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-
6477291 Canada Inc. operating as Hooley’s Restaurant
Licensee
DECISION ON FINDINGS
Panel: Alex McCauley, Board Member Bruce S, Miller Board Member
Decision Date: December 11, 2009
Hearing Location: Ottawa, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario 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 6477291 Canada Inc., Licensee ) Dale Hill, Representative
Authorities
Richard Diotte, Marie France Rouleau and Her Majesty the Queen, [2008], TCC, 244
R v. Connors, [2006], NLTD, 68
Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307
681311 Ontario Limited (Shots Sports Tap and Grill) (Re), 2009 CanLII 47550 (ON A.G.C.)
1213963 Ontario Ltd. ( Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] ONCA 323
Horseshoe Valley Resort Ltd. v. Registrar of the Alcohol and Gaming Commission of Ontario, 2005 CanLII 81108 (ON SCDC), 264 D.L.R. (4th) 686
Allegations
- A hearing into Notice of Proposal number 16733 dated October 20, 2008 to suspend liquor licence number 20638 issued to 6477291 Canada Inc. (the “Licensee”), operating as HOOLEY’S RESTAURANT, 292 Elgin Street, Ottawa, Ontario, K2P 1M3 (the “premises” or the “establishment”), on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (“O.Reg”), made pursuant to the Liquor Licence Act (“LLA”), was held on June 10, 2009 and on October 13, 2009 in the City of Ottawa.
Decision
- After considering all the evidence and submissions the Board FINDS the Licensee violated subsection 45(1) of the O.Reg.
Preliminary Matters
Ms Taylor stated she understood that the Licensee was going to call a Dr. Kuriakose as an expert witness. She advised that she would be objecting to Dr. Kuriakose’s status as an expert witness.
Mr. Hill replied that one of the witnesses that he planned to call had suffered a concussion and that Dr. Kuriakose would give medical evidence on concussions, the symptoms of concussions and how a person might react to one.
Ms Taylor replied that Dr. Kuriakose is a minority shareholder and that she will be seeking an order excluding witnesses. She stated Dr. Kuriakose is not independent and is not an expert in this field of medicine. He is not a neurologist but is a cardiologist. He has not dealt with concussions since at least 1992.
Ms Taylor submitted the resumé and will-say of Dr. Kuriakose which was entered as Exhibit # 1.
The Board then heard evidence on the question of Dr. Kuriakose’s status as an expert witness.
Binny Kuriakose testified that he is a practicing physician and is a cardiologist. Concussions are not complicated and any physician can recognize the symptoms.
On cross-examination he stated that his evidence will be based on an article on concussions done by another physician.
He has not personally treated a concussion since 1992 and admitted that he is not an expert on brain injuries.
Mr. Hill stated Dr. Kuriakose would be able to discuss the symptoms of a concussion versus the symptoms of intoxication.
Ms Taylor submitted the case of Richard Diotte, Marie France Rouleau and Her Majesty the Queen. This Tax Court of Canada decision stated that an “expert [witness] should provide independent assistance to the court by objective, unbiased opinion in relation to matters within his or her expertise.” Dr. Kuriakose is a minority shareholder of the Licensee and is not independent and should not be allowed to testify as an expert witness.
Ms Taylor also submitted the case, R v. Connors. This case was a decision of the Supreme Court of Newfoundland and Labrador. The Court looked at whether a doctor could give expert evidence with regards to a head injury and memory loss. The doctor in that case had no particular training in memory loss but had read about it and was aware of it through his practice of neurosurgery. The Court did not allow him to testify as an expert witness.
Ms Taylor stated that Dr. Kurikose had not treated a concussion for 17 years and was basing his opinion on an article written by someone else.
Mr. Hill replied that Dr. Kurikose owns less than 10 per cent of Hooley’s. Dr. Kuriakose is licensed by the College of Physicians and Surgeons and is bound by his oath to tell the truth.
The Board ruled that Dr. Kurikose could not testify as an expert witness. The bar to be able to testify as an expert is very high. Dr. Kuriakose failed on two fronts. He is not independent. He is also not an expert in head injuries. He has not treated a concussion for 17 years and he would be relying on an article written by another physician to give his evidence.
Mr. Hill then made a motion to dismiss the allegation based on the Horseshoe Valley decision. Ms Taylor objected and stated she had not been given proper notice of the motion as per the Alcohol and Gaming Commission of Ontario (“AGCO”)’s Rules of Practice. The Board agreed with Ms. Taylor and ruled that the motion was out of order.
