Registrar, Alcohol and Gaming Commission of Ontario v. 1197801 Ontario Inc., 2008 CanLII 91757

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 of Ontario Registrar

-and-

1197801 Ontario Inc. O/A Body English/Body Rok Licensee

DECISION ON SANCTION

Panel: Beryl Ford, Board Member Jacqueline Castel, Board Member

Decision Date: October 8, 2008 Hearing Location: Toronto, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Joyce Taylor, Representative 1197801 Ontario Inc., Licensee ) Joseph Irving, Representative

Allegations

1A hearing into Notice of Proposal number 15828 dated December 3, 2007, to suspend liquor licence number 0100072 issued to 1197801 Ontario Inc. (the “Licensee”), operating as BODY ENGLISH/BODY ROK, 1325 Eglinton Avenue East, Unit 1-6, Mississauga, Ontario, L4W 4L9 (the “premises” or the “establishment”), on the basis of alleged violations of subsections 45(1) and 45(2) of Ontario Regulation 719/90 (the “O.Reg”), prescribed under the Liquor Licence Act (the “LLA” or the “Act”) was held on July 29, 2008 in the City of Toronto.

2In its decision dated September 16, 2008, the Board found the Licensee contravened subsection 45(1) of the O.Reg. The Board dismissed the allegation under subsection 45(2) of the O.Reg. The parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.

Registrar’s Submissions

3It is the Registrar’s position that the full suspension of fourteen (14) days should be imposed given the history of infractions at this establishment and the events which have transpired since this infraction took place.

4This Licensee has owned the establishment since January 1997. When the establishment operated under the name Club 107/108, it acquired a long and serious history of repeated violations of subsection 45(1) of the O.Reg, either alone or together with other breaches of the LLA and regulations:

a) In 2000 the Licensee served a three (3) day suspension for breaching subsection 45(1) of the O.Reg.

b) In 2001 the Licensee served a twenty (20) day suspension for breaching section 43 and subsection 45(1) of the O.Reg.

c) In 2002 the Board ordered the Licensee to serve a sixty (60) day suspension in 2003 for breaching subsection 45(1), and sections 29 and 43 of the O.Reg, and subsections 6(2)(h) and 30(4) of the LLA, and a condition was added to the licence.

d) In 2006 the Licensee served two lengthy consecutive suspensions: (i) a twenty-five (25) day suspension for breaching subsection 45(1) of the O.Reg and subsection 45(2) of the LLA, and (ii) a forty-five (45) day suspension for breaching subsection 45(1) of the O.Reg.

5The Licensee has been suspended for over one hundred and fifty (150) days since the year 2000, and that one hundred and fifty (150) days has involved breaching subsection 45(1) of the O.Reg, the same section the Board found the Licensee breached in this case.

6The Licensee claimed at the hearing that it had taken corrective measures to prevent drunkenness after April 20, 2007. Those were the Licensee’s words at the hearing, however, those words are only good if the Licensee’s actions bear out those words. The Licensee’s disciplinary record since April 20, 2007 has not born out the Licensee’s claims of having implemented measures to prevent drunkenness from taking place again.

7The Board has, once again, found that the Licensee permitted drunkenness in the establishment, this time on June 23, 2007. This is well after the Licensee had claimed to have implemented its correction measures in early May 2007, well after the time when the Licensee claims to have “gotten it right”.

8Therefore, given this Licensee’s extraordinarily bad history of continued infractions involving breaches of subsection 45(1) of the O.Reg and a further finding of another breach of subsection 45(1) since this infraction took place, it is the Registrar’s position that a fourteen (14) day suspension should be imposed, as it is the maximum that was requested, for it is clear that this Licensee has not been deterred by longer suspensions than this in the past, but the Board has no jurisdiction to exceed the maximum proposed by the Registrar in the first place.

Licensee’s Submissions

9It is submitted that the Board should consider giving the Licensee a warning rather than suspending its liquor licence. In the alternative, it is submitted that a fourteen (14) day suspension would be inappropriate in the circumstances and that the appropriate suspension would be seven (7) days.

