous scenarios her response was that the change would not be significant.

In a person 20 to 25 lbs. heavier than the weight attributed to Marty Whitlow the signs of impairment would be the same, using the calculations and scenarios previously provided.

When asked what the BAC of a person using the same calculations as before, except adding 20lbs would be in the following scenarios, the witness responded thus:

• A person with a BAC of 303mg at 1:11 a.m. What would the concentrations be at the following times: between 1:30 a.m. and 4:30 a.m.? Answer 245-300mg; at 4:30 a.m.? Answer 245-275mg of alcohol; At 1:30 a.m.? Answer 295-300mg of alcohol.

In a light to moderate drinker using the above noted BAC readings the signs of intoxication would have been obvious.

Dr. Bugyra stated that alcohol may cause memory impairment but not always. This could be affected by greater consumption.

Redirect:

Dr. Bugyra was asked about the situation of 180lb. male in the bar with same BAC, at 1:11 a.m., how many beers would he have consumed. Her answer was 13.5 to 16 bottles of beer at 12 ounces with an alcohol content of 5%.

Scott Underhill, Police Officer

Mr. Underhill is a Constable with the Ontario Provincial Police. He has been so employed for 3 years. He is assigned to general duties out of the Napanee Detachment.

On August 14, 2005, he was on duty, and at 1:11 a.m. he was dispatched to a motor vehicle accident on County Road 15. He along with Cst. Irving arrived on the scene of the accident at 1:35 a.m. He described the accident location as being 2km north of the Tamworth Hotel. There was a curve on the road at that location. The weather at the time was clear and the roads were dry. There was a red pickup truck off the roadway on the North side. The vehicle was upside down approximately 25 to 30 feet from the travel portion of the roadway.

Mr. Kane the passenger was being attended to by emergency medical personnel at the scene. Mr. Kane was on a stretcher. Cst. Underhill describes him as being coherent and speaking. Mr. Kane advised Cst. Underhill that Todd could advise what condition he and Marty were in when they left the Tamworth Hotel.

Marni Lawson, Police Officer

Ms. Lawson is a Constable with the Ontario Provincial Police. She has 8 years experience and is assigned general duties out of the Napanee Detachment.

On August 14, 2005, at 3:25 a.m., she attended at the hospital where Mr. Kane was being treated for his injuries from the motor vehicle accident. She spoke to him briefly at the hospital. Later that same date she returned to the detachment office along with Frank Kane. Mr. Kane gave her a formal statement. In the statement Mr. Kane advised that he and Marty Whitlow were drinking the evening of August 13-14, 2005, at the Tamworth Hotel. Mr. Kane stated that he and Marty had gone drink for drink consuming in the course of the evening 8 beers and 6 shots each. Mr. Kane advised her in his statement that they had received 2 bills that evening at the hotel one for over $100.00, and the second he couldn’t remember the value. In his statement he advised Cst. Lawson that “I don’t think she should have been serving us”. Cst. Lawson stated this was in reference to the blonde waitress. Mr. Kane had advised Cst. Lawson that this was the waitress that served them all night.

Mr. Kane’s condition at the time of the statement (4:30 – 5:00 a.m.) according to Cst. Lawson was that he was upset and in shock. She could tell he had been drinking but his speech was clear, and he was coherent and answered questions put to him appropriately.

Ian Irving, Police Officer

Mr. Irving is a Constable with the Ontario Provincial Police, and has been so employed for the past 6 years.

On August 14, 2005, he attended at the scene of the motor vehicle accident which claimed Marty Whitlow’s life. He was assisting other officers at the scene.

In Mr. Whitlow’s vehicle, Cst. Irving found an empty beer can of Bud Light. The can was located inside the cab of the overturned vehicle. There was no other evidence of alcohol or drugs located in the vehicle or outside in the immediate area of the crash.

On further examination Cst. Irving could not recall for certain if the empty can was actually Bud Light or Coors.

Cross examination

In cross examination Cst. Irving advised that he located the wallets of Marty Whitlow and Frank Kane. He had recovered and logged $192.00 cash but could not recall for certain whose wallet had contained the cash. He also indicated there were no transaction slips in the wallet. The cash was later turned over to Marty Whitlow’s parents.

Cst. Irving recalled the empty beer can found in the damaged vehicle as being a “regular” size.

He advised that only the immediate area was searched for any evidence of alcohol and drugs.

The police had not undertaken a detailed search from the Tamworth hotel to the accident scene.

Todd Daigle

Mr. Daigle is the son of the licensee. His duties are that of Supervisor/Manager which includes many regular duties including tending bar, ensuring supervision of the licensed premise, and that no one is over served.

Mr. Daigle has taken the “Smart Serve” course, along with a bartending course at the Kingston Learning Center.

