Registrar, Alcohol and Gaming Commission of Ontario v. 1015111 Ontario Limited O/A Club T’Zers, 2009 CanLII 47512

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-

1015111 Ontario Limited O/A Club T’Zers Licensee

DECISION ON FINDINGS

Panel: Brian J. Ford, Board Member Bruce Miller, Board Member

Decision Date: July 16, 2009 Hearing Location: Windsor, 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 1015111 Ontario Limited, Licensee ) Anthony Debly, Representative

Authorities

1313963 Ontario Limited operating as SIN CITY BAR AND EATERY v. Registrar, Alcohol and Gaming Commission of Ontario, Ontario Superior Court of Justice, Divisional Court, 2008 CanLII 22144 (ON SCDC), 2008, 236 O.A.C 246, 169 A.C.W.S (3d) 233

1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] O.J. No. 1553 (Ont. C.A.)

Horseshoe Valley Resort Lid. v. Ontario (Alcohol and Gaming Commission), 2005 CanLII 81108 (ON SCDC), [2005] O.J. No. 5895

R. v. Central House (Sault Ste. Marie) Ltd., [1972] O.J. No. 2107

Rex v. Pomerleau, [1917] A.J. No. 36

Allegations

1A hearing into Notice of Proposal number 16761 dated October 24, 2008 to suspend liquor licence number 90044 issued to 1015111 Ontario Limited (the “Licensee”), operating as CLUB T’ZERS, 1638 Drouillard Road, Windsor, Ontario, N8Y 2S3 (the “establishment” or the “premises”), on the basis of alleged violations of section 29 of the Liquor Licence Act (the “LLA”) and subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”), made pursuant to the LLA was held on March 11, March 12, May 12 and May 13, 2009, in the City of Windsor.

Decision

2After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 45(1) of the O.Reg. The Board DISMISSES the alleged violation of section 29 of the LLA. Reasons follow.

Preliminary Matters

3The Board ORDERED the exclusion of witnesses, on the consent of both parties.

4Mr. Morris requested that the toxicologist, Jean-Paul Palmentier, be allowed to remain. Mr. Morris stated Mr. Palmentier was there to give expert evidence on the different scenarios presented at the hearing. The Licensee agreed that Mr. Palmentier was an expert witness. The Board ruled Mr. Palmentier could remain and listen to the testimony of all the witnesses. Mr. Palmentier needed to be present to evaluate and then to testify to the different situations put forward by witnesses.

5Mr. Morris stated that one of the witnesses, Arnold Brown, was the driver of the vehicle involved in the accident. Mr. Brown was charged criminally and his trial was set for May, 2009. The police never took a statement from Mr. Brown. Mr. Morris stated Mr. Brown was present and he was planning to call him as a witness.

6Mr. Debly stated he had not spoken to Mr. Brown. The Rules of Practice require that he should have received a list of witnesses that the Registrar was intending to call ten days prior to the hearing. He only received the list on March 6, 2009. There was no statement for Mr. Brown in the disclosure.

7Mr. Morris stated there is a general power for the Board to over-ride its own rules.

8Mr. Debly requested if the Board allowed Mr. Brown to testify that he be allowed to cross-examine Mr. Brown on the following day, as the hearing was set for two days.

9The Board ruled it would allow Mr. Brown to testify. The Board appreciated the difficulty in obtaining a statement from Mr. Brown who is facing serious criminal charges. The Board ordered that Mr. Debly be allowed to cross-examine Mr. Brown on the second day of the hearing.

10Finally Mr. Debly stated he had information that two of the Registrar’s witnesses had been seen talking together. He planned to raise the matter when the witnesses testified.

Registrar’s Evidence

11Stephan Cutajar is a telecommunications technician. On Wednesday, March 26, 2008 he was surveying a roof at the Children’s Aid Society in Windsor. He does not know the area. He heard a loud crash coming from the front of the building. He was on the roof. He went to the edge and looked over and saw a white Ford pickup truck impaled on a sign pole. The pole was ten inches square and was in the centre of the truck’s hood.

12He heard nothing prior to the crash. The pole was thirty-five to forty feet from the curb and was on the front lawn of the Children’s Aid Society. It was about 1:30 a.m. He left the roof and went to the accident scene.

13The driver appeared to be in rough shape. He had ragged breathing. He had not been wearing a seatbelt. There was a strong odour of alcohol coming from both the driver and the vehicle.

14He then went over to the passenger who also had not been wearing a seatbelt. The passenger’s face had hit the windshield. The passenger smelled of alcohol. His eyes were red, he was disorientated and he had slurred speech. The passenger got out of the vehicle and lay down on the ground.

15He stayed with the passenger for four to five minutes. The passenger kept saying he had to go somewhere. He was only twelve to eighteen inches from the passenger.

16He believed that both occupants of the pickup were “hammered”. He used to work as a bartender and had taken SIPS training which was offered by the Liqour Control Board of Ontario. The driver wasn’t moving very much but he could tell he was “hammered” from the heavy odour of alcohol coming from him.

17On cross-examination he stated that both the passenger and the driver had a strong odour of alcohol.

18He was working at night because the business where he was working wanted the job done when the business was closed.

19Mr. Debly submitted Mr. Cutajar’s statement to the police which was entered as Exhibit #1.

20Mr. Debly asked Mr. Cutajar about the blankets they had for the victims. Mr. Cutajar said there were four other people with him and one of them got the blankets. Mr. Cutajar also said the statement was incorrect as he talked to the driver who was in the truck and not the passenger.

21There was a strong odour of alcohol emanating from the passenger and a light odour emanating from the driver. He believed that the passenger was more inebriated than the driver.

22The passenger kept saying that he wanted to leave but Mr. Cutajar did not know where he wanted to go.

23There was a lot of broken glass. There were broken beer bottles in the bed of the pickup. There were both full and empty bottles. He did not see any bottles inside the truck but he did not go inside it. He stated it was possible there were bottles inside the truck he did not see. There were broken beer bottles on the grass and sidewalk which he assumed came from the pickup.

24On re-direct he stated there was a case of beer in the bed portion of the pickup. There were empty and full bottles.

25Lindsay Bradley Jones is forty-four years of age and used to be a construction worker. He was the passenger in the pickup truck involved in the accident.

26He has not worked since the accident. He has problems with his neck, head and back. He has a lot of headaches. He had fifteen staples inserted in the top of his head. He was bedridden for weeks following the accident. He also has problems with his fingers and said they really don’t work.

27He knew Arnold Brown, the driver of the pickup truck, from working on a construction site as he did some work for him.

28On Tuesday, March 25, 2008, Mr. Brown came to his house around 2:00 p.m. or 2:15 p.m. Mr. Brown asked him to go and look at a demolition job with him. He went with him in Mr. Brown’s company truck. They went to a bar named Scores. They got there around 3:00 p.m. The owner was not there and they had to wait as Mr. Brown needed to see him. They had a couple of beers.

29They left around 5:00 p.m. It could have been 5:15 p.m. or 5:30 p.m. He doesn’t wear a watch. They went to a bar called Gatsby’s. It was a fifteen to twenty minute drive from Scores. Mr. Brown told him the owner of Gatsby’s owed him some money. They had two beers each and the owner came in and met with Mr. Brown in the owner’s office for about five minutes.

30Another man then came in and the three of them talked about construction and drank beer. They had seven or eight more beers each. The man’s wife came in to get him and told him he had enough to drink. The man warned Mr. Brown about drinking and driving before he left. He told Mr. Brown to leave his truck at the bar.

31They finished their beers and left around 11:00 p.m. They got in Mr. Brown’s truck. Mr. Brown was driving. They headed west. Mr. Brown said they were going to get some cold beer. Mr. Jones said he had had enough to drink.

32They went to Club T’ZERS which is an adult entertainment club. He thinks they got there about 11:25 p.m. or 11:30 p.m. He thinks they left Gatsby’s around 11:10 p.m. but his times “could be off”.

33Mr. Morris asked him if he gave a statement to the police a couple of days after the accident. He said he had but was very upset at the time and was having flashbacks. The statement indicated they got to Club T’ZERS around 11:50 p.m. Mr. Jones stated that could very well be the case.

34They went into Club T’ZERS. He could not remember if there was any staff at the door. Nobody stopped them and they went right to the bar and ordered a beer each. They were served by a young lady at the bar. They sat at the end of the bar. It was not real busy and there were about a dozen people there.

