Registrar, Alcohol and Gaming Commission of Ontario v. 1605511 Ontario Inc. operating as The Drink, 2010 CanLII 25981 (ON AGC)

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-

1605511 Ontario Inc. operating as The Drink

Licensee

DECISION ON FINDINGS

Panel: David C. Gavsie, Chair, AGCO

Alex McCauley, Board Member

Decision Date: March 10, 2010

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

1605511 Ontario Inc., Licensee ) Norman Boxall and Ian Carter,

) Representatives

Authorities

Rejeanne's Bar and Grill Ltd. (c.o.b. Rejeanne's Bar and Grill) v. Ontario (Alcohol and Gaming Commission, Registrar), [2009] O.J. No. 3176

1313963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2008] O.J. No. 1849

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

Allegations

1. A hearing into Notice of Proposal number 17214 dated May 19, 2009 (the “NOP”) to suspend for 14 days liquor licence number 200690 (the “licence”), issued to 1605511 Ontario Inc. (the “Licensee”), operating as THE DRINK, 130 George Street, Ottawa, Ontario, K1N 5W4, (the “Premises”) on the basis of alleged violations of subsection 30(4) of the Liquor Licence Act (the “LLA”) and subsections 41(1) and 45(1) of Ontario Regulation 719/90 (the “O.Reg”), made pursuant to the LLA, was held on September 8, October 8 and December 21, 2009 in the City of Ottawa.

Decision

2. After considering all of the evidence and the submissions on behalf of the parties, the Board FINDS the Licensee contravened subsection 30(4) of the LLA and subsection 41(1) of the O.Reg and DECLINES to make a finding of a violation of subsection 45(1) of the O.Reg. Reasons follow.

Preliminary Matters

3. On consent of the parties, the Board ORDERED that witnesses be excluded except for Mr. Todd Brown, a principal of the Licensee.

Registrar’s Evidence

4. Female Patron 1 was 17 years old on May 25, 2008. She went to The Drink on the night of May 24-25, 2008. She arrived with others at 11:00 p.m.

5. She was with friends lined up in the VIP line. When she reached the front of the line, she was asked for identification.

6. The identification she showed, an Ontario G1 driver’s license, was not hers. It belonged to a friend of hers, named S., who was 19 or 20 at the time.

7. The person at the door just glanced at the piece of identification. Female Patron 1 was not asked for anything else. She just walked into the Premises and was never again asked for any identification card or document.

8. Once inside the Premises, Female Patron 1 said she had a couple of mixed drinks and a couple of tequila shots which a friend bought for her.

9. Female Patron 1 stayed with the same group although she did move around sometimes. In the group were a few people her age and a few older, around 20 to 24.

10. Female Patron 1 said she stayed until around 1:00 a.m. At that point an incident occurred with Female Patron 2. The two knew each other through friends, but they themselves were not friends.

11. Female Patron 1 said she got into a fight with Female Patron 2 and a cup was accidentally thrown at Female Patron 2. It hit her in the face.

12. At that point, everyone scrambled in and got into a group fight. Female Patron 1 said she got pulled out by friends. Everyone just left. No bar staff asked her to leave.

13. Female Patron 1 said she is facing charges from the police regarding the incident with Female Patron 2.

14. She said that night was her second time at The Drink.

15. In answer to questions on cross-examination, Female Patron 1 said that prior to arriving at The Drink at 11:00 p.m. on the night of May 24, 2008, she was at Bubble Tea which does not serve alcohol.

16. A male friend of Female Patron 1 was on the VIP list. She named a few friends who were a part of her group.

17. This was not the first time that Female Patron 1 was in a bar. She went to bars about twice a month. She knows she required identification to go inside, and she had that with her.

18. Female Patron 1 said she is of Vietnamese background, whereas the female whose identification she used, S., is of half Chinese and half Malaysian in background.

19. Female Patron 1 said she had no alcohol that night before she entered The Drink. She did not purchase any drinks at The Drink. A friend bought them for her. She said she was kind of drunk. She does not weigh much.

20. With regard to the incident with Female Patron 2, the witness said she was talking to friends who were around Female Patron 2. There was no communication between the two up to that point.