On August 13-14, 2005, Mr. Daigle was working the bar at the Tamworth Hotel. He recalls Marty Whitlow and Frank Kane coming into the facility around 7:00 or 7:30 p.m. He didn’t know them personally. He stated they sat at the bar and each ordered a beer. He said that the two appeared to be fine. Mr. Daigle stated he served them a beer again around 9:00 p.m. That was when his waitress Kassey Knight attended for work. She was advised of the tab for the two and she took over serving the men. At that time Todd Daigle advised that the tab for the 2 men consisted of 2 beers each, he denied serving them any black Sambucca.

Mr. Daigle stated as per policy he briefed Ms. Knight on events at the bar and generally brought her up to speed on the evening so far. He stated at that time the two gentlemen (referring to Marty Whitlow & Frank Kane) were fine.

Mr. Daigle stated that the policy on tabs is that they are monitored to ensure they are paid, but there is no magic number. Kassey mentioned to him later in the evening that the tab for the two men (Kane and Whitlow) was getting high. He stated, “We didn’t really know them so we had them pay up”. The gentleman who paid had a lot of cash on him.

Mr. Daigle stated there is a liquor store not far from the Hotel that is open in August from 10:00 a.m. to 9 p.m.

Mr. Daigle advised that around 10 or 10:30 p.m., one of the two men, either Mr. Whitlow or Mr.

Kane, asked Kassey for a ride home. She passed this on to Daigle. Mr. Daigle asked the two where they lived, they told him, and Daigle stated “Ok let me know when you want to go”.

Mr. Daigle said that it was the passenger who asked for the ride and that he had the keys for the vehicle.

Mr. Daigle stated it was standard practice to give anyone a ride who asked for one.

When asked about the conditions of the two men at that time, Mr. Daigle advised that the driver was upset that his friend asked for a ride. The driver went outside for about an hour or so. During this time the male described as the passenger went outside from time to time to check on his buddy.

Mr. Daigle stated that the driver came back in at approximately midnight. He was staggering, his speech was slurred. He asked Kassey for another drink but she refused to serve him. The driver then asked Mr. Daigle for service. Mr. Daigle stated he didn’t directly cut him off, trying to avoid a conflict, but instead said to him “I better get you home”.

Both men went outside with Mr. Daigle. Mr. Daigle went to his truck took out the car seat and invited the two men to get in. The passenger (Mr. Kane) got in but the driver (Mr. Whitlow) refused. Mr. Daigle stated that for 30 to 45 minutes he and Mr. Kane attempted to get Marty into Mr. Daigle’s vehicle. He refused and in the course of events Marty Whitlow broke Todd Daigle’s son’s flashlight. Mr. Daigle told Mr. Kane that when he convinced his buddy into getting in the vehicle to come and get him. Mr. Daigle then re-entered the bar.

Mr. Daigle went back to work in the bar and thought no more about the events. At about 3:00A.M a police officer came to the bar to use the phone. She asked if they were familiar with two guys and she provided the names of Kane and Whitlow. Mr. Daigle said no he didn’t recognize those names. The officer advised that the two had been involved in a motor vehicle accident.

Mr. Daigle advised they do not sell or serve canned beer in the bar.

Mr. Daigle advised that he became aware of the level of sobriety of the two men when Mr. Whitlow came back in the last time; he said it was Kassy's decision to cut them off, and he agreed.

Cross examination

Mr. Daigle did not retain the tab that Marty Whitlow and Frank Kane had built up that evening. It was the only record of exactly what the two consumed in the Hotel that night. Mr. Daigle could offer no explanation as to where it went other than it was thrown out. Mr. Daigle made no effort to locate the tab even after finding out the two men had been involved in a fatal motor vehicle accident.

Mr. Daigle could not recall what other patrons had consumed at the hotel between 7:00 p.m. and 9:00 p.m., but he was able to clearly recall what Whitlow and Kane consumed.

Mr. Daigle denied serving “shots” to Whitlow and Kane.

There was a discrepancy between the evidence given by Mr. Daigle at the hearing and the information he had given in a statement to an investigator on Sunday December 3, 2006. At the hearing Mr. Daigle stated he had served the two men 2 beers, in his statement he stated he had served the two men only one beer each.

It was suggested that Mr. Daigle had no idea what he served the two men; he stated he did recall, this even when his evidence and statement contradicted each other.

Mr. Daigle stated that Kassey had served each man a couple of beers; he recalled it being on the tab. Kassey had come to him as well to advise that the tab was getting high.

In cross examination Mr. Daigle denied understating the amount of beer served by Kassey to the two men. Mr. Daigle agrees that the tab had more than 3 beers on it.

Mr. Daigle admitted that Mr. Whitlow may have left the bar in order to get cash to pay the tab.

