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-
G Way Restaurant Services Ltd. O/A Boston Pizza
Licensee
DECISION ON mOTION
Panel: S. Grace Kerr, Board Member Alex McCauley, Board Member
Decision Date: May 16, 2008
Hearing Location: Brantford, 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 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Phillip Morris, Representative G Way Restaurant Services Ltd., Licensee ) George Limberis, Representative
Authorities
Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] S.C.J. No. 43
R v. Askov, 1990 CanLII 45 (SCC), 1990 2 S.C.R. 1199
Basis of the Motion
A motion was brought by the Licensee, dated November 9, 2007 and returnable November 21, 2007, in the City of Brantford, the same day a hearing into a Notice of Proposal number 14542 (the “NOP”) dated September 29, 2006 was set to proceed. The NOP seeks to suspend liquor license number 810079 (the “Licence”), issued to G Way Restaurant Services Ltd. (the “Licensee”) operating as BOSTON PIZZA, 299 Wayne Gretzky Parkway, Brantford, Ontario, N3R 8A5 (“BP” or, the “establishment”) on the basis of alleged violations of s. 29 of the Liquor Licence Act (“LLA”) and ss. 45(1) and 20(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA.
Licensee alleges the Registrar breached natural justice and procedural fairness by failing to make full and timely disclosure. In addition, the Licensee alleges the delay in investigating the allegations and issuing the NOP constitutes a further breach of natural justice amounting to an abuse of process.
The Licensee’s motion was for an order staying or withdrawing the NOP, an order compelling Detective Sergeant P. Morrissey to attend so he might be cross-examined on his affidavit (added as relief by counsel for the Licensee by way of letter dated November 20, 2007), and for such further and other relief as the Board of the Alcohol and Gaming Commission (“Board”) might deem just and proper in the circumstances. Alternatively, the Licensee seeks an adjournment of the hearing in order to deal with what is alleged as “late disclosure” by the Registrar in the process. The Licensee also relied upon Rules 2, 14, and 16 of the Board’s Rules of Practice.
The Registrar denied both the allegations made by the Licensee and the relief sought.
Decision
- After carefully considering all the evidence and submissions on the motion, the Board delivered an oral decision to the parties on December 18, 2007. In that decision, the Board dismissed the Licensee’s motion, with written reasons to follow. Those reasons are provided below.
Preliminary Matters
Two preliminary oral motions were brought before the Board and were addressed by it before it began to hear the Licensee’s motion on its merits. First, the Licensee asked the Board to strike Paragraph 13 of Det. Sgt. P. Morrissey’s affidavit, sworn November 19, 2007, on the basis that it contained a statement that referred to Pre-Hearing Conference (“PHC”) discussions. This paragraph had already been ‘blacked out’ in the Board members’ copies. On the same basis, Mr. Morris asked that a paragraph in a letter, dated November 20, 2007, from Mr. Vitulli to him (Exhibit 1) be struck.
The Board ordered that both Paragraph 13 of Det. Sgt. Morrissey’s affidavit and the particular paragraph at issue in Mr. Vitulli’s letter be struck. All statements made at a PHC are privileged pursuant to Rule 12.8 of the Board’s Rules of Practice, as interpreted within the context of Rule 2.1 of the Rules. The only exceptions are those statements reduced to writing and submitted on the consent of all parties or those which are incorporated into an order arising from the PHC.
The Registrar then brought an oral motion to adjourn the Licensee’s motion to stay until the end of the disciplinary hearing on the NOP. After hearing argument from both sides on this issue, the Board dismissed the Registrar’s motion. The Board ruled that, due to the nature of the Licensee’s motion, it should be heard before the disciplinary hearing proceeded. No legal or practical interests would be served to have the motion heard afterwards.
The motion was heard by the Board on November 21, 22, 26 and 27 and December 7, 17, and 18, 2007 in the City of Brantford.
An order to exclude witnesses was made on consent at the outset of the motion.