21. Female Patron 2 was staring at the witness, and Female Patron 1 said she got angry as a result. The witness then said she threw the cup she was holding at Female Patron 2, but she did not mean to hit her in the face. The witness wanted the contents of the cup – a mixed red drink – to hit Female Patron 2. The cup accidentally left the witness’ hand which surprised her. Everything happened so quickly.

22. The result caused a commotion. Everyone jumped in together. Female Patron 2 was on top of the witness on the floor. Her friends tried to pull Female Patron 2 off. The witness said she left quickly.

23. The witness was charged with a criminal offence, namely aggravated assault. A trial ensued and the witness was convicted. Her sentence was to perform 120 hours of community service which is part of a probation order.

24. Female Patron 2 gave evidence. On May 25, 2008 she was 17 years old. On the night of May 24-25, 2008 she was at The Drink. The witness said she made statements to both the Alcohol and Gaming Commission of Ontario (“AGCO”) and to Ottawa police as the result of what happened at The Drink and these statements were made exhibits (Exhibit 1A, statement to AGCO and Exhibit 1B, statement to Ottawa police).

25. Female Patron 2 stated she arrived at The Drink around 11:45 p.m. in the company of two male and two female friends. They all entered the establishment together. One of the female friends, Female Patron 3, was 17 at the time. The other, Female Patron 4, was 18. Both males were over 19 years.

26. The witness said there was a big line up outside but that she had skipped it. To do so, the witness had called a male friend who was already inside the Premises. He came out to the front door and told the bouncer that Female Patron 2 was with him.

27. The bouncer asked the witness for identification. The witness produced an old G2 driver’s licence with her sister’s name and picture on it. The bouncer looked at the card fast and said “okay”.

28. The witness then passed the same identification to Female Patron 3 who stood behind the 2 male friends. The others entered The Drink as a group, including Female Patron 3.

29. Once inside the Premises, the witness said she went to a booth. She said the service bar is in the middle of the Premises, with booths down two sides. She sat in a booth on the right side. There were six of her friends already in the booth, and there were also some acquaintances there.

30. Female Patron 2 said all told, there were 12 people at the booth. She named those she could remember and gave their ages at the time.

a) K – female – 16 (“Female Patron 1”)

b) L – female – 17 (“Female Patron 2”)

c) L – female – 16 (“Female Patron 3”)

d) LV – female – 17 (“Female Patron 4”)

e) J – female – 16 (“Female Patron 5”)

f) J – male 17 (“Male Patron 1”)

g) M – male – 17 (“Male Patron 2”)

h) H – male – 18 or 19 (“Male Patron 3”)

i) B – male – 18 (“Male Patron 4”)

j) TP – male – 18 or 19 (“Male Patron 5”)

31. On entering the Premises, The witness and her two female friends she had entered with went right to the booth. The two males went to the bar. There were a few bottles of Grey Goose vodka on the booth table. She later said there were six bottles, and they were the standard size of 26 oz. each.

32. At the booth, friends were serving drinks of vodka and cranberry juice. The witness said she had a lot to drink, five or six glasses of the mixed drink.

33. Female Patron 2 left the booth table and went to the service bar. The guys there asked her what she wanted to drink. Eight shots of a drink called “Porn Star” were ordered, two each for the witness, her friend Female Patron 3, and the two guys. The witness described the drink as a mixture of Sour Puss and Blue Cactus, both alcohol, in a shot glass, commonly called a “shooter”.

34. The witness said she was not asked for identification at any time after entering the Premises.

35. Female Patron 2 returned to the booth and drank more. Her friends ordered two more bottles of Patron, a premium brand of vodka. She recalled that the additional drinks she had at the booth were really strong.

36. Female Patron 2 walked back to the service bar where a male friend ordered a bottle of Grey Goose vodka. She said she had more shots at the service bar.

37. She described herself at that time as being “tipsy, intoxicated, drunk”. She said everyone was drunk.

38. Female Patron 2 said she went to the washroom. Female Patron 5 was in there vomiting. She assumed Female Patron 5 had too much to drink. Female Patron 1, Female Patron 2 and Female Patron 3 were all in there with her.

39. When she came out of the washroom, Female Patron 2 said she went back to the booth. Everyone was drunk and they were taking pictures. She had more to drink, and went back to the washroom. She needed assistance from Male Patron 2 because she was drunk.

