Registrar, Alcohol and Gaming Commission of Ontario v. 1443614 Ontario Inc., 2009 CanLII 47553

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-

1443614 Ontario Inc. O/A Tila Tequila Bar

Licensee

DECISION

Panel: S. Grace Kerr, Board Member Guy Maurice, Board Member

Decision Date: July 21, 2009

Hearing Location: Ottawa, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Joyce Taylor, Representative

1443614 Ontario Inc., Licensee ) Jerry Levitan, Representative

Authorities

Caselaw:

1197801 Ontario Inc. (c.o.b. Body English) (Re), [2008] O.A.G.C.D. No. 252

6161251 Canada Inc. (c.o.b. Shot House Pub) (Re), [2007] O.A.G.C.D. No. 496

516532 Ontario Ltd. (c.o.b. Jameson’s Restaurant) (Re), [2009] O.A.G.C.D. No. 64

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.)

Statutes:

Statutory Powers Procedures Act, R.S.O. 1990, S.22

Allegations

1. A hearing into a Notice of Proposal (“NOP”) number 16378 dated June 6, 2008 to suspend liquor licence number 805577 (the “Licence”) issued to 1443614 Ontario Inc. (the “Licensee”) operating as TILA TEQUILA BAR, 104-108 Clarence Street, Ottawa, Ontario, K1N 5P6 (the “establishment” or “premises”), on the basis of alleged violations of section 45.1 and subsection 45(1) of Ontario Regulation 719/90 (“O. Reg”) made pursuant to the Liquor Licence Act (“LLA”) was held on January 27, January 29 and April 7, 2009 in the City of Ottawa.

Decision

2. After considering all the evidence and submissions the Board DISMISSES the allegation that the Licensee breached subsection 45(1) of the O.Reg. Reasons follow.

Preliminary Matters

3. An order to exclude witnesses was made on consent.

4. On the second day the hearing, the Registrar advised that the allegations of a breach of section 45.1 of the O. Reg by the Licensee related to an alleged incident dated February 22, 2008 were being withdrawn. The Board accepted the withdrawal and proceeded to hear evidence with respect to the alleged incidents that took place on November 2 and 15, 2007 only.

Registrar’s Evidence

5. Police Constable Marco Carpigna of the Ottawa Police Service attended the establishment on November 15, 2007. On consent of the parties, he submitted his notes from that evening (Exhibit 1), which were undated.

6. P/C Carpigna stated that on that evening, four units were called to attend to intoxicated persons in an alleyway next to the establishment. Upon arrival he observed his Sergeant holding an intoxicated male against a wall. As this male was unable to communicate, a friend was responding on his behalf. P/C Carpigna detected a strong odour of alcohol on the male, and noted he was unsteady on his feet. It was learned from the friend that the male had been at the establishment and had consumed a lot of alcohol. The male had left the bar because he was not feeling well, and he fell just outside of the establishment, resulting in a laceration to his face. The friend did not say how long the male had been in the establishment, but said he had been “drinking there all night long”.

7. P/C Carpigna called paramedics to attend to the intoxicated male and treat the injury to his face. While the paramedics were with the intoxicated male, P/C Carpigna and another officer observed a female being carried out of the bar. The officer thought that the female was exhibiting signs of intoxication as she was passed out and emanated a strong odour of alcohol. From her Quebec driver’s licence, the female was identified as “MKB”. Her friends told the officer that she had been drinking at the bar all night. Given her condition, P/C Carpigna escorted the female to the ambulance to be looked after and where she began to vomit.

8. About then, the bar owner approached the officer and inquired about these two people, and their condition. He appeared concerned. He told P/C Carpigna he was having trouble managing alcohol in his bar, specifically with patrons smuggling alcohol into the bar. He advised that he was hiring extra door men to help sort out the problem.

9. P/C Carpigna stated that neither person was arrested as neither one had caused a disturbance and that both had been attended to by paramedics and then released to sober friends.

10. In cross-examination the witness stated that he had been called to the establishment by his Sergeant who had arrived first on the scene. He described the alleyway in question as near a cigar shop, and while in the vicinity of the establishment, it is not directly beside it. He believed the male’s friend who said the male had been inside the establishment, but conceded the friend may not have been telling the truth. The officer’s testimony was based on what the friend had said.

11. P/C Carpigna agreed that he did not know for sure that the male had been drinking inside the establishment and that he may have consumed alcohol in another establishment, may have taken drugs, and may have been turned away by the door staff at the establishment. P/C Carpigna stated that the laceration the male had sustained could have come from a fall, or alternatively, that something may have smashed on the male’s nose, which is where the laceration was located.

12. The officer also acknowledged that he did not know how much alcohol MKB may have consumed, whether she had anything to eat, if she was on medication or, if she had been in the establishment, how long she had been there. All of his information about MKB, except as indicated next, had come from MKB’s friend and he assumed she was telling the truth. P/C Carpigna stated that the paramedics who attended the female told him that the female was intoxicated, although this information is not noted in his notes.

13. P/C Carpigna also said that MKB was not with the paramedics for long before she was released to her friend. He saw her walk with her friends to a car, parked nearby, presumably to be brought home. The officer did not witness MKB vomiting, but was told of this by paramedics.

