Registrar, Alcohol and Gaming Commission of Ontario v. Prime Restaurants of Canada Inc., 2009 CanLII 20247

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-

Prime Restaurants of Canada Inc. O/A D’Arcy McGee’s Irish Pub Licensee

DECISION

Panel: David C. Gavsie, Chair, AGCO Kirsti Hunt, Vice-Chair, AGCO

Decision Date: March 23, 2009

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 ) Joyce Taylor, Representative Prime Restaurants of Canada, Licensee ) Adam Vassos, Representative

Allegations

1. A hearing into a Notice of Proposal number 16536 dated August 1, 2008 to suspend liquor licence number 804105 (the “Licence”) issued to Prime Restaurants of Canada Inc. (the “Licensee”) operating as D’ARCY MCGEE’S IRISH PUB, 44 Sparks Street, Ottawa, Ontario, K1P 5A8 (the “establishment” or the “premises”) on the basis of alleged violations of section 29 of the Liquor Licence Act ( the “Act”) and subsection 45(1) of Ontario Regulation 719/90 (“O.Reg.”) made pursuant to the Act was held on January 8, 2009 in the City of Ottawa.

Preliminary Matters

2. As a preliminary matter, the Board ordered the exclusion of witnesses on consent of the parties. Mr. Kevin Ferby, Assistant General Manager of the establishment, was allowed to remain to instruct Counsel and therefore heard the evidence for the Registrar before giving evidence himself.

Evidence for the Registrar

3. Inspector Andrew Rowntree of the AGCO attended the premises on February 11, 2008 at 9:29 p.m. The Inspector noted that it was a fairly busy night and there were around 50 people in the establishment. There was music playing and people were talking. About 3 minutes after entering, he observed a male patron (who was identified in subsequent evidence as being John Ivison) about 40 to 45 years old with salt and pepper hair wearing a salmon-coloured tie, white shirt and dark suit. Mr. Ivison was in the bar area speaking to a male and female. He had slurred speech and slow motions. His eyes were glossy and red. He was consuming from a 20 oz. pint of Guinness beer. The Inspector concluded that it was Guinness because it was very dark in colour and had a little foam on top.

4. Mr. Ivison was swaying back and forth and leaning into the male and female while speaking to them. He had to keep stopping and repeating himself because his companions had a difficult time knowing what he was saying. The Inspector was close enough to hear him speaking about an uninhibited sexual act but it was very difficult to understand specifics of the conversation because the patron’s speech was slurred.

5. The Inspector agreed that Mr. Ivison was about 6 feet tall and that the people he was talking to were shorter. He observed Mr. Ivison for 5 to 7 minutes. The Inspector added that he saw Mr. Ivison outside the hearing room on the day of the hearing and agreed that he had a thick accent, but he had no difficulty in understanding what the gentleman was saying.

6. The Inspector also observed a female (“female patron”) with blond hair, dark jeans and a black sweater. She was very close to the bar speaking with a male. She dropped her phone and the back of it and the batteries fell out. As she picked up the pieces, her underwear was showing which he did not see as part of her normal attire. That was a concern because she was not covering herself up which is a sign of intoxication. She had slow movements and she had a hard time putting the phone back together. It took her a couple of minutes to do that. During that process, she had difficulty controlling her balance. She also had glossy red eyes.

7. She was holding a 20 oz. pint of beer that appeared to be Guinness based on the dark colour and the foam on top. The glass was ½ to ¾ full.

8. The Inspector pointed out the two patrons to the Manager, Kevin Ferby. As they were speaking, the female patron turned around at the bar, ordered and was served a glass of white wine in a 6 oz. glass by a blond female bartender. He did not see her consume either the beer or the wine. He observed her for about 4 to 5 minutes.

9. Mr. Ferby observed the two patrons and agreed that they were showing signs of intoxication. He explained that he had been downstairs in the basement and when he returned upstairs, there was a group of patrons at the bar who had had too much to drink. He thought they must have been at another function prior to coming into the establishment.

10. The Inspector observed the patrons for about 8 minutes. At no time did staff stop patrons from drinking, remove alcohol from them or ask them to leave.

11. The Inspector told Mr. Ferby that he would be submitting a report to his supervisor for disposition and left the premises at 9:51 p.m. He went to his vehicle, drove around the block to Elgin Street from where he watched the front of the establishment from his vehicle until 10:12 p.m. He was out of sight of the establishment for 2 to 3 minutes as he went around the block. He did not see the patrons in question outside.