40. When she came out of the washroom, she did not see Male Patron 2, so she went back to the booth where she was assaulted around 1:30 a.m., and left the Premises around 2:00 a.m.

41. When she had returned to the booth from the washroom the final time, the witness said that Female Patron 1 called her “you f-----g b---h” and threw a cup at her which smashed into her face. The witness said she recognized the voice as being that of Female Patron 1.

42. The glass that hit her face is used for mixed drinks. Female Patron 2 said when she touched her face where the glass hit her, she saw blood. She got scared.

43. Female Patron 2 said she rushed at Female Patron 1, they fought and they both wound up on the floor. Friends pulled them apart. Female Patron 1 left the Premises being pulled out by her brother.

44. Female Patron 2 stated there was no interaction with staff. A bouncer did come to the booth and made everyone leave. She said she refused because she had to gather her things. A friend helped her leave and she went to a hospital. She said the bouncer did nothing.

45. Outside, the witness saw Female Patron 2 standing in a parking lot. She rushed at her and they fought again. Friends pulled them apart. The witness proceeded to the hospital.

46. Through the witness, seven photographs of her face taken while she was at the hospital were produced as exhibits (Exhibits 2A to 2G, inclusive). As well, 14 photographs taken of the witness while she was at the police station were produced as exhibits (Exhibits 3A to 3N, inclusive).

47. Female Patron 2 said the injuries shown in the photographs (Exhibits 2 and 3) occurred inside the Premises at the booth. She required nine stitches to close the wound on her face. The scars are still visible. She has had laser treatment but the scar is permanent.

48. Female Patron 2 said she went to the police station on May 26, 2008. Prior to the night of May 24/25, 2008, the witness stated she had never been in the Premises, but that she had used her sister’s identification card before elsewhere. Her sister was 23 with a birthday in May. She is five years older than Female Patron 2.

49. In answer to questions on cross-examination, Female Patron 2 said she went to The Drink that night for a birthday party. She had no alcohol to drink before her arrival there. She called a male inside.

50. Female Patron 2 said she had used the false identification before. The guest list at The Drink ends at 11:00 p.m., so she was asked for identification. She has no idea what the policy is at The Drink.

51. The witness stated that younger girls get into the establishment so she assumed she could also with or without identification.

52. She said she lives in Barrhaven which is 30 minute drive to the establishment. On the way, she said she received telephone calls, and based on those, she knew which friends were inside The Drink.

53. Female Patron 2 said Exhibit 1A was written a few weeks after the accident. She was trying to be accurate. In her statement, she had said, and she confirmed this, that she and Female Patron 3 used the same identification card.

54. The witness stated the doorman checked her identification which was in reality a picture of her 23 year old sister. She confirmed she handed off the identification card to Female Patron 3.

55. In answer to a question, the witness said she had five or six drinks at the booth. Yet on page two of Exhibit 1A, she stated she had two or three glasses. Although this apparent discrepancy was pointed out to her, she did not provide any explanation.

56. She confirmed she went to the service bar to get shooters. Two male friends at the bar ordered drinks but their English was not good, so Female Patron 2 told the bartender what she wanted. She told the bartender she wanted “Porn stars”, and ordered eight shots. She herself took two and passed the others to friends at the bar.

57. Female Patron 2 said when she returned to the booth, she had three to five more drinks.

58. She saw Female Patron 1. She knew her. Female Patron 1 was standing on the other side of the service bar. The two of them did not speak.

59. As she had stated on page 1 of Exhibit 1B, Female Patron 2 confirmed that Female Patron 1 appeared out of nowhere and smashed a glass against her face.

60. This was a complete surprise to the witness. She rushed at Female Patron 1. Friends were grabbing them but they still fought. They were on the ground, on the floor, struggling.

61. Eventually, the witness said, they were pulled apart. They continued yelling at each other. People were holding each of them back.

62. Female Patron 2 said a bouncer did not arrive on scene until Female Patron 1 was gone. The bouncer told the witness to leave, to which she replied she wanted to collect her stuff first.

63. Outside, the witness stated she saw Female Patron 1 again. The witness ran at her. They did not fight, just a very quick pull at each other’s hair.