Summary of the Evidence and Determinations of Credibility
- The main issues in dispute were, for which the Board made evidentiary and credibility rulings, as follow in paragraphs 12 – 49 below, were:
- when the AGCO first came to know the accident and its connection with BP;
- the manner and timeline of the AGCO’s subsequent investigation;
- the manner and content of the Registrar’s disclosure; and,
- whether memories have faded or failed or physical evidence has been lost or destroyed since the accident.
The conclusions the Board has reached turn on the particular facts of this case and, more specifically, the evidence it received and the witnesses it heard on the motion.
Mr. Jamie Batson and Mr. Cody Novak were involved in a motor vehicle accident that occurred between 1:00 a.m. and 2:25 a.m. on December 28, 2004 on the west-bound ‘on ramp’ to Hwy. 403. Mr. Batson was the driver of the motor vehicle involved in the accident, Mr. Novak his passenger. Mr. Batson and Mr. Novak were patrons of the establishment on the night of December 27/28, 2004. The ramp where the accident occurred is located about 300 metres from BP.
On March 17, 2005, Mr. Batson was charged by the Brant Ontario Provincial Police (“OPP”) with ‘impaired driving causing bodily harm’ and ‘over 80’. He was also issued a 90-day ALS licence suspension. On September 16, 2005, Mr. Batson entered a plea of guilty in the Ontario Court of Justice at Brantford to having “blood over 80 mg.” contrary to Section 253(b) of the Criminal Code of Canada. He was fined $1,000, and was prohibited from driving for one year.
Mr. Anthony (Tony) Mullally is the Vice-President of G-Way Restaurant Services Ltd., and the general manager and operator of the Boston Pizza (BP) franchise, which it wholly owns. His other partners are not involved in BP’s day-to-day operations. He became its owner/operator in December 2004 when it opened.
Mr. Mullally knew about the accident by no later than sometime in April 2005, if in fact he did not know about it sooner. He acknowledged receiving a letter dated April 5, 2005 from his insurance broker. This letter identified Randy Batson as the owner/insured, Jamie Batson as the driver, Cody Novak as the claimant, and the date of loss as December 28, 2004 (the Novak claim). This letter states that “Mr. James Batson was a patron of (the establishment) just prior to (the) accident”.
Ms. Jan Rutherford was the independent claims adjuster assigned to respond to the Novak claim. She opened her file on April 22, 2005. Between then and until November 2005 when she received notice that the claim was not being pursued, she took various steps to follow-up this claim.
Ms. Rutherford attended at the establishment and interviewed Mr. Mullally on May 26, 2005.
Mr. Novak’s insurer advised Ms. Rutherford on June 25, 2005 that Mr. Batson was “admitting to drinking at BP”.
On July 7, 2005, Ms. Rutherford called Mr. Mullally and made arrangements for Ms. Webb and Mr. Malloy, the server and the manager on duty on the night of the accident, respectively, to be interviewed. She admitted that if she had any concerns as of that date about witness’s memories failing she would have documented it, but no such notation is in her file. Ms. Webb spoke with Ms. Rutherford in October 2005 and arranged to be interviewed by her on November 10, 2005.
Mr. Mullally made investigations into the accident before being contacted by the AGCO about the incident. These included giving Ms. Rutherford the name of the server on the night in question upon her request to speak with the server.
The AGCO first became aware of the impaired driving conviction against Jamie Batson when Det. Sgt. Morrissey of the AGCO was telephoned by Jamie Batson’s father on either December 16 or December 19, 2005. Before this call, Det. Sgt. Morrissey was not acquainted with, other than very nominally, Jamie Batson’s father, who is a Brant City Police Officer.
Det. Sgt. Morrissey instructed Det. Cst. Michael Pierzchalski to investigate the matter, most probably, on December 16, 2005. On that date, Det. Cst. Pierzchalski obtained a “Niche” report from the OPP files in respect of the accident.
On December 19, 2005, Det. Sgt. Morrissey also assigned AGCO Liquor Inspector Lorraine Simpson to investigate.