Mr. Daigle stated the first tab was paid around 11:00P.M. Mr. Daigle stated that Mr. Whitlow and Mr. Kane had ordered food. He knew this because he saw them eating. When asked what they ordered he didn’t know. When asked about the price he replied 20 to 30 dollars.

It was suggested by Registrar’s counsel that based on the charges and the price of beer quoted by Mr. Daigle at $4.20 regular brands and $5.60 for premium brands that even with food they could well have consumed 16 beers. Mr. Daigle replied that he didn’t think that was the case.

Mr. Daigle did not go outside to check on Mr. Whitlow. He assumed Mr. Whitlow had been drinking outside but took no steps to check that out or curtail an obviously illegal event. Mr. Daigle did not call police after Mr. Whitlow refused a ride.

Mr. Daigle denied that the two men were drunk when he offered to drive them home.

When outside Mr. Daigle never went near Marty Whitlow’s vehicle, or examined it for evidence of liquor consumption outside.

Mr. Daigle made no attempt to get the keys for Marty Whitlow’s vehicle. He said the passenger, although drinking, had only consumed a few.

Redirect

Mr. Daigle stated he did not call the police after Marty Whitlow refused the ride and broke his son’s flashlight because the passenger had the keys and he felt that Mr. Kane would talk Marty Whitlow into taking a ride home.

Scott M. Gargaro

Mr. Gargaro is the stepfather of Kassey Knight the waitress on duty August 13-14, 2005. He has lived in Tamworth for some time and is familiar with the Tamworth Hotel.

On August 13, 2005, he and his wife drove Kassey Knight to the Tamworth Hotel in order for her to start her shift. They all arrived at approximately 8:45 p.m. on that date.

When they entered the bar they saw 2 men seated at the bar. Mr. Gargaro spoke with them.

They told him their names and why they were in the area. He doesn’t recall the names now. He himself was drinking beer and everyone was in a good mood and both men appeared to be fine.

During the course of the evening he chatted with the two men. Later between 11:00 p.m. and 11:30 p.m. he saw the two men outside in their truck. They were seated in the truck passing a bottle back and forth between them that they were drinking from, but he did not know what was in the bottle. At the time Mr. Gargaro was with a Gilbert Lamb.

Mr. Gargaro stated later that he saw both men at their seats at the bar. He stated he was not concerned.

Mr. Gargaro later noticed Todd trying to get one of the men into his truck. He stated Todd was outside about 20 minutes.

Mr. Gargaro could not be certain if the men were cut off from more drinks in the bar.

Cross examination

Mr. Gargaro stated he never made notes of his observations that night. He stated he gave a statement to an agent for Mr. Adams about the events of that night; this was done June 13, 2006. Mr. Gargaro stated he has seen Todd Daigle in the past drive patrons home. He said he had seen this frequently. Mr. Gargaro is a frequent patron of the Tamworth Hotel.

On August 13-14, 2005, Mr. Gargaro stated he left the Tamworth Hotel to go home at approximately 12:00 a.m. to 12:30 a.m. He stated he had consumed 4 or 5 beers at the Tamworth. When asked by Registrar’s counsel if it might have been 6 or 7 beers he replied no that he usually drank 4 or 5 only.

Mr. Gargaro admitted his recollection of times is a guess at least within ½ hour.

Mr. Gargaro stated he couldn’t see clearly the faces of the men allegedly drinking in the truck. He knew it was their truck because he had asked whose truck when he first went into the Tamworth Hotel and the men had acknowledged it was theirs.

He never at any time reported to the police what he had seen in relation to the 2 men drinking in the truck. Further, he never mentioned it to Todd Daigle that night. He did not know if the driver was drunk, he did not speak to him outside and when he spoke to the driver earlier, he was fine.

He admitted having a limited discussion with his step daughter Kassey after they were aware of the fatal accident but that Kassey had mentioned to him that she had not over served them; but he did not ask her how many beers they had consumed – referring to the two men in the bar, Marty Whitlow and Frank Kane.

Ronald Kirk

Ronald Kirk is a patron at the Tamworth Hotel. He has known Todd Daigle for years. On August 13/14, 2005, he was at the Tamworth Hotel playing pool with friends. He noticed Todd Daigle outside with two men. One of the men was in Todd’s truck the other was pacing in front. He did not know the two men and could not give evidence as to their level of sobriety.

He said Todd came back into the Hotel and advised that the men declined a ride. Mr. Kirk did not concern himself with the matter after that.

No additional information gleaned in cross examination.

Kassey Knight

Kassey Knight was the bar waitress on duty at the Tamworth Hotel on August 13-14, 2005. She was the waitress who served Marty Whitlow and Frank Kane in the bar at the Tamworth Hotel that night after she came on duty. Kassey Knight stated she arrived at the bar on the evening of August 13, 2005, at approximately 8:00 p.m. Todd Daigle briefed her on activities in the bar up to the point of her arrival, including pointing out the two men at the bar. She then took responsibility for the two patrons at the bar.