12. On cross-examination, the Inspector explained that he spoke to Mr. Ferby near the hostess desk which was 8 to 10 feet from the patrons in question. They could see the patrons from where they were. Mr. Ferby agreed that the patrons were showing signs of intoxication and asked how he should handle the matter. The Inspector explained that there were a number of different ways to handle the situation but he did not suggest anything specific. He spoke to Mr. Ferby for about 3 to 5 minutes. He left about a minute after their conversation finished and since he was leaving, he did not see if Mr. Ferby approached the patrons.

13. The Inspector was recalled after all the other witnesses had given evidence. He indicated that he saw Ms. O’Malley, whom Mr. Ferby had identified as the female patron, outside the hearing room on the day of the hearing and did not know if she was the female patron. Her hair was longer before and now it is shorter. He did state that she could be the person he saw.

Evidence for the Licensee

13. Mr. Kevin Ferby, the Assistant General Manager, was working on February 11, 2008. He explained that there were 10 people in the east section. When the National Arts Centre let out, about 60 people came in all at once.

14. At around 9:50 p.m., Inspector Rowntree approached him at the server station and wanted to speak to him off the premises. They exited to a hall in the fire exit area. The Inspector asked if he knew the signs of intoxication. He gave him a couple of signs and told him that he is Smart Serve certified as is all the staff. They went back inside to about 8 feet from where the male patron was talking to another gentleman.

15. Mr. Ferby identified the male patron to be John Ivison.

16. The Inspector asked Mr. Ferby if he agreed that being unbalanced, having slurred speech and red eyes were signs of intoxication. He agreed that they were. He believed the Inspector was speaking in general and his question was a continuation of the conversation they had had outside. Mr. Ferby agreed that he saw Mr. Ivison bobbing and moving. He observed slurred speech but added that he was not sure because he was not close enough to determine that. Mr. Ivison had a thick Scottish accent and he had difficulty understanding him. He moved closer to Mr. Ivison and realized that he was a very tall man, 6’4” tall, and his companion was 5’7” tall so Mr. Ivison was leaning over speaking loudly so he could be heard, a normal reaction to the noisy condition of the room. In Mr. Ferby’s opinion, Mr. Ivison was not leaning over because he was intoxicated.

17. The Inspector pointed out to him that Mr. Ivison had a full pint glass of Guinness in his hand and an almost finished one.

18. The Inspector then said that he had seen a blond female who was unstable, who had dropped her phone and had her underwear showing. She was about 10’ from them sitting at the bar with a full glass of wine in front of her having a conversation. Mr. Ferby identified her as Kady O’Malley, a regular customer. At the Inspector’s request he went behind her and did observe that the top of her underwear was showing. He did not think it unusual because he had seen that with other people and it is a fashion statement.

19. The Manager did not share the Inspector’s opinion but the Inspector was adamant about his observations and said that he was going to file a report. Right after the Inspector left, he spoke to the staff and asked them to cut off the people whom the Inspector had pointed out. He then went downstairs to write up the incident in the log book to document the matter. He did not produce the logbook with his notes at the hearing.

20. About 10 minutes later when he went back upstairs, Mr. Ivison wanted to talk to him because he could not understand why he had been cut off. He spoke to Mr. Ivison for 20 minutes explaining about Smart Serve, signs and levels of intoxication and their own policy. Mr. Ivison was very confused and wanted to understand. He was taking notes and was not showing any of the signs of intoxication observed by the Inspector. Mr. Ferby did not believe Mr. Ivison was intoxicated.

21. Other people approached him about the two people who had been singled out and they all got up and left. Words could not describe how he felt when 60 very important clients and powerful people in the city left vowing never to come back. He did not share with them the observations of the Inspector because he was the one responsible in the club.

22. He did not have an opportunity to speak with Ms. O’Malley because she left while he was speaking with Mr. Ivison. He had observed her sitting on a stool speaking with someone in a normal fashion. When he and the Inspector went to the fire exit, she was sitting at a table and did not exhibit any signs of intoxication.

23. He cut the two individuals off because he is responsible for the liquor laws and needs to take direction from a person with authority. The Inspector did not tell him what to do but given the Inspector’s observations, he cut off the individuals because he did not know how far the Inspector was going to take this matter.