Ms Taylor asked for an order excluding witnesses. Mr. Hill stated he would be testifying and that he would call himself as the Licensee’s first witness and needed to be excluded from the order. It was agreed on consent to exclude other witnesses and that Mr. Hill could remain.
Registrar’s Evidence
Mark Lambert has been an AGCO Inspector since July 2006. Inspector Lambert 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.
On Saturday, May 31, 2008 at 11:17 PM he was a block away from Hooley’s Restaurant. He was with AGCO Inspector Rowntree and was standing on Gilmour Street. He heard yelling and singing and saw three people walking towards him.
One tall thin male was staggering from side to side and was singing very loudly. He was drinking a bottle of beer. The male then slowed down and “chugged” the beer and threw the bottle which smashed against a parked car.
He followed the male while Inspector Rowntree stayed and checked for any damage to the car.
The male walked to the second of two entrances at Hooley’s. This was not the main entrance. The male had a lengthy conversation with door staff. The owner of Hooley’s, Mr. Dale Hill was standing in a nook several feet from the male.
The male then went towards the main entrance which was to the south. He staggered while he walked. He spoke quickly to the staff at the door and went inside. There were no lineups or any obstructions.
He notified staff at the main entrance of the male and the door staff asked, “Is that the guy singing on the sidewalk” to which the inspector replied, yes. The staff member went into the bar.
He went back to the second entrance. Mr. Andrew McMaster was working there as door staff. Mr. Hill was also there for the entire conversation. He told Mr. McMaster what he had seen and that the male was intoxicated. Mr. McMaster replied the male was sober and was suffering from a concussion.
At this point the male exited via the second entrance. He was unsteady on his feet. Mr. Jacques Bisson, the manager of Hooley’s, also came out. The male shook Mr. Bisson’s hand and Mr. Bisson stated, “Brian, you’re drunk”. The male’s eyes were watery and bloodshot.
The male held out his hand and stated his name was Brian Kelly-Mor. He shook the inspector’s hand several times and said, “God bless you” and “Thank you”. He then said “You’re so sober it’s ridiculous”. His speech was slurred but he was understandable. There was a strong odour of alcohol and he was very unbalanced. He nodded when Mr. Bisson told him he was drunk.
Mr. Bisson offered Mr. Kelly-Mor 20 dollars to take a cab home.
Mr. Bisson and Mr. Hill were advised of the infraction of permitting drunkenness.
Mr. Kelly-Mor was in the premises for four to five minutes. The whole incident from start to finish lasted 13 minutes. He left the premises at 11:30 PM.
He saw Mr. Kelly-Mor on the morning of this hearing. He walked normally and his eyes appeared normal. He was completely different from the night in question.
On cross-examination he stated they were taking a meal break at a pizzeria on Gilmour Street which was half a block from Elgin Street. The male was walking on Gilmour Street towards Elgin. The doormen from Hooley’s could not have seen what happened on Gilmour Street where the bottle was smashed.
Mr. Kelly-Mor continued his swaying, slurred speech and loud singing when he was on Elgin Street. He staggered up to the second entrance. He was singing.
He did not recall a cover charge girl sitting in the nook collecting money. He could not describe the nook.
He is 100% sure that Mr. Hill was present.
He recorded the fact that he was told the male had a concussion in his notes.
He did not know there are security cameras at Hooley’s.
He has a law and security background from Algonquin College. He worked as a doorman at an establishment called The Drink in the Ottawa Byward Market. He does not believe that has caused any conflict.
On reply he stated he worked at The Drink in 2002 and only worked a couple of shifts. He also worked as security in the Rideau Centre which is a large downtown mall in the City of Ottawa. He was employed there for five years and had many dealings with people under the influence of drugs or alcohol.
He also worked as a crisis worker at a drop-in centre for seven years.
He never saw a cover charge girl. He saw Mr. Kelly-Mor stop and pay at the main entrance but he does not know who was staffing there.
In response to a question from the Board, he stated he didn’t notice any sign of injury on Mr. Kelly-Mor.
Andrew Rowntree has been an AGCO Inspector since September 2006. He has been with the AGCO since 2000 and started in the policy department as a summer student.
Inspector Rowntree 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.
On Saturday, May 31, 2008 at 11:17 PM he was sitting in a parked car on Gilmour Street. Inspector Lambert was standing outside talking to him.
He heard a person, now known to him as Brian Kelly-Mor, singing loudly. Mr. Kelly-Mor was walking towards him with a couple of other persons. He noticed that Mr. Kelly-Mor was drinking a bottle of beer. Mr. Kelly-Mor finished the bottle and smashed it near a vehicle.