Inspector Simpson sent a letter to the Licensee on December 21, 2005. Mr. Mullally received this letter later that month. In late December 2005, Ms. Simpson met with Gordon Lewis, BP’s (then) acting manager. She also spoke with Mr. Robert Phillips, Mr. Mullally’s partner, on January 10, 2006. The next day she picked up documents from Mr. Mullally which she had requested in her December 21st letter.
On January 9, 2006, Det. Cst. Pierzchalski contacted the Brant OPP and asked for a copy of the Crown Brief together with any other notes, notebook entries, and original police reports. He later learned that all physical evidence obtained by the OPP in their investigation of the accident was destroyed on December 12, 2006 (see Exhibit 3, Tab 1B, page 185).
Det. Cst. Pierzchalski took a statement from James Batson on December 21, 2005 and from Michael Walker on January 26, 2006.
Ms. Simpson took statements from Cody Novak and Angela Webb on February 6, 2006 and February 9, 2006, respectively.
By letter dated February 13, 2006, Mr. Mullally received notice of a potential claim by James Batson against the establishment in relation to the accident (the Batson claim). This letter alleged that Mr. Batson had been a patron of BP on the night in question. Ms. Rutherford became the adjuster with respect to the Batson claim on February 28, 2006. On that date, she called Mr. Mullally, her contact at BP, and arranged interviews with Ms. Webb and Mr. Malloy. At that time she learned of the AGCO’s involvement in the matter.
Ms. Rutherford interviewed Mr. Batson on May 10, 2006 and Ms. Webb on June 7, 2006 about the Batson claim.
In May 2006, Det. Sgt. Morrissey sent the Deputy Registrar’s Review (DRR) package relating to this matter to the AGCO office in Toronto. Between then and the issuance of the NOP in late September of that year, a second infraction involving BP was alleged, that is, “selling discounted liquor”, which he was required to address with the accident-related matters.
The total time between the AGCO’s first notice and the issuance of the NOP was just over 9 months. It took about 5 months for the NOP to issue following the submission of the original DRR. The Board accepts Det. Sgt. Morrissey’s evidence that this was about a month more than the ‘typical’ 4-6 month turn-around time due to changes in AGCO’s internal processes as it switched to risk-based management and enforcement.
The AGCO’s disclosure package to the Licensee accompanied the NOP. It was extensive and included police reports and exhibits, medical records and other documents, totalling over 300 pages.
The Registrar’s disclosure makes it clear to the Licensee that the two alleged patrons of BP on the night in question are James Batson and Cody Novak.
A Pre-Hearing Conference was held on December 10, 2006. Mr. Morris, on behalf of the Registrar, and Mr. Vitulli Jr., counsel for the Licensee, attended. By order of the Board, dated December 13, 2006, (the PHC order) the corporate Licensee was required to disclose a list of its witnesses and a summary of each witness’ evidence, together with disclosure further to Rule 7.4 of the AGCO Rules of Practice, ten days before the hearing date. The Registrar’s counsel was required to complete further disclosure, also pursuant to Rule 7.4, and again, ten days before the hearing date.
Mr. Morris disclosed Andrew Walker’s witness statement, Mr. Langille’s expert qualifications, and a list of anticipated witnesses on January 29, 2007. Mr. Batson’s certificate of conviction was disclosed June 15, 2007, Randy Batson’s witness statement was disclosed October 19, 2007, Inspector Simpson’s notes were disclosed November 9, 2007, and Det. Cst. Pierzchalski’s notes were disclosed November 16, 2007.
Mr. Vitulli Jr. sought Inspector Simpson’s notes by letter dated November 8, 2007. By further letter to Mr. Morris, dated November 8, 2007, he provided the names of the Licensee’s potential witnesses, but not a summary of their evidence, and included the Licensee’s employee time sheets. On November 12, 2007, he provided Mr. Morris with summaries of evidence for Mr. Mullally, Ms. Webb, Ms. Harrison and Ms. Miller. The summary of Ms. Harrison’s evidence in this letter supplemented that earlier given by Mr. Vitulli, Jr. to Mr. Morris by letter to the latter dated January 19, 2007.
