Registrar, Alcohol and Gaming Commission Ontario v. Oregano Woodbridge Inc., 2010 CanLII 25975

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 Ontario

Registrar

-and-

Oregano Woodbridge Inc. operating as Oregano Woodbridge

Licensee

DECISION

Panel: Joan Lougheed, Board Member Bruce S. Miller, Board Member

Decision Date: February 23, 2010

Hearing Location: Toronto, 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 Oregano Woodbridge Inc., Licensee )

Allegations

1. A hearing into Notice of Proposal number 17476 dated August 27, 2009 to revoke liquor license number 805288 issued to Oregano Woodbridge Inc. ( the “Licensee”), operating as OREGANO WOODBRIDGE, 3650 Langstaff Road, Units 3, 4, 5 and 6, Woodbridge, Ontario, L4L 2B2, on the basis that the Registrar has reason to believe that the Licensee would be disentitled to a licence under section 6 of the Liquor Licence Act (“LLA”), was held on February 3, 2010, in the City of Toronto.

Preliminary Matters

2. Ms Taylor advised that the Licensee was absent and that it was her information that the landlord had taken over the property where the Licensee had been operating. She stated she would be making a motion to proceed with the hearing.

3. The Board asked if there was proof of service of the Notice of Proposal on the Licensee and Ms Taylor advised she would be calling a member of the Alcohol and Gaming Commission of Ontario (“AGCO”) Hearings’ staff to give evidence.

4. Cassandra Platt is the acting Case Management Coordinator with the Hearings’ Department of the AGCO.

5. She advised that the Notice of Hearing was sent to the Licensee, Maksymillan Kielbasa, on December 22, 2009 by mail and registered mail to Oregano Woodbridge at 3650 Langstaff Road, Units 3, 4, 5, 6, Woodbridge, Ontario, L4L 2B2. The registered mail was returned as uncollected.

6. A confirmation letter, which is an informal letter notifying the Licensee that a hearing would be held on February 3, 2010, was sent to the Licensee at the same address on November 17, 2009 by mail and email.

7. A number of phone calls and emails were made or sent to the Licensee in the week leading up to the hearing. The phone number for the place of business and the email address were both no longer in service.

8. Ms Taylor made a motion for the hearing to proceed ex parte.

9. Ms Taylor stated that the Alcohol and Gaming Regulation and Public Protection Act, 1996 states in subsection 12(1) that:

"A notice, order or other document that is required or permitted to be given or delivered to or served on a person under this Act, the Liquor Licence Act or the Gaming Control Act, 1992 is sufficiently given, delivered or served if it is,

(a) delivered personally;

(b) sent by regular mail addressed to the person at the person’s last known address; or

(c) sent by telephone transmission of a facsimile of the notice, order or document to the person’s last known facsimile telephone number."

10. The Board ruled that as all reasonable efforts had been made to serve the Licensee with the Notice of Hearing and there is no explanation for the Licensee’s absence at the scheduled hearing, there was no reason not to proceed with the hearing as requested by the Registrar.

11. Ms Taylor advised that she was ready to proceed.

12. Anna Lundrigan is employed by the Ontario Ministry of Revenue as a field collection officer.

13. She is familiar with Oregano Woodbridge Inc.

14. Ms Taylor submitted a statement of account for retail sales tax for the Licensee dated February 1, 2010 which was entered as Exhibit # 1.

15. Ms Lundrigan stated that the Licensee was $67,720.86 in arrears as of February 1, 2010. This included both filed and estimated returns.

16. She considered the Licensee not to be responsible.

17. In response to a question from the Board, she stated that no payments had been received from the Licensee since January 31, 2007.

Registrar’s Submissions

18. Ms Taylor requested that the Board revoke the Licensee’s liquor licence as the Licensee cannot be reasonably expected to be financially responsible and had not made any retail sales tax payments since January 2007.

Analysis/Reasons/Findings

19. The Board finds that a revocation of the liquor licence is appropriate in this case for the following reasons.

20. Subsection 15(1) of the LLA states:

"The Registrar may issue a proposal to revoke or suspend a licence to sell liquor or refuse to renew such a licence for any ground under subsection 6 (2), (4) or (4.1) that would disentitle the licensee to a licence if the licensee were an applicant or if the licensee has contravened this Act, the regulations or a condition of the licence."

21. Subsection 6(2)(a) of the LLA states:

"Subject to subsection (4) or (4.1), an applicant is entitled to be issued a licence to sell liquor except if having regard to the applicant’s financial position, the applicant cannot reasonably be expected to be financially responsible in the conduct of the applicant’s business;"

22. Subsection 6(2)(b) of the LLA states

"the past or present conduct of the persons referred to in subsection (3) affords reasonable grounds for belief that the applicant will not carry on business in accordance with the law and with integrity and honesty;"

23. The Licensee has not made any retail sales tax payments to the Ontario Ministry of Revenue since January 31, 2007. The Licensee was $67,720.86 in arrears as of February 1, 2010.

24. The Licensee did not appear at the hearing.

25. There was no evidence that there is any prospect of the Licensee making any payments.

26. The witness for the Ontario Ministry of Revenue did not consider the Licensee to be responsible.

27. In the view of the above, the Licensee cannot reasonably be expected to be financially responsible in the conduct of its business and affords reasonable grounds for the Board to believe that its business will not be conducted in accordance with the law and with integrity and honesty.

Order

28. Therefore, the Board ORDERS that liquor licence number 805288 issued to Oregano Woodbridge Inc., operating as OREGANO WOODBRIDGE, 3650 Langstaff Road, Units 3, 4, 5, and 6, Woodbridge, Ontario, L4L 2B2, be REVOKED, effective immediately.

DATED AT TORONTO THIS 23rd DAY OF February , 2010.

JOAN LOUGHEED, BOARD MEMBER BRUCE S. MILLER, BOARD MEMBER