IN THE MATTER OF THE LIQUOR LICENCE ACT
R.S.O. 1990, c. L. 19 s. 15(1) AND 21(1)
AND IN THE MATTER OF THE LIQUOR LICENCE OF
1613799 ONTARIO INC. OPERATING AS HAPPY’S BAR AND GRILL,
498 HORNER AVENUE, ETOBICOKE
LICENCE NUMBER 202617
O R D E R O N M O T I O N
The Registrar served and filed a Notice of Motion on or about February 24, 2009, pursuant to Rule 16 of the Board’s Rules of Practice, in respect of a Request for Hearing dated February 5, 2009 filed pursuant to Notice of Proposal (“NOP”) number 16931 dated January 22, 2009, to revoke liquor licence number 202617 issued to 1613799 Ontario Inc. (“Licensee”) operating as Happy’s Bar and Grill, 498 Horner Avenue, Etobicoke, Ontario, M8W 2B8, on the basis of alleged violations of section 6 of the Liquor Licence Act (“LLA”).
The Registrar is seeking an Order striking the Request for Hearing filed by Sharon Phillips dated February 5, 2009 on the basis that Ms. Phillips, as a transfer applicant, did not have authorization from the Licensee to sign the Request for Hearing nor to appear on his behalf at the hearing. In the Request for Hearing Ms. Phillips names Nenus Younan as her representative and the request for hearing was signed by Mr. Younan on her behalf.
In support of the motion, the affidavits of Phillip Morris and Richard Kulis have been filed. The Board notes that though duly served, based on information provided in the Request for Hearing, Ms. Phillips, through her representative, has not filed any responding materials.
The Board, pursuant to Rule 16.2, has made its decision based on the evidence presented through the sworn statements provided to it.
The affidavits make reference to two Notices of Proposal. The first, amended NOP number 16616, is an NOP to suspend liquor licence 202617, the principal of which is Samsul Hassan. Ms. Phillips requested a hearing in this matter, naming Mr. Younan as her representative. As stated in the affidavit of Mr. Morris, the hearing was convened on December 22, 2008, but was adjourned to allow for matters related to unpaid retail sales tax to be investigated. Mr. Younan and Ms. Phillips were in attendance on that date.
That investigation resulted in the issuance of NOP number 16931 to revoke the licence. On January 22, 2009, the Notice of Proposal was sent to the principal, Mr. Hassan, at the licensed establishment, 498 Horner Avenue, Etobicoke, Ontario, M8W 2B8. The Request for Hearing which is in issue on this motion was then filed on February 5, 2009.
The hearing for amended NOP number 16616 reconvened on February 12, 2009 at which time Mr. Younan did not attend due to illness. Ms. Phillips was present. As stated by Mr. Kulis in his affidavit, Ms. Phillips advised the Board at that time that she did not have the authority to represent Mr. Hassan as the principal of the licensee. Her status in respect of liquor licence number 202617 is as transfer applicant only.
The Board, upon review of the motion materials filed and subsection 21(4) and (5) of the Liquor Licence Act (“LLA”) has determined that there is no basis upon which Ms. Phillips can be said to have legal authority to request a hearing in respect of NOP number 16931. She is a transfer applicant in respect of the liquor licence and while she may be an interested party as a result of a business transaction, that does not cloak her with the legal authority to request a hearing pursuant to the LLA. The Board recognizes that this may result in financial challenges to her as a transfer applicant, however, it does not have the jurisdiction to hold a hearing based upon a request from someone other than the Licensee or its authorized representative. Ms. Phillips may have to pursue other avenues to pursue and or protect any interest she may have presumed to acquire from the Licensee, 1613799 Ontario Inc.
The Board therefore grants the relief sought by the Registrar. The Board hereby ORDERS that the Request for Hearing dated February 5, 2009, in respect of NOP 16931 be struck.
DATED AT TORONTO THIS 18th DAY OF MARCH, 2009.
PATRICIA MCQUAID, VICE-CHAIR, AGCO