Registrar, Alcohol and Gaming Commission of Ontario v. 697638 Ontario Ltd., 2008 CanLII 91890

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-

697638 Ontario Ltd. O/A The Raven’s Nest Pub and Grill Licensee

DECISION ON FINDINGS

Panel: Guy Maurice, Board Member Eleanor Meslin, Board Member

Decision Date: October 23, 2008

Hearing Location: Ottawa, 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 697638 Ontario Ltd., Licensee ) Ainslie Dunstone, Representative

Authorities

Mounties' Restaurant, 2007 CanLII 21322 (ON A.G.C.)

Allegations

1. A hearing into Notice of Proposal number 15865 dated January 9, 2008 to suspend liquor licence number 202208 (the “Licence”) issued to 697638 Ontario Ltd. (the “Licensee”), operating as THE RAVEN’S NEST PUB AND GRILL, 134 Merivale Road, Ottawa, Ontario, K1Z 6A7, (the “establishment” or the “premises”) on the basis of alleged violations of subsections 45(1) and 45(2) of the Liquor Licence Act (LLA) and subsections 45(1) and 18.2(1) of Ontario Regulation 719/90 (O.Reg), made pursuant to the LLA, was held on June 12, 2008 in the City of Ottawa.

Decision

2. After considering all the evidence and submissions the Board FINDS the Licensee violated subsections 45(1) (on April 17, 2007) and 18.2(1) of the O.Reg and DISMISSES the alleged violations of subsections 45(1) and 45(2) of the LLA and subsection 45(1) of the O.Reg on February 23, 2007. Reasons follow.

Preliminary Matters

3. On consent, the Board ORDERED that witnesses to be excluded including Mr. Saikaley, the licence holder.

Registrar’s Evidence

4. Mark Lambert is an Inspector with the Alcohol and Gaming Commission of Ontario (AGCO). Inspector Lambert stated that on February 23, 2007 at 1:44 p.m., he was accompanied by officers from the Ottawa Police Service (OPS) to conduct an inspection of the premises.

5. Inspector Lambert described the physical surroundings of the premises, its location and how the establishment is divided. Upon arrival at the premises Inspector Lambert and officers from the OPS entered the front door and he identified himself to the bartender, Jennifer Street. Inspector Lambert advised Ms Street that the AGCO had received a complaint about the establishment and he would be conducting an inspection of the premises.

6. Inspector Lambert observed a bottle of “London Vermouth” had no Universal Product Code (UPC) or bar code, on display in the bar. Mr. Rolf Robillard identified himself to Inspector Lambert as the manager. Inspector Lambert questioned Mr. Robillard regarding the bottle. Mr. Robillard did not know where the alcohol had been purchased and stated it had been at the bar for a long time.

7. While speaking with Mr. Robillard, Inspector Lambert observed an intoxicated female. Her speech was slurred. She appeared incoherent, confused and had glossy eyes. When asked for her name she stated, “S.C.” and continued talking in sentences that did not make sense.

8. Inspector Lambert told Mr. Robillard that he thought she was intoxicated and he replied, “I know, I just want her out. She is bad for business”. Mr. Robillard referred to her as “Scary S.”.

9. Inspector Lambert asked Mr. Robillard for proof of receipts for the purchase of alcohol. Mr. Robillard said they were downstairs in the office, at which time, Inspector Lambert requested to inspect the basement area and check the alcohol storage area.

10. On the way downstairs, Mr. Robillard disclosed that there were several owners of the establishment. The Inspector requested proof of ownership of the premises in order to ensure accurate information to compare with AGCO records.