14. P/C Carpigna was positioned “close enough to touch” the male.

15. Mr. Mahmoud, the owner of the establishment, appeared genuinely concerned and was co-operative with the police. He did not recall asking Mr. Mahmoud, nor did he have in his notes that he asked him if either the male or MKB had been patrons of the establishment. P/C Carpigna assumed that these two people had been inside the establishment because of Mr. Mahmoud’s concern regarding their well-being.

16. He also did not recall whether the Licensee’s staff prevented the intoxicated male from entering the bar.

17. During his conversation with the officer, Mr. Mahmoud said that one night sometime earlier (i.e. not the night in question), his staff had found some bottles of alcohol in the bar that patrons had brought in. P/C Carpigna thought that this is what Mr. Mahmoud was talking about when he said that he was “having problems with patrons”. While P/C Carpigna and Mr. Mahmoud were talking, the officer was watching MKB being escorted to the car by her friends.

18. In re-examination, the officer was asked if the owner had mentioned anything about who called the police; he did not recall.

19. The Board asked the witness if the Licensee identified himself that evening. P/C Carpigna advised that he has known the Licensee from before. When Mr. Mahmoud approached the officer, he asked P/C Carpigna if the male and female persons were okay. He told Mr. Mahmoud that the patrons appeared intoxicated and asked him what was going on inside the bar. In response to the officer’s question, Mr. Mahmoud commented on the problems he was having with patrons smuggling alcohol into the establishment.

20. The witness did not obtain the name of the intoxicated male’s friend because he did not have time to do so.

21. P/C Brett Chisholm is a three year employee of the Ottawa Police Service. He is familiar with the establishment and attended the premises on November 2, 2007. Upon arrival, accompanied by P/C Andrascik of the Ottawa Police Service, he observed a female being removed from the bar. The female was yelling, screaming, and coughing up on the ground. Eventually, P/C Andrascik placed the female in a cruiser. The female continued screaming and spitting after being arrested. The female was dealt with mainly by P/C Andrascik.

22. After the arrest, P/C Chisholm took a statement (Exhibit 2) from Mr. Abel Nziramasanga, one of the bar staff. Essentially, Mr. Nziramasanga indicated that when the female was asked to leave the establishment by one of the doormen because it had closed she became abusive and spat on his shirt and trousers several times. The police were called as Mr. Nziramasanga feared that the female would cause damage or that he would catch a disease from her spitting on him. After taking the statement, P/C Chisholm was cleared from the call.

23. In cross-examination, P/C Chisholm explained that he was instructed to attend the establishment to investigate an assault and disturbance. He had attended the premises before the night in question, and had nothing negative to say about the operation.

24. In response to a question from the Board, P/C Chisholm advised he did not recall, nor did he have in his notes, the time he arrived on the scene.

25. P/C Stephanie Andrascik, a member of Ottawa Police Service since 2004, is familiar with the establishment and was present on November 2, 2007.

26. On November 2, 2007, P/C Andrascik responded to a dispatched call indicating that a disturbance had occurred at the establishment whereby a doorman had been assaulted by a patron. Upon arrival, she could hear a female screaming, yelling and swearing outside of the establishment. The female was pointing and screaming at a male security manager, identified as Abel Nziramasanga.

27. The female continued to scream and yell, causing a disturbance. Her conduct was extremely aggressive and, in the officer’s opinion, she displayed signs and symptoms of intoxication: a strong odour of alcohol, red and glassy eyes, and thick and deliberate speech. The female was assaultive towards the officer (by kicking her several times) when the officer tried to arrest her. She also attempted to flee into the street. The officer determined that, at that time, the female was a danger to herself and to others. P/C Andrascik took the female to the ground, put her in hand-cuffs, and then placed her in the cruiser where she continued to rant and rave.

28. P/C Andrascik stated that she has experience with people under the influence of drugs by virtue of her previous employment, and also has experience with persons under the influence of alcohol.

29. The officer testified that the intoxicated female patron, identified as “AK”, is familiar to the Ottawa Police and known for alcohol abuse.

30. P/C Andrascik was advised by Mr. Nziramasanga that AK had been found in the washroom of the establishment while he was doing his closing rounds. She had been asked several times to leave but had refused to do so and had spat on him several times. He had not sustained any physical injury; however, he was concerned about potentially contracting a disease from AK’s spit.

31. AK was arrested by the police and was brought to a cell block in the station, where she still exhibited signs of intoxication and violent behaviour. AK was held there until she was deemed sober and no longer posed a threat to herself or to others. She was charged with causing a disturbance by being drunk, assault (level 1), and resisting arrest.

32. In cross-examination, P/C Andrascik testified that she did not know how much AK had to drink inside the establishment. She has seen people under the influence of drugs and agreed that they can exhibit aggressive behaviour, depending on the drug or user. She agreed that “glassy eyes” can be an indication of drug use, too and that most people, when intoxicated, do not exhibit violent, aggressive behaviour. The officer stated that AK’s speech was “thick and deliberate”, and that she was speaking as if it took her a long time to formulate her words. AK’s speech was more drawn out than someone’s who is not under the influence of alcohol or drugs.

33. P/C Andrascik stated she was not certain if there was a flag in the OPS system re AK being an alcoholic: it may have been a flag regarding drug use. She did not have a copy of the report in that regard.

34. P/C Andrascik did not ask anyone from the establishment what AK had to drink on the night in question as P/C Chisholm interviewed Mr. Nziramasanga and took his statement.