Ms. Knight stated that the two men (Marty Whitlow and Frank Kane) were pleasant and joking. She was aware Todd Daigle had served the two men 2 or 3 beers prior to her coming on duty. Ms. Knight stated that the two men consumed a lot of food, and had left over food placed in a take out container. She stated that this was around 10:00 p.m. and that the two men had a beer with their food.

Ms. Knight stated at around this time the two had gone in and out of the bar a couple of times.

Ms. Knight recalls that the two men were drinking beer; one was drinking Coors Lite, the other Molson Export. She stated she specifically recalled serving each man 3 beers each all evening.

She states her recollection is good because she recalled that evening very well.

She stated that through the course of the evening she had good interaction between herself and the two men. The last time the two men went out and when they came back in, they appeared intoxicated, one worse than the other. At that point she cut them off and would not serve them anymore alcohol. She stated one of the men she cut off had slurred speech and glassy eyes and this should not have been the case based on what she had served him.

Ms. Knight advised the men to pay their tab because she couldn’t serve them anymore. The two reacted by one of them badgering her to serve them another, while the other male patron stated simply “just pay the lady”. She said this banter went on for about 15 minutes.

Ms. Knight stated the tab was just for drinks. She believed the food was on a separate tab.

Ms. Knight stated that the more intoxicated of the two paid the tab. He had a lot of cash on him.

She stated that the two men were cut off around 11:30 or 11:45 p.m.

Ms. Knight stated that she warned the men about driving. The male she believed to be the passenger said they wouldn’t and he showed her the keys. She said she asked for the keys but the person was reluctant to hand them over because they were his buddy’s keys. He advised Ms. Knight, that they were going to a cottage. She stated she was prepared to drive them, but Todd Daigle knew the area better so she asked him to drive the two men.

Todd agreed to drive the two men home and went outside to give them a ride. According to Ms. Knight, Todd Daigle was outside with the two men for approximately 30 to 45 minutes, but he couldn’t talk the more intoxicated of the two, presumably the owner of the vehicle, to take a ride.

Ms. Knight stated that the friend of the owner of the vehicle stated he could not drive because he didn’t have his licence.

Ms. Knight told Todd Daigle that she had cut the two men off because they had too much to drink, not from the bar, but presumably from outside, because they had been in and out often.

Later that night when the police officer came by the Hotel, Ms. Knight asked the officer if she was needed. The officer said no.

Ms. Knight stated in looking back on the events of that evening as it pertains to dealing with the two male patrons Marty Whitlow and Frank Kane, that it is her opinion that she could not have done anything differently.

Ms. Knight denied serving either of the two men that night black Sambucca.

Ms. Knight has successfully completed the “smart serve” course.

Cross Examination

Ms. Knight never called the police over her concerns that an intoxicated person may be operating a motor vehicle. She denied that she didn’t call because she was concerned that she might be charged with over service.

Ms. Knight was questioned as to what she felt was the threshold before a patron was cut off. She felt the legal limit was the threshold and in her view that would be 2 beers, or 2 shots in one hour. She did not enquire as to whether the two men had been drinking prior to attending the bar that evening.

Ms. Knight only recalls one tab for the two men that night and could not recall if the food was entered on that tab or not.

It was suggested to Ms. Knight by Registrar’s counsel that she in fact could not recall the brands of beer the men were drinking that night. She responded that she did recall the brands.

Ms. Knight stated that the men were not only seated at the service bar but for a time were seated at a table.

Ms. Knight stated the men went in and out a few times that evening for short intervals, not for one hour, and everything appeared fine until the last time around 11:30 p.m. when the men, especially Marty Whitlow, were intoxicated. She did not observe them outside drinking in the truck.

Ms. Knight stated she only served the two men 3 beers each over the course of the evening, and no black Sambucca. The beer was in bottles, not cans.

SUBMISSIONS

REGISTRAR’S COUNSEL

Mr. Morris submits that Marty Whitlow and Frank Kane attended at the bar of the Tamworth Hotel on the evening of August 13-14, 2005. Neither Mr. Kane nor Mr. Whitlow had consumed alcohol or drugs in the preceding seven days. Prior to attending the bar that night both men had eaten dinner which consisted of a large pot roast with potatoes and carrots. Over a 3 to 5 hour period that night they were served approximately 14 alcoholic drinks at the bar by Todd Daigle and Kassey Knight. Both Whitlow and Kane showed no signs of intoxication upon entering the bar at the Tamworth Hotel that evening, but were showing definite signs of intoxication upon leaving the bar, so much so that Todd Daigle attempted to drive them home. Mr. Morris seeks findings of a breach of section 29 of the Liquor Licence Act, sell supply or permit liquor to be sold or supplied to an intoxicated person. Further, due to the level of intoxication of Whitlow and Kane at the end of the evening, Mr. Morris asks for a finding of a breach of section 45(1) of Ontario Regulation 719/90, permit drunkenness.

