Registrar, Alcohol and Gaming Commission of Ontario v. 2066848 Ontario Inc., 2009 CanLII 29775

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-

2066848 Ontario Inc. O/A Ten2 3 Food Drinks Karaoke Licensee

DECISION ON FINDINGS

Panel: Jacqueline Castel, Board Member Eleanor Meslin, Board Member

Decision Date: May 20, 2009 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 2066848 Ontario Inc., Licensee: Jerry Levitan, Representative Conway Chan, Representative

Authorities

Gordon Capital Corp. v. Ontario (Securities Commission) (Ont. Div. Ct.), [1991] O.J. No. 934

Allegations

1A hearing into Notice of Proposal number 16892 dated December 2, 2008 to suspend liquor licence number 202157 (the "Licence") of 2066848 Ontario Inc. (the "Licensee") operating as TEN2 3 FOOD DRINKS KARAOKE, 3100 Steeles Avenue East, Unit 102, Gateway Centre, Markham, Ontario, L3R 8T3 (the "premises" or "establishment") on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 ("OR 719/90") made pursuant to the Liquor Licence Act ("LLA"), was held on April 28, 2009 in the City of Toronto.

Decision

2After considering all the evidence and submissions, the Board DISMISSES the allegation of a violation of subsection 45(1) of OR 719/90. Reasons to follow.

Preliminary Matters

3At the Registrar's request, the Board ORDERED all witnesses to be excluded. The Board agreed to allow Mr. Conway Chan to remain as the Licensee's Representative to assist Mr. Levitan, with the understanding that he would be the Licensee's first witness.

Registrar's Evidence

4Devin Sookdeo is an inspector with the Alcohol and Gaming Commission of Ontario ("AGCO"). He attended the premises on June 1, 2008 at 1:21 a.m. with Inspectors Anderson and Noseworthy.

5Upon entering, the inspectors did a walkthrough. He observed a male, Asian, being helped to the washroom by another male. Inspector Sookdeo entered the washroom behind the men and saw the Asian male stagger into a stall and throw up. The male's friend advised that his friend was drunk and that it was his birthday. Inspector Sookdeo spoke to the Asian male and noted that his speech was slurred and his eyes were bloodshot. When asked if he was on any medication, he said "no." He said he was drunk. On request, he produced his driver's licence, which identified him as "E.L.", date of birth May 29, 1979. His friend, L.K. said he would take him home and assisted E.L. back to his seat.

6Inspector Sookdeo then spoke with Broderick Chan, the manager. Inspector Sookdeo advised Mr. Chan of the liquor violation. Mr. Chan indicated he was SmartServe trained and also said that he observed the male as being intoxicated. While speaking to Mr. Chan, the inspector observed E.L. being helped by his friend to return to the washroom. Inspector Sookdeo stated that he did not see E.L. again until today's hearing. Inspector Sookdeo exited the premises at 1:42 a.m.

7On cross-examination, Inspector Sookdeo responded that he spoke with E.L. before the hearing, for about 30 seconds, about his birthday coming up. E.L. did not appear ill.

8When questioned about his observations on June 1, 2008, the inspector stated that he did not see E.L. get up from his chair, but saw him being assisted by his friend, having his arm around him. E.L. grabbed the stall door in his hurry to reach the toilet. There were other males in the washroom who said E.L. was drunk, although Inspector Sookdeo did not have this in his notes. Nor did his notes indicate where or when E.L. had his drinks. Inspector Sookdeo did not ask anyone how many shots E.L. had drunk and did not ask the bartender if he had anything to drink. The inspector's notes did not mention whether there were any drinks at E.L.'s table. He did state that the glasses on the table were tumblers, not shot glasses.

9In response to Ms Taylor's re-direct, Inspector Sookdeo indicated that there were no staff in the washroom at the time and that he did not see any staff dealing with E.L. that evening.

10Don Anderson is an inspector with the AGCO. He attended the bar on June 1, 2008 at 1:21 a.m. with Inspectors Sookdeo and Noseworthy. On entering he went left toward the karaoke room and the other inspectors turned right towards the bar and washroom. He conducted a count of the patrons and found no overcrowding. Inspector Sookdeo told him that he had found an intoxicated patron in the premises. He observed the male slumped over his chair and could not see his face. He did not recall any drinks on the table. When the male got up, he noticed his eyes were red and glassy and he appeared unsteady on his feet and was assisted by a friend. Inspector Anderson did not recall seeing any staff nearby or any staff dealing with the patron. He did not speak to either the patron or his friends.

11In response to Mr. Levitan's questions, Inspector Anderson stated that he did not check to see if the patron was drinking. He did not record in his notes that he had not spoken to either the patron or his friends. He indicated that he was from three to five feet from the patron when he observed his glassy, red eyes.

12Carla Noseworthy was on contract to the AGCO as an inspector from March 2008 to March 2009. She attended the premises on June 1, 2008 with Inspectors Sookdeo and Anderson.

