Registrar, Alcohol and Gaming Commission of Ontario v. Rejeanne’s Bar & Grill Ltd., 2008 CanLII 91884

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-

Rejeanne’s Bar & Grill Ltd. O/A Rejeanne’s Bar and Grill

Licensee

DECISION

Panel: Patricia McQuaid, Vice-Chair, AGCO Beryl Ford, Board Member Jacqueline Castel, Board Member

Decision Date: July 16, 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 Rejeanne’s Bar & Grill Ltd., Licensee ) Gregory Burd, Representative

Authorities

473954 Ontario Ltd. v. Ontario (Registrar of Alcohol and Gaming), [2001] O.J. No. 5315 1207745 Ontario Ltd. (c.o.b. Armani's Nightclub) v. Ontario, [2007] O.J. No. 5317

Allegations

1A hearing into Notice of Proposal number 16056 dated February 26, 2008, to suspend liquor licence number 801766 (the “Licence”) issued to Rejeanne’s Bar and Grill Ltd., (the “Licensee”) operating as REJEANNE’S BAR AND GRILL, 700 Balmoral Drive, Unit 1, Brampton, Ontario, L6T 1X2, (“Rejeanne’s” or the “Premises”) on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (O.Reg) made pursuant to the Liquor Licence Act (LLA), was held on June 23, 2008, in the City of Toronto.

Decision

2After carefully considering the evidence and submissions, the Board DISMISSES the allegation of a violation of subsection 45(1). Reasons follow.

Preliminary Matters

3An order to exclude witnesses was made on consent.

Licensee’s Evidence

4Inspector Stephen Hetherington, a Liquor Inspector with the AGCO for eighteen months, conducted an inspection at Rejeanne’s on August 10, 2007. He arrived at the establishment at 1:58 a.m. While standing at the entrance of the patio, he noticed a male customer whose speech was slurred and who was weaving back and forth on his seat. The male was seated with a female on a bar stool by the railing of the patio. Inspector Hetherington approached the male customer and identified himself as an AGCO Liquor Inspector. The patron had a tall boy (approx. 710 ml) can of Canadian beer in front of him. His breath smelled of alcohol and his eyes were bloodshot. The patron told him he had two or three tall boy cans of beer and two shots of sambuca. He spoke to the customer for five to seven minutes. The patron did not have an accent but slurred his words when answering his questions.

5Inspector Hetherington then went to the side door of the establishment, where he informed Ms Joy Saldanha, the server on duty, of the male customer exhibiting signs of intoxication. According to Inspector Hetherington, Ms Saldanha corroborated that she served the male two or three tall boys and two shots of sambuca.

6When questioned on cross-examination, Inspector Hetherington could not remember what the male was wearing, whether he was thin or heavy, whether he was clean shaven or had a beard, whether he wore glasses, or whether he was wearing anything on his head. He said that the approximate age of the male was forty to forty-five. He did not ask for the male’s name.

7Inspector Hetherington said he had no problem understanding the male, even though his speech was slurred. In response to a question on cross-examination, he denied that the male had a heavy Newfoundland accent. He said the male was not speaking in a loud voice, nor was he confused. The male answered all of his questions; he did not pause in his answers, nor did he seem dazed. Inspector Hetherington admitted that the male told him he had just completed a twelve hour shift and that his eyes could have been red because he was tired, but noted it was unlikely given the other signs of intoxication. Inspector Hetherington said he noticed the male weaving in his seat once when he was observing him from the entrance of the patio while standing behind him and once when he was speaking to him. He later clarified that on each of these two occasions, he weaved back and forth four or five times. Inspector Hetherington admitted that he did not observe any other indications of the male’s large or fine motor skills being impaired. Specifically, he said he did not see him walking or consuming any alcohol. In response to a question about the level of intoxication, Inspector Hetherington said the male was not “highly intoxicated” but he was impaired nevertheless.