11. Mr. Robillard followed Inspector Lambert and at the bottom of the stairs Mr. Robillard quickly pushed by the Inspector to get in front of him. Once downstairs, Mr. Robillard’s demeanour changed. Earlier he was friendly, receptive and not argumentative. They approached a damaged office door with large locks, at which point Mr. Robillard became silent. Inspector Lambert asked to gain access to the office to check records and receipts. Mr. Robillard stood in front appearing to stop access to the office. The Inspector also asked if the records of ownership were in the room and he replied ‘yes’. Mr. Robillard then said, “I can’t let you in there man” and shook his head. He became extremely nervous, and backed up against the door. Mr. Robillard stated to Inspector Lambert and the police that he did not have keys to the door, despite having in his possession a large ring with 15 - 20 keys. He did not try any of the keys. Mr. Robillard stated that someone else had the keys. After several requests from Inspector Lambert and officers from OPS to access the door, Mr. Robillard replied he had no keys for it.

12. Inspector Lambert then requested to check another door with a large padlock at the bottom of the stairs. Mr. Robillard stated that the room contained a hot water tank. Inspector Lambert asked for access and Mr. Robillard said he didn’t have the keys for that door.

13. Inspector Lambert advised Mr. Robillard that during an inspection the Licensee must allow access to all areas and that failure to do so was an infraction and advised that failure to provide police access was a separate infraction. Mr. Robillard was receptive and acknowledged this. Mr. Robillard then made a phone call. After the phone call Mr. Robillard offered to break the large padlock or kick in the door. Inspector Lambert said it was not his mandate to have someone kick the door or break the padlock. He advised Mr. Robillard of the infraction and said a report would be submitted to his superior for review.

14. On April 17, 2007, Inspector Lambert entered the premises at 7:06 p.m. for a routine inspection. He observed a male person at the bar whose speech was slurred to the point where Inspector Lambert could not understand him. The patron had bloodshot eyes, was unsteady on his chair and displayed many symptoms of an intoxicated person. Inspector Lambert told the bartender and cook of his observations. The bartender replied that just prior to the Inspector’s arrival, “the patron was finished and then when I came in from a smoke break”, the bartender was going to “kick him out”. During the conversation the bartender admitted to serving him a mini-pitcher of beer, which was in front of him. The Inspector told the bartender the patron was intoxicated, at which point the bartender removed the pitcher and told the patron to leave. As the patron stood up he fell off the step on the bar. He staggered to the side of the bar and was so intoxicated he refused to leave. Police were called by staff and during this time, the patron called 911 and demanded the police come. When the police arrived, the patron was very argumentative. When the manager, Mr. Robillard, arrived at the establishment Inspector Lambert informed him of the infractions of permitting drunkenness.

15. On cross-examination, Inspector Lambert was asked if he had re-attended the premises since April 17, 2007, or prior to February 23, 2007. Inspector Lambert stated he had not attended prior to February 23, 2007, but had since April 17, 2007. Also, when asked if the bottle of Vermouth was concealed or if Mr. Robillard attempted to hide it, the Inspector replied, “No”. No charges by police were laid in this matter.

16. Inspector Lambert was questioned as to what type of locks he observed when downstairs. He also described the type of cabinets he had seen and been given access to.

17. The Inspector was asked, once it was established that he could not have access to records and documents, if he requested they be faxed to him. The Inspector replied, “No”. He was also asked why he did not request that Mr. Robillard produce the keys within one or two hours or if he could re-attend the next day to try and have access to the office. The Inspector said he had not felt it was necessary. He did not return to follow-up the next day. The Inspector was asked why he did not ask Mr. Robillard to try some of the keys on his person. He replied he had no authority to do so.

18. With regards to the female patron, Ms S.C., Inspector Lambert advised that he observed the person in conversation for three minutes. Although the premises were very busy, the lighting was sufficient for Inspector Lambert to see the colour of the patron’s eyes. He was close enough to notice a strong odour of alcohol on her breath, although she was not drinking at the time. The police did not charge her with intoxication.

19. With regards to April 17, 2007, Inspector Lambert was asked if the OPS charged the intoxicated patron. He advised that they did not.