24. On cross-examination, Mr. Ferby added that he told the Inspector that he was downstairs when the group arrived and he came upstairs to help with service. The group had been in the establishment for about a half hour before the Inspector arrived. When the Inspector asked to speak to him outside the licensed premises, he did not point out the individuals in question to him at that time.

25. He did not see Ms. O’Malley standing up, walking out nor did he talk to her. The bartender told him that she had confiscated the drink from Ms. O’Malley and asked her to leave. She had a full glass of wine in front of her when he observed her.

26. Mr. John Ivison testified essentially that he went to a reception at the National Arts Centre around 6 p.m. where he had four glasses of wine. He left around 8:45 p.m. and with a group of six friends walked across the street to D’Arcy McGee’s. He was in good humour but not falling over or uncoordinated.

27. In the bar he ordered a drink and moved from group to group chatting. He is 6’4” tall and he spoke to his friend who is 5’10” tall and a lady who was sitting down, among others. They were in the establishment for about a half hour.

28. He had one pint of beer and tried to order another one but was told that there would be no more service to the group. There were no grounds to stop serving them. They were a group of well dressed men over 40 who were not causing a disturbance. They were not asked to quiet down. After three or four glasses of wine and a beer over a 3 hour period, they were in good humour but by no means was it extreme.

29. When the Manager appeared, he asked for an explanation and was told that the Liquor Inspector either told or indicated to the Manager that they were intoxicated and were not to be served further. Mr. Ivison did not agree that he was intoxicated and did not agree that he should not have been served. He took notes of the conversation and telephoned the Manager the next day to confirm some of the details.

30. On cross-examination, Mr. Ivison agreed that he wrote an article (Ex. 1) and that the details of the evening were fresher in his mind at that time. He explained that the article is not a first person piece but an indirect description of what happened. He agreed that the article euphemistically described the people in the bar as being drunk but added that it did not describe his own condition. He agreed that the facts underlying the article as he described them are full and correct. When he started to look into what constituted intoxication, he was surprised to find what a grey area that was. He was also very surprised to find out that it is illegal to be intoxicated in a licensed establishment.

31. He agreed that he did not count the number of drinks he had and did not know if he had four or five drinks before arriving at D’Arcy McGee’s but he knew that it was not six or seven.

32. He agreed that he does not have his Smart Serve Certificate or any training in Canada regarding sale and service of liquor. He had no idea what he discussed with his friend and the lady at the bar. He was not tired and could not recall anything irritating his eyes. He could not say for sure what he was drinking but when he is at D’Arcy McGee’s, he drinks Creemore. He often has to repeat himself because he has an accent. He did not think that his accent becomes thicker and therefore he becomes more difficult to understand when he is drunk. He denied exhibiting any of the classical signs of intoxication.

33. Ms. Sarah Little was working as a bartender on February 11, 2008. She thought that Mr. Ivison’s party, who were fortyish in age, came in after 9 p.m. but could not remember the exact time. People came in all at once for the most part. Only she, the Manager and a waitress were working so the patrons kept her reasonably busy.

34. She knows Mr. Ivison. She served his party and they were normal. She did not notice anything unusual about their behaviour. They were having fun chatting, laughing and mingling. She thought they were there for over a half hour before the Inspector came in. She saw Mr. Ferby speaking with the Inspector and later he asked her to stop serving Mr. Ivison. She agreed and kept working.

35. Mr. Ivison had asked her to order a couple of taxis and when she saw them arrive, she spoke to him. The group decided to stay and asked for more drinks. She told Mr. Ivison that her Manager had told her not to serve him any more alcohol. He was surprised and upset. She has her Smart Serve certification and is trained to recognize signs of intoxication and Mr. Ivison displayed none of those signs. If she had not been asked to cut him off, she would not have done so.

36. Mr. Ivison asked to speak to the Manager. Mr. Ferby came over and she watched them walk to the hostess stand. She was not sure if the Inspector spoke to Mr. Ivison but she was positive that he did stand by the entire time that Mr. Ferby spoke to him.

37. Ms. Little stated that the Inspector was there for under 10 minutes before he spoke to Mr. Ferby. Later she stated that she did not see the Inspector come in. He and Mr. Ferby first spoke at the front of the bar, then walked to the side exit and she did not see them again until Mr. Ferby spoke to Mr. Ivison. She was working and did not know how long they spoke nor who left when. She did not ask Mr. Ivison to leave at any time.