35They had four beers at Club T’ZERS. They bought them all from the same bartender. The bartender never refused to serve them until they were asked to leave. They were never offered water.

36There were some younger men playing pool. Mr. Brown went to the washroom at least three times. The men playing pool were getting upset as Mr. Brown was interrupting their pool game. The problems with the men at the pool table started when Mr. Brown went to the washroom after his first beer. He would stop and talk to the men. He told one of the men how to make a shot. Mr. Jones told Mr. Brown to leave the men alone.

37They were drinking their fourth beer when Mr. Brown went to the washroom and stopped to talk to the men again. Something was said. The bartender took their beers and told Mr. Brown and Mr. Jones they were cut off. A big doorman came over and told them to leave. The bartender walked them to the door and out onto the street. No one asked them how they were getting home.

38He told Mr. Brown they should take a cab but Mr. Brown said he needed his truck. Mr. Jones stated he made a bad decision and got in the truck with Mr. Brown. He blamed his bad judgement on his impairment as he had consumed a lot of alcohol. He could not get his seatbelt on and Mr. Brown told him to leave it alone.

39Mr. Brown was driving. He headed north on Drouillard Road. He went all the way to Riverside and turned left to go west. He was driving with one arm and his left arm was straight out. Mr. Jones heard a car honk its horn and a car went by and it was very close. Mr. Jones said, “What the hell are you doing?”

40Mr. Brown was staring straight ahead and Mr. Jones did not realize he was asleep. He slumped over to the side just before they hit the pole. Mr. Brown pulled the steering wheel over when he slumped to the left.

41Mr. Jones was unconscious after the accident. He came to and got out of the truck and fell down. He kept falling in and out of consciousness.

42On cross-examination he stated he left Scores at 5:15 p.m. or 5:30 p.m. and that it was getting dark. He said it was dark as it was overcast and raining that day. It would have been light if it had not been so cloudy.

43He spoke to Police Constable (“P.C.”) James Sonier on the morning of this hearing. He read over his statement. He also spoke to an Inspector from the Alcohol and Gaming Commission of Ontario (“AGCO”). He remembers giving the Inspector a statement.

44Mr. Debly submitted two documents. Exhibit # 2A is an inspection report, assignment code 466314, submitted by Inspector Kevin Holman on May 1, 2008. Exhibit # 2B is a photocopy of notes of a statement taken from Mr. Jones by Inspector Holman.

45Mr. Jones recognized the notes of his statement as he had initialled the pages. He did not recall the inspection report.

46Mr. Debly pointed out that according to the inspection report they were ejected from Club T’ZERS while drinking their third bottle of beer. Mr. Jones stated he could not remember the exact amount. It could have been three, four or five beers.

47Mr. Jones recalled an AGCO Inspector coming to his home in September 2008. Mr. Debly submitted a copy of a typed statement taken from Mr. Jones by Inspector Holman on September 25, 2008, Exhibit # 3.

48Mr. Jones stated they were never drinking in the vehicle. They left Club T’ZERS around 1:25 a.m. He does not wear a watch. He was certain he did not leave before 1:00 a.m. His statement stated he arrived at Club T’ZERS around midnight but he thinks it was around 11:15 p.m. or 11:30 p.m. He can’t be exact on the time.

49Mr. Debly submitted a Windsor Police Report dated April 29, 2008 which contains a statement from Mr. Jones taken by P.C. James Sonier, Exhibit # 4. Mr. Debly pointed out that in the statement Mr. Jones told Mr. Brown it was okay to go for a beer at Club T’ZERS. Mr. Jones said the statement was taken just after the accident. He said he did tell Mr. Brown he wanted to go home but he didn’t fight him about going to Club T’ZERS.

50He had four beers at Scores and eight to ten beers at Gatsby’s. He had three to four beers at Club T’ZERS.

51Mr. Debly submitted a Windsor Police report by P.C. Justin Talbot dated April 29, 2008, Exhibit # 5.

52Mr. Jones does not remember talking to police on the night of the accident due to his injuries. He denied he met Mr. Brown at Club T’ZERS as per the statement. He did not remember telling a police officer at the accident scene that he did not know how much Mr. Brown had to drink.

53He is not an alcoholic. He agreed he had thirteen to fourteen beers between 3:00 p.m. and 11:00 p.m. on the day in question. He normally doesn’t drink like that. He just has a beer from time to time. He stopped drinking to excess when his son was born in 1994.

54It takes him about twenty to twenty-five minutes to drink a beer.

55He was never at Whiskey Jacks that night and did not tell the bartender that he went there.

56P.C. Sonier told him he should get a lawyer. Mr. Jones would give any money he received as a result of the accident to Mothers Against Drunk Driving.

57Mr. Debly asked if he had brought any legal action against Mr. Brown. Mr. Morris objected and the Board ruled the question was not relevant.

58Mr. Jones agreed he had said Mr. Brown had three beers to drink for every two that he had to drink.

59On re-direct he stated it took about ten minutes to drive from Club T’ZERS to the scene of the accident. They did not go anywhere else after they left Club T’ZERS and did not have anything more to drink.

60Arnold Brown is 53 years of age and works with heavy equipment. He was involved in an accident on the night of March 25 – 26, 2008 and was charged with impaired driving. The matter has not been dealt with. He has retained counsel and his lawyer was aware he was appearing at this hearing.

61He met up with Mr. Jones on March 25, 2008. Mr. Jones asked him to pick him up at his house. They had previously worked together. Mr. Jones had called him to go and have a couple of beers.

62He arrived at Mr. Jones’ house between 3:00 p.m. and 4:00 p.m. He had two beers while he was there over a two hour period.

63They went to Fred’s Pet Store and then to Scores where he had one beer. They arrived at Scores around 6:00 p.m. They then went to Club T’ZERS and got there about 7:30 p.m. He only had three beers before they got to Club T’ZERS. He thinks somebody put something in his drink while he was at Club T’ZERS.

64They ordered a beer each from the girl behind the bar at Club T’ZERS when they first arrived. She did not ask them if they had been drinking and she did not offer them water. They sat in front of the stage. He drank the beer and ordered another beer from the bartender about forty-five minutes to an hour later. He drank the beer and ordered another one about an hour later. He got the beer from the bartender. Mr. Jones ordered them another beer while he was in the washroom but he never got to drink it.

65He got “in the way” of some people playing pool and he and Mr. Jones were asked to leave the premises. Mr. Jones asked them to call a taxi for them. They went outside and it was cold so they got in the truck. They waited for ten to fifteen minutes. They got tired of waiting and left. He thinks someone put something in his drink. He fell asleep and they hit the pole. He only remembers waking up in the hospital.

66He believes he had four or five beers at Club T’ZERS. Mr. Jones had the same amount to drink as he did. He did not know how much Mr. Jones had to drink before they got to Club T’ZERS.

67Justin Talbot has been a Police Constable with the Windsor Police Service since 2004. P.C. Talbot had made notes shortly after the incident and the Board allowed him to refer to them to refresh his memory, with the consent of the Licensee.

68He was working with P.C. Sasso when they were detailed to a single vehicle accident at the Children’s Aid Society at 1671 Riverside Drive East. They were sent at 1:43 a.m. on March 26, 2008. The location is a five minute drive from Club T’ZERS. They arrived at the accident scene five minutes after they were dispatched. They found a white F150 pickup which was almost wrapped around an eight inch pole. Firefighters and paramedics were already on scene when they arrived.

69Mr. Jones was laying twenty to twenty-five feet away from the pickup. He was bleeding from his head. There was a strong odour of alcohol on his breath. Mr. Jones stated he wanted to go home.

70There were broken beer bottles on the sidewalk behind the truck. There was a box of empty beer bottles in the bed area of the pickup truck. There was a large hole, about the size of a head, in the windshield on the passenger’s side.

71Mr. Brown was in the driver’s seat. He was semi-conscious. He was bleeding from the face. He had a strong odour of alcohol and glassy eyes. At 1:55 a.m. he formed the opinion that Mr. Brown’s ability to drive a motor vehicle was impaired by alcohol.

72The paramedics took Mr. Brown and Mr. Jones to the hospital. P.C. Sasso accompanied Mr. Brown to the hospital.