In the course of this hearing, the Licensee brought a further motion for the production of all Inspector Simpson’s notes. This request was granted and the matter was adjourned to permit the notes to be produced and reviewed by the Licensee. On December 7, 2007, the Board ordered the Inspector’s and Det. Cst. Pierzchalski’s notes (the ‘Registrar’s late disclosure) be provided to the Licensee, as a result of which the motion was adjourned until December 17, 2007. Nothing of any significance, substance, or relevance arose from the production of the Inspector’s complete notes.
During the motion, the Registrar requested and the Board ordered production of Ms. Rutherford’s file. The file was produced to the Registrar on November 26, 2007 (the ‘Licensee’s late disclosure’).
March 2, 12 and 13, 2007 were originally set for the hearing. On February 16, 2007, Mr. Vitulli, Jr. sought an adjournment of the March dates on behalf of his client. On consent of the registrar the hearing was adjourned to November 21, 2007.
On January 19, 2007, Mr. Vitulli, Jr. wrote to Mr. Morris requesting a copy of the Novak videotape statement. By letter dated January 29, 2007, Mr. Morris advised Mr. Vitulli, Jr. the videotape statement had been destroyed 3 months after Mr. Batson’s conviction.
Mr. Mullally’s credibility suffered in cross-examination from the fact that he simply did not understand or was unable to explain significant portions of his sworn Affidavit. There were too many important and strongly worded parts of it which he could not explain or, alternatively, which he admitted to having no basis for stating. For example, he did not know what the words ‘actual knowledge’ meant in paragraph 7; why a disclosure related matter was supposedly ‘obvious’, as alleged in paragraph 9; nor have any basis for portions of his statements in paragraph 10; nor why certain notes were ‘absolutely key’ or ‘paramount’, as stated in paragraph 11; nor have any basis for alleging failures on the part of the AGCO or the OPP in paragraph 12. It is also simply not believable that Mr. Mullally would testify that he did not recall giving a statement to Ms. Rutherford in May, 2005. A reasonably prudent and experienced Licensee, such as Mr. Mullally, whose franchise operation faced civil law and AGCO disciplinary exposure and who in every way continued to be primarily responsible for and involved in that business, would have remembered more about the accident and its aftermath, including the AGCO proceedings, than Mr. Mullally would lead the Board to believe.
In 2005 Mr. Mullally’s son became very ill and, sadly, died in early 2007. Despite these tragic circumstances, the evidence shows Mr. Mullally was primarily responsible for the operations of BP at all times. With limited exception, specifically, the delay of the hearing from March to November, 2007, his personal misfortune cannot and should not be used as an excuse in these proceedings.
In response to inquiries from Inspector Simpson, Mr. Mullally identified Ms. Angela Webb as the server for Mr. Batson and Mr. Novak at BP the night of the accident. He also identified Mr. Steve Malloy as the manager on duty the night of the accident. Mr. Novak also confirmed to Det. Cst. Pierzchalski on February 6, 2006 that Ms. Webb was the server.
Six months after the NOP was issued, Ms. Miller and Ms. Harrison, who had also been on duty the night of the question, gave statements indicating they actually spoke to Mr. Batson and Mr. Novak on their way out of BP.
Ms. Webb was being untruthful when she testified that she was first advised about the incidents that occurred on the night of December 27/28, 2004 when she spoke to Ms. Simpson in late December, 2005, that she had “no recollection” of the incidents of that night, and that “nothing stuck out – (she did not) remember it at all”. These are exaggerations and not reasonable for several reasons, as follow. Ms. Webb also testified that she first learned about the accident about a week after it happened through discussions with other BP and that it involved “the chief of police’s son”, making it noteworthy to her at the very least shortly after the night in question. Also, she had been approached about her involvement on the night in question by Mr. Mullally and/or Ms. Rutherford well before December, 2005. The Board concludes that at the very latest, Ms. Webb became aware of the importance of her recollection of the events of that night sometime after April 5, 2005, when Mr. Mullally received notice of the Novak claim, and November 10, 2005, the date Ms. Rutherford had arranged to interview her with regard to that claim.