10The Registrar’s counsel is relying on the decisions of the Board as well as one decision which post-dates this matter both in relation to the date of the allegations and the date of the Board’s decision. It is the position of the Licensee that the allegations in the NOP, which gave rise to the previous suspensions, are far more serious than those in this matter and the events upon which the Board made its findings in relation to those suspensions date back to 2003 and years prior. The gap in time and the findings of the Board in relation to the evidence heard in this matter provide a sufficient basis to conclude that there are mitigating factors which favour the Licensee.

11Contrary to the submission of the Registrar’s counsel, the findings of the Board in relation to the events of June 23, 2007, have no bearing on the disposition in this matter. Both the facts giving rise to the Board’s findings, and its decision in that matter, post-date the events and the Board’s decision in this matter and ought not to be taken into account when the Board decides the appropriate disposition as to penalty.

12The Board found in this matter that, based on the evidence of the Licensee’s witness, the establishment had implemented measures to ensure enhanced diligence against patrons becoming intoxicated. In addition, the Registrar requested a fourteen (14) day suspension on the basis of allegations of permitting intoxication as well as permitting narcotics. Given that the Board dismissed the allegation of permitting narcotics, it is submitted that it would be inappropriate to order a fourteen (14) day suspension. It is the Registrar who issues the Notice of Proposal and if the Registrar, who had full knowledge of the Licensee’s past history, only requested a fourteen (14) day suspension, then it becomes a bit hollow for the Registrar’s counsel to now submit that the maximum suspension that was asked for (14 days) should be ordered. The Registrar’s counsel attempts to bolster the false logic in her submission by commenting that “the Board has no jurisdiction to exceed the maximum proposed by the Registrar in the first place”. Proportionality dictates that if findings are made that one of the allegations has been proven and the other allegation is dismissed, then a suspension of less than the total asked for by the Registrar in the NOP is in order.

Reply

13There is no rule of proportionality respecting findings made by the Board and the NOP. If there were, then every time the Board makes the findings set out in a NOP, the Board would be required to impose the full suspension as originally requested. That is clearly not the case and, the Licensee’s representative has not provided any case law to support this position.

14The sanction must be in proportion with the seriousness of the infraction, in light of the Licensee’s record, not the NOP. In this particular case, the drunken patron was extremely drunk, to the point where he would not have been allowed to remain by himself without someone to look after him and make sure he was able to get safely home. This, in and of itself, is a serious matter. Here we also have a Licensee who has one of the longest records of lengthy suspensions, for having breached the same section of the regulation again and again, who has professed to have implemented measures to ensure that the infraction does not occur again, but despite those claims, another panel of the Board has, yet again, found the Licensee has permitted drunkenness, at a time when these improvements were supposed to be in place.

15The Board relied on the evidence of Mr. Pereira to find that the Licensee implemented measures to prevent drunkenness. The fact that another panel of the Board found that the Licensee permitted drunkenness on June 23, 2008, two months after Mr. Pereira claims to have implemented these improvements, goes to either the ability of the Licensee to consistently implement these improvements or to the efficacy of those improvements in the first place. The Board’s subsequent decision is entirely relevant to this claim by the Licensee and must be considered by the Board when assessing the Licensee’s claims of improvement. If the Licensee’s staff cannot consistently do what they say they have done, then the Board must consider its own finding, when assessing the Licensee’s assertions of improvement, as part of its consideration of disposition.

16Therefore, it is the Registrar’s position that given the Licensee’s record both before and after this current hearing, a fourteen (14) day suspension is in proportion with the seriousness of this infraction, in light of the Licensee’s record.

Reasons and Decision on Sanction

17The Board has carefully considered the submissions of the Registrar and Licensee on sanction and finds that an eight (8) day suspension is appropriate for the reasons outlined below.

18The Board considered the Licensee’s history of non-compliance with subsection 45(1) of the O.Reg, as well as other sections of the LLA and regulations, when it operated under the name Club 107/108. The Board does not consider the circumstances of this contravention to be as serious as the prior contraventions. The contravention in this case involved one (1) intoxicated patron, who the Licensee had already escorted out of the premises when the police arrived and made their observations. It was not a case where the Licensee permitted intoxication until the police arrived and informed the Licensee of the contravention. The Licensee’s staff also cooperated fully with the police. It would appear that the Registrar agrees that the contravention in this case is not as serious as the previous ones, as the Registrar is not requesting escalating and progressive discipline, the most recent suspension (2006) being a total of seventy (70) days.