20. Gaietan Beaudry is an Inspector with the AGCO. He testified that he visited the premises alone on April 26, 2007, arriving at 2:15 p.m.

21. Inspector Beaudry observed a banner which indicated a Bud Light contest to win a National Hockey League (NHL) jersey. He also noticed several tables with cards indicating if you order a Bud Light you could scratch and win. Exhibit #1 depicted the advertising.

22. Inspector Beaudry asked a patron what needed to be done to enter the contest and was advised that upon purchasing a Bud Light you were given a ballot. When he asked if a person could get a ballot without buying a Bud Light, the staff member replied, “No”. He was also told that each time you purchased a Bud Light you received another ballot.

23. The Inspector then identified himself and requested to speak with the manager. He advised Mr. Saikaley, one of the owners, that the contest was a breach of the regulations. Mr. Saikaley admitted it was a mistake.

24. On cross-examination, the Inspector was asked if he warned the managers about the action to be taken and whether prior to his departure the practice was terminated. The Inspector replied yes to both. He admitted that there had never been any prior problems with the management or cooperation from the staff.

Licensee’s Evidence

25. Rolf Robillard is the assistant manager of the premises. On February 23, 2007, Inspector Lambert entered the premises and noticed a bottle of London Vermouth and informed Mr. Robillard that it had no UPC mark on it. During the conversation, a female patron interrupted and was told to “beat it”. The patron referred to as “Scary S.”, was a regular and was not intoxicated at the time, but was often abrasive and “not normal in the head” and was annoying at times.

26. At the Inspector’s request, Mr. Robillard proceeded downstairs accompanied by Inspector Lambert and members of the OPS. Once downstairs they inspected the beer fridges, and liquor cabinets. They appeared to be satisfied with the inspection. Mr. Robillard informed the Inspector that the overstock is locked in the office and only the manager had the key.

27. They were told that Mr. Saikaley, the licence holder, had a key but had left a half hour before, because he had received a call about a problem with his son. Only Rick Saikaley and Troy Saikaley have keys because the office contains liquor and cash. The Inspector said he wanted to inspect the office. Mr. Robillard then phoned Troy and was told to kick in the door, but Inspector Lambert said not to do so. Mr. Robillard described the locking devices on the doors to the office and the hot water tank room. He also offered to break the pad lock in the water tank room, but was told it was not necessary. Mr. Robillard stated he was not nervous and he did not obstruct the path to either room.

28. On cross-examination, the witness was asked if he discussed this matter with Troy Saikaley. Mr. Robillard stated that he had and also with Rick Saikaley when on May 15, 2008, he made a written statement (Exhibit # 8). When asked if Ms S.C. was still a patron at the premises, Mr. Robillard stated he did not know as he had not worked for a while. The Licensee has her address. Depending on her demeanour she is allowed to drink. Mr. Robillard does not recall if she was drinking that day.

29. Mr. Robillard stated he told her to “shut up” when she interrupted the conversation earlier during the inspection. He stated that her speech is always slurred and she was not intoxicated. He did not know if she was an outpatient of the nearby mental facility. Although annoying, she was coherent.

30. Mr. Robillard was questioned as to what he recalled about the Inspector asking for receipts. He replied that he told the Inspector they were downstairs in the office behind locked doors and he had no keys.

31. The witness also recalled being asked for proof of ownership and he told the Inspector it was also in the office behind the locked door. He was asked why the door to the hot water tank room was locked. He replied that it was the gas area and could cause damage or hurt someone.

32. Troy Saikaley has been employed at the establishment for 22 years. He became aware of the inspection held on February 23, 2007, by means of a phone call.

33. The witness stated that on the day in question he was at the establishment. He received a call at 11:30 a.m. He was notified that his son was suffering from an asthma attack. The witness left to attend to his son. He received a phone call from Mr. Robillard that he was unable to facilitate the inspection because of the lack of keys. Mr. Saikaley told Mr. Robillard to kick down the door. He confirmed that the keys are only in the possession of himself and his father. Further, there were hidden keys available for emergencies only. There is $200 in coins in a liquor cabinet outside the office and only when that is used up, is it necessary to go into the office.