Ms. Webb was again being untruthful and was acting in self-interest (that is, in an attempt to refute the LLA allegations) when she testified that Ms. Simpson “interrogated” her about the incidents on the night in question. Rather, the signed statement she provided Ms. Simpson, dated February 9, 2006, was accurate as to what she told the Inspector. She admitted as such when she testified that her complaint is “not with the paper” but with “the conversation”.
Once more, Ms. Webb’s evidence regarding Ms. Simpson’s interview (that resulted in Ms. Webb’s signed statement) was exaggerated and not believable. For example, Ms. Webb testified that she did not know that this interview was important. This is not reasonable since she is an experienced server, has been SmartServe trained, knew about the accident and that the driver was drunk, and it had been said that Mr. Batson and Mr. Novak had been drinking at BP and that she was the server that night. Further, each page of her statement was read to Ms. Webb before she initialled them and, ultimately, she signed it. Also, in cross-examination, Ms. Webb agreed that the only thing missing from her statement was that she was informed that Mr. Novak and Mr. Batson went to high school with her, which is of little to no relevance overall.
Ms. Webb was being dishonest when she initially testified that she had “no recollection” about the night in question. She later testified that she heard about the accident about a week later. Further, her statement to Inspector Simpson contained details about the night of the accident (e.g. that it was not busy that night and it “died out quick”) which support the Board finding Ms Webb has a reasonably detailed memory of the night in question contrary to her initial testimony. From the latter two facts, the Board concludes that Ms. Webb would have recalled the night in question given the very serious nature of the event.
Constable Linda Madden-Loveday, of the Brant OPP interviewed Cody Novak on January 6, 2005. Shortly after the interview she discovered the video machine had malfunctioned and the interview had not been recorded. Upon making this discovery she immediately wrote up her notes of the interview and these notes were entered into the Niche system by Constable Ely. Nothing of significance to the Licensee being able to make its case before the Board turns on the absence of the videotape.
Reasons/Analysis and Decision
After considering all the credible evidence and the jurisprudence the Board dismisses the motion. The Board concludes there has been no breach of natural justice or abuse of process in this case and that the Licensee has not suffered any substantial prejudice resulting from either delay or lack of disclosure. The Licensee’s ability to provide full answer and defence to the LLA violations with which it is charged has not been compromised.
Licensee’s counsel argues the Registrar’s failure to make full and timely disclosure and its delay in commencing its investigation and issuing the NOP breached the principles of natural justice and violated the fundamental principles of justice that underlie the community’s sense of fair play and decency. Mr. Limberis submits there was nothing inherent in the accident to put the Licensee, Ms. Webb or Mr. Mullally on notice about the December 2004 accident. Consequently, memories have faded or failed and physical evidence has been destroyed. This is the case despite diligent efforts by the Licensee to obtain disclosure from the Registrar. The only possible remedy for this unfairness and to avoid an abuse of process is to stay or dismiss the proceedings.
Where delay has resulted in the breach of an individual’s Charter protected right to a criminal trial in a reasonable time, the only remedy is a stay of proceedings (R v. Askov). However, in the administrative law context, there must be proof of significant prejudice which results from an unacceptable delay before a stay will be considered. “Staying proceedings for the mere passage of time would be tantamount to imposing a judicially created limitation period” (Blencoe v. British Columbia (Human Rights Commission), para. 101).
In Blencoe, the Supreme Court of Canada undertook an extensive review of the jurisprudence on delay and abuse of process in administrative proceedings. The Court held that delay justifying a stay must be found to be both inordinate and so oppressive as to taint the proceeding. Also, a stay should only be granted rarely and in the clearest of cases where:
damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted; and
proceedings are so unfair they are contrary to the interests of justice (Blencoe para. 120)
According to Blencoe, the discretionary power is not to be taken lightly, the test for the party alleging abuse of process is harsh to meet, and the burden or threshold that must be met is heavy.