64. Female Patron 2 said she has retained a lawyer regarding the assault to sue The Drink for compensation.

65. In answer to questions on re-direct, Female Patron 2 said that the bouncer did not accompany her outside, nor did he ask if she needed assistance.

66. In answer to a question from the Board, Female Patron 2 said that she had free-poured Vodka from the Grey Goose bottles on the booth table.

67. Female Patron 5 gave evidence. She is now 18. On May 24-25, 2008, the witness was 17. She confirmed she was at The Drink the night of May 24-25, 2008.

68. Female Patron 5 arrived at The Drink around 11:30 p.m. She was in a group of about 10 people. Female Patrons 2 and 3 were part of that group but they came later.

69. The witness said she used Female Patron 2’s sister’s G1 driver’s licence. The sister was 23. Female Patron 2 had given it to the witness for her to use as identification for herself.

70. Female Patron 5 said she did not have to wait in line. She had “VIP status”. Someone had arranged that ahead. She was asked for identification. She showed her fake identification. It took two seconds. She was asked just for one piece of identification. Later on, she gave it back to Female Patron 2. She stated that she was not the only one to use that same piece of identification that night.

71. Female Patron 5 said different pieces of identification of Female Patron 2’s sister were used. Another female used one, was one and she was 16.

72. Once inside, Female Patron 5 proceeded to a booth. She drank Grey Goose and cranberry juice. Bottles of Grey Goose were on the table. She free-poured a few drinks. There were also two bottles of Patron vodka on the table, but the witness said she did not have any. That was all she had to drink.

73. Female Patron 5 said she stayed in the booth. She identified the others there:

a) Female Patron 7 - who was 17 then;

b) Female Patron 6 - who was 16 then;

c) A previously identified Female Patron 9 - who was 18 then;

d) Female Patron 2 - who was 17 then;

e) Female Patron 3 - who was 17 then;

f) Female Patron 4 - who was 16 then;

g) A previously un-identified male patron, (Male Patron 6) – who is now 21 or 22;

h) A previously un-identified male patron, (Male Patron 7) – who is now 21;

i) A previously un-identified male patron, (Male Patron 8) – who was 17 then, is now 18; and

j) A previously un-identified male patron, (Male Patron 9) – who was 17 then, is now 18.

74. The witness said after sitting in the booth for two hours or less, Female Patron 1 came and threw a glass cup at Female Patron 2’s face. The latter was cut, and had to have nine stitches. The witness confirmed Female Patron 1 said nothing before she threw the cup.

75. As a result, everyone panicked. The witness said she was shocked. It was unexpected. Friends, not staff, tried to stop the fight between Female Patrons 1 and 2. There was no contact as the women were being held apart by friends.

76. Female Patron 2 got “kicked out” of the Premises. Female Patron 1 went home. The witness said she left when Female Patron 2 did. She accompanied Female Patron 2 to the hospital.

77. The witness said staff talked to them about what happened, but offered no help. No staff went with them.

78. Outside, Female Patron 1 was arguing with her brother. Female Patron 2 saw her and tried to hit her but was being held back. Male Patron 9 drove Female Patron 2 to the hospital.

79. Female Patron 5 said she felt “tipsy” after having drinks before the assault, but then she sobered up. She also stated that after entry into The Drink, she was not asked for identification again.

80. In answer to questions on cross-examination, Female Patron 5 said she did not go up to the service bar nor did she order drinks.

81. The witness stated it was a member of the same group holding both women. She said Female Patron 2 did not “get at” Female Patron 1, never assaulted her and did not reach her. The witness recalled Female Patron 1 being on the floor and that Female Patron 2 was being restrained.

82. Staff arrived after Female Patron 2 had been let go, and told to leave. The witness said she spoke to staff about what happened.

83. Female Patron 5 said she left the bar around 2:00 a.m. Everyone left, about 20 in all. Female Patron 2 was making a motion towards Female Patron 1 outside, but the two never reached each other. Male Patron 2 was restraining Female Patron 2.