13On entering, she went to conduct a count in the karaoke rooms and then proceeded to the bar area where she observed Inspector Sookdeo and a male patron exiting the washroom. The patron was very unsteady on his feet and when he approached her she noted that his eyes were half-shut, red and glassy. The patron was being helped by a friend who took him to a couch to sit. There was a coffee table in front of the couch with several drinks in tumblers and shot glasses. Some were mixed drinks and some were empty. She did not speak to the male, but to a friend who told her that it was the male's birthday and he was drinking Johnny Walker, Black Label whiskey. The male became erratic and rushed to the washroom, helped by his friend. When she saw him today, he walked steadily and needed no help.

14On cross-examination, Inspector Noseworthy admitted that she had nothing in her notes about drinks on the table, how many glasses were there or if there was any alcohol in the glasses. She also responded that she did not ask his friend when or how much Johnny Walker he had consumed.

Licensee's Evidence

15Conway Chan is a part owner of the establishment and acts as manager on Wednesdays and Saturdays. He was at the premises on June 1, 2008. He recalled seeing the patron enter at approximately 1:00 a.m. and the inspectors arrive 15 to 20 minutes later. When the patron entered he was not staggering or falling down. He had seen the patron once before in the premises and Mr. Chan said "hi" to him and his friends. He did not see the patron order any drinks.

16His bartender, also a manager, would have attended the hearing to testify but was called to Hong Kong on a personal matter.

17When the inspectors arrived he waved to Inspector Anderson. He also saw Inspector Sookdeo but did not see Inspector Noseworthy. Inspectors regularly attend to do inspections. The patron left after he had been sick, saying he had a stomach problem.

18In response to Ms Taylor's questions, Mr. Chan said that he was in the reception area when Inspector Sookdeo was in the washroom and did not see the patron either in the washroom or when he exited the washroom. He did not see the patron drinking and did not know if he'd had anything to drink in the establishment. He also stated that he did not know if the patron was drunk when he arrived.

19E.L is 29 years old and owns a consulting company. He attended the establishment on June 1, 2008, arriving at about 1:00 a.m. He had been at a friend's house prior to that to celebrate his birthday where he had a couple of shots of Johnny Walker. He arrived after dinner. He had gone to an "all you can eat" sushi restaurant for dinner after getting off a plane from Minnesota. His friend had picked him up from the airport, driven him to the restaurant, to his friend's house for a couple of drinks and then to the bar. He did not have anything to drink either in the restaurant or in the bar. His reason for attending the bar was to say good bye to a friend who was leaving for Hong Kong. His friend was with a number of people in the lounge when E.L. arrived. E.L. testified that he did not order, nor was he given a drink at the bar. He suddenly felt very sick, with a stomach ache and felt the need to throw up.

20The inspector asked to see his driver's licence. He did not tell the inspector that he was drunk. His friend took him home.

21On cross-examination, E.L. said he had only gone to the washroom once. He believed his stomach ache was from the sushi. The only liquor he had that night was two shots of Johnny Walker at his friend's house. He did not remember what time he arrived at the bar, but felt sick within five to 10 minutes after arriving. His friend helped him to the washroom, although E.L. did not believe he needed help. He did not go either to a hospital or a doctor. He went straight home to sleep.

Registrar's Submissions

22The Board heard the evidence of three AGCO inspectors and detailed evidence from Inspector Sookdeo regarding the intoxicated patron. There were clear signs of intoxication. Mr. Chan wasn't sure if E.L. was intoxicated and there was no evidence of any staff having any contact with E.L. The only evidence that he was not drunk came from E.L. E.L. did not remember when he arrived or his conversation with Inspector Sookdeo except for his requesting E.L.'s driver's licence. He did not recall how long he had been there before he got sick, if he needed help to the washroom, or that he had gone there twice, not once. His friend picked him up because he knew he would be drinking since it was his birthday. There is no issue that he was drinking Johnny Walker that night, because he admitted to having two shots at his friend's house, which was confirmed by what his friend told Inspector Sookdeo.

23E.L. admitted that he had planned to be out, that his friend had driven him and that he had been drinking whiskey. On a balance of probabilities he was drunk that night. The fact that he may or may not have been drinking in the establishment is irrelevant.

24He was in the premises for 20 minutes before the inspectors arrived and when they saw him he was showing strong signs of intoxication. He needed assistance walking, his eyes were bloodshot and glassy and he had vomited repeatedly.

25There was no evidence that the staff did anything about his intoxication. Therefore, the Registrar submits subsection 45(1) was breached on June 1, 2008.

Licensee's Submissions

26Subsection 45(1) is not a strict liability offence. The Registrar must show that the establishment and staff, by its non-action, permitted the drunken behaviour to occur. The Registrar, not the Licensee, must prove its case.

27The first time anyone noticed anything was askew was when E.L. got up and quickly rushed to the washroom to throw up. That is not permitting drunkenness. There was no evidence about E.L.'s behaviour before the inspector noticed him. If someone got sick where no indicia occurred beforehand, the issue is what does the Licensee do at first knowledge. Inspector Sookdeo testified that just because someone had been drinking before entering the premises, does not mean he showed signs of intoxication or was intoxicated. Nobody asked what he had to drink in the establishment. No one testified about how he looked when he entered. Before arriving, he was at a friend's house and had two shots. He was not intoxicated.

