Registrar, Alcohol and Gaming Commission of Ontario v. Prime Restaurants of Canada Inc., 2009 CanLII 29728

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 ON SANCTION

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

Decision Date: June 1, 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

AUTHORITIES:

1252378 Ontario Inc. (c.o.b. SIN)(Re), [2007] O.A.G.C.D. No. 497

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.

2. In its decision dated of March 23, 2009 the Board made a finding of a breach of subsection 45(1) of the O. Reg. and asked the parties for written submissions on an appropriate sanction. The Board has received and reviewed those submissions.

Registrar’s Submissions

3. The Registrar’s representative submitted that a 7-day suspension is appropriate. The Licensee has no prior adverse record at this establishment. However, the Licensee was warned on January 8, 2008 by the Deputy Registrar about permitting drunkenness at Esplanade Bier Market as a result of an incident shortly before this incident.

4. Mr. Ferby failed to deal appropriately with Mr. Ivison by permitting him to remain in the establishment.

5. Mr. Ferby attempted to convince the Board of a version of events that was materially different from what took place. Mr. Ferby was the person in charge on the night of the infraction and as he continues as an Assistant General Manager, his conduct reflects directly on the Licensee. The Licensee should face a term of sanction for permitting drunkenness but also express the Board’s disapproval of the Licensee’s attempt to, in effect, mislead the Board respecting what took place in the establishment. In the case of SIN, a 2007 decision of the Board, which also involved permitting one drunk in the establishment, the panel found that the Licensee’s witnesses did not provide credible evidence to refute the Registrar’s allegations and expressed concern that the conduct of the Licensee’s witnesses demonstrated “a failure on the Licensee’s part to take the liquor enforcement process seriously and respectfully.” In that case, the Board imposed a 14-day suspension which the Divisional Court reduced to 7 days.

6. There is no evidence from the Licensee respecting what measures have been implemented to ensure that this breach will be prevented in the future.

Licensee’s Submissions

7. The Licensee’s representative submitted that a warning would be appropriate in this case.

8. Upon determining a concern for Mr. Ivison, Mr. Ferby immediately arranged to have Mr. Ivison cut off from alcohol service.

9. A taxi was called for Mr. Ivison and his guests but he wished to have a word with the Manager and therefore was not immediately escorted from the premises. Mr. Ivison’s behaviour was not disorderly or riotous which necessitated his immediate removal. He remained in the premises for a short period of time during which he had an orderly, peaceful and polite conversation with the Manager regarding why he was cut off. The actions of the Manager were proper and appropriate and did not jeopardize the safety of patrons, staff or Mr. Ivison.

10. There is no evidence that the Manager “in effect mislead the Board respecting what took place in the establishment.” The Board found that Mr. Ferby was not totally forthright in his evidence with respect to one issue, that being his comment that he did not share the Inspector’s observations with the people. The Board referred to Mr. Ivison’s newspaper article where Mr. Ferby is quoted regarding his comments related for the most part to his opinion of the Inspector’s comments, not the Inspector’s observations which he did not share with anyone. Although there may have been minor contradictions in Mr. Ferby’s evidence, his statement was nevertheless honest and factually correct and in no way meant to mislead the Board.

11. The SIN case is distinguishable from this case. This Licensee’s evidence was in no way “hopelessly inconsistent.” The inconsistency of Ms Little’s evidence was with respect to her recollection that the Inspector was present during Mr. Ferby’s conversation with Mr. Ivison. Ms Little was honest and forthright in her recollection of what occurred although her recollection may have been incorrect. The inconsistency with Mr. Ivison’s evidence was found to be with the article he wrote and not the evidence Mr. Ferby gave regarding Mr. Ivison’s state of intoxication.

12. There is no evidence presented to establish that the Licensee has failed to take the liquor enforcement process seriously and respectfully. On the contrary, immediately on being advised of a concern for Mr. Ivison’s behaviour, not only was he but his whole party cut off and asked to leave. Taxis were called for these patrons.

13. This establishment has been in business for 11 years and during this time has maintained an exemplary record in terms of alcohol management with no prior adverse record which indicates that the training, measures and policies are effective and illustrates the seriousness with which this Licensee takes its alcohol management. The actions of cutting off the patron immediately and then speaking with the patron in order to explain what occurred and calling a cab for the patron illustrate the seriousness with which his client takes its responsibilities under the Liquor Licence Act.