84. Female Patron 4 gave evidence. On May 24-25, 2008, she was 16. She was at The Drink that night. She arrived around 11:00 to 11:30 p.m. with eight or so friends who she identified and gave their ages as:

a) Female Patron 5 – 17

b) Male Patron 2 – 18

c) Male Patron 1 – 18

d) Male Patron 3 – 19

85. She also said that Female Patron 2 and 3, both 17, arrived later.

86. Female Patron 4 stated that there were also several girls there who Female Patron 2 did not like.

87. The witness said they did not wait in line as they had VIP status which had been pre-arranged. She said she was asked for identification at the door and showed a piece of identification a friend had given her. She was not sure what it was, but she said it did not have her picture on it. She could not recall the name on it. The identification showed an age of 20 or 21. She was only asked for one piece of identification. The doorperson did not look at it long, took just a glance.

88. Once inside, Female Patron 4 went to the booth where the others were. She said she was not asked again for identification.

89. At the booth, Female Patron 4 drank Grey Goose (vodka) and cranberry juice. She had a few drinks but not a lot. She free-poured her drinks (the alcohol was not measured). She remained at the booth.

90. Female Patron 4 said it was someone’s birthday. Female Patron 6 got sick because she had too much to drink. She vomited in the bathroom. She walked in a wobbly manner back to the booth. She talked well but was slurring her words. There was no interaction with staff for at least 10 minutes after Female Patron 6 came back to the table from the washroom.

91. Female Patron 4 said eventually someone took Female Patron 6 home. Female Patron 4 said she accompanied her outside around 1:00 a.m. No staff dealt with Female Patron 6 on her exit of the Premises.

92. Female Patron 4 did not go back into the Premises. Female Patron 2 was coming out holding her face and bleeding. No staff was with her. She asked Female Patron 2 what had happened. Female Patron 4 drove Female Patron 2 to the hospital, and afterwards went back to pick up Female Patrons 3 and 5.

93. In answer to questions on cross-examination, Female Patron 4 said there were 11 or 12 people sitting at the booth. There were two sides. She identified Female Patrons 2, 3, 5, 7 and 8 as being on the left side.

94. Female Patron 4 said that Female Patron 6 was slurring her words a bit, walked but wobbly. Once outside, Female Patron 6 could not walk and someone had to carry her to a car. At the booth, no staff dealt with Female Patron 6.

95. Female Patron 4 said she saw four bottles of vodka in front of her on the table at the booths. She could not see what was on the other side of the table.

96. In answer to questions from The Board, Female Patron 4 said a couple of guys gave Female Patron 6 vodka to drink. Her head was wobbly, she was gagging as though she was going to vomit.

97. Female Patron 4 said that the only time she saw staff was when they came to the table to ask if the group needed more drinks, and that happened only once or twice.

98. Female Patron 3 was called to give evidence. She is now 18, but on the evening of May 24-25, 2008, she was 17. She said she was at The Drink that night. She arrived around 11:45 p.m. with Female Patron 2 and two males.

99. The group did not wait in line. A friend had told the bouncer that the group was “with us”. Female Patron 3 said she was asked for identification at the door. She showed identification indicating she was the sister of Female Patron 2 who was then 23. The witness believed it was a health card.

100. The witness said that Female Patron 2 showed the same identification to get inside. Female Patron 2 got in and passed the piece of identification back to the witness.

101. The security person looked at this piece of identification for two or three seconds. Only one piece of identification was asked for. Once inside, the witness said she gave the piece of identification back to Female Patron 2. She was never asked to produce identification again in the Premises.

102. Once inside, Female Patron 3 went to the booth. There she drank Grey Goose and Patron vodka at different times, sometimes straight and sometimes with cranberry juice. She estimated that she drank about a quarter of a bottle of Grey Goose and had three shots of Patron.

103. By the time the incident happened, Female Patron 3 said she was “tipsy”. She free-poured the Grey Goose. The witness said she went to the washroom a couple of times, she danced, and she went to the service bar where she had two shots of “Porn star”; a mixed shot drink. A male bought the shots for her and for Female Patron 2. Then she went back to the booth.

104. Female Patron 3 said at that point, Female Patron 2 returned from the washroom. She said “let’s drink some more”. Female Patron 1 came over. It was dark and everything was a blur. Female Patron 1 was holding a glass with a drink in it. A couple of guys tried to stop Female Patrons 1 and 2, but Female Patron 1 threw the glass at Female Patron 2. Both of them fell down and were on the floor for 10 or 11 seconds.