Inspector Lambert followed Mr. Kelly-Mor around the corner onto Elgin Street. Mr. Kelly-Mor continued to be loud, sing and stagger. He couldn’t understand his words as his speech was slurred.
He picked up the broken glass and then went to the front of Hooley’s where he saw Inspector Lambert in front of the main entrance. Inspector Lambert was speaking to Mr. Bisson. Mr. Hill approached and asked what was going on. He didn’t know where Mr. Hill came from. He told Mr. Hill to speak to Inspector Lambert.
Mr. Kelly-Mor came out of the second entrance. Mr. Bisson stated, “Brian, you’re drunk tonight”. Mr. Kelly-Mor then introduced himself to the two inspectors.
Mr. Kelly-Mor went to shake his hand and grabbed his wrist. Mr. Kelly-Mor had slurred speech, a strong odour of an alcoholic beverage on his breath and was leaning forward. He repeated himself a number of times by trying to shake his hand.
Mr. Bisson offered Mr. Kelly-Mor 20 dollars and insisted he take a taxi home.
He saw Mr. Kelly-Mor later in the evening. He had tried to get in another establishment and was refused entry.
He saw Mr. Kelly-Mor on the morning of this hearing. He walked normally. He was completely different from the night in question.
On cross-examination, he stated he didn’t know if there were security cameras at Hooley’s.
The incident on Gilmour Street started at 11:17 PM. He was only at Hooley’s for about six minutes. He left Hooley’s at 11:28 PM.
In response to a question from the Board, he stated he didn’t notice any sign of injury on Mr. Kelly-Mor nor did Mr. Kelly-Mor complain of one.
Licensee’s Evidence
Dale Hill owns Hooley’s Restaurant. He is also a partner at a law firm.
In 2006 he invited Inspector Lambert to speak with him as he was a first time bar owner. He organized seminars for his staff which were given by the police and the AGCO. All his staff are Smart Served trained.
He hired a risk manager in 2006 to look for violations. The risk manager never had a chance to deal with Mr. Kelly-Mor as he had just walked in, was not served and was there just for a minute.
They employ 40 persons at Hooley’s.
He works about a kilometre away from Hooley’s. He had just arrived as he had been working late at the office and was on a conference call.
He walked up to Mr. Bisson who told him they had sent Mr. Kelly-Mor home in a cab.
Inspector Lambert told him about seeing Mr. Kelly-Mor who was intoxicated on Gilmour Street. He asked Inspector Lambert if he was served and Lambert replied that the doormen let him in.
He was not there when this occurred.
There is no nook at the second entrance.
There are security cameras overseeing both entrances. He was not notified of the infraction until months later. The cameras only record for 30 days. He could have used the recording for this hearing if he had proper notice.
The staff of Hooley’s act in a responsible manner.
A 28 day suspension will effectively close the business forever.
On cross-examination, he stated Hooley’s has never served a suspension. There is an outstanding matter that will be dealt with at the Ontario Court of Appeal.
He agreed that management, like any other system is not perfect. The door staff and the cover person should stop any intoxicated person.
There were two staff at the main entrance and one at the second entrance on the date in question. Every person has to show identification when they enter.
He never met Mr. Kelly-Mor prior to this incident.
The inspectors never told him that they were going to submit a report on the incident. The patron was only there for one minute. He didn’t save the recording from the security cameras because of this.
He was at the office from 10:00 or 10:30 PM to 11:20 PM on the night in question.
He hadn’t seen Inspector Lambert for two years and didn’t recognize him that night.
It was a zero tolerance weekend in the bar district and he knew the inspectors would visit his premises.
They are usually full at 11:30 PM on a Saturday and have a lineup.
On reply, he stated he didn’t think the staff at Hooley’s did anything wrong and he didn’t think any charges would be laid.
In response to questions from the Board, he stated he walked by the second entrance first when he arrived. The main entrance is the closest one to Gilmour Street. The entrances both face Elgin Street and are about 10 feet apart.
His conference call was with Toyota Canada. He brought no documentation with him to the hearing to support making the phone call.
Andrew McMaster is employed by Fisheries and Oceans Canada.
On May 31, 2008 he was working at the second entrance of Hooley’s as a doorman.
Mr. Kelly-Mor approached him and asked to come in. He told Mr. Kelly-Mor that he would have to use the main entrance where there is a cover charge.
Inspector Lambert approached him after Mr. Kelly-Mor had been admitted through the main entrance. He wasn’t sure which patron Inspector Lambert was referring to. Inspector Lambert pointed to Mr. Kelly-Mor and he told the inspector that Mr. Kelly-Mor was not intoxicated.