19Further, the Licensee appears to be placing greater emphasis on LLA compliance since it opened under the name Body English/Body Rok. Before opening, the Licensee met with members of the Peel Regional Police to describe its security plan, including the security camera coverage, for the establishment. Detective Cowan, who attended this meeting, stated in cross-examination that he found the Licensee to be honest and open and the security plan to be good, although he noted that actions speak louder than words. Constable Watson also made a point of testifying in his examination in chief that he has confidence in the security staff at the establishment.

20The Board also considered, in determining the appropriate sanction, that the Licensee implemented corrective measures in the bottle service area of the establishment in May 2007 (described in detail in paragraph 36 of the Board’s decision, dated September 16, 2008), shortly after the contravention, to discourage excess consumption and to ensure that the area is better monitored for compliance with the LLA. Ms. Taylor argued that the corrective action could not have been effective since the Board found, in a decision dated September 4, 2008, that the Licensee permitted drunkenness (1 patron) on June 23, 2007 (i.e., after the remedial measures were implemented). Since the allegations in the September 4, 2008 decision post-date this matter, the Board only considered that decision in terms of what it reveals about the effectiveness of the corrective action the Licensee implemented in May 2007. This is appropriate since the Licensee raised the issue of having implemented corrective measures in the bottle service area. The Board, nevertheless, found that the September 4, 2008 decision did not shed much light on the effectiveness of the corrective action, since it is not clear that the patron in that case became intoxicated in the bottle service area of the establishment, the area where the corrective action was directed. Additional refining of the Licensee’s procedures to deter and prevent intoxication may indeed be in order. Notwithstanding, in implementing remedial measures in the bottle service area in May 2007, the Licensee acknowledged deficiencies in its existing procedures, attempted to learn from the contravention, and took prompt steps to improve its procedures, behaviour which the Board considers to be responsible.

21Based on the nature of the contravention and the Licensee’s history of non-compliance with subsection 45(1), when it operated under the name Club 107/108, the Board is of a view that the warning, which the Licensee’s counsel is requesting at first instance, would be an inadequate sanction, from the perspective of achieving specific and general deterrence. The Board is of the view that a suspension is necessary to satisfy the principles of specific and general deterrence in this case. However, in reaching its decision to impose an eight (8) day suspension, rather than the fourteen (14) day suspension sought by the Registrar, the Board considered that the police spoke favourably of the Licensee’s security department and procedures, the Licensee cooperated fully with the police, the Licensee had already escorted the intoxicated male outside when the police arrived, and the Licensee implemented remedial measures in the bottle service area of the establishment shortly after this contravention.

22The Board also finds it odd that the Registrar would be requesting the maximum penalty of fourteen (14) days for a finding of contravention under subsection 45(1), when the Registrar sought, in the NOP, a suspension of this duration for two (2) findings of contravention, one (1) under subsection 45(1) and another under subsection 45(2) of the O.Reg. Two (2) contraventions are more serious than one (1), and presumably the Registrar would also be seeking a fourteen (14) day suspension if the Board had not dismissed the allegation under subsection 45(2). The Registrar was aware of the Licensee’s prior record when the NOP was drafted. While the Board does have the authority to determine that the full fourteen (14) days is warranted for one (1) finding of contravention, regardless of what the Registrar was seeking in the NOP based on two (2) contraventions, for the reasons outlined in paragraph twenty (20) above, the Board is of the view that a fourteen (14) day suspension is not warranted on the facts of this case.

Order

23The Board ORDERS that liquor licence number 0100072, issued to 1197801 Ontario Inc., operating as Body English/Body Rok, 1325 Eglinton Avenue East, Unit 1-6, Mississauga, Ontario, L4W 4L9, be suspended for a period of EIGHT (8) consecutive days.

24The Licensee shall submit proposed suspension dates in writing to the Manager, Hearings Department, Alcohol and Gaming Commission of Ontario at the address on the front of this decision within seven (7) days of the date of this decision. The Board will set suspension dates without further notice to the Licensee if the proposed dates are not provided within that time. The suspension must be served on days the establishment normally operates. The suspension may not start earlier than twenty (20) days from the date of this decision and must be completed within ninety (90) days of the date of this decision.

DATED AT TORONTO THIS 8th DAY OF OCTOBER, 2008.