In his submissions Mr. Morris indicates that the two men were sober when they first arrived at the bar at the Tamworth Hotel and that this fact is consistent with the evidence of Todd Daigle, Scott Gargaro and Kassey Knight who stated the men were sober when they first saw them at the bar.

Frank Kane’s evidence that he and Whitlow went drink for drink consuming a total of 14 drinks, beer and shots each is consistent with the evidence of Dr. Bugyra, the toxicologist. She testified that the blood alcohol in Marty Whitlow’s blood at the time of death, 303 mg of alcohol in 100 ml of blood is consistent with him having consumed 12 to 14 1/4 drinks if he started drinking at 9:00 p.m. and 12 to15 ¾, drinks if he started drinking alcohol at 7:00 p.m.

During his testimony, Frank Kane stated that he and Marty Whitlow were served a couple of beers upon arrival at the bar by Todd Daigle. He stated they also had a couple of beers with Scott Gargaro. Kassey Knight took over serving them. Mr. Kane denied eating at the bar that night. Mr. Morris in his submissions states that Ms. Knight cut the two off because their tab reached $100.00, not because they were intoxicated.

There was never any effort to recover the tab or the bills relating to food or alcohol consumption that night in the bar by Mr. Kane and Whitlow.

Mr. Morris’s submits that it is the evidence of Todd Daigle that at $4.20 for domestic beer and $5.25 per shot for black Sambucca, a $100.00 tab for alcohol is a lot of alcohol.

Frank Kane further testified that prior to midnight, Whitlow left the bar in order to get money to pay the $100.00 tab. Mr. Kane testified that Marty Whitlow had gone to access a banking machine and returned about 10 minutes later, paid the tab and had at least 2 more drinks, a beer and a black Sambucca. This occurred between 10:30 and 11:00 p.m. After these last two drinks Marty Whitlow was very intoxicated. He had slurred speech, swaying, glassy eyed, hiccupping and supporting himself against the service bar. He went outside on his own at that point. It was then that Kassey Knight said to Frank Kane that Marty shouldn’t be driving.

Frank Kane denied displaying the vehicle keys to Ms. Knight.

Frank Kane’s evidence as to the degree of intoxication of Marty Whitlow is consistent with the evidence of the toxicologist Dr. Bugyra who stated that on leaving the Tamworth Hotel Marty Whitlow’s blood alcohol would have been 303 to 328 mg of alcohol in 100 ml of blood which would have resulted in Mr. Whitlow displaying noticeable and obvious signs of intoxication.

Frank Kane admitted that he too was intoxicated although able to carry on a conversation. He denied going outside a number of times with Marty Whitlow and denied consuming alcohol outside the hotel in the vehicle.

Mr. Morris submits that Todd Daigle and Kassey Knight in fact have no idea how much alcohol was served to Mr. Kane and Mr. Whitlow that night. The evidence that Marty Whitlow was only served 4 to 6 beers is not credible. Todd Daigle is simply trying to minimize the amount of alcohol served to both men. His evidence that Whitlow was only served until 10:30 or 11:00 p.m. and that he then went out for an hour and came back in drunk, is not credible. This is not even corroborated by Ms. Knight who denied that Marty Whitlow was outside for one hour.

Kassey Knight cannot remember details of the evening. She says the men had food but cannot recall what or at what value. Further, she is inconsistent on her recollection of what the two men were drinking. Her evidence is not credible.

Dr. Bugyra testified that if Mr. Whitlow had only consumed 4 to 6 beers as suggested by Todd Daigle and Ms. Knight, he would have had a blood alcohol of 150 to 275 mg of alcohol in 100 ml of blood and would have displayed signs of intoxication upon arrival at the bar.

Scott Gargaro, Ms. Knight’s stepfather, is suspect and he should not be believed.

Mr. Morris submits that Todd Daigle knew at midnight that Marty Whitlow and Frank Kane were drunk and that is why he offered to drive them home, even though it would take him an hour on a busy night.

LICENSEE’S COUNSEL SUBMISSIONS:

In his submissions Mr. Adams accepts the expert evidence of the toxicologist Dr. Inger Bugyra, in its entirety.

Mr. Adams suggests that the evidence of Frank Kane cannot be believed because had he consumed an equal amount of alcohol as did Marty Whitlow, Mr. Kane’s level of intoxication at the accident scene and after would have been far more pronounced. He bases this assumption on the evidence of Dr. Bugyra whom he states advised that persons with the blood alcohol levels of Marty Whitlow would be displaying obvious and severe levels of intoxication. In Mr. Adams’ submissions this was not the case with Frank Kane, as evidenced by his demeanour both at the scene of the accident and afterwards later that night.