73P.C. Talbot stayed at the scene. There were no skid marks leading up to the accident scene. There were no beer bottles in the cab portion of the pickup truck.

74On cross-examination he stated there was a sliding rear window in the cab of the pickup that could be used to access the contents of the bed of the pickup. He did not recall if the windows of the pickup were open or closed.

75He believes the bottles on the grass came from the pickup truck.

76He was unable to compare the level of intoxication of Mr. Jones and Mr. Brown.

77Jim Sonier has been a Police Constable with the Windsor Police Service for nine years. P.C. Sonier had made notes shortly after the incident and the Board allowed him to refer to them to refresh his memory, with the consent of the Licensee.

78He is a technical traffic collision investigator and was called to the scene of the accident at 4:30 a.m. on March 26, 2008. He is a level three technical investigator. The Licensee agreed that he was an expert witness.

79He had no involvement with either the driver or the passenger that night.

80When he arrived at the scene he found a white F150 pickup on the front lawn of the Children’s Aid Society which had hit a pole. There was extensive damage to the front end of the truck.

81There were acceleration marks leading up to the scene of the accident. There was no indication of braking at any time.

82There was one open, half full bottle of beer in the cab of the pickup in the console between the driver’s and the passenger’s seat. There was a chip of glass missing from the mouth of the bottle. He was unable to locate the bottle cap. There was a moderate level of the smell of alcohol inside the vehicle.

83On cross-examination he stated either the passenger or the driver could have consumed from the bottle in the centre console.

84The odour of alcohol in the vehicle could have come from spillage from the bottle in the console.

85He took a statement from Mr. Jones who stated they had two beers at Club T’ZERS and were asked to leave before they finished their third beer.

86Henry Penner has been a Police Constable with the Windsor Police Service for six years. P.C. Penner had made notes shortly after the incident and the Board allowed him to refer to them to refresh his memory, with the consent of the Licensee.

87He is a qualified breathalyzer technician. On March 26, 2008 he was sent to the Hotel Dieu Hospital to conduct a breath test involving Mr. Brown. Mr. Brown’s attending physician advised P.C. Penner that he could not give Mr. Brown a breath test. The physician took blood samples from Mr. Brown and a search warrant for the test results of the samples was subsequently obtained.

88Mr. Brown was semi-conscious. His eyes were glassy and he had an odour of alcohol. He concluded Mr. Brown’s ability to operate a motor vehicle was impaired by alcohol.

89On cross-examination Mr. Debly submitted a Windsor Police Service Report, occurrence number 2008-18220, completed by P.C. Penner, Exhibit # 6.

90P.C. Penner saw one vial of blood withdrawn from Mr. Brown at 3:25 a.m. and saw the second vial of blood withdrawn at 3:30 a.m.

91Arnold Brown was called on the second day of the hearing but Mr. Debly declined to cross-examine him.

92Kathleen Henry has been a Police Constable with the Windsor Police Service for eighteen years. She works in the traffic office. P.C. Henry had made notes shortly after the incident and the Board allowed her to refer to them to refresh her memory, with the consent of the Licensee.

93Mr. Brown’s medical records showed he had a blood alcohol content of 63.5 millimoles per litre (“mmol/L”) from a blood sample taken from him at 2:21 a.m. on March 26, 2008.

94Mr. Jones’s medical records showed he had a blood alcohol content of 47.4 mmol/L from a blood sample taken from him at 2:31 a.m. on March 26, 2008.

95Mr. Brown weighed 86 kilograms and Mr. Jones’ weight was not obtained.

96On cross-examination she advised the body weight was obtained from the medical records.

97She completed the charge summary for Mr. Brown. She completed it from various reports and did not speak to anyone personally.

98Mr. Debly submitted the Windsor Police charge summary for Mr. Brown that was completed by P.C. Henry, Exhibit #7.

99She believes that she concluded from Mr. Jones’ statement that Mr. Jones and Mr. Brown went to Club T’ZERS and ordered two beers. P.C. Sonier’s report indicated Mr. Brown was bothering people and she interpreted that as meaning he was trying to pick a fight.

100Kevin John Holman has been an Inspector with the AGCO for three years. He had thirty-four years service with the Windsor Police Service prior to going to the AGCO.

101He received information about the accident on March 26, 2008. He went to Club T’ZERS on April 5 at 9:00 p.m. He spoke to Mr. Bodechon, the manager.

102Mr. Morris submitted a copy of Inspector Holman’s duty book which contained the statement of Mr. Bodechon, Exhibit # 8.

103In the statement Mr. Bodechon said that he was the manager of Club T’ZERS on March 25, 2008. Two men entered the club around 11:50 p.m. and sat at the bar. They ordered a beer from the bartender. She refused to serve them because they were both drunk. He had “seen them when they came in and it was obvious they were drunk. They were hammered”. He told the bartender to serve them water which she did. He spoke to them and they said they had been drinking at Whiskey Jacks. He said he would call them a taxi cab when they left but they said they lived nearby. They had two glasses of water each and tried to order a beer but they were refused service. The younger of the two men started a verbal argument blaming him for the fact that they were not being served. This argument continued by the pool table. The younger one pushed the older one into another patron playing pool. Mr. Bodechon asked them to leave and escorted them out of the bar with the help of another patron around 12:30 a.m. He last saw them “staggering” down the street. He had spoken to them at the bar and they told him they had been drinking at Whiskey Jacks prior to arriving at Club T’ZERS. They also told him they lived nearby and did not need a taxi.

104On cross-examination Inspector Holman stated he did not interview the bartender. He did not believe that he needed to as the manager was instructing the bartender what to do.

105He talked to Mr. Jones in September 2008.

106He never talked to Mr. Brown who did not return his telephone calls.

107He did not interview the person who was one of the two individuals pushed into at Club T’ZERS.

108He never contacted Whisky Jacks to see if Mr. Brown or Mr. Jones were there on the night in question.

109He never spoke to the staff at Gatsby’s or Scores but knows they were spoken to. He did not contact them as he was out of the country.

110He spoke to Mr. Jones by telephone on April 7, 2008 but he does not have notes of the conversation. He admitted there were several mistakes in his report of May 1 as some of the names were mixed up.

111He did not submit a report to the Registrar on Gatsby’s as he could not prove what occurred there.

112On re-direct he stated he was never contacted by anyone from Club T’ZERS. He stated that Mr. Bodechon never told him the two males were never at Club T’ZERS and he was under the firm belief that they were talking about the same two individuals.

113Jean-Paul Palmentier was called to give evidence.

114Mr. Morris submitted a statement of qualifications for Mr. Palmentier, Exhibit # 9. Mr. Palmentier is a Forensic Toxicologist at the Centre of Forensics Sciences. He performs analysis of body fluids/tissues for alcohol, drugs and poisons. He gives expert testimony in relation to the toxicology of drugs, alcohol and poison. He was recognized as an expert witness with the consent of the Licensee.

115Mr. Morris submitted correspondence to Registrar’s Counsel dated December 15, 2008 from Mr. Palmentier which was entered as Exhibit # 10. The correspondence concerned Mr. Arnold Brown, case file # 08-4027-JPP.

116Mr. Morris submitted correspondence to Registrar’s Counsel dated January 22, 2009 from Mr. Palmentier which was entered as Exhibit # 11. The correspondence concerned Mr. Arnold Brown, case file # 08-4027-JPP.

117Mr. Palmentier stated millimoles per litre are how the amount of alcohol concentration is measured in blood serum.

118The Criminal Code uses milligrams per 100 millilitres to measure blood alcohol concentration (“BAC”).

119Mr. Brown had a serum alcohol concentration of 63.5 mmol/L when the sample was taken at the hospital at 2:21 a.m. That indicates a BAC of 252 milligrams of alcohol in 100 millilitres of blood.

120A reading of 252 milligrams of alcohol in 100 millilitres of blood is approximately three times the legal limit for operating a motor vehicle under the Criminal Code.

121If the accident occurred at 1:35 a.m. Mr. Brown would have had a projected BAC of between 252 to 267 milligrams of alcohol in 100 millilitres of blood based on the following four assumptions:

• No large quantities of alcoholic beverages consumed shortly prior to the incident.
• No alcoholic beverages consumed after the incident and before the collection of the blood sample.
• A rate of elimination of alcohol from the blood, which may vary between 10 and 20 milligrams of alcohol in 100 millilitres of blood per hour.
• A two hour plateau applied to the lower elimination.