38. Ms. Katheryn (Kady) O’Malley testified essentially that she attended a function at the National Arts Centre for about two to two and a half hours. She arrived there at around 6:15 p.m. and had her first drink about 6:30 p.m. She consumed around two normal sized glasses of wine and later agreed that it could have been three. She then walked across the street to D’Arcy McGee’s. She had no difficulty walking and felt normal but tired because she had had a long day at work. She was at the bar for a couple of minutes and meant to go home but met some people so she decided to stay and ordered a glass of white wine. She had two or three sips of the wine before the bartender came over and took her drink. She found that odd but she had meant to go home and she saw that as a sign from above so she went home. She walked home a distance of six blocks and had no problem doing so.

39. She carries a BlackBerry. It slipped from her cold hands and fell but that is not unusual because she is a klutz.

40. On cross-examination, Ms. O’Malley stated that she is not sure if she dropped her phone. She was by a stand-up height table along the wall and was standing against the wall. She did not think she was sitting since she was not there very long. She arrived around 9 p.m. and by 9:30 p.m. she was probably walking home but was not sure of the times.

Submissions for the Registrar

41. Based on the clear, credible and forthright evidence of the Inspector, the allegations in the Notice of Proposal have been shown to have taken place on a balance of probabilities. Two patrons showing signs of intoxication were permitted to be in the premises. One patron was served wine after showing signs of intoxication.

Submissions for the Licensee

42. The evidence of the Inspector falls short of showing that the patrons were intoxicated. Therefore, the Registrar failed to prove that the Licensee breached subsection 45(1) of the O.Reg. and did not breach section 29 of the Act.

Analysis and Reasons

43. The Board reviewed the evidence and the submissions.

Male Patron

44. The issue before the Board is whether the male patron, identified as John Ivison, was intoxicated on a balance of probabilities. The evidence for the Licensee contradicts the essential points in the Inspector’s evidence and is contradictory internally as well so credibility is an issue.

45. The Inspector observed Mr. Ivison exhibit signs of intoxication which included glossy red eyes and slow motions, swaying back and forth, slurred speech, among others which taken together were sufficient for the Inspector to conclude that Mr. Ivison was intoxicated. He made his observations overall during a period of about 8 minutes and at one point was within 3 feet of Mr. Ivison so he would have had ample opportunity to assess his condition. The Board found the Inspector’s evidence to be clear, detailed and consistent, including on cross-examination.

46. Ms. Little, Mr. Ferby and Mr. Ivison all testified that Mr. Ivison was not intoxicated. However in their evidence they contradict each other. Some of it is rather unclear and some is not totally forthright. For example, Ms. Little observed nothing unusual about Mr. Ivison and his group and stated that she would not have cut him off if the Manager had not asked her to do so. However, Mr. Ivison contradicts her in an article he wrote (Ex. 1) by describing the group, excluding himself, as being “moist and garrulous” if not quite “tired and emotional” which he agreed in answer to questions at the hearing were euphemisms for being drunk. He agreed that the facts underlying the article as he described them were full and accurate. On that basis the Board accepts his evidence over that of Ms. Little.

47. Ms. Little also had difficulty remembering many details but was sure that the Inspector was present when the Manager spoke with Mr. Ivison. That is contrary to the evidence of both the Manager and the Inspector and leads the Board to give little weight to what she actually observed while trying to serve a large number of customers who all came in about the same time.

48. The Manager did not agree that Mr. Ivison was drunk but some of his evidence does support the Inspector’s evidence. He observed Mr. Ivison and agreed that he was “bobbing and moving.” He agreed that Mr. Ivison had slurred speech but he was not sure because he was not close enough to determine that. He also had difficulty understanding Mr. Ivison because of his thick accent. The Inspector, however, heard Mr. Ivison speaking outside the hearing room on the day of the hearing and did not detect slurring or have a problem understanding him. The Board did note that in answering questions at the hearing, Mr. Ivison had an accent but detected no slurring and had no difficulty understanding him. Therefore, the Board is persuaded that the slurring he exhibited while at the establishment resulted from his consumption of alcohol, not his accent.

49. Mr. Ferby opined that Mr. Ivison was bending over because he is a very tall man speaking to a shorter companion in a noisy room. The Board agrees that Mr. Ivison may have been leaning over because of his height and draws no conclusions from that evidence.