Credibility of the witnesses in this matter is the central focus of the tribunal. To that end Mr. Adams submits that the tribunal may be assisted by reference to the seminal judgment found in Faryna v. Chorny (attached), a decision of the B.C. Court of Appeal. The case outlines appropriate guidelines which a court or tribunal must employ to properly assess the credibility of any witness.

Mr. Adams submits that the evidence of Scott Gargaro should be accepted. Mr. Gargaro was familiar with which vehicle belonged to Marty Whitlow because he had spoken to both Whitlow and Kane when he first came to the bar. It is submitted that Mr. Gargaro was forthright in his evidence when he stated he saw two men passing a bottle between them in Marty Whitlow’s truck but he could not identify them.

Mr. Adams submits that Mr. Gargaro gave no statement to the police or Todd Daigle following the accident because he was not asked to and the potential liability of his stepdaughter has never been an issue.

Mr. Adams refers to adverse inferences that have been raised against Mr. Daigle regarding the fact that he made no efforts to search for the tab for alcohol and food. Mr. Adams submits that Mr. Daigle perhaps didn’t put his mind to this at the time. It is submitted that at the time Mr. Daigle was not given advice of counsel nor did he feel under direct threat or suspicion.

Mr. Adams submits that the licensee should be the one to advance the doctrine of adverse inference. He suggests in his submissions that the investigation by the police on the night of the accident and afterwards was virtually non-existent. The police did not properly search the surrounding area for evidence of consumption of liquor. Items from the Whitlow vehicle such as the beer can were not subject to expert examination. In addition there was no search of the personal effects of Marty Whitlow to attempt to locate bank machine receipts. In addition Frank Kane was not asked to give a breath sample in order to determine his blood alcohol concentration at the time.

Mr. Adams submits that the lack of investigation by the police and the Alcohol and Gaming Commission is noteworthy.

Mr. Adams submits that Todd Daigle is not the main player in these events until he is outside with Kane and Whitlow and attempts to drive them home. Daigle admits that Whitlow was intoxicated. Mr. Adams submits that the unsuccessful effort to coax Marty Whitlow into Todd Daigle’s vehicle is not the critical issue before the tribunal.

Mr. Adams submits that Kassey Knight noted nothing unusual in her shift. The two men she served, Kane and Whitlow, were pleasant. She recalled serving them food. She had stated the two went in and out a few times for about 15 or 20 minutes. This in itself, she did not find unusual, except the last time they came back in, Whitlow was intoxicated. She cut them off at that time and collected the tab. There is no evidence of the actual tab totals but if 16 domestic beers had been ordered and 12 shots, the total would have been $130.20 not $100.00. Kassey Knight denied serving the two men black Sambuccas.

Mr. Adams submits that Mr. Kane alleges they were cut off because their tab reached $100.00. This suggests there was such a policy in place when there was not.

Mr. Adams submits that it is not reasonable that Marty Whitlow would go out to find a banking machine when there was Interac capability at the bar. He submits that this is another lie by Mr. Kane to explain Marty Whitlow’s reason for going outside.

Mr. Adams submits that Frank Kane told Kassey Knight that he had the keys for the vehicle and that he refused to turn them over to her when she asked for them.

Mr. Adams submits that Kassey Knight knew it was her responsibility not to over serve her customers alcohol and she did not.

In conclusion, Mr. Adams submits that Kane could not have gone drink for drink with Marty Whitlow because Frank Kane was not displaying symptoms of intoxication consistent with that level of consumption. He further submits that Mr. Kane is the plaintiff in a $2,000,000.00 lawsuit against the licensee and this is a strong motivator for him to lie.

Reply Submissions - Registrar’s Counsel:

Mr. Morris’s submits that Frank Kane had no knowledge of the Interac machine at the bar.

Cst. Underhill had little contact with Mr. Kane at the scene of the accident as Mr. Kane was on a stretcher.

Frank Kane’s interview with Cst. Lawson where she received his statement was 4 ½ hours after he had left the bar. Cst. Lawson stated that she could tell Mr. Kane had been drinking but he was coherent.

Mr. Morris submits that there are inconsistencies between the licensee’s witnesses and the exculpatory defence that Marty Whitlow was drinking alcohol outside the bar.

Mr. Morris states that the licensee’s defence is that Frank Kane is a clumsy liar. The licensee relies on excluded evidence from the civil trial to bolster this contention. Mr. Morris submits that Frank Kane actually told police to ask Todd Daigle how much they had to drink at the bar. Mr. Morris submits this is not the act of a sophisticated liar, more the act of a naïve and unsophisticated person.