122Large quantities of alcoholic beverages would mean one or more bottles of beer.

123A half bottle of beer consumed just prior to the accident could make a difference.

124A plateau in the BAC represents a period of time where there is no significant change in the BAC due to the rate of absorption of alcohol into the body.

125Mr. Brown, with a projected BAC of between 252 to 267 milligrams of alcohol in 100 millilitres of blood, is associated with a beverage equivalent in their system at the time of the accident at approximately 1:35 a.m. of 11 to 11.5 bottles of beer (5% alcohol content).

126Mr. Brown would have had to consume approximately 15 ¾ to 20 ½ bottles of beer between 3:15 p.m. and 1:25 a.m. in order to achieve the detected BAC at 2:21 a.m.

127If Mr. Brown had been consuming alcoholic beverages from 3:15 p.m. to 11:50 p.m. and had no alcoholic beverages after 11:50 p.m. then he would have had a projected BAC of between 277 to 302 milligrams of alcohol in 100 millilitres of blood.

128If Mr. Brown started drinking alcoholic beverages at 3:15 p.m. and arrived at the bar at 11:50 p.m., then consumed 2 beers and leaves at 1:25 a.m. his BAC at 11:50 p.m. would have been 231 to 256 milligrams of alcohol in 100 millilitres of blood.

129If Mr. Brown consumed 4 beers between 3:00 p.m. and 5:30 p.m., 9 to 10 beers between 6:00 p.m. and 11:30 p.m., and 3 to 4 beers between 11:50 p.m. to 1:25 a.m. then his BAC at 1:25 a.m. would have been 184 to 288 milligrams of alcohol in 100 millilitres of blood.

130If Mr. Brown had consumed a half bottle of beer between 1:25 a.m. and 1:35 a.m. there would not have been a significant impact. At worse it would increase concentration by 11 mmol/L.

131If Mr. Brown consumed 2 beers at 3:15 p.m., 1 beer at Scores and 4 to 5 beers at Club T’ZERS for a total of 7 to 8 beers the BAC, assuming the lower end total of 7 beers, would have been between 0 and 58 mmol/L.

132The timing of the consumption of alcohol does not have an impact on calculations based on the scenarios that were presented.

133Mr. Jones had a serum alcohol concentration of 47.4 mmol/L which would be equivalent to a BAC of 188 milligrams of alcohol in 100 millilitres of blood which would be equivalent to 8.5 beers at 2:31 a.m. He would have had a projected BAC of between 188 and 207 milligrams of alcohol in 100 millilitres of blood at 1:35 a.m.

134If Mr. Jones started to consume alcoholic beverages at 3:15 p.m. and only had 2 beers after 11:50 p.m. then BAC his at 11:50 p.m. would have been between 171 to 198 milligrams of alcohol in 100 millilitres of blood.

135On cross-examination he stated his calculations were only as accurate as the accuracy of the information he receives.

136He received a case history of the events and a copy of the results for Mr. Brown’s blood tests which were taken in the hospital prior to this hearing. He received the time the sample was taken and the results for the sample. He did not know the name of the lab technician. He had no prior information for Mr. Jones prior to the start of this hearing.

137He relied upon the report that the blood was properly drawn and tested. Mr. Morris objected when Mr. Debly asked if there could have been an error. The Board ruled the question was speculative.

138The consumption of water would have no impact on the BAC. Drinking beer with a higher alcoholic content would impact the BAC.

139He is unable to testify to what type of alcohol (beer, wine or spirits) was consumed.

140He is unable to tell if alcoholic beverages were consumed in one hour or over a prolonged period of time. He is unable to tell if any alcohol was consumed by the two individuals at Club T’ZERS.

141On re-direct he stated if Mr. Brown had a higher rate of elimination than 20 that the results would not be affected but the projection would be impacted.

142If Mr. Brown had between 15 ¾ and 20 beers and if he had a higher rate of elimination, the lower end would not be impacted but the higher end would increase.

Licensee’s Evidence

143Tiffany Natywary currently is employed at Alibi’s Restaurant and Bar. She is a bartender and waitress and has been employed there since November 2008.

144She is Smart Serve trained. She used to work at Club T’ZERS but quit due to the hours as she was going to school. She worked there briefly as a waitress in 1994. She then started at Club T’ZERS again in September or October of 2000. She started working as a waitress and became a bartender. She worked as a bartender at Club T’ZERS for about eight years. She left Club T’ZERS in November 2008.

145She speaks to the bouncer if she needs someone removed from the premises. She looks for obvious signs of intoxication such as staggering, slurred speech and red glossy eyes. She follows the Smart Serve guidelines.

146The role of a bartender is to serve customers, monitor how much they drink and interact with them.

147She was working at Club T’ZERS on March 25, 2008. She worked the 7:00 p.m. to 2:30 a.m. shift on Tuesdays, Wednesdays and Thursdays. She worked the 12:00 p.m. to 7:00 p.m. shift on Fridays.

148Marc Bodechon was the manager on March 25, 2008. It was not very busy. There were only 12 to 18 people in the premises at any given time.

149The two gentlemen in question came in about midnight. They did not arrive at 7:00 p.m. or 7:30 p.m. or she would have noticed them as she started at 7:00 p.m.

150She was behind the bar when she first saw them. She keeps an eye on the door when she is working. They were staggering when they first came in. They were “drunk”. She thought that they were in their forties or fifties. They came up to the bar and tried to order a drink. She told them she was sorry but could not serve them.

151She asked them if they needed a taxi cab. One of them told her they didn’t need a cab. Marc Bodechon told her to give them a glass of water. They walked away from the bar with their water and went over to the area by the pool table. She assumed they hadn’t driven to Club T’ZERS as they were intoxicated.

152She has a pretty good recollection of the evening but she might have difficulty remembering tiny insignificant details. She knows the drinks that her customers order. “Fireman Joe” for example drinks Coor’s Light. “Fatman” drinks Lakeport draught.

153One of the gentleman came up to the bar a second time to try and get a drink. She told him she couldn’t serve him. He started to swear and called her a bitch. She told her manager what happened.

154She had served them water in a glass. She served them two glasses each about ten minutes apart.

155At one point one of the gentleman blamed the other one for not being served.

156She heard raised voices by the pool table when they left the bar area. Marc Bodechon was over there. She did not know what happened. The two gentlemen were escorted out of the bar about two minutes later. A customer helped Marc Bodechon escort them out. The customer’s name was Joe and he was a regular.

157Marc and Joe returned to the bar about fifteen minutes later. She asked Marc if everything was okay and Marc said that he had waited to make sure they did not get in a vehicle. He watched them walk down Drouillard until they got to the cemetery.

158They were escorted out about 20 to 30 minutes after they first arrived. They left at approximately 12:30 a.m.

159She worked the next day. Marc Bodechon asked her if she remembered the two gentlemen from the night before. He told her they were in an accident at the Children’s Aid building.

160There are bars between Club T’ZERS and the Children’s Aid building. They include Whiskey Jacks, Brown’s Lounge and the International Tavern which may still have been open.

161She was asked to write out a statement by Peter or Sherry who were managers at Club T’ZERS. This was a very long time after the incident. She was never asked for a statement by either the AGCO or the police. She does not know a Kevin Holman.

162She starts to do her inventory around 1:20 a.m. or 1:30 a.m. when she is working. She also does some of her cleaning. She starts her inventory around this time on 90% of her evenings. Last call is at 1:40 a.m. or 1:45 a.m. and the two gentlemen had left before then.

163She would not refer to their conduct as disorderly. Voices were raised but they did not put up a fight when they left.

164On cross-examination she stated Club T’ZERS is a strip club. They serve until 2:00 a.m. Serving is the priority over doing inventory. She does not recall exactly when she started doing her inventory on the night in question. It was a normal night and she did not keep any notes. A night does not stick out just because she asks someone to leave.

165She was told about the accident the next night but did not discuss it in any great detail. She realizes she could be liable. She assumed the owner of Club T’ZERS knew about the accident but she never discussed it with him. She never discussed the incident with Joe the patron who helped Marc Bodechon to remove the two men.

166She never made any notes about the incident until August 2008.

167She did not look at the clock when the two gentlemen left the club. The first time she thought about the time was when she did her affidavit.