28The best evidence was from the person involved, E.L. He was not charged and had no reason to lie to the Board. He gave his evidence honestly. He had no notes and can't be expected to remember everything from a year ago. There is no basis for saying his memory loss is an indicia of his being drunk. He said he didn't know why he got sick and there is no evidence that he was intoxicated when he was vomiting.

29Mr. Chan's evidence was very straightforward. There is no obligation on the Licensee to observe everyone, particularly if the person is at a table and shows no signs of intoxication.

30Mr. Levitan submitted that, on a balance of probabilities, the Registrar has not made its case. E.L. was not the only person who did not remember everything. Two of the inspectors did not remember how many glasses were on the table. There was no evidence that the staff observed anything other than E.L. going to the washroom. He did so not because he was drunk, but because he was sick.

Registrar's Reply

31If the evidence was that the reason for E.L. going to the washroom was that he was sick, Mr. Levitan would be right. However, the evidence showed that E.L. could stand or walk by himself and he had bloodshot eyes. The timeframe in which the Licensee has to assess drunkenness is from the time the patron enters the premises. The obligation does not start when the inspector notices something wrong. The indicia of drunkenness do not happen suddenly.

32Mr. Levitan did not say that E.L.'s friend told Inspector Sookdeo that he was drunk or that E.L. admitted he was drunk. The evidence shows that E.L. was so drunk that he did not remember what happened that night.

33Mr. Levitan submitted that there was no reason for E.L. to lie. But he might have felt responsible for the disciplinary action taken against the establishment.

34Mr. Levitan's referring to strict liability is irrelevant and not applicable to disciplinary hearings (Gordon Capital, 1991, Divisional Court).

35Licensees have an obligation to exercise control over activities in their premises. The evidence was that E.L. had been in the establishment for approximately 20 minutes and no staff did anything until after Inspector Sookdeo spoke to the manager.

Analysis/Reasons/Findings

36The Board has carefully reviewed the evidence and submissions.

37The Board accepts Inspector Sookdeo's evidence that when he observed E.L. he was being helped to the washroom by a friend and that when he spoke to E.L. he noted slurred speech and bloodshot eyes. In addition, it accepts the inspector's testimony that a male in the washroom said that E.L. was drunk, although he did not have the comments in his notes. However, Inspector Sookdeo did not ask anyone, including staff, if E.L. had been drinking on the premises and, if so, how many drinks he had consumed. He only stated that the glasses on the table were tumblers and not shot glasses.

38Inspector Anderson had only a brief look at E.L. from several feet away and did not speak to him or his friends. As such, the Board did not place much weight on his testimony.

39Inspector Noseworthy's evidence was somewhat contradictory in that she placed E.L., on his return from the washroom, on a couch with a coffee table in front of him. Although she mentioned tumblers and shot glasses on the table in her evidence, there was no mention of this in her notes. She also did not ask anyone when and how much Johnny Walker E.L. consumed nor did she speak to E.L.. As such, the Board did not place much weight on her testimony.

40Mr. Chan was present on June 1, 2008, and only briefly saw E.L. when he entered. He did not observe E.L. exhibiting any signs of intoxication when he entered. He did not see E.L. drinking at the establishment. Unfortunately his bartender was not available to give testimony in this matter.

41E.L.'s testimony was clear and forthright, he had no reason to lie. The Board accepts his evidence regarding the chronology of events that night. According to him, the only time he had any alcohol was at his friend's house, where he consumed two shots of Johnny Walker, after going to dinner at the "all you can eat" sushi bar. He testified that shortly after arriving at the premises he felt violently ill and rushed to the washroom to throw up. When Inspector Sookdeo approached him in the washroom requesting his identification, he had no difficulty either understanding the request or producing his driver's licence. It does not seem reasonable that he would willingly tell the inspector that he was drunk. The Board accepts his testimony that, in fact, he did not do so.

42The Board believes, on a balance of probabilities, that the sushi dinner was the cause of E.L.'s stomach upset. Inspector Sookdeo's observations, in the washroom, of E.L. having bloodshot eyes and slurred speech were made after E.L. had vomited and could very well have been as a result of his stomach upset. Fatigue from a long day, including a late afternoon plane trip from Minnesota, could have also contributed to the glassy eyes and slurred speech. There was no evidence that E.L. consumed any beverage alcohol at the establishment. In addition, there was no evidence that he was exhibiting signs of intoxication or behaviour, which should have gotten the attention of staff acting reasonably and responsibly, before he rushed to the bathroom to throw up. E.L. left the establishment shortly after throwing up.

43As such, the Board is not persuaded by the Registrar's evidence that E.L. was drunk on the licensed premises.

Conclusion

44Therfore, for the reasons given, the Board DISMISSES the allegation of a violation of subsection 45(1) of OR 719/90 made pursuant to the LLA.

DATED AT TORONTO THIS 20th DAY OF May, 2009