DECISION AND FINDINGS:

The Board has carefully considered the evidence submitted at the hearing and the submissions of Counsel. . What is germane to these proceedings is the degree of intoxication, if any, on the part of Mr. Kane and Whitlow when they arrived at the Tamworth Hotel. What was the degree of intoxication on the part of the two men when they left the Tamworth Hotel, and, if intoxicated did they become intoxicated at the Tamworth Hotel, or elsewhere? This case requires the Board to weigh the credibility of Mr. Kane against that of the licensee’s witnesses. In undertaking that task the Board is mindful of the test enunciated by the British Columbia Court of Appeal in Farnya v. Chorny (1952), 1951 CanLII 252 (BC CA), 2 D.L.R. 354:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether personal demeanour of the particular witness carried conviction of truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. (per O’Halloran, J.A. at p.355, emphasis mine)

The evidence of Mr. Frank Kane was that he and Marty Whitlow arrived at the Tamworth Hotel at approximately 9:00 p.m. August 13, 2005. The licensee suggests the pair arrived at between 7 and 7:30 p.m. August 13, 2005. Considering the evidence of Ms. Knight when she stated she arrived at the Hotel at approximately eight to eight thirty in the evening and both men were at the bar the Board concludes that Mr. Kane and Mr. Whitlow arrived at the Tamworth Hotel prior to 9:00P.M., in all probability closer to 7:00 or 7:30P.M. According to Ms. Bugyra the expert witness, considering the high blood alcohol of Marty Whitlow at approximately 1:00 a.m., the time difference would not significantly affect the blood alcohol level of Mr. Whitlow. Frank Kane’s evidence was that he and Marty Whitlow had not been drinking before their arrival at the Tamworth Hotel. This evidence is corroborated in the evidence of Todd Daigle, Kassy Knight and Scott Gargaro who all stated that when they first met Mr. Kane and Mr. Whitlow they did not appear to be under the influence of alcohol or drugs at the time.

In the view of the Board, Mr. Kane presented as a very credible witness at the hearing. The allegations that Mr. Kane is a liar, clumsy or otherwise, as suggested by the licensee, are not accepted by the Board. Instead, the Board sees a man who has just lost a dear friend. He is in shock and is concerned about his friend, not on concocting a story. He admits being under the influence of alcohol but he knows what is going on and he is able to communicate coherently. Licensee’s counsel suggests that Mr. Kane misrepresented the amount he had to drink because he was not displaying the extreme signs of intoxication at the time he gave his police statements as described by Dr. Bugyra. Dr. Bugyra gave a range of symptoms that a blood alcohol concentration in excess of 300 mg of Alcohol in a 100 ml of blood would produce in the average drinker. It is fair and is supported in the evidence of Ms. Bugyra that there is a difference on how alcohol affects various individuals at different times, depend on a number of factors including their resistance to the effects of alcohol. The one point that is consistent is that Marty Whitlow’s blood alcohol level is consistent with him having consumed the amount of alcohol described by Mr. Kane. Further, it is not lost on the Board that in the early morning hours of August 14, 2005, the events occurring for Mr. Kane would have been very shocking and based on his evidence and the way he conducted himself with the police both at the scene and later at the police station, he was struggling to recall the events as best he could. He was not sober and that is clear from the police evidence, but neither is he at that point falling down drunk. It is evident as well that even back at the Tamworth Hotel Mr. Kane had the presence of mind to seek a ride home as opposed to attempting to drive. Although the two men drank equal amounts that night the way the alcohol affected the two was different. This is not surprising it is generally understood that two persons will not act identically while under the influence of alcohol simply because they have each consumed an equal amount.

It is the Board’s view that Frank Kane’s evidence meets the Farnya v. Chorny test. He recounted the events of the evening and early morning on which his friend died both to the police and to the Board in a forthright manner. His version of events from the outset describe what has taken place. His first encounter with the police after the accident, he relates what has happened. He is consistent with his recollection of events from that date forward to the day of the hearing. He was there throughout and his recollection of events bears this out.

Licensee’s counsel suggests an adverse inference can be drawn from the fact the police never searched the accident scene or the roadside between the hotel and the accident for beer cans or other evidence of drug and alcohol consumption by the occupants of the vehicle and failed to demand a blood sample from Mr. Kane. The Board disagrees. The police investigation in the view of the Board was adequate. The police searched the scene for evidence of contraband be it alcohol or drugs, and found nothing except an empty beer can. The expectation that the police should have undertaken a complete search of the roadside all the way back to the Tamworth Hotel is not reasonable. They had no reason to believe that the search would bring forth evidence in relation to events leading to the accident. The police were never made aware of the allegations suggested by Ms. Knight and her stepfather Mr. Gargaro that Mr. Kane and Mr. Whitlow were drinking in the vehicle prior to the accident. There was no legal basis to demand a blood sample from the passenger in the vehicle. The police investigation revealed no evidence of alcohol consumption in Mr. Whitlow’s vehicle, save for the one empty beer can.