8Inspector Heatherington recalled that there were four or five people on the patio. He took a quick look inside the establishment, but was more concerned about the male on the patio. He did not speak to the female seated with the male customer, nor could he recall what was in front of her on the table although he thought there might have been one can of beer

9Inspector Hetherington admitted on cross-examination that he did not see the male patron leave the establishment or inquire into the arrangements for ensuring that the male got home safely. He trusted that the Licensee would look after this.

10Inspector Hetherington left the establishment at approximately 2:15 a.m. He admitted to being in a hurry as he was asked to conduct an inspection at another establishment. He completed his written notes concerning his observations at Rejeanne’s at approximately 3:30 a.m. on August 10, 2007 at a Tim Horton’s. He also recorded notes on his IPAC while at the establishment.

Licensee’s Evidence

11Mr. Robert Naismith, the first witness, wished to refer to handwritten notes made after receipt of the Registrar’s Letter of Incident concerning the alleged infraction on August 10, 2007. Ms Taylor objected to use of these notes as he had not made them contemporaneously to the events contained therein. Given Ms Taylor’s objections, Mr. Burd withdrew the request to have the witness refer to these notes.

12Mr. Naismith has owned Rejeanne’s with his wife for the last sixteen years. He was not present at the establishment on August 10, 2007. When his staff told him about the incident of August 10, 2007, he made inquiries of his regular customers into the identity of the male customer and his female companion. A customer gave him their address – 39 Eastbourne Boulevard, apartment 610, an apartment building across the street from Rejeanne’s. On or about August 12, 2007, he spoke to the couple at their apartment for approximately fifteen minutes. Their first names were Craig and Shelly. He did not obtain their surnames. Craig was about 5’9” or 5’10” and approximately 200 lbs. He had a Newfoundland accent. A lot of people who frequent the bar are from the East Coast. Craig told him he had worked a 12 hour shift before attending the establishment on August 10, 2007 at approximately 12:30 a.m. Craig also told him he ordered wings to go and consumed two tall boys and one shot of sambuca. His girlfriend drank the other shot. He said he was very tired, but he was not intoxicated.

13When asked why Craig and Shelly did not provide evidence at the hearing, Mr. Naismith said he called them a month ago but their phone had been disconnected, and they left no forwarding address.

14Ms Taylor began to cross-examine Mr. Naismith on his notes to which Mr. Burd objected, given that she had objected to his use of them in examination-in-chief. The Board allowed Ms Taylor to cross-examine on the notes on the basis of a possible prior inconsistent statement, but indicated that in the circumstances it would weigh the evidence accordingly. Mr. Naismith’s notes, which were not dated, were introduced as Exhibit 1.

15On cross-examination, Mr. Naismith admitted he did not mention that the male customer had a Newfoundland accent in his notes. Mr. Naismith also acknowledged that he did not provide the Deputy Registrar with the name, address or phone number of the male customer.

16Ms Joy Saldanha has been employed at Rejeanne’s as a server for six years and prior to this has worked in the service industry for eighteen years. She received her SmartServe certification approximately six years ago. She was working on August 9/10, 2007. She recalls there being about ten customers on the patio and about two or three customers inside when Mr. Hetherington attended. She saw Inspector Hetherington, who she had met on previous occasions, go outside and speak to a male customer seated with a female. Inspector Hetherington then came back inside, pointed out the male and asked her how much the couple on the patio had to drink. She told him they each had two tallboys of Budweiser and a shot of sambuca. She said the couple also ordered a couple of pounds of wings when they arrived. They decided to stay and have another drink and asked her to keep the wings behind the bar for them.

17Ms Saldanha described the couple as being in their late twenties. The female was wearing shorts and a t-shirt. The male was wearing a t-shirt, jeans and a baseball cap. The male had a strong Newfoundland accent. The female had an accent as well, but it was not as strong. She said they were not speaking in a loud tone, or exhibiting any of the signs of intoxication which she was trained to identify at SmartServe training. The couple walked to the bar after Inspector Hetherington left and apologised for any trouble they may have caused. There was nothing unusual about his speech. She observed him walk, and there was nothing unusual about the way he walked, such as reduced balance or coordination.