105. The two females were separated and Female Patron 1 was taken out by her brother. Female Patron 2 sat down. She was bleeding.

106. Staff told the group to leave. No one offered to help Female Patron 2. Two staff members escorted them group out. Female Patron 2 was taken to the hospital.

107. In answer to questions on cross-examination, Female Patron 3 said she had been at Female Patron 2’s house with another female friend. They were picked up by a male friend who then stopped to pick up a second male friend. There was a birthday party going on.

108. Female Patron 3 said she sat in the back of the car with Female Patron 2 who received a call. The witness said they planned to go somewhere else but they were too late. As a result they agreed to go to The Drink.

109. In the car they talked about getting into The Drink. Female Patron 2 said she would go first using the identification and then pass it back to Female Patron 3 who had not been at The Drink before.

110. Female Patron 3 thought the plan would work because she and Female Patron 2 “look somewhat similar”. Female Patron 2 showed the piece of identification at the door when asked, then passed it back to a male behind her who, then passed it back to Female Patron 3. Once approved by the bouncer, the four went inside The Drink together.

111. Once inside, Female Patron 3 said she saw Female Patron 1 at the service bar in front of the booth. They did not speak.

112. Female Patron 3 said Female Patron 1 came out of nowhere. When Female Patrons 1 and 2 fell, they fell together.

113. Staff from the bar arrived and took the group out. Two staff escorted the group out of the building. Female Patron 3 told staff she had to look for her own cell phone and Female Patron 2’s purse. Staff stayed with the witness while she did so, and she was out of the Premises in five minutes.

114. Regarding the piece of identification used, the witness said it was the same as Female Patron 2 used and she was sure it was a health card. It was green and was an old health card.

115. K.K. gave evidence. The witness is 17 but on August 16, 2008 she was 16. At 11:30 p.m. that night the witness and a girlfriend, H.C. went to The Drink.

116. K.K. and H.C. were allowed in. They skipped the line waiting to get in because their names were on a list.

117. K.K. said that prior to going to The Drink, H.C. had some Captain Morgan rum from a mickey, with coke. The two of them then bussed to The Drink.

118. Sometime before, the witness had met people at a boxing match. They had texted to each other. The others invited K.K. and her friend to come to The Drink, saying they would put their names on a list at the door.

119. Male security at the door said “you’re on the list”. K.K. said “we got in”. The male they had met at the boxing match was Matt Whittaker. He was inside The Drink.

120. K.K. said when she and H.C. approached The Drink, she texted Mr. Whittaker. He replied to get inside, the witness’ name was on a list. Mr. Whittaker was standing at the door, saying come in, which K.K. and H.C. did.

121. K.K. said that at that time, H.C. was 17. She estimates Mr. Whittaker was 23 or 24.

122. K.K. said that at the door to enter The Drink she was not asked for identification or proof of age, nor was H.C. asked for anything. She described the bouncer as “bigger” with scruff on his face.

123. Once inside, K.K. said Mr. Whittaker showed them around. They went to the service bar. The witness said Mr. Whittaker gave her a drink with vodka in it which she described as “gross – disgusting”.

124. When Mr. Whittaker ordered the drink, the bartender knew it was for her. The bartender did not ask either the witness or H.C. to produce identification. H.C. had the same drink as the witness.

125. K.K. said they took their drinks out to the patio. They had reserved seats. They met a couple of Mr. Whittaker’s friends. H.C. finished her drink. K.K. gave H.C. the rest of hers.

126. K.K. said they remained until 2:30 a.m. At that point the manager came over. He put his business card in K.K.’s shirt while they were talking. They talked for about an hour. K.K. described him as having darker skin, being big, and having an unusual name.

127. K.K. and H.C. left together. The Drink was closing and staff were telling people to leave. They got a taxi and headed home.

128. K.K. said her parents went through her cell phone and saw text messages that K.K. had been at The Drink the previous night. She was grounded for a month. K.K. said her parents were upset.