34. Mr. Saikaley admitted it was his fault that the keys were not available and stated he has never had any problems with Inspectors regarding access to the office. He said he had offered to have the door kicked in, but the Inspector refused.

35. On cross-examination the witness stated there are separate keys in the kitchen for different doors. Mr. Robillard was not aware of this information and would not know that keys were hanging in the kitchen, although they were not there on February 23, 2007.

Registrar’s Submissions

36. Mr. Morris stated in written submissions that Inspector Lambert identified, on different dates, February 23, 2007 and April 17, 2007, that two intoxicated people were in the establishment.

37. Ms S.C. was observed by Inspector Lambert on February 23 , 2007 in a highly intoxicated condition. Her speech was extremely slurred. She was very incoherent and confused. Her eyes were very glossy and she kept interrupting the conversation between him and Mr. Robillard even after Mr. Robillard told her to “shut up”.

38. Inspector Lambert told Mr. Robillard that he thought she was very intoxicated and Mr. Robillard replied, “I know, I just want her out. She is bad for business”. Mr. Robillard was vague as to his response to the Inspector when he said she was intoxicated. Mr. Robillard did not say she was mentally unstable. Mr. Robillard in a statement of May 25, 2008, indicated that the bar did not serve her and she was not drinking that night. Therefore, the statement about her not drinking and not being drunk is not credible.

39. Secondly, on April 17, 2007, Inspector Lambert entered the bar and a male patron displayed all the symptoms of an intoxicated person. His speech was slurred, his eyes extremely bloodshot, he was unsteady on his chair, holding his hands on the bar, swaying from side to side on his chair, and exhibiting wobbly body movements.

40. The bartender admitted serving him a mini-pitcher of beer which was in front of him. The patron stood up and fell off the step of the bar. He was so intoxicated he refused to leave the premises. The Licensee called no evidence to the contrary.

41. Mr. Morris submitted that the Licensee had breached subsection 45(1) of the O.Reg on February 23, 2007 and April 17, 2007.

42. On April 26, 2007, Inspector Beaudry observed a table with cards on it which stated, “Order a Bud Light and Scratch to Win”. The handwriting was intended to replace the typed script which stated, “Nno purchase necessary”. The intent was confirmed by a waitress who said that you had to buy a beer to receive a ballot and the patron would receive a ballot every time the patron would order a beer. Mr. Rick Saikaley admitted it was a mistake.

43. Therefore, Mr. Morris submitted that on April 26, 2007, the Licensee breached subsection 18.2(1) of the O.Reg by permitting a contest on the licensed premises.

44. Mr. Morris stated that on February 23, 2007, Inspector Lambert arrived at the premises. Inspector Lambert identified himself to Mr. Robillard and asked for proof of receipt for a bottle of alcohol. Mr. Robillard said they were downstairs in the office. The Inspector asked to inspect the basement area to check the alcohol storage room. The Inspector also requested proof of ownership of the business. Mr. Robillard stated that the information was also in the office.

45. Upon arrival downstairs the Inspector was quickly pushed by Mr. Robillard to get in front of him. After some conversation between the two of them Mr. Robillard backed up to the door and said, “I can’t let you in there man,” despite the large key-ring in his possession. When asked for access to a second door Mr. Robillard said he had no key. Mr. Robillard did not try any of the keys and never said somebody else had the keys. The Ottawa Police then requested access to the door and were told Mr. Robillard did not have the keys.

46. Mr. Robillard then phoned Mr. Saikaley who he said told him to break down the door which the Inspector said he could not authorize.