Reasons and Decision

14. The Board reviewed the submissions of parties and considered the following factors in determining an appropriate sanction.

15. The Notice of Proposal was to suspend the licence for 10 days on the basis of allegations regarding two drunk persons being permitted in the premises and one of them being served alcohol while being drunk. The Board made no finding regarding one of the patrons and service of alcohol to her. The Registrar then submitted that a seven day suspension would be appropriate.

16. The Board made a finding that the Licensee permitted drunkenness in the premises in the case of one person on one date. Upon having Mr. Ivison’s condition brought to his attention, Mr. Ferby immediately directed staff to cut him off from service of alcohol. The bartender cut off Mr. Ivison as directed. Both acted appropriately.

17. However, the Board notes that it was the Inspector who pointed out Mr. Ivison’s condition to Mr. Ferby. Mr. Ferby did not think Mr. Ivison was drunk but appeared to mistakenly use an extreme condition as the deciding factor as was found by the Board in its decision.

18. Mr. Ivison was not immediately asked to leave the premises to prevent drunkenness from continuing. Ms Little allowed him to remain because he asked to speak to the Manager. Ms Little’s evidence is that Mr. Ferby moved with Mr. Ivison from the service bar to the hostess stand where they spoke. Given that Mr. Ivison, a regular customer known to Mr. Ferby, wanted to know why he was cut off, it is reasonable that the conversation took place away from the alcohol service area, although in the premises, and not outside on the sidewalk.

19. The Board will not consider as a mitigating factor the matter of the taxi being called for Mr. Ivison. Ms Little called the cab at Mr. Ivison’s request and did not do so at her own initiative.

20. The Board agrees with Registrar’s representative that the actions of staff are the ultimate responsibility of the Licensee. The Board found some inconsistencies in the evidence of the Licensee’s witnesses but their evidence was not “hopelessly inconsistent” with each other or with the evidence of the Inspector as the Board found in the case of SIN which was cited by Registrar’s representative. Each case must be considered on its own merits and this case is clearly distinguishable from the case cited. The evidence of Ms Little was honest and forthright though her memory was imperfect on one point. Mr. Ferby was not totally forthright regarding talking about the Inspector’s assessment of Mr. Ivison’s condition and he exaggerated a mass exodus of people vowing not to return. However, his evidence did not contradict in essence the evidence of the Inspector regarding what happened during the Inspector’s presence in the establishment. The actions and words of the Licensee’s staff do not lead to a conclusion that there is a “failure on the Licensee’s part to take the liquor process seriously and respectfully” as was found in the case of SIN.

21. Registrar’s representative asked the Board also to consider the fact that there is no evidence from the Licensee respecting what measures have been implemented to ensure that this breach will be prevented in the future. There was no evidence presented at the hearing about policies or procedures regarding recognizing and preventing drunkenness. However, given the fact that this establishment has operated for almost 11 years with no prior infractions, that is a good indication that the existing policies and procedures have worked. Despite them however, this infraction did occur, but it is one incident in an otherwise exceptional record of operation. It does, however, warrant a continuing vigilance in identifying and removing people who exhibit signs of intoxication.

22. The Board also considered that this Licensee operates 11 establishments in the Province of Ontario. The Board has no evidence of any adverse record beyond a warning by the Deputy Registrar on January 8, 2008 about permitting drunkenness at an establishment located in Toronto. That warning took place shortly before the present infraction but since it relates to another establishment in a different city, the Board gives little weight to it in considering a sanction in relation to this establishment.

23. Given the factors above, the Board finds that a seven-day suspension is not warranted, but a short period of suspension of two (2) days is appropriate not only as a specific but also as a general deterrence.

Order

24. The Board ORDERS that liquor licence number 804105 issued to Prime Restaurants of Canada Inc. operating as D’ARCY MCGEE’S IRISH PUB, 44 Spark Street, Ottawa, Canada, K1P 5A8, be suspended for a period of TWO (2) consecutive days.

25. The Licensee shall submit proposed suspension dates in writing to the Manager of Hearings, 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 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 1st DAY OF JUNE, 2009.

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