129. At that point, K.K.’s mother who had been sitting in the room was asked to leave, which she did.

130. In answer to questions on cross-examination, K.K. said she was a high school student, that she was an accomplished singer, dancer and actress, that she had been acting since she was seven or eight, that she has had formal acting training, and has appeared in theatre in Ottawa.

131. K.K. said she had also worked at several Ottawa licensed establishments as a hostess.

132. August 16, 2008 was a Saturday. K.K. was living at home. She had a midnight curfew. K.K. was supposed to be staying at a friend’s house for a sleepover. She lied to her parents. She was 16 at the time, close to turning 17.

133. In June, K.K. and her mother had met Mr. Whittaker at a boxing match. K.K. said her mother would not have approved of her maintaining a relationship with him. H.C. was also at the boxing match.

134. K.K. said her parents were not fond of H.C., so K.K. told her parents that she was going to sleep over at another friend’s house – S. K.K. told her parents she had her cell phone. K.K. did not set this up with S. She had done this before. S. did not like her friends lying to their parents. K.K. planned this the morning of August 16, 2008.

135. At that time, K.K. said she and H.C. were close friends. Their parents had since had a falling out.

136. On August 16, 2008, K.K. and H.C. met at a friend’s house. It was still light outside. They were deciding what to do (go to The Drink or go to Hull). H.C. convinced K.K. they should go to The Drink.

137. K.K. possessed false identification which she had obtained from a male friend. It showed a female over 21 years old. K.K. said she had not used this false identification or any other false identification before.

138. H.C. had a driver’s licence from her older sister. H.C., according to K.K., was experienced in using false identification. Also, according to K.K., her friends were using false identification so K.K. did it too on account of peer pressure.

139. August 16, 2008 was the first time K.K. met Mr. Whittaker after seeing him at the boxing match.

140. At the boxing match, K.K. told him she was 19 and that H.C. was 20. They texted after that. K.K. pretended that she was older than she was.

141. At The Drink, K.K. told Mr. Whittaker she was 16 as of the previous October, and would be turning 17 in the coming October. K.K. said that Mr. Whittaker did not talk to her after that.

142. K.K.’s parents found out the next day by looking at her text messages that she had been at The Drink. She told her parents she had fake identification, but did not tell them where she got it. They took it from her.

143. K.K. said that a friend of Mr. Whittaker’s had driven her to her boyfriend’s house from The Drink.

144. The next morning, K.K. went home. Her parents thought she had been at S’s house. K.K. left her cell phone on a table. Her father spoke to K.K. that night. K.K. told her father the truth, namely that she had been “at the bar” (The Drink) the previous night.

145. K.K. said she knew she was in trouble. However, she did not want to get her friends in trouble. Her parents knew she was at The Drink the night before. She told her parents about the fake identification she had used. Her parents took it. She also told them that H.C. had used fake identification also.

146. K.K. said that night she got into The Drink, she was wearing a purple dress, cowboy boots with heels, and natural make-up.

147. K.K. said she has not been in a bar since that night at The Drink.

148. She described the Premises. There is a raised dance floor towards the back of the main room. The bathrooms are on the right, and were disgusting inside that night. To the right of the bathrooms are the doors leading to the outside patio.

149. When entering the Premises, K.K. said she did not speak to the bouncer. He looked at something and told her friend they were on the list. Mr. Whittaker came out. Her real name was on the list.

150. Mr. Whittaker had given her real name. He knew her first name but not her last name.

151. K.K. said H.C. was not asked for identification at the door.

152. K.K. has a statement which her father wrote. She knew it was going to the AGCO. K.K. said she was 16 at the time. It may contain some inaccuracies but she is not trying to minimize things.

153. AGCO inspector (“Insp.”) Stephane Godard gave evidence. He has been an inspector with the AGCO since May of 1994.

154. Insp. Godard said he is familiar with The Drink located at 130 George St. in Ottawa. He investigated allegations that minors were served and consumed alcohol in May and August, 2008.

155. The alleged incident on May 25, 2008 came to Insp. Godard’s attention toward the end of June in the form of a police report. He reviewed the report to identify any infraction of liquor laws.

156. From the police report, Insp. Godard noted that allegedly minors were served and had consumed alcohol, and that disorderly behaviour had occurred.