18Ms Saldanha’s statement of December 19, 2007, was introduced by Ms Taylor as Exhibit 2. On cross-examination, Ms Saldanha admitted she did not say anything in her statement about the male or female customers’ ages or about what they were wearing.

19On cross-examination, Ms Saldanha said there were approximately eight other singles on the patio that evening. She did not notice another couple in their mid-forties. On re-examination, she clarified that some of the singles were sitting together, and she referred to them as singles because they are regular customers, who she knew were not couples. She could not recall what the other customers were drinking. The couple left after 2:15 a.m.

20Regarding the male customer’s apology, Ms. Saldana stated that Inspector Heatherington spoke to the couple and then he saw Inspector Heatherington speaking to her, so the male customer thought he had caused trouble for the bar.

21In response to a question from Ms. Taylor, Ms Saldanha disclosed that she was from Newfoundland.

22Ms Shelley Banks has been employed at Rejeanne’s as a bartender/server for six years and has approximately twenty-seven years of experience in the service industry. She has her SmartServe Certification. She was present at Rejeanne’s on August 10, 2007 as a customer. She attended Rejeanne’s at approximately 12:35 a.m. on August 10th, approximately five minutes after bingo finished. She sat at the patio and was consuming a glass of wine. She knows Inspector Hetherington and recognised him speaking to a couple on the patio. There was one other couple and four or five singles on the patio. On cross-examination, she identified the other couple as being regular customers. She said she knew for a fact the male was fifty and the woman was forty-nine.

23Ms Banks did not observe anything unusual about the demeanour or behaviour of the male customer, to whom Inspector Hetherington was speaking. He did not exhibit any of the signs of intoxication which she was trained to identify in SmartServe training. She could not hear the conversation between Inspector Hetherington and the male.

24After Inspector Hetherington spoke to the male customer, Ms Banks went over to where he and his companion were seated on the patio and asked them if everything was ok. The male customer apologised to her and said he feels as though he caused a problem. Ms Banks denied on cross-examination that he was apologising for being intoxicated. She noticed that he had a thick accent from Newfoundland. He was not loud or slurring. She estimated that the male and his companion were probably in their late twenties or early thirties. The male had a beard and was wearing jeans and a ball cap. The female was wearing shorts and had shoulder length hair.

25Ms Saldanha told her that evening that she served the man and woman a couple of tall boys and two shots of sambuca.

26Ms Banks admitted on cross-examination that she consumed two glasses of white wine while she was at the establishment.

27At the close of the Licensee’s evidence, Ms. Taylor stated that she wished to recall Inspector Heatherington to ask one additional question. Mr. Burd, in response to Ms. Taylor’s request, indicated that the question that she wished to pose to the witness could have been asked in examination-in-chief or re-examination. While the Board did not disagree with Mr. Burd’s position, it permitted the recall of the witness, but indicated that his answer would be weighed accordingly. In response to Ms. Taylor’s question, Inspector Hetherington stated that he did not disclose to the male that he thought he was intoxicated.

Registrar’s Submissions

28The Registrar submits that the evidence shows there was a drunken male at the establishment on August 10, 2007, in contravention of subsection 45(1) of the O.Reg. Inspector Hetherington’s evidence was clear and credible, and of all the witnesses, he has the least personal interest in the outcome of the hearing. He arrived just before 2:00 a.m., and the male patron caught his attention because he was slurring and swaying from side to side. He verified his initial observations by speaking to the male. Again, he observed his speech was slurred and he was swaying back and forth in his seat. His eyes were tired and bloodshot and he smelt of beer. Inspector Hetherington did not hear an East Coast accent. Instead, he heard the man slurring his words. The male told him he had two or three tall boys of beer and two shots of sambuca, and Inspector Hetherington confirmed this information with Ms Saldanha. At the time, she corroborated the information.