Mr. Kelly-Mor had been playing rugby the night before. He had been an official there and had seen Mr. Kelly-Mor leave the field due to a concussion.
Mr. Hill attempted to introduce a document from Dr. Kelly-Mor’s physician and Ms Taylor objected. The Board ruled that the document should be introduced when Mr. Kelly-Mor testifies.
He spoke to Mr. Kelly-Mor for less than a minute when he came to the second entrance. He knows Mr. Kelly-Mor from rugby. He did not think Mr. Kelly-Mor was intoxicated.
On cross-examination, he stated that Mr. Kelly-Mor exited the bar at the same time that Mr. Hill arrived. It was possible that Mr. Hill arrived earlier but he did not see him.
He told Inspector Lambert that Mr. Kelly-Mor had suffered a concussion the day before.
Mr. Kelly-Mor had no difficulty standing when he saw him. He didn’t hear him singing. His speech was not slurred and he didn’t notice the odour of alcohol. Mr. Kelly-Mor told him that he was feeling fine.
He thought Inspector Lambert was confusing the signs of a concussion with those of intoxication.
Staff is instructed to send all customers to the main entrance. He would have advised the main entrance staff if he believed Mr. Kelly-Mor to be unfit to be admitted.
The hearing adjourned for the day and then resumed on Tuesday, October 13, 2009.
Dr. Kuriakose advised he would be representing the Licensee. He stated he had a preliminary matter. He objected to the fact that Registrar’s counsel had not given the Licensee three days notice that it intended to challenge Dr. Kuriakose as an expert witness as per Rule 12.3 of the AGCO Revised Rules of Practice which states:
Where a party intends to challenge the introduction of all or part of a proposed expert’s evidence, the party must deliver to the other parties a written notice containing the reasons for objecting as soon as possible and, in any event, within three days of receiving the documents. The notice shall be filed with the Manager of Hearings.
Ms Taylor replied that the Board is not slavishly required to follow the AGCO Revised Rules of Practice. She also advised that she only learned of the objection on Friday, October 9, 2009.
Dr. Kuriakose replied that he only learned about the relevant Rule a week before. He stated he was applying for a stay of proceedings.
Ms Taylor submitted the Supreme Court of Canada decision of Blencoe v. British Columbia (Human Rights Commission). The case involved the question of unreasonable delay. Ms Taylor pointed to paragraph 118 where the decision stated:
a stay of proceedings should be granted where “compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency” or where the proceedings are “oppressive or vexatious”. The Court also adopted the Ontario Court of Appeal’s warning in Young that this is a power which can be exercised only in the “clearest of cases”.
- Ms Taylor also pointed to paragraph 120 in the same decision which stated:
[T]he court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted” (Brown and Evans, supra, at p. 9-68). According to L’Heureux‑Dubé J. in Power, supra, at p. 616, “abuse of process” has been characterized in the jurisprudence as a process tainted to such a degree that it amounts to one of the clearest of cases. In my opinion, this would apply equally to abuse of process in administrative proceedings. For there to be abuse of process, the proceedings must, in the words of L’Heureux‑Dubé J., be “unfair to the point that they are contrary to the interests of justice” (p. 616). “Cases of this nature will be extremely rare” (Power, supra, at p. 616)
- Ms Taylor also submitted the AGCO decision of Shots Sports Tap and Grill. This case also involved a question of unreasonable delay. The Board stated in paragraph 20 of that decision that:
The law on “delay” and “abuse of process” in administrative proceedings is set out in Blencoe v. British Columbia (Human Rights Commission). It is the guiding case on these issues for tribunals such as this Board. The Supreme Court of Canada in Blencoe held that delay justifying a stay must both be inordinate and so oppressive as to taint the proceeding. Further, a stay is an extraordinary remedy that should only be granted rarely and in the clearest of cases where:
Damage to the public interest in the fairness of the administrative process should the proceeding go ahead exceeds the harm to the public interest in the enforcement of the legislation should the proceedings be halted; and,
Proceedings are so unfair they are contrary to the interests of justice (Blencoe, paragraph 120).
Ms Taylor stated the application should not be granted and the hearing should be allowed to proceed.
The Board ruled against the application for a stay of proceedings. The Board pointed to Rule 2.2 in the Revised Rules of Practise which state:
The Board may amend its Rules from time to time as it considers appropriate. The Board may issue general or specific directions at any time.
The Board pointed out that the objection was very late in the process and should have been raised at the June hearing date.