168Mr. Morris then submitted her affidavit, dated August 22, 2008 which was entered as Exhibit # 12.

169She knew there was some sort of hearing going to be held when she filled out the affidavit. There is no mention of times in the affidavit. She never spoke to Marc Bodechon about times. She did not put times in the affidavit as she did not think it was relevant. There is nothing in the affidavit about the gentlemen walking to the cemetery.

170She took her Smart Serve course around 2003.

171She is not supposed to let intoxicated patrons into the premises.

172Club T’ZERS makes money from the sale of food, liquor and V.I.P. dances. They charge for bottled water but not for glasses of water.

173She did not know the two gentlemen in question. There was no staff at the door when they arrived. She agreed they were drunk. They were not served liquor. She did not see them served food nor did she see them have a lap dance. She told her manager they were drunk and they would not be allowed to have a lap dance. She also would not allow them to play pool.

174She agreed she could have asked them to leave right away.

175They could have had as many as three glasses of water.

176She said they were not causing any problems but agreed that one of them called her a “bitch”. Marc Bodechon asked them to leave very shortly afterwards.

177She agreed they were both “hammered” and that she served them two to three glasses of water in breakable glasses.

178On re-direct she stated she remembered what happened that night because she was told about the car accident the next day.

179In reply to questions from the Board she stated the other male came up behind the first male when he tried to order a second beer. She also stated she usually tells people to leave when they come in drunk. She would usually first tell the manager or the bouncer that she was going to tell someone to leave.

180Marc Bodechon now works at Studio Four. He worked as a manager at Club TZERS for a year and three months.

181Club TZERS had a day and a night manager. The role of the manager was to assess the amount of alcohol on the premises, make sure the staff and dancers were on duty and to meet and greet the customers and make sure there were happy.

182He worked on the evening of March 25, 2008. He recalls the two men coming into the club. They got there around 11:50 p.m.

183Mr. Debly attempted to file the witness’s affidavit and Mr. Morris objected and stated he might wish to cross-examine the witness on the affidavit. The witness stated he did not need the affidavit to refresh his memory and Mr. Debly withdrew his request to enter the affidavit as an exhibit.

184Mr. Bodechon stated he was at the end of the bar when the two men came in. They seemed to be holding each other and appeared to be friends. There were between 15 and 18 patrons in the bar when they came in.

185The two males were “slightly intoxicated” and “boisterous”. They went right to the bar and were talking louder than normal.

186They ordered two beers and Tiffany, the bartender, said she would give them water which he poured. He told the bartender that the two males looked “odd” before they ordered.

187They were there for a little while and started to get louder. He went over to make small talk and to see how drunk they were and if they needed a cab.

188They told him they had just walked over from Whiskey Jacks and they would be walking home and did not need a cab as they only lived a couple of blocks away.

189The protocol at Club T’ZERS is to first see how drunk customers are and to see if they need a cab.

190He continued to watch them and his other customers. The two males just sat there and talked. They had one glass of water each and then asked for a beer. They couldn’t be served as they were intoxicated. He told them it was a good thing they were drinking water as it would give them a chance to “sober up”.

191One of the two males went to the washroom. The remaining one tried to order a beer for the third time. The bartender refused to serve him. The other male returned and was upset and blamed the other male for the fact they were not being served.

192They were both “tipsy” and were wavering back and forth.

193One of the males bumped into the other one who fell back against the pool table and then bumped into another customer.

194At this point he told them it was time for them to leave and escorted them out. He was helped by Joe, a customer, and Mike who was the disc jockey.

195He stayed at the door and smoked a cigarette and made sure they did not fall into traffic. The two males were not “totally hammered”. He has removed customers in the past and they always watch to make sure they do not get into vehicles or try and re-enter the club through the other door.

196He stood outside for about seven minutes. He came in when his cigarette was finished and when he thought they were far enough away.

197He escorted them out a little bit before 12:30 a.m.

198There are several bars on Drouillard Road which include Whiskey Jacks, the International Tavern, Brown’s Lounge and Lucky’s. There could be more. They are all in the direction of Riverside Drive.

199He spoke to Inspector Holman on Saturday, April 5 in the office at Club T’ZERS. The Inspector asked him what happened on the night in question. The Inspector took notes in his note pad. He told him they came in and drank water, there was a slight scuffle at the pool table and they were escorted out.

200There was no disorderly conduct or any violence. He told the Inspector the two males looked “intoxicated and boisterous”. He never told the Inspector the males engaged in disorderly conduct.

201He spent half an hour with the Inspector. He told the Inspector that he did not say some of the things in his statement. The Inspector told him that it was just an abbreviation.

202The Inspector told him they would already have received notice if the bar was going to be charged.

203He told Inspector Holman the two men had told him they came from Whisky Jacks.

204He never spoke to Inspector Holman again.

205He let the two men remain in the bar as he wanted to gauge the situation. He wanted to find out if they needed a cab, had walked there or were waiting for friends.

206They were in the premises for about 20 minutes in total. He always keeps an eye on his watch as he has to check the cash register readings every 30 minutes.

207On cross-examination he stated he remembered the night in question because of the accident. He found out about the accident two days later. The day manager told him there was an accident. She did not tell him that the people came from Club T’ZERS. He found that out from Inspector Holman. He also might have heard it from someone else.

208He thinks he said something about the accident to the bartender Tiffany on the Thursday. He did not know the people who were involved were from Club T’ZERS. He assumed it was the two males because they were in the vicinity of the bar and said they lived a couple of blocks away.

209It is hard to remember small details. He was not looking at his watch when they came in and 11:50 p.m. is only an estimation.

210He had worked in the hospitality industry for about 6 months prior to the night in question. He did not have Smart Serve at the time.

211The licensed capacity of Club TZERS is 280.

212The policy is not to let drunks in the premises but sometimes you have to gauge them. It is hard to gauge two people when they are holding each other.

213He knew they were intoxicated after he talked to them.

214He knew they were intoxicated after they had walked in and been refused service by the bartender.

215He agreed that the word “hammered” means intoxicated. He does not normally use the word and denied using the word when he spoke to Inspector Holman.

216He knew that Mr. Holman was an Inspector and that he was going to take a statement from him. He assumed the statement was going to be in point form but agreed it was not in point form.

217He agreed it was an important statement. He read the statement over and signed it. He did not correct Inspector Holman on the use of the word hammered before he signed the statement.

218He asked them if they wanted a cab within three or four minutes of their arriving. He knew they were intoxicated at this time and told them they should get going soon.

219Mr. Morris then submitted the affidavit of Mr. Bodechon, Exhibit # 13. He agreed there was nothing in the affidavit about him telling them they should get going soon.

220They were not served alcoholic beverages or food. They never spent any money in the premises prior to being ejected.

221On re-direct he stated Inspector Holman never asked him if the statement was true before he signed it.

222He was unable to determine their state of intoxication until they reached the bar and he was able to talk to them. He let them stay as he needed to ensure they were not going to drive and wanted to make sure they were not waiting for friends.

223He knew they left before 12:30 a.m. because he had not checked the readings on the cash register and because the bartender had not started her inventory.

224In response to a question from the Board he stated the only time he directly told them to leave was when one of them bumped into the other customer.

Registrar’s Submissions

225There are two allegations. One is under subsection 45(1) of the O.Reg and the other under section 29 of the LLA.

226The Board will have to find the Licensee served the two males for a finding under section 29. The staff knew they were drunk. There is the evidence of Mr. Brown and Mr. Jones, and the Licensee’s version is lacking credibility.

227At a minimum subsection 45(1) of the O.Reg was breached. They were drunk when they came in and the staff let them stay for 30 minutes until they caused a problem.

228Mr. Morris proposed to deal with his submissions as follows:

• The time of the accident.
• The condition of Mr. Brown and Mr. Jones at the scene of the accident.
• The accident scene.
• The condition of Mr. Brown and Mr. Jones when they entered Club T’ZERS.
• The amount of beer served at Club T’ZERS to Mr. Brown and Mr. Jones.
• The explanations of Ms. Natywary and Mr. Bodechon.
• What time did the two men leave Club T’ZERS?

229The time of the accident was well established by Mr. Cutajar who said it occurred at 1:30 a.m. and by the police who arrived shortly after the fact.