35. In reply, P/C Andrascik testified that it is not uncommon for drunk people to behave aggressively.

36. In response to a question from the Board, the officer testified that the criminal charges against AK were withdrawn.

37. P/C Andrascik further informed the Board that she arrived at the establishment at 2:45 a.m. and read the cautions to AK at 3:00 a.m. The officer did not recall speaking to anyone else.

38. In response to questions arising from those of the Board, P/C Andrascik confirmed the bar was closed when the patron was found in the washroom, and that this patron did not want to leave.

39. Stephane Godard, an Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector since May 1994, is familiar with the establishment and attended there on January 31, 2008 to conduct an interview with Abel Nziramasanga (Exhibit 3). Inspector Godard confirmed that the report was written by her, and also that she had Mr. Nziramasanga, the interviewee, initial the bottom of each page. Inspector Godard asked Mr. Nziramasanga about the night of November 2nd, 2007 and the alleged incident that occurred then.

40. In that interview, Mr. Nziramasanga confirmed that he was employed at Tila Tequila as the head of security when, on the night in question, a female patron spat on him. He had seen this patron several times before. Earlier on the night in question, he had seen her dancing up on the riser in the main bar. When Inspector Godard asked Mr. Nziramasanga if the patron was intoxicated at the time, he replied “no”.

41. In cross-examination, Inspector Godard testified that Mr. Nziramasanga told her it was difficult to tell if the female patron was intoxicated at the end of the night when he saw her or she was simply bad-tempered. When asked if he observed any signs of intoxication from this patron, he stated that he suspected “she was on something”; she did not have slurred speech but did appear to be off-balance now and again. He was unable to determine if her eyes were glassy as he was not that close to her. He did not remember the patron exhibiting any other signs of intoxication.

Licensee’s Evidence

42. Abbas Mahmoud has been the manager and owner/operator of the establishment for seven years. He also owns the Brunswick House in Toronto as well as Tao nightclub in Ottawa and two magazines.

43. Mr. Mahmoud described the establishment as 6000 square feet in size. It is often used to entertain during special events and live shows. He employs approximately 60 persons at Tila Tequila, 14 of which are security staff. According to Mr. Mahmoud, the bar has an excellent record: there is no fighting, and they are very strict on dress code and monitoring intoxication. Three managers routinely walk from floor to floor. Mr. Mahmoud is in constant contact with staff inside who also watch for patrons who try to bring liquor into the establishment. He describes the establishment as a higher class bar. It faces Clarence Street where eight other bars are located. He is an on-hand operator, present from the time the bar opens until it closes.

44. On November 15, 2007, Mr. Mahmoud, who was present at the establishment, found business to be slower than normal. He saw a male, with blood on his face, walk by outside the establishment at about 12:30 a.m. Mr. Mahmoud testified that the man had not been in the establishment. He had been turned away by a doorman.

45. Mr. Mahmoud saw the man walk away into the alleyway where cars were parked. He was concerned for the male’s safety, so he walked over to him and tried to talk to him. The male was in very bad shape. Police drove by, were waved down, and were advised of the person’s condition, at which time an ambulance was called. He stayed with the man the whole time. After being seen by paramedics, the man was released.

46. When asked about telling a police officer that he was having problems with patrons bringing liquor into the establishment, Mr. Mahmoud denied having made such a comment. He said that he has never had to call police, that he takes great pride in what his establishment does and that the police have complimented him.

47. Mr. Mahmoud stated the intoxicated male would not have been allowed in his bar because of his intoxicated condition and appearance.

48. Mr. Mahmoud then saw a female. She said that it was her birthday, and that she was not feeling well and that something she ate had upset her. She left with her friend, walked down the street by herself towards where their car was parked.

49. In cross-examination, Mr. Mahmoud denied that he came out of the establishment after the police had already arrived. He maintained that he had stopped the staff sergeant (police officer), who then called the others, and that he had stayed with the male the entire time. He stated that the injured male was alone and not with a group of friends.

50. Mr. Mahmoud said that the first time he met the officer who testified at the hearing was at the hearing. He denied that the injured male had been inside the establishment, and tripped and fell after he left it. Mr. Mahmoud thought that the male could have been a vagrant, based on how he looked. According to Mr. Mahmoud, the male also looked like he had been beaten up; he had bruises around his eyes.

51. Mr. Mahmoud testified that he wrote his “will say” statement (Exhibit 4) about a year ago. It does not say that the male was refused entry because of what he was wearing. Neither does it say that the male was injured. It does say that he flagged the policeman and that he was called to the front door and that, upon arriving there, he noticed the injured male.

52. He did not see the female being brought out of his bar; he only saw her walk up to the ambulance. He denied that the female was being carried. If she had needed to be carried, his doormen would have done so as that is their “policy”. When he spoke with her afterwards, she said it was her birthday, and that maybe it was something she had eaten that made her sick.

53. Mr. Mahmoud denied that the police directed the female’s friends to carry her to the ambulance. She went into the ambulance and the paramedics let her go. The female was released right away. The statement made about her being passed out was incorrect. The matter involving the female occurred around 1:30 a.m.

54. Alain Michaud is an employee of the Federal Government, specifically Health Canada. He works at Tila Tequila on the weekends, and is also part owner of the bar. His duties are to manage and assign staff to various duties.