29It is not at all clear that the Licensee’s witnesses were giving evidence about the same male whom Inspector Hetherington identified. Ms Saldanha and Ms Banks said the couple were in their late twenties or early thirties. Inspector Hetherington saw a couple in their mid forties. Ms Banks said she saw another couple in their forties. Ms Saldanha did not see another couple.

30Ms Saldanha and Ms Banks detected a thick accent. Mr. Naismith said the male had a medium accent. On a balance of probabilities, it was probably a case of him slurring his words when Ms Saldanha and Ms Banks heard him speak. There was no evidence on how much time Ms Saldanha spent speaking with the male. Inspector Hetherington spoke with him for five to seven minutes. Ms Banks only noticed the couple after she saw Inspector Hetherington speaking to them. Ms Banks was there to socialize and was drinking herself. She was not looking for signs of intoxication.

31Mr. Naismith was not present on August 10, 2007. He gave hearsay evidence on his meeting with the male customer two days later. No information was provided to the Registrar on how to contact the male customer.

32Both Ms Saldanha and Ms Banks described the couple as apologetic. Inspector Hetherington did not tell the male patron he thought he was intoxicated. The male was clearly apologising for being drunk in the establishment. There was nothing else he could have been apologising for.

33Ms Taylor introduced two cases, 473954 Ontario Ltd. v. Ontario (Registrar of Alcohol and Gaming) and 1207745 Ontario Ltd. (c.o.b. Armani’s Nightclub) v. Ontario (Alcohol and Gaming Commission) to demonstrate that the Divisional Court has determined the terms “drunkenness” and “intoxication” to be synonymous or interchangeable.

34The statement about the couple ordering “wings to go” is not consistent with how a sober person would behave. The couple entered the establishment at 12:35 a.m., and approximately ten minutes later ordered wings to go, while they continued to drink for an hour. The wings would have been stone cold by the time they left. This too points to the fact that the gentleman was not thinking straight because of the amount of alcohol he had consumed.

Licensee’s Submissions

35The Licensee submits that the male customer was not drunk or intoxicated. Inspector Hetherington had a five to seven minute conversation with the male and he was totally coherent. The Licensee takes issue with the fact that Inspector Hetherington could not recollect anything about the male’s appearance, yet he remembered what he said and the number of times he allegedly weaved back and forth or from side to side on the stool. At first, Inspector Hetherington said he saw him weaving once before he got to the table and once at the table. Later, he said he meant that he weaved four or five times, each of the two times he saw him weaving. It is more reasonable to interpret the male’s movements as simply readjusting his position on the stool, rather than weaving because he could not control his movements. It also makes no sense that Inspector Hetherington did not detect an accent, when all of the other witnesses who spoke to the male noticed an accent. The fact that he ordered “wings to go” when he arrived, but did not leave with them until an hour and a half later, is not a sign of intoxication.

Reasons and Analysis

36For a finding under subsection 45(1), there is a two part test. First, it must be established on the facts that there was, in this case, drunkenness in the licensed establishment or adjacent areas under the Licensee’s exclusive control. Second, it must be established that the Licensee permitted the drunkenness. After carefully considering all of the evidence, the Board finds, on a balance of probabilities, that the first part of the test has not been met.

37None of the witnesses observed the male customer consuming beverage alcohol. It would appear that, at most, he consumed two tall boy cans of beer and two shots of sambuca over a period of roughly one and a half hours. It is indeed possible, if not probable, that he consumed two tall boy cans of beer and one shot of sambuca, his female companion consuming the other shot. In any case, it is not necessary for the Board to make a finding on precisely how much he consumed. Since alcohol tolerance levels vary widely, based on a variety of factors, it is not possible to draw conclusions about intoxication from how much he drank, in this case.