230The police and Mr. Cutajar felt Mr. Jones and Mr. Brown were intoxicated at the accident scene. Mr. Cutajar stated Mr. Brown was “hammered”. P.C. Talbot stated Mr. Brown was impaired and listed signs of intoxication which included a strong odour of alcohol and glossy eyes. P.C. Penner noticed the same signs at the hospital.

231P.C. Sonier stated the vehicle did not brake prior to the accident and in fact accelerated into the sign. Mr. Jones testified Mr. Brown fell asleep prior to the accident and this is indirect evidence of intoxication.

232Mr. Cutajar stated Mr. Jones was intoxicated. He was disorientated, had red eyes and had slurred speech. Mr. Cutajar described him as “hammered” and more intoxicated than Mr. Brown. P.C. Talbot noted that Mr. Jones had a strong odour of alcohol, glossy eyes and was intoxicated.

233Some signs of intoxication could be attributed to the collision but this evidence is not in isolation of all the evidence.

234There was a question raised as to whether they were drinking in the truck prior to the accident. There were broken beer bottles on the sidewalk as a result of the accident. P.C. Talbot testified there were no bottles in the cab of the truck. P.C. Sonier testified there was a half empty bottle of beer in the cab and that the top of the bottle was chipped as a result of the accident. A half a bottle of beer would not make a difference according to the toxicologist.

235The staff at Club T’ZERS already admitted the men were drunk when they walked in the bar.

236The scene of the accident is a five minute drive from Club T’ZERS.

237Mr. Jones stated he and Mr. Brown drank about the same amount and that maybe Mr. Brown had more to drink. They had 4 beers each at Scores between 3:00 p.m. and 5:00 p.m. They had 2 beers each and then 7 to 8 more each at Gatsby’s between 6:00 p.m. and 11:00 p.m. A person even warned them not to drive. Finally they had 3 to 4 beers each at Club T’ZERS between 11:50 p.m. and 1:25 a.m. All of this totals 16 to 18 beers each. Mr. Jones estimated they had 13 to 14 beers to drink. The higher number is supported by the toxicologist.

238Ms. Natywary said Mr. Jones and Mr. Brown were intoxicated when they entered the bar. In cross-examination she admitted they were “hammered”.

239Mr. Bodechon stated they were slightly intoxicated when he testified in chief. On cross-examination he admitted they were intoxicated. He told Inspector Holman they were “hammered” and his explanation of the statement was untrue. Mr. Bodechon tried to mislead the Board and the Board should make a finding on that point.

240All of the different scenarios presented by Mr. Palmentier showed the two men were hammered when they arrived at Club T’ZERS. It is quite clear from the toxicologist’s evidence that Ms. Natywary’s admission is accurate.

241Mr. Brown stated they had two beers at Mr. Jones’ home between 3:00 p.m. and 4:00 p.m., 1 beer at Scores between 5:00 p.m. and 6:00 p.m. and 4 to 5 beers at Club T’ZERS for a total of 7 to 8 beers. He is currently facing charges of impaired driving and his story was totally untrue.

242Mr. Jones stated he had 3 to 4 beers at Club T’ZERS. He said he was not offered water. Mr. Jones was very frank with the Board and had no reason to make up a story. Mr. Brown supports this scenario. The evidence of Ms. Natywary and Mr. Bodechon is not credible and is ludicrous.

243Mr. Brown had no axe to grind with Club T’ZERS. He stated he had 4 -5 beers to drink there and was not offered water. He said he was never refused service and was only asked to leave when he interfered with the people at the pool table. There is no evidence of collusion between Mr. Brown and Mr. Jones.

244Mr. Brown tried to downplay the total amount of alcohol he had to drink. Mr. Brown did say he was served beer at Club T’ZERS and Mr. Delby chose not to cross-examine him.

245Mr. Bodechon and Ms. Natywary both testified you should not let drunks in an establishment. Both testified they knew both men were drunk when they walked in. Both acknowledge the two never ordered any food or any adult entertainment services. Both acknowledged that neither was a regular customer. They accepted a liability without any profit and that is not a credible explanation.

246Mr. Bodechon was lying when he stated he suggested earlier, prior to the incident at the pool table that they should leave. It is also not credible that Ms. Natywary told Mr. Bodechon to get them to leave after they called her a “bitch”.

247They arrived in an intoxicated condition on a slow night. They were served 3 to 4 beers and they were only asked to leave when they caused a problem with other customers.

248There was a question as to what time they left Club T’ZERS. Mr. Jones stated it was 5 minutes prior to the accident which Mr. Cutajar stated was at 1:30 a.m. Mr. Brown gave no evidence of the time and stated they waited for a cab which never arrived.

249Ms. Natywary says they left at 12:30 a.m. and this leaves an hour which is unaccounted for. None of Ms. Natywary`s statements include any times. She tells the time by her practice of when she does inventory. Mr. Bodechon does much the same with regards to his practice of taking cash register readings every 30 minutes.

250Mr. Bodechon knew how serious the matter was when he gave the statement to Inspector Holman. It was a blatant concoction. Ms. Natywary just repeated it.

251The bottom line is they let two patrons into the premises who were drunk and served them beer. They were ejected when they caused a problem. They then drove away and were involved in a serious accident.

Licensee’s Submissions

252The two main witnesses, Mr. Brown and Mr. Jones were very inconsistent. You would have to discount that both were drunk if Mr. Brown is to be believed.

253Mr. Jones stated to police (Exhibit # 5) that the last thing he remembered was going by the Hiram Walker plant and then waking up on the ground. Mr. Jones told P.C. Penner (Exhibit # 7) that he remembered Hiram Walker`s, the train station and yelling at Mr. Brown.

254Mr. Jones told P.C. Sonier (Exhibit # 4) that he agreed to go to Club T’ZERS with Mr. Brown. He told Inspector Holman (Exhibit # 3) that he wanted to go home as he was tired. Mr. Brown stated Mr. Jones insisted on going to Club T’ZERS.

255Mr. Brown does not mention going to Scores in his testimony. He stated they arrived at Club T’ZERS around 7:00 p.m. or 7:30 p.m.

256Mr. Jones told P.C. Talbot (Exhibit # 5) that he met Mr. Brown at the bar. Mr. Jones told P.C. Sonier they went to Club T’ZERS together (Exhibit # 4).

257At one point Mr. Jones stated he left the bar alone to go home and Mr. Brown drove up and offered him a ride (Exhibit # 5). However Mr. Jones told P.C. Sonier he made a mistake and got into the truck with Mr. Brown (Exhibit # 4).

258Mr. Jones told P.C. Talbot he was unsure how much Mr. Brown had to drink (Exhibit # 5).

259Mr. Cutajar stated Mr. Jones was more intoxicated than Mr. Brown (Exhibit # 1). However Mr. Jones told Inspector Holman that Mr. Brown out-drank him by two beers for every one that he consumed.

260Mr. Jones stated they each had a couple of beers to drink at Scores. Mr. Brown stated they only had one.

261Mr. Jones stated he had nothing to drink at his home. Mr. Brown arrived and they went to Scores arriving by 3:00 p.m. Mr. Brown stated they had a couple of beers at Mr. Jones’ residence. Mr. Jones arrived there at 3:00 p.m., they stayed for a couple of hours and then they went to a pet store.

262Mr. Jones stated he had 4 beers at Scores, 9 to 10 beers at Gatsby’s and 4 beers at Club T’ZERS for a total of 17 to 18 beers in 10 ½ hours from 3:00 p.m. to 1:30 a.m. He also stated he is not a drinker.

263Mr. Jones is unsure of times because he does not wear a watch. He said he arrived at Club TZER’s between 11:15 p.m. and 11:25 p.m. He admitted it could have been later. However he is sure of the time he left. He did state he was impaired and was not thinking right.

264Mr. Brown’s testimony is almost completely different from that of Mr. Jones.

265Mr. Brown stated he was a light drinker and he had 7 to 8 beers in a 10 1/2 hour time frame.

266There are also some inconsistencies with respect to the witnesses for the Licensee.

267Ms. Natywary said she spoke to Mr. Bodechon the next day about the accident. He thinks it was two days later. The witnesses are trying to remember details from over a year ago. The Registrar’s witnesses have inconsistencies in their statements that they gave two days following the incident.