55. On November 2, 2007, he was present at 2:30 a.m. and heard a female shouting and screaming, and when he arrived at the women’s washrooms, he observed her behaving very aggressively towards Mr. Nziramasanga. The female was wearing jeans with holes in them. He did not observe her to show any of the “five signs of intoxication”. She was holding onto the sink. He concluded that she did not want to leave the establishment but wanted to sleep there. He advised the doorman to call the police for their own safety.

56. Mr. Michaud thought the female was on narcotics as he had “never seen a woman that aggressive towards a big doorman”. She was shouting “Don’t touch me, I want to stay”.

57. In cross-examination Mr. Michaud stated that he could only assume the female planned on staying in the establishment for the night.

58. Mr. Michaud confirmed that the establishment has a capacity of 543 persons, and that he has owned approximately 10% of the business for 3 years but is not named on the liquor licence.

59. In referring to his will-say statement, the witness confirmed that his statement did not contain any details about the female being in the washroom because he was simply told to provide a quick summary of what happened that evening. The incident started when there were still other patrons in the establishment.

60. In answer to a question from the Board, Mr. Michaud stated he was 3 – 4 feet away from the female. There was no odour of alcohol on her person, but her eyes were red. She did not slur her words, but they were “unprofessional”. To Mr. Michaud, the signs of intoxication are: loss of balance, slurred speech, red eyes, aggressiveness and diminished motor skills. Once the police arrived and he saw that they had the female under control, Mr. Michaud left the area.

61. Andy Stronach is a manager at Tila Tequila, and has been so employed for 6 ½ years. After closing on November 2, 2007, Mr. Stronach and Al Michaud, a doorman at Tila Tequila, saw a female leaning against a sink in the washroom of the establishment. When Mr. Michaud asked the female if she was OK, she became very verbally aggressive. Mr. Stronach, who was approximately two feet from the female, stated that she did not smell of alcohol but she appeared to be under the influence of “something else, like a narcotic”. The doorman called police.

62. Mr. Stronach said that the female did not fall. She did not say why she wanted to stay; she was just refusing to leave the bathroom. Mr. Stronach felt better having police present because he did not want to “overstep (his) bounds”.

63. In cross-examination the witness stated that he is usually the last to leave and checks all of the washrooms as part of his routine of “checking everything from start to finish”. He did not discover the female; rather, a doorman (who is no longer employed by the establishment) brought the female to his attention. She was removed from the washroom, located near the front door of the bar, once police arrived. He did not know how long she had been there. Mr. Stronach had not seen her before this incident, nor has he seen her since. Mr. Stronach has no medical training to support his statement that the female was on some sort of narcotic.

64. In re-directed questioning, Mr. Stronach stated that from his observations of the female, her behaviour was not alcohol related but narcotics related. Typically, intoxicated patrons have problems walking, and have slurred speech but the female was able to walk and speak without difficulty. He has been taught (from his Smart Serve training) and knows the signs of intoxication as compared to narcotics.

65. In response to questions arising from those of the Board, Mr. Stronach testified that the female was actively resisting attempts of security staff to escort her out of the establishment. Otherwise there was nothing about her dress or appearance that stood her apart from the other patrons.

Registrar’s Submissions

66. Ms Taylor submitted that the Licensee permitted drunkenness on two occasions: November 2, 2007 and November 15, 2007.

67. In respect of the November 2, 2007 allegations, the Registrar urged that the police officers were in the best position to assess the patron in question.

68. Constable Stephanie Andrascik had close contact with the female when she was on the ground and noted a strong odour of alcohol on the female as well as glossy, red eyes and slurred speech. The female patron was aggressive and kicked the officer several times. The female is also known for her alcohol use in the area where the establishment is located. The female was arrested and taken to the police station until she was deemed to be sober and no longer posed a threat to herself or to others, and was subsequently charged with causing a disturbance, assault and resisting arrest.

69. The Licensee’s witnesses suggested that the female’s behaviour may have been due to the use of drugs; however, the Board heard evidence that she emanated a strong odour of alcohol. Though there is no evidence with respect to how much alcohol she may have consumed, there was evidence that she exhibited clear signs of intoxication and also that she was exhibiting aggressive behaviour and acting in a quarrelsome, violent and disorderly manner. All of this constitutes a breach of subsection 45(1) of the O. Reg. Whether the female’s state was due to the consumption of just alcohol or alcohol and drugs is irrelevant, the Registrar urges; the point is that she was showing signs of intoxication.

70. At page 2 in Exhibit 3, Mr. Nziramasanga’s statement, he says that he had seen the female in the bar several times before as well as on the night in question. While it was hard for him to say if she was just a bad-tempered female or drunk and he was not close enough to see if her eyes were glassy, P/C Andrascik clearly could tell, and ended up arresting the female.

71. The viva voce as well as “will say” evidence of the Licensee’s witnesses, namely, Alain Michaud and Andy Stronach, is inconsistent and should not be relied upon. For example, Mr. Michaud described the female as being dirty, almost a vagrant whereas Mr. Stronach indicated there was nothing to distinguish her from other patrons in the establishment. By way of further example, Mr. Michaud’s “will say” statement makes no reference to him being in the washroom. Mr. Stronach’s “will say” statement says that he entered the washroom as part of his closing duties whereas at the hearing he testified that he was called down to the women’s washroom.