38There are well-known sign posts of alcohol impairment or drunkenness, such as slurred speech, reduced physical coordination, loss of balance, changes in facial features, and altered behaviour. Inspector Hetherington testified that he saw three indicia of intoxication: slurred speech; bloodshot or red, tired eyes; and weaving in his bar stool twice, four or five times on each of the two occurrences. In addition, his breath smelt of beer. On the slurred speech, both Ms Saldanha and Ms Banks, who also conversed with the male, denied that there was any evidence of the male slurring his words. Rather, they both indicated that he had a heavy accent from Newfoundland, whereas Inspector Hetherington said the male had no accent at all. As Ms Saldanha was from Newfoundland herself, as Ms Taylor identified, she would presumably be very familiar with the Newfoundland accent. The red or bloodshot eyes could have been easily attributable to tiredness, since the male customer told Inspector Hetherington he had just completed a twelve hour shift at work. On the weaving, the panel accepts, absent other compelling evidence of intoxication, he was simply uncomfortable and adjusting his position on the stool. The smell of beer on his breath is not, in and of itself, a sign of intoxication. Inspector Hetherington did not witness the male walking, but both Ms Saldana and Ms Banks did, and neither of them witnessed any loss of coordination or balance. Further, Inspector Hetherington, Ms Saldanha and Ms Banks all testified that he behaved in a calm manner. He was coherent and had no problem understanding or answering the questions posed to him.

39The panel does not accept the Registrar’s submission that Inspector Hetherington and the Licensee’s witnesses were referring to a different male customer. Both Ms Saldanha and Ms Banks testified that they observed Inspector Hetherington, who they had met before on more than one occasion, speaking to the male customer.

40The panel found the evidence of Ms Saldanha and Ms Banks to be credible. They corroborated each other and were quite thorough and precise in their observations and recollections. The panel did not rely on the hearsay evidence provided by Mr. Naismith, particularly given that he did not disclose the name, address and telephone number of the couple to the Registrar. The panel does not accept the Registrar’s argument that because Inspector Hetherington has no personal or financial interest in the outcome of the hearing, his evidence is more credible. The Licensee and its employees almost always have a personal or financial interest in the outcome of the hearing, but this is not to say that they would lie under oath to advance their interest. The panel found Inspector Hetherington’s evidence to be, at times, lacking attention to detail. As the Licensee noted, it is odd he could remember how many times the male customer weaved back and forth on his stool, but nothing about his physical appearance (except approximate age) or attire. Although he spoke to the male customer for five to seven minutes, he did not ask for any personal information, nor did he take any note of the female or engage her in conversation. Given that the alleged signs of intoxication were weak and could easily be interpreted as an accent, tiredness or adjusting his position on a stool, he should have tried to observe the customer walking or using other large or fine motor skills. It may be that Inspector Hetherington’s mind was focussed on his next inspection, as he admitted he had been asked to conduct an inspection at another establishment and was in a rush to leave.

41The panel does not accept the Registrar’s argument that purchasing wings to go shortly after arriving and then proceeding to remain at the establishment for one and a half hours suggests that the male’s judgment was impaired by intoxication. As the Licensee’s representative pointed out, going home with cold wings is not a sign of intoxication. The panel also does not accept the Registrar’s argument that the male was obviously apologising to Ms Saldanha for being drunk. Inspector Hetherington did not have to tell the male customer he believed him to be intoxicated for the patron to gather that this was the case. The panel finds it entirely plausible that after been questioned by an AGCO inspector about his level of consumption, the patron believed the Liquor Inspector thought he was intoxicated. The panel accepts Ms Saldanha and Ms Banks’ evidence that the male was not apologising for being intoxicated, but rather for any problems which may arise out of the Inspector’s interpretation of his behaviour.

Conclusion

42For the above reasons, the first part of the test for a finding under subsection 45(1) has not been met. As such, it is not necessary for the Board to consider the second part of the test. Accordingly, the Board DISMISSES the allegation under subsection 45(1) of the O.Reg.

DATED AT TORONTO THIS 16th DAY OF JULY, 2008