The length of the delay alone is not determinative but must be assessed in context of the various rights at stake in the proceedings. The Court identified the following factors as contributing to the assessment of whether delay is inordinate:
the nature of the case and its complexity,
the facts and issues,
the purpose and nature of the proceedings,
whether the respondent contributed to the delay or waived the delay, and
other circumstances of the case. (Blencoe, para. 122)
Applying the Supreme Court’s principles to the circumstances in the matter before us the following facts are significant and were taken into account by the Board in coming to its decision.
The incidents giving rise to the allegations contained in the NOP occurred in December 2004.
Mr. Mullally knew after receiving the letter from his insurer dated April 5, 2005, approximately 3.5 months after the accident, that Batson and Novak were patrons of BP just prior to the accident. Between April and November 2005 the accident was under investigation by the insurer. Mr. Mullally was interviewed by the insurance adjuster in May. He was advised in June that Batson admitted drinking in BP prior to the accident. He testified the matter was important and a priority to him. Despite this, Mr. Mullally could provide no explanation why neither he nor his staff made no notes and kept no business records relating to the accident. His failure to do so is simply not believable given his dealings on the civil suit. Even if the civil suit did not catch his attention, which we do not believe given the evidence, the AGCO’s investigation starting in late December 2005 certainly ought to have.
Ms. Webb became aware of the accident about a week after it happened and certainly became aware of the civil proceedings by October when she spoke with the adjuster and was interviewed for those purposes in mid-November 2005. That interview records Ms. Webb’s memories as quite specific as to some aspects of the night in question but not others that might have been more damaging to her as the server on duty. In her evidence before the Board, Ms Webb alternated between two extremes: allegations of complete memory loss and exaggerated statements for purposes of self-exoneration. The inconsistencies render her testimony not credible.
In the circumstances the Board is satisfied the Licensee knew about the nature of the incidents which ultimately gave rise to the NOP allegations very soon after they occurred. In addition, the Board is satisfied the insurance investigation was a mechanism by which Mr. Mullally acquired additional pertinent details about the incident and provided an opportunity, through statements and interviews, to preserve memories of the event. Additionally, Mr. Mullally testified that the matter was important and a priority to him.
The AGCO investigation began immediately upon receiving the telephone call from Mr. Batson on either December 16 or 19, 2005. Inspector Simpson wrote to Mr. Mullally on December 21, 2005 to advise of the investigation and request documents from him The NOP was issued on September 29, 2006. Between those dates the AGCO’s investigation required approximately 2 months and the remaining 7 months related to administrative processing. Approximately one month of the processing time is attributable to changes in the Registrar’s administrative practices.
The PHC date and the hearing dates were set about 2.5 and 5.5 months, respectively, following the receipt of the Request for Hearing. In all, less than 15 months elapsed from the date the Registrar received its first notice of the incidents until the hearing before the Board was scheduled to proceed. The Licensee’s request to adjourn the March hearing dates until late November 2007 was granted.
While the Board is sympathetic to Mr. Mullally’s personal circumstances, it is troubling that the Licensee waited until November 8, 2007 to raise these issues and bring its motion at the last possible time. In doing so, the Licensee itself has created yet further delay, which it now seeks to lay in whole or in part at the Registrar’s feet.
Considering the number of witnesses involved (both lay and professional), the nature and volume of the evidence to be assembled and disseminated, and the complexities of the issues and other factors, the actual time that evolved in investigating is reasonable in the circumstances. The Board is not satisfied there was any oppressive or inordinate delay in the Registrar’s investigation and processing of these allegations as to taint these proceedings.
The question remains whether the year which elapsed between the accident and the December 21, 2005 letter to the Licensee that the Registrar was commencing its investigation meets the test for delay amounting to an abuse of process. Considering the context and facts in this particular case, the Board is satisfied the one year delay in beginning the Registrar’s investigation was neither oppressive nor inordinate and has not prejudiced the Licensee’s ability to respond to the allegations.