72. Given the degree and extent of inconsistencies, the Registrar argues that Mr. Michaud’s and Mr. Stronach’s evidence cannot be relied upon where it conflicts with that of the police officers.

73. The Registrar submits that the evidence is clear that the female was in the establishment, and from Mr. Nziramasanga’s statement, that she had been in the establishment that evening as a patron. Since the regulations clearly state: the “licence holder shall not permit drunkenness,… riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the areas under the exclusive control of the licence holder”, the Licensee breached subsection 45(1) of the O.Reg.

74. In respect of November 15, 2007, Mr. Mahmoud’s evidence is inconsistent with his “will say” statement. In his testimony he indicated he had seen a male coming down the street and looking into the establishment, yet his statement said he was called to the front door by security staff and the male was already at the front door.

75. Furthermore, Mr. Mahmoud’s statement claims he was concerned the male was going to become a drunk driver, yet in his testimony he said that he waved police down because the man was in bad shape and had been beaten. This conflicts with P/C Carpigna’s evidence which indicated that Mr. Mahmoud did not arrive at the scene until both patrons were with paramedics.

76. P/C Carpigna had not seen Mr. Mahmoud in the alleyway when they had to hold the male up. And Mr. Mahmoud was not there when Cst. Carpigna spoke with the friends of the injured male who informed the constable that he had been in the establishment all evening and had consumed a good amount of alcohol and left because the injured man felt sick.

77. P/C Carpigna testified to seeing extreme signs of intoxication in the injured male: he was unable to communicate, there was a strong odour of alcohol, saliva was dripping from his mouth, he was very unsteady on his feet and had to be propped up against a wall, and he had lost his footing as he was leaving the establishment and collapsed outside, which caused the lacerations to his face.

78. P/C Carpigna was clear in recounting his conversation with Mr. Mahmoud that both the injured male and the sick female had been patrons of the establishment. This also explains Mr. Mahmoud’s comment that he was having trouble with patrons smuggling alcohol into the establishment, that he had hired more bouncers but it had not helped, and that it was hard to get consistent, good help.

79. P/C Carpigna observed a female being carried out of the establishment by two of her friends; she was passed out and had a strong odour of alcohol about her. Her friends said she had been drinking all night. She could not walk, had to be escorted to the ambulance where she vomited. The paramedics confirmed she was intoxicated, and had to be escorted to a car located across the street and placed in the front seat.

80. Given the inconsistency between Mr. Mahmoud’s evidence with respect to the events of November 15th and his statement provided as part of the defence disclosure, the Registrar asks the Board to prefer the officer’s evidence over that of Mr. Mahmoud. There is sufficient circumstantial evidence that the Licensee permitted drunkenness, breaching subsection 45(1) of the O. Reg. The Registrar, therefore, seeks findings in relation to both incidents/dates.

81. The Registrar also relies on the Board’s reasons in the Shot House Pub and Body English cases in support of its position.

Licensee’s Submissions

82. In respect of the alleged November 2, 2007 incident, the Licensee’s counsel submits that there was a strain of consistency to all of the witnesses’ evidence. The classic signs of intoxication were not present that night in respect of the female patron. The establishment it is located in a busy tourist and entertainment area, where thousands of people come and go by regularly. There are vagrants, alleyways and a market in the area.

83. On this date and at closing time, a woman was found in a bathroom. She was not vomiting or staggering and did not have slurred speech, but wanted to stay. On the balance of probabilities, one could conclude that she was a vagrant and wanted to spend the night in the bathroom stall.

84. P/C Andrascik testified that the woman was yelling, screaming, acting very aggressively and displaying several signs of intoxication, including a strong odour of alcohol, red eyes, and thick speech. And, while the constable testified in chief that the OPS had red-flagged the woman as an alcoholic, she admitted in cross-examination that it could have been for drug use. In any event, the police report in that regard was not disclosed at the hearing.

85. The Licensee argues that the best the Registrar can say is that this female was consuming some alcohol. Just because someone is quarrelsome or aggressive does not mean it is the Licensee’s fault. And just because someone consumed alcohol in a licensed establishment does not mean they were intoxicated. In this case, none of the “big” signs of intoxication (i.e. staggering, slurred speech) were present. The best signs indicate that this female was either on drugs or suffered from a mental illness.

86. Furthermore, none of the foregoing means that the Licensee permitted drunkenness. Besides, who called the police? The Licensee’s staff did and, in doing so, they were acting as a responsible and prudent licence holder.

87. Also, while the Registrar would like the Board to believe the Licensee’s two witnesses gave inconsistent viva voce evidence over their “will say” statements, there are no guidelines as to how brief, extensive or detailed a “will say” statement has to be. What’s more, the Board’s Rules of Practice provided a remedy if the Registrar felt the “will say” statements were insufficient: they could have asked for a more detailed statement and/or requested the opportunity to examine the witness before the hearing. The Registrar did neither one.

88. Besides, Alain Michaud was clear and straightforward in his testimony. He heard the female patron yelling, came down to investigate, and said he has never seen a woman behave in such a manner before. He thought she was a vagrant based on how she was dressed and looked. He did not see her to fall or stumble or hear her speech to be slurred.

89. Andy Stronach’s evidence was also very clear. He heard the commotion, came down and also saw the woman in the washroom. He did not hear her slur her speech, saw that she was able to walk straight and spoke without difficulty. Further, the witness knows the indicia of intoxication to see them, being Smart Serve certified.