The Board also relied on Blencoe v. British Columbia which stated that cases of this nature are “extremely rare”. The Court stated justifying a stay must “both be inordinate and so oppressive as to taint the proceeding” and that proceedings must be so unfair that they are “contrary to the interests of justice”.
Certainly the Board has recognized these principles in the past as was shown in Shots Sports Tap and Grill. The test for a stay of proceedings is very high and has not been met in this case. There had already been a fulsome hearing on the issue of Dr. Kuriakose being allowed to testify as an expert witness and the Board dismissed the motion for a stay of proceedings.
Dr. Kuriakose then stated he wanted to submit evidence that Mr. Hill was in fact on a conference call on the night in question and that he wasn’t at Hooley’s.
Ms Taylor objected and stated she only learned of these additional assertions four days ago and that the information should properly be introduced through Mr. Hill.
The Board ruled that the document could be submitted and entered an email dated May 29, 2008 as Exhibit # 2. The email referred to an upcoming conference call on Saturday, May 31, 2008 at 11:00 PM.
Alex Burnet works as a doorman at Hooley’s and was working there in that capacity on May 31, 2008 at the main entrance.
There was a large line-up that night. He saw a group walk past to the second entrance and speak to the doorman. The group came back a few minutes later and went in the VIP line for the main entrance. They advised him they were friends of the other doorman. He checked and this was verified by the other doorman.
They stayed in line for about five minutes. He talked to them for a few seconds and let them walk past him to go to the cover charge girl.
An AGCO Inspector approached him and pointed to the group and said, “That guy is drunk”. Sean, another doorman came over and asked the inspector which male it was and then he brought the male outside. The male did not get past the cover charge girl.
On cross-examination, Ms Taylor pointed out in his statement that he said that Mr. Kelly-Mor paid his cover charge and had been in the bar about 45 seconds and was never more than five feet from the bar. He replied that the statement was correct.
He knew Mr. Kelly-Mor prior to the night in question.
In response to a question from the Board, he stated he could see the people while they were standing in the line-up.
Brian Kelly-Mor is 30 years of age. He is an account manager for a staffing firm that works for the federal government.
He was playing rugby on the Friday night, the day before the incident in question. He had a head on head collision with another player.
P.M. is the team physician. The doctor would not allow him to keep playing and told him that he had suffered a concussion.
He was nauseous and unsteady on his feet after the game. The doctor told him not to drink alcohol. He felt the same way the next morning. There was a game that day and he didn’t play.
There was a barbecue that evening at a friend’s home which is about half an hour from Hooley’s. He met his friends there about 6:00 PM. He had six or seven bottles of beer over a four hour period. He also had something to eat.
They decided to go to Hooley’s. He brought a bottle of beer with him for the walk.
He was walking down Gilmour Street and was singing pretty loudly. He threw the beer bottle away and heard it break.
They arrived at Hooley’s and there were a few people in the line-up. He went to the second entrance where his friend Andrew McMaster was working. Mr. McMaster told him he would have to use the main entrance and would have to pay the cover charge. Mr. McMaster did tell him that he could “slip” the line. He did so and went into the bar. He was eight to 10 feet from the bar when he was told that he had to leave as an inspector said that he was drunk.
He spoke to the inspector and described his comments as facetious. He said “God bless you” to the inspector. He talked to the inspector for 10 minutes.
The manager, Mr. Jacques Bisson, came out and gave him 20 dollars and told him to take a taxi home. He took the taxi and went to another bar as he knew the bartender. He had a couple of beers and a shot while he was there. He then tried to get in another bar and was refused entry. He can’t remember why he was refused entry. He then took a taxi home.
On cross-examination, he stated he found out about the hearing 11 months to a year after the event. He remembers the weekend because of his involvement with the inspector and also because of the rugby game.
Ms Taylor submitted the statement of Mr. Brian Kelly-Mor, which was entered as Exhibit # 3. Ms Taylor pointed out the statement referenced the fact that he went home after going to Hooley’s.
Dr. Murphy told him not to drink for a week following his concussion.
It took 15 minutes for him to walk over to Hooley’s from the barbecue. He arrived at Hooley’s around 10:30 to 10:45 PM.
Jacques Bisson has been in the bar and restaurant industry for about 17 years. He has experience in all positions in the industry. He is 37 years of age.
He has been the manager of Hooley’s since mid-2007.
There have been no other infractions since May 31, 2008.
Hooleys employs three lines of defense against drunkenness:
- The door staff
- The serving staff who all have Smart Serve training
- The manager on duty who walks around looking for problems.