In addition, there was no evidence of food in the vehicle at the accident scene or any food container in the vehicle. The Board heard no evidence that the food allegedly placed in the take out containers for the two men was left at the hotel, so the Board must assume that it was taken away by the two men. The fact that no evidence of the food or a food container was found in the vehicle at the scene supports the evidence of Mr. Kane that they did not eat at the bar.

Mr. Gargaro’s evidence of seeing the two men drinking in their truck from a bottle they were passing back in forth is not supported even though at the time of this alleged observation he was with Gilbert Lamb. Mr. Lamb was never called to corroborate Mr. Gargaro’s evidence. In addition, from the evidence of Ronald Kirk it is evident that patrons inside the bar are curious to events going on outside, leaving one to speculate as to why no one else noticed the alleged drinking of Kane and Whitlow in the vehicle.

Mr. Gargaro did have a conversation with Kassey Knight after they had heard of the accident. He stated she simply said to him that she had not over-served the two men.

In reviewing the evidence of Mr. Gargaro, the Board finds this evidence is suspect . He is the stepfather to Kassy Knight and would be concerned that she may face some liability if it were found that she did in fact over serve the two men. From the evidence of Mr. Gregaro he and Kassy Knight had a conversation about her serving the two men shortly after they heard about the accident. Further Mr. Gargaro’s evidence about the two men in the truck passing a bottle between them, is not supported, even though it was possible for him to be corroborated.

The Board is of the view that Todd Daigle had no idea how much alcohol had been served to Mr. Whitlow and Mr. Kane on the evening of August 13, 2005, at the Tamworth Hotel. Although no formal policy exists, the Board is satisfied that it is in the best interest of the Tamworth Hotel to collect the tabs from individuals they do not know once they get to a high level, and the Board is satisfied that this occurred with Mr. Whitlow and Mr. Kane.

The Board finds it reasonable that a patron would go to a banking machine as opposed to settling up on Interac. There are a number of possible reasons but one is simply in addition to paying the tab Mr. Whitlow needed cash.

The Board is concerned about the evidence of Kassey Knight. In the view of the Board her evidence is self serving. Ms. Knight is concerned that she may have some liability with regard to the events of that night in August in the over serving of Mr. Kane and Whitlow. The only possible corroboration to her evidence that Marty Whitlow went in and out a number of times finally coming in the last time intoxicated, would be if the Board were to rely on the evidence of her stepfather Mr. Gargaro and in that regard the Board is not inclined to accept that evidence.

The Board does not believe that Mr. Kane displayed the keys to Marty’s vehicle to Ms. Knight or that he was asked by her to surrender them. If that were the case the Board cannot imagine how Marty Whitlow would have obtained the keys from Mr. Kane that night, considering the obvious concern displayed by Mr. Kane about Marty Whitlow’s ability to drive. Mr. Kane wanted a ride home with a sober driver. In his evidence he came close to a physical confrontation with Mr. Whitlow over Mr. Whitlow’s determination to drive. These are not the actions of a person already in possession of the keys for the vehicle as alluded to by Ms. Knight.

Where the evidence of Mr. Kane and Kassey Knight differ regarding what the two men consumed in the Tamworth Hotel that night, for all the reasons cited previously the Board chooses to believe the evidence of Mr. Kane. This applies to the evidence concerning when and why the two men were cut off that evening in the bar.

The Board is satisfied on the basis of all the evidence heard that Frank Kane and Marty Whitlow did not consume any alcohol on August 13, 2005, before entering the Tamworth Hotel, or after leaving the Hotel on the morning of August 14^th, and that no alcohol was consumed in the intervening time period except as served to them in the Tamworth Hotel.

In conclusion, the Board finds that Mr. Kane and Mr. Whitlow attended at the Tamworth Hotel on August 13/14, 2005. Therein they consumed alcohol served to them by Todd Daigle and Kassey Knight until they were severely intoxicated.

Therefore, the Board FINDS the licensee permitted liquor to be sold and consumed to a person who was or appeared to be intoxicated breaching section 29 of the Liquor Licence Act and FURTHER, permitted drunkenness breaching section 45(1) of Ontario Regulation 719/90 of the Liquor Licence Act.

Having made the above findings, the Board invites written submissions on sanction from the respective parties. The submissions are to be provided to the Hearings Department of the Alcohol & Gaming Commission of Ontario, 90 Sheppard Avenue East, Suite 300, Toronto, Ontario, M2N 0A4, fax: (416) 326-5566. Registrar’s counsel shall serve and file his written submissions seven (7) days from the date of this decision. The Licensee shall have seven (7) days thereafter to serve and file a written response. Registrar’s counsel shall have an additional three (3) days to serve and file a reply, if any.

DATED AT TORONTO THIS 15^TH DAY OF FEBRUARY, 2007.

ALEX MCCAULEY, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER

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