47. Mr. Morris cited Mounties Restaurant regarding failure to leave a key with the manager as amounting to failure to facilitate an inspection, as being on point with this issue. Alternatively, Mr. Morris submitted, that by his demeanour, Mr. Robillard had no intention of allowing access to the basement rooms thereby obstructing the inspection.

48. Therefore, these actions constitute breaches of subsections 45(1) and 45(2) of the LLA.

Licensee’s Submissions

49. Mr. Dunstone stated in written submission that there is no evidence with regards to a breach of subsection 45(1) of the O.Reg with respect to February 23, 2007. Mr. Dunstone stated that Ms S.C. exhibited behaviour which could have been attributed to any form of a psychological or physiological condition. Mr. Robillard has knowledge of the neighbourhood and he stated that mental health outpatients at a local hospital are nearby. They often frequent the establishment.

50. Mr. Dunstone stated with regards to a violation of 18.2(1) of the O.Reg, the licence holder does not contest this allegation. Since the issue was immediately corrected and no further breach has occurred, a warning would be appropriate.

51. With regards to the April 17, 2007, obstruction and failure to facilitate an inspection charges, Mr. Dunstone stated that there were four police officers present at the inspection and not one of them was called to testify to corroborate Inspector Lambert’s testimony. Mr. Dunstone feels that the testimony of his two witnesses was credible as compared to the testimony of the Registrar’s witness. During the inspection Mr. Robillard called Mr. Saikaley and told him to return to the establishment with the key to open the office. Once Mr. Robillard received instructions to kick in the office door, Inspector Lambert told him it would not be necessary. Since the evidence of Mr. Robillard and Mr. Saikaley are in clear conflict with that of Inspector Lambert, the Board should resolve in favour of the Licensee.

52. On the basis of all the evidence Mr. Dunstone is of the opinion that no finding of a breach of subsection 45(2) of the LLA should be made.

53. The other allegation regarding permitting drunkenness on April 17, 2007, is not disputed by the Licensee.

Reply

54. Mr. Morris submitted that there is no evidence that “Scary S.” suffered from any psychological or physiological conditions.

55. Inspector Lambert’s evidence was neither overconfident nor “extraordinarily embellished”. The Inspector’s testimony did not differ in any matters with respect to his notes. Mr. Morris noted that it is highly unfair to suggest that Inspector Lambert was in effect untruthful. Inspector Lambert did not put all the names of the police officers in his notes. There is no evidence of any bias on the Inspector’s part.

Analysis/Reasons/Findings

Subsection 45(1) of the O.Reg

56. The Registrar is seeking a finding of violations of subsection 45(1) of the O.Reg, permitting drunkenness in the licensed premises on February 23, 2007 and on April 17, 2007.

57. With regards to the female patron, “Scary S.”, the testimony of Inspector Lambert was that on February 23, 2007, the female patron’s speech was slurred. She was incoherent and confused. Mr. Robillard’s testimony was that she “was not normal in the head”, suggesting that she may have some form of psychological or physiological condition. Mr. Robillard admitted that he knew the patron previously and did not argue about the patron’s behaviour throughout the hearing. He testified that she was not, however, intoxicated. Considering the contradictory testimony and the fact that Mr. Robillard has a much longer acquaintance with Ms S.C. and had a chance to observe her on that day, the Board accepts Mr. Robillard’s evidence that Ms S.C., on the balance of probabilities, was not intoxicated.

58. On April 17, 2007, Inspector Lambert entered the premises and observed a male patron whose speech was slurred. His eyes were bloodshot, he was unsteady on his chair, holding onto the bar, swaying side to side and exhibiting wobbly body movements. The patron stood up and fell off the step of the bar. He was so drunk he refused to leave and the patron himself called 911 and asked police to come. The staff admitted serving him a mini-pitcher of beer which was in front of the patron when the liquor inspector arrived. The Licensee did not dispute these findings. The Board concludes that the signs of drunkenness were present.