He was inside the establishment on the night in question when staff advised him there was an AGCO Inspector outside. He went outside and found Inspector Lambert speaking to Mr. Kelly-Mor.
He submitted a picture of the outside of the bar which showed the two entrances. The picture showed Gilmour Street as well. The picture was entered as Exhibit # 4.
He stated that his staff could not have seen the bottle breaking incident that occurred on Gilmour Street. His staff has a limited view of what is happening on Elgin Street due to the crowds on the sidewalk.
There are security cameras at Hooley’s but the tapes only record for 30 days. He was not notified of the offence until September. Inspector Lambert never told him that charges were going to be laid.
Mr. Kelly-Mor never had a drink in Hooley’s so there was no violation.
Mr. Hill arrived walking from the direction of his office. He arrived after Mr. Kelly-Mor had left.
He contacted Dr. Murphy about Mr. Kelly-Mor’s concussion and he had a letter from the doctor with him.
Ms Taylor objected to the letter being introduced and stated that P.M. should have been called as a witness. Ms Taylor stated the letter was an attempt to introduce expert evidence and to give evidence on the symptoms of concussion.
The Board ruled that it would not accept expert evidence via the letter. The Board also pointed out there was no evidence that Mr. Kelly-Mor did not have a concussion.
On cross-examination, he stated all door staff and servers must have Smart Serve training.
He prepared a statement of his evidence for the hearing.
Ms Taylor submitted his statement and it was entered as Exhibit # 5.
He admitted there was no mention of Mr. Kelly-Mor having a concussion in his statement.
He denied saying, “Brian, you’re drunk” to Mr. Kelly-Mor.
He insisted he told the inspector about the concussion.
He plays rugby. He wasn’t present when Mr. Kelly-Mor was injured. He learned of Mr. Kelly-Mor’s concussion from an email sent to him by someone else.
Inspector Lambert did notify him that he would pass on the details of the incident to a superior. He also stated that Inspector Lambert told him that his door staff let a drunken person into the establishment.
He decided not to keep the tapes as Mr. Kelly-Mor only went 10 feet inside the bar.
He expects his door staff to observe adjacent properties and to be able to see 20 feet in front of them but this can be difficult when the street is crowded. He did not know if it was crowded when Mr. Kelly-Mor arrived.
On reply, he stated he didn’t refer to the concussion in his statement as he wrote the statement four months after the fact and he wrote just what he observed.
Registrar’s Submissions
This case deals with an allegation that the Licensee permitted drunkenness.
It is clear that Mr. Kelly-Mor entered the establishment. He went past Mr. Burnet, paid his cover charge and was heading to the bar when he was stopped.
None of the Licensee’s witnesses deny that Mr. Kelly-Mor was showing signs of intoxication. None of them stated he appeared to be sober. The inspector gave clear evidence of signs of intoxication.
Mr. McMaster agreed that Inspector Lambert had seen signs of intoxication in Mr. Kelly-Mor but he attributed the signs to the concussion.
Mr. Kelly-Mor admitted he had six to seven bottles of beer even though he had been told not to drink.
The issue is whether he was showing signs of intoxication when he was let in the premises.
The Board has consistently held if someone was drinking and showing signs of intoxication that the establishment is permitting drunkenness. The fact that Mr. Kelly-Mor may or may not have had a concussion is irrelevant.
Mr. Kelly-Mor was showing signs of intoxication and was let in the premises. The question is whether the Licensee permitted drunkenness. The Ontario Court of Appeal held in the Sin City decision that the Licensee “knew or ought to have known”.
Mr. Burnet testified that he had a five minute opportunity to observe Mr. Kelly-Mor before he entered the premises. Mr. Burnet knew or ought to have known that Mr. Kelly-Mor was showing signs of intoxication. Mr. Burnet did not know Mr. Kelly-Mor but knew he was friends with Mr. McMaster. Mr. Burnet stated it was his job to prevent drunks from entering the premises. The Licensee clearly permitted drunkenness.
The Licensee is trying to raise the issue of when they were made aware of the infraction. This was not an undercover inspection. The Licensee was aware the inspectors were there. Mr. Bisson stated “Brian, you’re drunk” to Mr. Kelly-Mor and tried to send him home in a taxi. The Licensee chose not to save the recording.
It is the Registrar’s decision to issue a Notice of Proposal. It is the inspector’s obligation to notify the Licensee of the infraction within a reasonable period of time and that was done.
The Board should make a finding that the Licensee permitted drunkenness.
Licensee’s Submissions
The evidence indicates that Mr. Kelly-Mor suffered a concussion the night before the incident.