90. Finally, the Registrar could have tendered reply evidence on what the woman was charged with and what the outcome of those charges were, but did not do so. Thus, the best that the Board can and should conclude is that the incident of November 2, 2007 was simply a bizarre situation.

91. The Licensee’s counsel urges the Board to distinguish the facts of this case from those in the recent Jameson’s Restaurant decision of the Board. In that case, there were strong signs of intoxication in the patron whom people saw drinking in the establishment. Further, the evidence was that the staff in that case did nothing to intervene and deal with the intoxicated patron.

92. As regards the alleged incident that occurred the night of November 15, 2007, the Licensee submits that there is no evidence before the Board of any consequence or significance to allow it to conclude that the injured male was in the establishment. The only evidence is a reference in P/C Carpigna’s notes about a friend who spoke on behalf of the intoxicated male. Of note, that friend was not called as a witness. The Board should not take the unnamed person’s statement as proof on the balance of probabilities as it cannot be tested. The Board could equally conclude that the fellow had just been beaten up and robbed the bloodied fellow.

93. The Registrar tries to fault Mr. Mahmoud by alleging that his viva voce testimony and “will say” evidence are inconsistent. For example, the Registrar argues that, based on P/C Carpigna’s testimony, Mr. Mahmoud did not arrive until the paramedics arrived, but that may just have been when the officer first saw him. Rather, Mr. Mahmoud’s testimony is that he got to be outside because he was called there by his security staff. This makes sense since it was Mr. Mahmoud who called the police and P/C Carpigna was the last one to get there. Where are the other officers’ notes and evidence, the Licensee queries? Why were those notes not provided? Why were the officers not called as witnesses?

94. Mr. Mahmoud’s clear evidence is that he saw a fellow who appeared to be a vagrant outside of the establishment and thought the fellow was intoxicated. The issue, though, is did he become intoxicated while at the licensed establishment? The Licensee submits that is not the case. Rather, Mr. Mahmoud acted as a “good Samaritan” and a responsible owner by calling the police. Someone does not become a patron of an establishment just because an owner of one asks how an injured person is doing. That is just acting with humanity and decency.

95. Mr. Mahmoud denies that he said that he was having troubles with patrons smuggling alcohol into the establishment. Alternatively, if the Board believes that he said it, the Licensee asks why would someone with Mr. Mahmoud’s reputation and experience say something like that to the police?

96. The Licensee submits that the Shot House and Body English cases are distinguishable on their facts from the case before the Board.

97. Next, regarding the female who was with her friends, the evidence supports the conclusion that she was being assisted out of the establishment. The evidence as to the degree of assistance is disputable. The question is whether the female was intoxicated or simply sick?

98. If the female was carried out because she was passed out, it stretches credibility that, minutes later, she was walking down the street and/or able to do so. If she was that intoxicated, she should have gone to the hospital. Mr. Mahmoud spoke to her and her friends and the female said that it must have been something she ate. Again, while she probably had something to drink at the establishment that does not mean that she was intoxicated.

99. No paramedics were called to testify and no related reports were filed to support a conclusion that the female was intoxicated. Just because the officer said so does not mean that is true.

100. There was no evidence that the female was staggering or falling when she walked away from the paramedic’s vehicle.

101. The Board cannot conclude on the balance of probabilities that the female was ill because she was intoxicated or that she was ill because of what she drank while inside the establishment.

102. In both of these incidents (on November 15, 2007), Mr. Mahmoud called the police. In both of these cases, he was dealing with it. In other words, in both incidents, the Registrar has not made its case that there were violations of subsection 45(1) or section 45.1 of the O. Reg. In fact the evidence is that the Licensee did the opposite; they not only took reasonable efforts, but laudable efforts to deter drunkenness.

Reply Submissions

103. The Registrar submits that in this case, like in the Body English case, the Licensee’s efforts to “deal with it” were “too little, too late”. Mr. Mahmoud had the names of all of the drunken patrons, therefore he was in a position to defend himself against the claims of permitting drunkenness. Also, there is no evidence to support the Licensee’s allegations that the female patron was sick; the paramedics confirmed that she was drunk. Further, there is no evidence that all patrons who become drunk in a bar are hospitalized.

104. As well, the Registrar argues that if she had tendered documents from the paramedics in reply, the accusation would flow that the Registrar was splitting its case. Therefore, the Board should draw no conclusions from that argument.

105. P/C Carpigna was not cross-examined as to what Mr. Mahmoud told him and as to when Mr. Mahmoud first came on the scene. If the Licensee has contrary evidence, they have the obligation to put it to the officer, particularly where there was nothing in its disclosure to indicate that this is going to be the Licensee’s position.

106. P/C Carpigna’s evidence is that the male was drinking inside the establishment and that he was so drunk he could not communicate. Not only did the injured man’s friend tell police that they had been in the establishment all night drinking until the injured man got sick, he told police that the man tripped and scraped his face. Also, Mr. Mahmoud’s behaviour confirmed what the friend told P/C Carpigna, that the unconscious man had been a patron of the establishment.