268Mr. Bodechon stated he was uncomfortable with the wording that Inspector Holman used in his statement. Mr. Bodechon said he did not take the statement seriously as he thought it was just a general statement. He also felt Inspector Holmen condensed the statement.

269Mr. Bodechon was clear he told the men to leave prior to the incident at the pool table. There was no evidence this was not true.

270Mr. Bodechon was trying to find out where the men were going and how they were going to get there. The staff members behaved reasonably and were just trying to ensure the two men got home safely. They even watched them walk away for a couple of blocks.

271Both witnesses for the Licensee were consistent with their times. Ms. Natywary was clear she was not doing inventory so it could not have been later. Mr. Bodechon was watching the time because he had to do his readings from the cash register. They were both consistent it was not 1:30 a.m.

272Both Mr. Bodechon and Ms. Natywary were consistent that no alcohol was served. They were the sober ones and their evidence should be given more credibility.

273Inspector Holman stated the men drank throughout the day at different establishments but he ignores this and only focuses on Club T’ZERS. Inspector Holman does not talk to the bartender at Club T’ZERS and she was the person who could give the best evidence. At the very least a simple or cursory investigation should have been done of the other establishments. Inspector Holman had a presumption of guilt against Club T’ZERS.

274Inspector Holman made a number of mistakes in his report (Exhibit # 2A). He confused the driver and the passenger names. The report was shoddy and sloppy. Inspector Holman signed his own report complete with errors. Inspector Holman had 33 years of police service prior to going to the AGCO and more should have been expected of him.

275Mr. Jones was very inconsistent in his testimony. He stated the accident had an impact on his recollection and he tried to use that to his advantage. One cannot believe Mr. Jones’ account up until the accident and then discount anything after the accident because of his injuries.

276Mr. Brown does not even mention Gatsby’s in his evidence.

277Mr. Brown and Mr. Jones went to another bar after going to Club T’ZERS. They were not thinking correctly after all the alcohol they consumed.

278The witnesses for the Licensee are trained to make observations and should be taken more seriously.

279Mr. Delby stated there was little in the way of evidence of disorderly conduct. Mr. Morris stated he was not seeking a finding on this issue.

280Mr. Delby stated the two men were allowed to stay in the premises until it was safe to have them removed. Mr. Bodechon had warned them they should be going soon. They were only there for a half hour or slightly longer. The Licensee addressed public safety concerns and only gave them water.

281They could have consumed more alcohol after they left Club T’ZERS. They could have been drinking from the half bottle of beer found in the cab of the truck. The bottle may have been chipped as a result of the accident.

282Ms. Natywary and Mr. Bodechon acted responsibly and did everything they could once the two men were actually in the bar.

283Mr. Delby submitted an Ontario Superior Court of Justice (Divisional Court) decision on 1313963 Ontario Limited operating as SIN CITY BAR AND EATERY v. Registrar, Alcohol and Gaming Commission of Ontario. The court found that before concluding that a violation had occurred that the Board had to make findings on two essential elements, drunkenness and permission. A failure to make a finding on “permit” would be an error in law.

284Mr. Delby submitted an Ontario Superior Court of Justice (Divisional Court) decision on Horseshoe Valley and Resort Ltd. and Registrar of the Alcohol and Gaming Commission of Ontario. Mr. Delby then submitted the Alberta Supreme Court decision of R v. Pomerleau. Finally he submitted the Ontario District Court decision of R. v. Central House (Sault Ste. Marie) Ltd.

285Mr. Delby pointed out that the decisions show that the Board cannot look at drunkenness in isolation but must also look at reasonable steps taken by the Licensee. The evidence must be serious and overwhelming before a Licensee has serious ramifications on his premises. There should be no suspension in this matter.

Registrar’s Reply

286Exhibit # 5 does not contain a statement by Mr. Jones. It is a report prepared by the police. It was completed just after Mr. Jones was in an accident and he was disorientated. The Board should not apply very much weight to his remarks.

287There are inconsistencies between Mr. Brown and Mr. Jones. Mr. Brown is trying to blame Mr. Jones. He is trying to unload his responsibilities.

288It does not matter which one wanted to go to Club T’ZERS. What matters is what happened there.

289In Exhibit # 3 Mr. Jones makes a statement that Mr. Brown usually out-drinks him by two to one. Tolerance for alcohol can determine the level of intoxication.

290Mr. Debly’s contention that Mr. Jones was so drunk he could not remember what happened is evidence that a breach occurred.

291Mr. Debly spoke of some sort of conspiracy between Mr. Brown and Mr. Jones against Club T’ZERS. Mr. Jones clearly does not like Mr. Brown and blames him for the accident. Also, Mr. Debly never cross-examined on this point.

292Mr. Bodechon knew full well what the implications of his statement to Inspector Holman would be when he gave it. Mr. Bodechon never pointed out one thing in the statement that was false or left out other than the word “hammered”. Mr. Bodechon lied to the Board.

293It does not make any sense that Mr. Bodechon would allow them to stay just so he could assess their sobriety and how they got there. He knew they were drunk and he knew how they got there.

294They had to have left prior to 1:30 a.m. so the question of when inventory was commenced is irrelevant.

295Inspector Holman never said that no one from the AGCO ever went to the other bars to investigate. There was evidence that others did do this.

296Inspector Holman should not be criticized for confusing Mr. Brown and Mr. Jones in his report. It was a typographical error in a secondary document.

297Any thought that they went to another bar after leaving Club T’ZERS is pure speculation.

298Horseshoe Valley is a completely different fact situation. The principal subject in that decision did not attempt to order beer on three separate occasions. Steps were also taken by the staff in that case to ensure that the principal subject was quickly and safely removed.

299Sin City is also a different fact situation as the principal subject was only observed by an Inspector for 5 to 8 minutes and may not have come to the attention of staff during that time. The staff at Club T’ZERS was aware of the two men and in fact knew they were intoxicated.

300Pomerleau is a case from 1917 and is irrelevant. The law in Ontario does not require a person to get drunk in the establishment that is charged with permitting drunkenness.

301Central House follows Pomerleau and is also irrelevant as the law in Ontario does not require a person to get drunk in the establishment that is charged with permitting drunkenness.

Analysis/Reasons/Findings

302The Board has carefully considered all of the evidence and the submissions presented.

303There are two allegations in this case. The first involves an alleged violation of subsection 45(1) of the O.Reg made pursuant to the LLA and the second involves an alleged violation of section 29 of the LLA.

304The Board will deal with each allegation separately.

Subsection 45(1)

305This subsection reads as follows:

“The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.”

306There was no evidence of any gambling. Counsel for the Registrar was clear that he was not alleging any riotous, quarrelsome, violent or disorderly conduct. The question for the Board is whether the Licensee permitted drunkenness.

307It is clear both men were involved in a car accident at approximately 1:30 a.m. on March 26, 2008. Mr. Cutajar stated he believed both men were “hammered”. He described Mr. Brown as having a strong odour of alcohol. He described Mr. Jones as having red eyes, slurred speech and being disorientated.

308P.C. Talbot noted a strong odour of alcohol coming from Mr. Jones. He noted Mr. Brown had a strong odour of alcohol and had glassy eyes. He formed the opinion that Mr. Brown`s ability to drive a motor vehicle was impaired by alcohol.

309P.C. Sonier testified there were acceleration marks leading up to the scene of the accident and that there was no sign of braking.

310P.C. Penner noted Mr. Brown had an odour of alcohol and had red eyes. He also formed the opinion that Mr. Brown`s ability to drive a motor vehicle was impaired by alcohol.

311The toxicologist stated Mr. Brown, with a projected BAC of between 252 to 267 milligrams of alcohol in 100 millilitres of blood, is associated with a beverage equivalent in his system at the time of the accident at approximately 1:35 a.m. of 11 to 11.5 bottles of beer (5% alcohol content).

312The events prior to the accident are subject to inconsistencies from both the witnesses for the Registrar and the Licensee.

313Mr. Jones stated Mr. Brown arrived at his home between 2:00 p.m. and 2:15 p.m. They went to Scores around 3:00 p.m. where they each had two beers. They went to Gatsbys around 5:30 p.m. where they had between 9 and 11 beers. They then went to Club T’ZERS, arriving between 11:30 p.m. and 11:50 p.m., where they had 3 to 4 beers. They left in Mr. Browns truck. They did not stop anywhere and were involved in an accident when Mr. Brown fell asleep at the wheel.