Mr. Kelly-Mor was diagnosed by a qualified physician. He was advised not to drink alcohol as the symptoms of a concussion could mimic those of intoxication.
He didn’t feel well that morning and experienced dizziness and unsteadiness even before consuming alcohol.
He then had six beers over a four hour period. He testified that this is less than he usually consumes.
He was observed by the inspectors signing loudly and smashing a bottle on Gilmour Street but this was out of the view of the staff of Hooley’s.
The inspectors had a pre-conceived notion that Mr. Kelly-Mor was drunk.
The inspectors had the benefit of watching Mr. Kelly-Mor for several minutes while the staff of Hooley’s only had approximately a minute each.
The serving staff and management, who both have roles in preventing violations, never had an opportunity to observe Mr. Kelly-Mor.
Mr. Bisson did not believe that any charges were pending as Mr. Kelly-Mor was suffering from a concussion. He also did not believe there was an offense as Mr. Kelly-Mor was not served by his staff. Finally Mr. Bisson did not believe that Mr. Kelly-Mor was intoxicated.
The Registrar did not notify the Licensee until four months after the incident that charges were being laid. This prevented the Licensee from using the security tapes as they are only kept for 30 days.
Mr. Kelly-Mor left Hooley’s and went to another bar where he was served two more drinks.
Mr. Bisson denied saying, “Brian, you’re drunk”. It is hard to believe that an experienced manager would make such an admission to an inspector.
Ms Taylor spent a great deal of time suggesting Mr. Hill was fabricating evidence about being on a conference call but he was able to refute that.
The Ontario Divisional Court case, Horseshoe Valley, in its decision, stated:
A finding of a violation of section 45(1) cannot be based on a draconian and unrealistic interpretation of its language that would create a violation the very moment a drunk patron entered the bar. Rather it must be interpreted reasonably in accordance with its plain language and the practicalities of the context in which it is applied.
In the case of Hooley’s, Mr. Kelly-Mor was only in the bar for thirty seconds and was not assessed by a bartender so there was no offence.
The Board should not make a finding in this matter.
Registrar’s Reply
Horseshoe Valley is a very different set of circumstances. It is a resort and not a bar. The patron was staying at the resort and was there for a wedding.
The sentence before the one quoted by the Licensee in Horseshoe Valley is very important. The sentence states:
The evidence before the Board showed that the appellant’s employees recognized that Julie Strachan was drunk upon her entering the bar and that steps were taken quickly to make sure she was not served alcohol and to make sure she was safely removed and the Board’s reasons fail to demonstrate in what respects the appellant failed to carry out its statutory duty.
The staff let Mr. Kelly-Mor into Hooley’s and did nothing about him until he was pointed out by the inspector. This differs from Horseshoe Valley where the staff took steps as soon as the patron came in. The Horseshoe Valley decision does not apply in this case.
Mr. Bisson made no mention of a concussion in his statement.
It is not uncommon for licensees to admit infractions.
The timing of Mr. Hill’s arrival is a peripheral matter.
Mr. Bisson never gave evidence that Mr. Kelly-Mor was not intoxicated.
Analysis/Reasons/Findings
The Board has carefully considered all the evidence and the submissions presented.
This matter concerns an alleged violation of subsection 45(1) of the O.Reg which 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.”
There are two key issues for the Board in this case. The first is whether Mr. Kelly-Mor was in fact drunk on the premises and the second is whether the Licensee permitted drunkenness.
Both Inspector Lambert and Inspector Rowntree gave clear and consistent evidence.
They both first see Mr. Kelly-Mor on Gilmour Street. Both inspectors described how he was singing loudly, staggering while he walked and that he drank from a bottle of beer which he then smashed on the sidewalk. Mr. Kelly-Mor then went to the second entrance of Hooley’s and spoke to staff. Inspector Lambert testified Mr. Kelly-Mor then staggered to the main entrance and went inside the premises.
Mr. Burnet conceded that Mr. Kelly-Mor paid the cover charge and went inside the establishment. Mr. Kelly-Mor also stated he was allowed in the bar area before staff came and removed him.
Mr. Kelly-Mor was removed by staff at the request of Inspector Lambert. The inspectors noted that Mr. Kelly-Mor had slurred speech, watery and bloodshot eyes and an odour of an alcoholic beverage on his breath. They testified that Mr. Bisson, the manager stated, “Brian, you’re drunk” when he came outside. They also testified that Mr. Bisson offered Mr. Kelly-Mor 20 dollars to take a taxi home.
The evidence from the Licensee’s witnesses is less consistent. Mr. Hill testified that he had no dealings with Mr. Kelly-Mor other than that Mr. Bisson told him that Mr. Kelly-Mor was sent home in a cab.