50. The Board is of the view that Mr. Ferby exaggerated his evidence when he indicated that other people approached him about the two people who were singled out and he was aghast when they all left, 60 of them, vowing never to return. The Inspector after driving around the block which took 2 or 3 minutes, observed the front of the establishment for 20 minutes after leaving and he did not note a mass exodus from the establishment.

51. Mr. Ferby also was not totally forthright in his evidence. He testified that he did not share with people the Inspector’s observations because he was the one responsible in the club. That is contradicted by Mr. Ivison’s article, Ex. 1, in which Mr. Ferby is quoted as follows:

Mr. Ferby said he thinks the inspector was “over-zealous.” “I didn’t agree with his assessment,” he said. “He overreacted. The law is there to protect extremes and there were no extremes here.”

The Board believes that the article is more accurate as to what Mr. Ferby stated than what Mr. Ferby testified at the hearing.

52. Mr. Ferby maintained that Mr. Ivison was not drunk but uses an extreme condition as the deciding factor. The quote indicates a belief that the law only applies to extreme cases of drunkenness. Mr. Ivison seems to share the same opinion. He did not think he was drunk but agreed that he and his companions were in “good humour but by no means was it extreme.” The Board notes that the O.Reg. refers to drunkenness. It does not refer to extreme drunkenness.

53. Given all the evidence, the Board finds that the evidence of the Inspector is more credible and reliable than the evidence for the Licensee. Based on the number of indicia of intoxication that the Inspector observed, the Board finds, on a balance of probabilities, that Mr. Ivison was drunk.

54. Mr. Ivison was not cut off until his condition was brought to the attention of the Manager by the Inspector. After being cut off he was allowed to remain in the premises. Thus, the Licensee permitted drunkenness in the premises.

55. Therefore, the Board FINDS that the Licensee permitted drunkenness in the premises in contravention of subsection 45(1) of the O.Reg. with regard to Mr. Ivison.

Female Patron

56. Regarding the female patron, there are two issues, the identity of female patron and whether she exhibited sufficient signs of intoxication to conclude, on a balance of probabilities, that she was drunk.

57. Regarding the issue of identity, the Manager identified the female patron to be Ms. O’Malley. He knew her because she was a regular customer.

58. The evidence of Ms. O’Malley casts doubt as to whether she was the female patron observed by the Inspector. Her evidence is different from that of the Inspector and the Manager as to location, standing and not sitting, having a BlackBerry not a phone, drinking only wine not beer and leaving before the Inspector arrived.

59. Furthermore, the Inspector, after observing Ms. O’Malley outside the hearing room on the day of the hearing, was not sure if she was the female patron he observed in the establishment. Given the credible but contradictory evidence, the Board cannot conclude that Ms. O’Malley is the same female patron.

60. However, of greater importance are the Inspector’s observations of the female patron. He observed her drop her phone and the back of it and the batteries fell out. She had slow movements, had problems putting the phone together and controlling her balance while she did so. While picking up the pieces of the phone, her underwear was showing which the Inspector did not think was a normal state of attire. She had glossy red eyes. He indicated that she was holding a 20 oz. pint of beer and then ordered and was served a glass of white wine.

61. The Board agrees with the Licensee that having one’s underwear showing can be a fashion statement and is not necessarily a lack of body and clothing awareness resulting from the consumption of alcohol. Taking a long time to put batteries back into a phone and putting the back on could be the results of alcohol consumption but is not necessarily so.

62. In the Board’s view, the female patron observed by the Inspector was showing some signs of having consumed alcohol but finds that there are not sufficient indicia to conclude, on a balance of probabilities, that she was intoxicated. Therefore, it makes no findings regarding the female patron.

Conclusion

63. The Board FINDS that the Licensee violated subsection 45(1) of the O.Reg. on February 11, 2008 in the case of Mr. Ivison.

64. The Board makes no finding of a violation of subsection 45(1) of the O.Reg. regarding the female patron and as a result no finding of a violation of section 29 of the Act.

65. Having made the finding above, the Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file her written submissions within seven (7) days of the date of this decision. The Licensee shall have seven (7) days to serve and file his 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, at the address on the front page of this decision in accordance with the Board’s Rules of Practice.

DATED AT TORONTO THIS 23^rd DAY OF MARCH, 2009.

DAVID C. GAVSIE, CHAIR, AGCO KIRSTI HUNT, VICE-CHAIR, AGCO