314Mr. Brown gives a very different version. He went to Mr. Jones’ residence sometime after 3:00 p.m. He had two beers and they went to a pet store. They then went to Scores and arrived there around 6:00 p.m. He had one beer there. They went to Club T’ZERS around 7:00 or 7:30 where he had 4 to 5 beers before they left and were involved in the accident. Mr. Brown testified he felt that some type of drug was put in one of his drinks.

315Mr. Palmentier, the toxicologist testified Mr. Brown would have had to consume approximately 15 ¾ to 20 ½ bottles of beer between 3:15 p.m. and 1:25 a.m. in order to achieve the detected BAC at 2:21 a.m.

316Mr. Brown’s evidence of how many beers he consumed is clearly at odds with the findings of Mr. Palmentier. It is also not supported by the evidence of Mr. Jones. Mr. Brown was facing serious criminal charges as a result of the accident when he testified at the hearing. The Board does not attach any significant weight to the testimony of Mr. Brown given his pending criminal charges and his obvious interest in the outcome of this matter. The Board finds the evidence of Mr. Palmetier, who was accepted as an expert witness, to be much more reliable.

317It seems clear when one discounts Mr. Brown’s version of events that Mr. Brown and Mr. Jones arrived at Club T’ZERS shortly before midnight on March 25, 2008. Mr. Jones testified they arrived between 11:25 p.m. and 11:50 p.m. Ms. Natywary, the bartender, testified they arrived around midnight and stayed for 20 to 30 minutes. Mr. Bodechon, the manager, stated they arrived at 11:50 p.m. and were escorted out a little before 12:30 a.m.

318Mr. Jones testified they had 11 to 13 beers each before arriving at Club T’ZERS.

319The Board finds Ms. Natywary to be forthright in her testimony. She is an experienced bartender. She stated the men were “staggering” when they came in and were both “drunk”. She refused to serve them when they attempted to order a beer. In cross-examination she agreed they were “hammered”. She also gave evidence that the two males argued at one point, that one of them called her a “bitch” and that they were involved in some sort of an altercation before they were ejected.

320Mr. Bodechon stated he thought the males were “slightly intoxicated” and boisterous when they came in. He stated they were holding each other. He testified he went over to talk to them to see how drunk they were. He further described them as “tipsy” and “wavering back and forth”. He ejected them when one of the males bumped into another customer. He testified he watched them walk away, in part to ensure they did not fall into traffic.

321In cross-examination Mr. Bodechon admitted he knew the males were intoxicated after they walked in and were refused service by the bartender. He also knew they were intoxicated when he talked to them just after they came in.

322Inspector Holman testified Mr. Bodechon told him that he had “seen them when they came in and it was obvious they were drunk. They were hammered”. Mr. Bodechon denied using the word “hammered” when he gave his statement. Mr. Bodechon testified he signed the statement but did not think of the ramifications. The Board prefers the evidence of Inspector Holman who has no interest in the outcome of this hearing. The Board does not believe Mr. Bodechon regarding his alleged non-use of the word “hammered”. He signed the statement and in the Board’s view, really appreciated the importance of his statement.

323Based on all the evidence it is clear that Mr. Jones and Mr. Brown were drunk when they were at Club T’ZERS.

324The second point of the test is whether the Licensee permitted drunkenness as set out in the Court of Appeal decision of Sin City Bar. Mr. Brown testified they went to Club T’ZERS about 7:30 p.m., consumed 4 to 5 beers and would have left sometime after 1:00 a.m. Mr. Jones testified they went to Club T’ZERS and arrived between 11:30 p.m. and 11:50 p.m. where they had 3 to 4 beers. They would have left around 1:20 a.m. Both Mr. Bodechon and Ms. Natywary testified they were there for a shorter period of time and left by 12:30 a.m. Ms. Natywary stated they were there for 20 to 30 minutes. Mr. Bodechon stated they arrived at 11:50 p.m. and left a little bit before 12:30 a.m. It seems clear the two men were at Club T’ZERS for, at the very least, 20 to 30 minutes.

325It is also clear that Ms. Natywary knew both men were drunk as soon as they walked in. She immediately asked them if they needed a taxi and was told they did not need one. Her manager told her to serve them water. She admitted under cross-examination she is not supposed to let intoxicated patrons into the premises and she agreed she could have asked them to leave right away.

326Mr. Bodechon’s explanation is more difficult to comprehend. He stated the club’s protocol was to see how intoxicated patrons were and to offer them a taxi if necessary. It seems clear these questions were answered either immediately or at the very least, within a very few minutes of the two men entering the club. There was no logical explanation for allowing the two men to stay and staff clearly knew they were intoxicated.

327There was significant interaction between both men and the staff. There was evidence they attempted to order beer on three separate occasions. They were served 2 to 3 glasses of water. Both men had an argument in front of staff. One of the men called Ms. Natywary a bitch. They were not ejected until they became involved in an altercation with another customer.

328Mr. Debly asked the Board to consider the Divisional Court’s Sin City decision. The decision involved an AGCO Inspector who observed an intoxicated patron in a licensed premises for 5 to 8 minutes. There was a question of whether the Licensee in that case knew or ought to have known the patron was intoxicated. Clearly that is not the case in this matter as both staff knew the males were intoxicated but inexplicably allowed them to remain.

329Mr. Debly asked the Board to consider Horseshoe Valley. The staff in that case recognized the individual in question was drunk when she entered the bar and took steps to ensure she was not served alcohol. However, the staff also took steps to ensure that she was quickly and safely removed and this was not the case with what occurred at Club T’ZERS. No direct action was taken at Club T’ZERS until one of the two men became involved in an altercation with another patron.

330Mr. Debly also raised Pomerleau where the Alberta Supreme Court found that permitting drunkenness involved some action on the part of the Licensee to bring that state into existence. The Board agrees with Mr. Morris that this is not relevant as the law in Ontario does not require service of alcohol to make a finding of permitting drunkenness. There are two separate offences in Ontario, permitting drunkenness and serving an intoxicated person.

331Mr. Debly also asked the Board to consider Central House which follows Pomerleau. The facts in Central House are quite different as 2 of the 3 intoxicated persons were ejected prior to the arrival of police and the third intoxicated person entered the establishment while police were present. The staff at Club T’ZERS knew both Mr. Jones and Mr. Brown were intoxicated and allowed them to remain on the premises for at least 20 to 30 minutes before ejecting them when they became involved in an altercation.

332It seems clear based on all the evidence that both Mr. Jones and Mr. Brown were intoxicated, that staff knew they were intoxicated and that they were permitted by staff to remain on the premises.

Section 29

333This section reads as follows:

“No person shall sell or supply liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated”

334The Board has found that both Mr. Jones and Mr. Brown were intoxicated while they were at Club T’ZERS. The issue is whether they were sold or supplied with liquor while they were on the premises.

335Mr. Brown and Mr. Jones both gave evidence that they consumed beer at Club T’ZERS. However, there are too many substantive inconsistencies in their statements to allow the Board to use their statements to substantiate this assertion.

336It is clear that both were very intoxicated. Mr. Brown was facing serious criminal charges and had a real self-interest at the time he testified. The Board does not put a lot of weight in his testimony. Mr. Jones stated that his memory of the evening was impacted by the accident.

337The toxicologist can only confirm the amounts of alcohol that were consumed but not when and where alcohol was consumed.

338Ms. Natywary was very forthright that both males were intoxicated when they entered the club. She was also firm that she did not serve alcoholic beverages to them. The Board finds her to be a credible witness as she was clear, consistent and forthright and did not exaggerate or embellish. Mr. Bodechon was, in the opinion of the Board, evasive in parts of his testimony. However the Board believes him when he stated that neither male was served alcoholic beverages at the premises.

339The Board agrees with Mr. Morris that there was no reason to allow Mr. Jones and Mr. Brown to remain if they were not purchasing alcohol, food or entertainment. However, based on the balance of probabilities there is insufficient evidence for the Board to conclude that they were served or supplied liquor.

Conclusion

340Therefore, for the reasons given, the Board FINDS the Licensee violated subsection 45(1) of the O.Reg made pursuant to the LLA and the Board DISMISSES the alleged violation of section 29 of the LLA.

341The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his 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 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 16th DAY OF JULY, 2009