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-
Fratelli Ristorante Ltd. O/A Fratelli Ristorante Licensee
DECISION
Panel: Allan Higdon, Board Member Alex McCauley, Board Member
Decision Date: September 23, 2009 Hearing Location: Toronto, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Richard Kulis, Representative Fratelli Ristorante Ltd., Licensee ) Lorne Jackson, Representative
Allegations
- A hearing into a Notice of Proposal number 17181 dated April 8, 2009 to suspend liquor licence number 21461 (the “Licence”) issued to Fratelli Ristorante Ltd. operating as FRATELLI RISTORANTE, 316 Kerr Street, Oakville, Ontario, L6K 3B5 (the “premises” or “establishment”) on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (“LLA”) was held on September 22, 2009 in the City of Toronto.
Preliminary Matters
Mr. Kulis advised the Board that the Registrar’s principal witness, Mr. Bruce Kirk, was not in attendance although he had been summoned to attend and a Notice of Hearing had been sent to him.
Mr. Jackson, the Licensee’s representative, filed a motion to have the matter dismissed.
Kristina Krause is the Case Co-ordinator for the Hearings Department at the Alcohol and Gaming Commission of Ontario (“AGCO”). Ms Krause spoke to Mr. Kirk on the date of the hearing and it was evident he would not be attending the hearing. Ms Krause gave evidence that the summons dated September 4, 2009 and sent to Mr. Kirk was in the proper format and the correct procedures had been followed in serving the said summons. Ms Krause further stated that a Notice of Hearing dated July 10, 2009 would have also been sent to Mr. Kirk. Further to her telephone conversation with Mr. Kirk on the date of the hearing, it was evident he would not be attending the hearing that day and it appeared he was not concerned about attending any proceedings in the future.
Conclusion
It is clear that the Registrar’s witness had plenty of advance knowledge of the date and location of the hearing yet, for whatever reason, chose not to attend.
The Licensee, the Licensee’s representative, and independent witnesses were all in attendance and prepared to proceed.
The Licensee had attended with their witnesses incurring costs in time and financially.
To adjourn this matter with the knowledge that the Registrar’s witness would probably never show up, in the view of the Board, would be prejudicial to the Licensee.
The onus is on the Registrar to present the allegations against the Licensee, and in this case was unable to do so.
Therefore, the Board sustains the motion of the Licensee and DISMISSES the allegation of a violation of subsection 45(1) of the O.Reg as set out in NOP number 17181.
DATED AT TORONTO THIS 23rd DAY OF SEPTEMBER, 2009.
ALLAN HIGDON, BOARD MEMBER ALEX MCCAULEY, BOARD MEMBER