Mr. Burnet, the staff member who was working the door where Mr. Kelly-Mor eventually entered, gave no evidence as to Mr. Kelly-Mor’s physical condition.
Mr. Bisson also gave no evidence as to Mr. Kelly-Mor’s condition. He denied saying, “Brian, you’re drunk”, but did admit offering him 20 dollars to take a cab home.
The Board prefers the evidence of the inspectors who testified that Mr. Bisson stated, “Brian, you’re drunk”. This remark which was heard and mentioned in the testimony of both inspectors, would certainly be consistent with the fact that Mr. Bisson offered Mr. Kelly-Mor 20 dollars to take a taxi home.
Mr. McMaster is the only staff member who gave evidence as to Mr. Kelly-Mor’s condition. He was working at the second entrance when he spoke to Mr. Kelly-Mor, who he knew. He didn’t hear any singing. He stated Mr. Kelly-Mor was standing straight, he wasn’t slurring his words and there was no smell of alcohol on his breath. This was certainly not consistent with the evidence of Mr. Kelly-Mor who admitted to having seven to eight bottles of beer prior to arriving at Hooley’s.
Mr. Kelly-Mor testified that he had six to seven beers over a four hour period at a house party. He left the party with several friends and brought a bottle of beer with him which he smashed when he got close to Hooley’s. He also admitted that he was singing. All of this corroborates the testimony of the inspectors.
Mr. Kelly-Mor testified that he suffered a concussion the night before. The Board accepts this fact and notes there was no evidence called to refute it.
The Board is satisfied that Mr. Kelly-Mor was intoxicated based on the clear and consistent testimony of the inspectors, who have no interest in the outcome of the hearing and which the Board prefers to that of the Licensee’s staff, The Board is not in a position to say if the concussion sustained by Mr. Kelly-Mor aggravated the signs of intoxication, which clearly were present.
The next question for the Board is whether the Licensee “permitted” drunkenness.
The Board agrees with Ms Taylor that this case is clearly different from that of Horseshoe Valley where the patron was a guest at a resort. There, the staff took steps to make sure the patron was not served alcohol and to make sure the patron was safely removed.
The Board must consider whether the Licensee knew or ought to have known that a patron was drunk as per the Sin City decision which also requires the Board to make that determination in “all the circumstances and, in particular, in the context of the various obligations and duties placed on the licensee by the relevant legislation and regulations”.
The Board accepts the fact that the staff of Hooley’s would not have been able to have seen what transpired on Gilmour Street where the bottle was broken.
Inspector Lambert testified that Mr. Kelly-Mor continued to stagger on Elgin Street in front of Hooley’s.
When he notified staff at the main door of a drunken patron they responded, “Is that the guy singing?” This reinforces the fact that Mr. Kelly-Mor had not gone un-noticed by staff.
Mr. McMaster testified that he talked to Mr. Kelly-Mor at the second entrance for less than a minute and noticed no signs of intoxication including no odour of alcohol in spite of the fact that Mr. Kelly-Mor testified he had consumed seven to eight bottles of beer. The inspectors had also just seen Mr. Kelly-Mor drinking a beer around the corner just prior to arriving at Hooley’s.
Mr. Burnet did not testify to Mr. Kelly-Mor’s condition but did admit that he observed him for about five minutes prior to Mr. Kelly-Mor entering.
The Licensee’s witnesses testified that the door staff are there to prevent intoxicated individuals from entering. Mr. Kelly-Mor was outside the establishment for five minutes. He was staggering and singing. His speech was slurred, he smelled of alcohol and his eyes were watery and bloodshot. It is noteworthy that as soon as Mr. Bisson the manager came outside to see the inspectors he looked at Mr. Kelly-Mor and stated, “Brian, you’re drunk” and offered him money to take a cab home. Mr. Bisson required little in the way of time to make the assessment.
The Licensee pointed out that Mr. Kelly-Mor was not served alcohol. The Board accepts this and notes that this is a separate offence that was not alleged by the Registrar.
Considering all the circumstances, the Licensee knew or ought to have known that Mr. Kelly-Mor was intoxicated. Mr. Kelly-Mor was nonetheless permitted to enter the establishment and remain on the premises until he was pointed out by the inspector
Conclusion
Therefore, for the reasons given, the Board FINDS the Licensee violated subsection 45(1) of the O.Reg.
The 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 11th DAY OF December , 2009
ALEX MCCAULEY, BOARD MEMBER BRUCE MILLER, BOARD MEMBER