The Licensee knew soon after the accident that BP’s involvement in serving alcohol to Batson was in play in a civil law suit. BP’s insurer immediately commenced its investigation. The evidence collected to effectively respond to the civil suit was virtually identical to the steps which would or ought to be taken to respond to an AGCO investigation. The Licensee and his principal witnesses were made aware of the incident upon which the allegations are based within a reasonable period of time. They had the opportunity to reflect of the events and review their memories of the night in question. The destruction of the physical evidence in the OPP file and the failure to video record Novak’s statement to the OPP is unfortunate although neither situation was within the control of the AGCO. In the end, the Board is satisfied the extensive documentation, including medical records and the forensic report, disclosed to the Licensee and as well as the availability of both Batson and Novak for examination under oath effectively compensates for these losses. The Board is satisfied that, although the Licensee was not aware of the actual LLA violations alleged until the NOP was issued, the delay in commencing the investigation has not prejudiced its ability to make a full answer and defense.
For these reasons the Board finds the Licensee has failed to establish that the delay in investigating and commencing the proceedings before the Board was neither oppressive nor inordinate in the circumstances, that any prejudice suffered was not substantial or significant, and, therefore, there are no grounds to find than abuse of process or to stay the proceedings.
With respect to the Licensee’s issues concerning disclosure of documents and the “late” disclosure of additional documents in November 2007 the Board is satisfied the Registrar has now disclosed all relevant documents in its possession and upon which it intends to rely as required by the Rules of Practice. The Board agrees it is not for the Registrar to determine what is irrelevant to a proceeding and refuse to disclose on that basis. Decisions about relevance of documents are for the Board to make.
The Board agrees the Registrar is obliged to preserve physical evidence in its possession but finds no authority requiring the Registrar to attempt to exercise its authority over evidence not in its custody and control. While Cst. Madden can undoubtedly be criticized for mishandling the situation after learning that the videotape had malfunctioned, Mr. Novak gave a signed statement to the AGCO investigators and is available for cross-examination. Nothing that happened as regards this piece of physical evidence will prevent the Licensee from giving full answer and defence in these proceedings.
Although Inspector Simpson should have included Det. Cst. Pierzchalski’s notes, in which Mr Novak identified Ms Webb as the server on the night in question, with the results of her investigation this information was already known to the Licensee.
The hearing is not scheduled to reconvene until mid-June 2008. There is ample time for the Licensee to review and respond to the Registrar’s November disclosure in preparation for the hearing. In all the circumstances and given the particular facts of this case, the Board is satisfied the Licensee has not been prejudiced by the manner and content of the registrar’s disclosure. Furthermore and for the reasons enunciated above, the Board also concludes that compelling the Licensee to proceed to a hearing does not violate any essential principles of justice underlying the community’s sense of fair play and decency.
Generally, in exercising the reasonable discretion granted him in order to fulfil his mandate to act in the public’s interest and safety under the LLA, the Registrar may initiate disciplinary proceedings against a Licensee. In this case, notice prompting the AGCO’s involvement came from a member of the public. The NOP, arising from the AGCO’s subsequent investigation, alleges that a number of potential, serious violations of the LLA took place on the night in question, all relevant to the public’s interest and safety. Further, for reasons set out in detail above, the Board has concluded that the Licensee itself has not been prejudiced by any aspect of the process to date; thus, there is no abuse of process concerns that might otherwise weigh on a community’s conscience. In all, therefore, it is actually in the public’s interest that this matter should proceed to a full hearing for the Board to determine the matter on its merits as soon as possible.
Conclusion
- After carefully considering all of the evidence, including the materials and the oral evidence tendered at the motion, and having reviewed the case law, the Board finds the Registrar has provided full disclosure of the results of its investigation such that the Licensee knows the case it is expected to meet and is in the position to make full answer and defence to the charges against it. Any delay in disclosing or proceeding with this matter is not of such magnitude as to prejudice the Licensee, to warrant a stay or dismissal of the proceedings, or to constitute an abuse of process. The Motion is DISMISSED.
DATED AT TORONTO THIS 16th DAY OF MAY, 2008.
S. GRACE KERR, BOARD MEMBER ALEX MCCAULEY, BOARD MEMBER
SGK/sm