107. As to the alleged November 2, 2007 incident, it is incorrect to say that the female walked out of the establishment of her own volition. She was under the control of security staff who were trying to escort her out, and she was not coming willingly. Mr. Stronach confirmed that the bouncer had a hold of her. And just because Mr. Michaud thought her behaviour was bizarre does not mean that P/C Andrascik’s evidence is wrong; rather, she was closest to the patron and had the most involvement with her and concluded the female was highly intoxicated.

108. Further, P/C Andrascik testified that the charges against this woman were withdrawn after she turned herself in on another warrant; this does not determine whether or not she was drunk on that night. There is no evidence that the patron was hiding in the washroom or that she wanted to sleep there. There is not consistent evidence that she was some kind of vagrant: Mr. Stronach and Mr. Michaud’s evidence conflicts on this point.

109. To the extent that either Mr. Stronach or Mr. Michaud (or both of them) left something substantial or crucial out of their “will say” statements, the Registrar urges that this goes to their credibility. The Registrar is taking issue with the larger omissions in the “will say” statements of these two witnesses.

Analysis/Reasons/Findings

110. The Board carefully reviewed and considered the evidence and written submissions received from counsel for the Registrar and counsel for the Licensee. It declines to make findings with respect to either of the two alleged incidents, for the following reasons.

Regarding the November 2, 2007 incident

111. For a finding under subsection 45(1) of the O. Reg, the evidence must first demonstrate, on the balance of probabilities, that the patron of the establishment was drunk while there. Next, the Board must find that the establishment “permitted” the drunkenness. In this case, both parts of this two-pronged test fail.

112. First, the Registrar must prove that the patron in question was drunk, but has failed to do so in this case on the balance of probabilities. To that end the Board has assessed and weighed the conflicting viva voce evidence of P/C Andrascik and the two staff persons, Mssrs. Michaud and Stronach, and the (Exhibit 3) statement of Mr. Nziramasanga.

113. The main witness on behalf of the Registrar, P/C Andrascik, concluded, based on her professional experience, that the female (AK) in question was severely intoxicated. She observed AK to exude a strong odour of alcohol, and have red and glassy eyes as well as thick and deliberate speech. During examination in chief, P/C Andrascik stated that the woman was known to Ottawa Police for alcohol abuse.

114. Unfortunately, the officer’s testimony suffered from the fact that she acknowledged in cross-examination that the police “flag” could have been for drug use; she was not certain and no report in that regard was tendered by the Registrar. As well, P/C Andrascik did not interview anyone from the establishment to determine if or what AK may have had to drink in the establishment on the night in question. Finally, she acknowledged that some of the behaviours that AK was showing, such as the “glassy eyes” and violent and aggressive behaviour could also be indicative of someone being under the influence of drugs.

115. Furthermore, the Board accepts the oral testimony of the Licensee’s witnesses, Mr. Michaud and Mr. Stronach. Mr. Michaud, who was 3 – 4 feet away from AK did not detect an odour of alcohol on her, nor did Mr. Stronach, who was about 2 feet away from her. Their evidence is also consistent in that both of them observed her to walk without difficulty.

116. In Mr. Nziramasanga’s statement, when asked by police if AK was intoxicated, he answered at first in the negative. When asked if she was intoxicated when he saw her at the end of the night, he said that it was “hard to say if she is just a bad tempered woman or drunk”. When asked if he observed any signs of intoxication with this patron, he answered “I suspected she was on something. Kind of hard to say what it could be”. He denied that she had slurred speech and said that she was off balance “now and again”. He did not remember any other signs of intoxication.

117. The evidence of Mssrs. Michaud and Stronach agreed with that of P/C Andrascik in that AK was being extremely verbally aggressive towards the men as well as the police officer and that she had been determinedly refusing to leave the establishment.

118. All of this evidence is inconclusive on the issue of whether or not AK was drunk in the premises. As a result, the Board cannot decide, on the balance of probabilities, that AK was drunk in the establishment.

119. Even if the Board is incorrect in concluding that AK was not drunk, it nevertheless concludes that the allegations against the Licensee must fail because the Registrar has also failed to prove the second prong of the test for a finding under subsection 45(1) of the O. Reg. That is, the Registrar has not proven, on the balance of probabilities, that the Licensee “permitted” AK’s intoxicated state. Specifically, it must determine whether the Licensee “knew or ought to have known” that drunkenness was occurring in the premises (1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission) (hereinafter “the Sin City decision”). The Board declines to make that finding.

120. While the Board accepts Mr. Nziramasanga’s statement which indicates that he had seen AK in the establishment earlier in the evening, dancing on a riser, this evidence alone is not conclusive proof that she had become intoxicated on the premises. There is no evidence before the Board that proves that AK had consumed alcohol in the premises on the night in question. In fact, all of the evidence supports the conclusion that in the course of properly performing a sweep of the premises at the close of business one staff member located AK in the washroom area. Then, in trying to remove her from there, she became verbally and physically assaultive towards them which, in turn, brought the involvement of Mssrs. Nziramasanga, Michaud and Stronach. Properly fearing for their own as well as the patron’s safety given AK’s erratic and bizarre behaviour, police were called.

121. In other words, on this evidence it would not be proper for the Board to conclude that the Licensee either “knew” or “ought to have” known that AK was drunk, which in any event the Board does not find.

122. Based on the facts of this case and for all of these reasons, the Board DISMISSES the allegation that the Licensee permitted drunkenness on its premises on the night of November 2, 2007.