59. Therefore, the Board FINDS a violation of subsection 45(1) of the O.Reg on April 17, 2007, and DISMISSES an alleged violation of subsection 45(1) of the O.Reg on February 23, 2007.

Subsection 18.2(1) of the O.Reg

60. The Registrar is seeking a finding of a breach under subsection 18.2(1) of the O.Reg, by permitting a contest on the licensed premises, which involved the purchase or consumption of liquor on April 26, 2007. In order to receive a ballot for the contest, a patron had to order an alcoholic beverage at the establishment.

61. Inspector Beaudry observed cards which stated “order a Bud Light and scratch to win”. A waitress confirmed to the Inspector that a patron had to purchase a Bud Light beer in order to receive a ballot. This promotion was admitted as a mistake by the Licensee.

62. Given the Inspector’s testimony and the Licensee not disputing the allegation the Board FINDS there was a violation of subsection 18.2(1) of the O.Reg.

[Subsections 45(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html#sec45subsec1_smooth) and [45(2)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html#sec45subsec2_smooth) of the [LLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html)

63. The Registrar is seeking findings of a breach of subsections 45(1) and 45(2) of the LLA, asserting that the Licensee obstructed and failed to facilitate an inspection under the LLA.

64. The evidence of Inspector Lambert is that on February 23, 2007, he requested entry into the office which contained relevant documents and was denied access to the office in the basement and to a storage area. On the way downstairs Mr. Robillard disclosed that there were several owners. The Inspector requested proof of ownership and was told that such proof was in the office behind locked doors.

65. The Board has considered the Mounties’ Restaurant decision and notes that facts in that case are very different from the facts in the present case.

66. In Mounties’ Restaurant, the police had attended at the Licensee’s premises a number of times – every three to four months over three years; they could not gain access to the liquor storage area 90 per cent of the time; the Licensee had been cautioned to leave a key with the person in charge; and the bartender who was left in charge, and who is the only staff or management person in charge on most occasions when the police attended at Mounties’, was not able to contact the Licensee to obtain the key to facilitate access to the storage area. The panel in that case made a finding of a breach of subsection 45(2) of the LLA.

67. In the present case, although the person left in charge, Mr. Robillard, did not have the key to certain areas, upon telephoning the Licensee and receiving instructions, offered to break the padlock or kick in the door so as to permit access – the Inspector, however, declined; the Licensee is normally at the premises but had left just before the Inspector arrived, as his son had suffered an asthma attack; there had been no prior problems with inspectors gaining access to all parts of the premises; and there are normally hidden keys available for emergencies, but they were not available on the day the inspection occurred.

68. The Panel is of the view that demeanor is often difficult to assess accurately. The Board notes, however, that notwithstanding Mr. Robillard’s initial inability to grant access of certain areas of the premises to the Inspector, he did upon contacting the Licensee and receiving instructions, offered to break the padlock or kick in the door so as to permit access.

69. The only significant common fact of the Mounties’ case with the present case is that the person left in charge did not have the key to certain areas of the premises at the time of the inspection. While that is an important factor, it cannot be viewed in isolation.

70. The Board concludes that the facts in the present case, as noted above, do not support a finding of a breach of subsections 45(1) or 45(2) of the LLA.

Conclusion

71. For the reasons given, the Board FINDS the Licensee violated subsections 45(1) (on April 17, 2007) and 18.2(1) of the O.Reg and DISMISSES the alleged violation of subsections 45(1) and 45(2) of the LLA and subsection 45(1) of the O.Reg on February 23, 2007.

72. The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file a written response. Registrar’s Representative may serve and file any reply within three (3) days of receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission of Ontario, at the address on the front page of this decision in accordance with the Board’s Rules of Practice.

DATED AT TORONTO THIS 23rd DAY OF October , 2008

ELEANOR MESLIN, BOARD MEMBER GUY MAURICE, BOARD MEMBER

GM/sm/ee