Regarding the November 15, 2007 incident

123. In this case, the Board has assessed and weighed the evidence of P/C Carpigna against that of Mr. Mahmoud in the context of the two-fold legal test required for a finding under subsection 45(1) of the O. Reg. Based on that evidence, the Board cannot conclude on the balance of probabilities that the Licensee permitted the injured male person and the female patron to become drunk while in the establishment. Therefore, it declines to make a finding under this subsection, for the following reasons.

124. First, the Board finds that the injured male was intoxicated. Both P/C Carpigna and Mr. Mahmoud testified to that fact: it is unnecessary to detail the particulars as it is an agreed matter. However, it is not as clear nor agreed that this man was a patron of the establishment.

125. P/C Carpigna testified that he was, but this was admittedly based on what he was told by (i.e. the hearsay evidence of) a friend of the injured male. He also candidly admitted in cross-examination that he did not know for sure that the injured male had been drinking in the establishment but may have consumed alcohol (or drugs) elsewhere. In contrast, Mr. Mahmoud consistently denied that the injured man had been a patron of his establishment. The friend of the injured male was not called by either party as a witness in support of their respective positions. Thus the Board is left with conflicting evidence on this point.

126. While the Board is allowed to accept and rely upon hearsay evidence under the provisions of the Statutory Powers Procedures Act, it should nonetheless determine the weight it will be given. The Board has had the opportunity to hear and accepts the viva voce testimony of the Licensee directly on point and to the contrary. This is superior evidence to the hearsay evidence. As such, the Board gives the hearsay evidence little to no weight in making its determination that it cannot determine, on the balance of probabilities, that the injured male was a patron of the establishment.

127. As a result, the basic threshold, that is, the drunken person must be a patron, or was a person of other standing, at the establishment has not been met. Accordingly, the Licensee cannot be held responsible for an alleged breach of subsection 45(1) in respect of the injured male and the Board dismisses the allegations against the Licensee in this regard.

128. The Licensee, however, admitted that the female person (MKB) had been a patron of the establishment on the night in question. Thus and for a finding under subsection 45(1), the Board must first determine if this patron was a) drunk; and, b) that the Licensee “permitted” it.

129. P/C Carpigna testified that when he saw her being carried out of the establishment, MKB was passed out and exuded a “strong odour of alcohol”. She was brought to the paramedic vehicle where she proceeded to vomit. Again, by way of hearsay evidence, the officer testified that MKB’s friends told him that she had been drinking in the bar all night. Again, in cross-examination, this officer candidly acknowledged that he did not know with certainty how much alcohol MKB may have consumed, whether she had eaten or was on medication, or if she had been in the establishment, and for how long. Also, while he testified that the paramedics told him that MKB was intoxicated, he did not note this information in his notes (Exhibit 1).

130. In contrast, Mr. Mahmoud testified that MKB had told him that it was her birthday and that she was not feeling well, blaming it on something she had eaten. He also denied that she was passed out or had to be carried to the ambulance; rather, she walked there.

131. P/C Carpigna and Mr. Mahmoud’s testimony agreed in that MKB was released by the paramedics and walked to a parked car on her own albeit supported by her friends.

132. Unfortunately, no paramedics were called by the Registrar to testify as to MKB’s condition.

133. As a result of this conflicting evidence, the Board is unable to conclude on the balance of probabilities that MKB was drunk or that she had become ill because of what she drank while in the establishment. Again, it gives the direct evidence of Mr. Mahmoud more weight than the combined observations and hearsay evidence provided by P/C Carpigna.

134. In the event the Board is incorrect in finding that MKB was drunk, the Board nonetheless does not find that the Licensee “permitted” it. Once again, the Sin City case provides the guiding principles: if the Board finds on the balance of probabilities that the Licensee either “knew” or “ought to have known” that drunkenness was occurring on its premises, it will have “permitted” drunkenness contrary to the provisions of subsection 45(1) of the O. Reg.

135. In this case, the evidence does not support a conclusion that the Licensee either knew or ought to have known that MKB became drunk in the establishment. The only evidence before the Board was the fact that MKB was assisted out of the establishment by friends: the Board repeats its finding that it cannot be sure whether she was drunk or sick. What’s more, the Board heard no evidence as to what took place while MKB was inside the premises or, for that matter, may have taken place before she went there.

136. Mr. Mahmoud’s demonstrated concern towards MKB and also towards the injured male does not and should not be taken to infer “guilt” on his (or the establishment’s) part. Although P/C Carpigna said that Mr. Mahmoud expressed concerns about alcohol being smuggled into his establishment and that he was having difficulties controlling it, Mr. Mahmoud himself denied having said anything to that effect. In the face of this conflicting evidence, the Board concludes that it should take Mr. Mahmoud’s stated bona fides towards these two persons at face value; after all, he was the one who called the police in the first instance to assist him in dealing with the injured male.

137. Thus, the Board does not conclude that the Licensee breached subsection 45(1) in respect of MKB and the Board DISMISSES the allegations against the Licensee in this regard.

Conclusion

138. Based on the evidence in this case and for the reasons given, the Board DISMISSES the allegations that the Licensee violated subsection 45(1) of the O.Reg on November 2, 2007 and on November 15, 2007.

DATED AT TORONTO THIS 21st DAY OF JULY, 2009.

S. GRACE KERR, BOARD MEMBER GUY MAURICE, BOARD MEMBER