157. Insp. Godard said he contacted some of the people involved. He needed some information. From early July to late August, 2008, he contacted witnesses, and got statements from them.

158. On August 21, 2008, Insp. Godard completed his spot inspection report which outlined a summary of what had occurred. It was submitted to his superior who sent it in for a Deputy Registrar’s Review.

159. On September 4, 2008, Insp. Godard spoke to Todd Brown by telephone. He told Mr. Brown about the May 25 allegation, namely that the Licensee permitted service to minors as stated in a police report, and Insp. Godard’s report had been sent in for a Deputy Registrar’s Review. Insp. Godard also told Mr. Brown about a second complaint on August 20, 2008 alleging that minors were served in the establishment on August 16, 2008.

160. Through Insp. Godard, spot inspection reports dated August 21, August 26 (2), 2008 were made exhibits (Exhibits 5A, 5B and 5C)

161. In answer to questions on cross-examination, Insp. Godard said that he found out about the May incident around the end of June from reading a police report. A fight had occurred. Insp. Godard followed up by interviewing witnesses. He suspected that there would be problems.

162. Insp. Godard confirmed he spoke to Todd Brown on September 4, 2008 telling him about the two incidents - May 25 and August 16. Only the first incident was proceeding for review at that time. The August 16 incident was made known to him on August 20 by way of a complaint from a minor’s father.

163. Insp. Godard said he conducted spot inspections of The Drink after August 20, and made reports.

164. Insp. Godard attended the Premises and made the following reports about his inspections, all reports being made exhibits:

Date of Inspection Exhibit No.

a) August 30, 2008 6

b) September 13, 2008 7

c) November 8, 2008 8

d) March 27, 2009 9

e) April 6, 2009 10

165. Insp. Godard said only warnings had been issued in the past two years other than the current NOP allegations.

166. Insp. Godard said he was aware the policy of The Drink was that people over 21 could enter.

167. In answer to a question on re-direct, Insp. Godard said that he would not have proceeded to file his report if the police report did not identify witnesses.

Licensee’s Evidence

168. Scott Gorry gave evidence. He is 31 years old, currently at Carlton University taking political science and law courses. He works full time as a legislative assistant for a Member of Parliament.

169. Mr. Gorry said he has worked in security for 10 years. He is licensed as a private investigator and security guard. He worked for a security guard company in Toronto, and was their account manager for the LCBO. He has managed security in two licensed establishments and worked the front door of three or four establishments. He has also taken training programs. He has also worked at licensed private events.

170. Mr. Gorry works part time now for licensed establishments. At an Ottawa bar in the Market, he is their risk manager on Friday and Saturday nights. That bar is related to the Licensee. Both are part of the York Entertainment Group.

171. Mr. Gorry said he was employed at The Drink for a year. He was working on both May 24 and August 16, 2008. He was the front doorman continuously both nights, setting up line-ups and checking identification.

172. Mr. Gorry described the front entrance to the establishment. An iron railing is in front of the patio. Metal gates establish where the line-up should be situated. Patrons come up to Mr. Gorry. There is only one main entrance. The line-up is orderly and in single file. Mr. Gorry controls the numbers. He keeps a count.

173. Mr. Gorry said that when a patron comes up to where he stands, he engages the person. He makes sure the person meets the establishment’s dress code. He asks the person for identification and looks at it, verifying it is acceptable. Mr. Gorry checks the person’s demeanour, that they are not intoxicated and that they have a good attitude.

174. Mr. Gorry said he has taken the Smart Serve course twice, and has taken a course in tactical communications.

175. Mr. Gorry said that everyone is identified. The internal policy of the Licensee is that a patron must be over 21. If someone is under 21, they are not likely to get in.

176. Government-issued photo identification is needed. Mr. Gorry looks at the photo and birth date, and verifies the identification has not expired. He also has a metre stick to check the person’s height against that shown on a driver’s licence. Mr. Gorry said sometimes he asks people for their signature so he can match it to that on a driver’s licence they are using as identification.

177. Mr. Gorry stated that he frequently turns people away and refuses access to the Premises. He said he has seized identification a few times.

178. Mr. Gorry considers himself to be a professional based on his experience in Toronto for 10 years.

179. Mr. Gorry said that York Entertainment gives him a mandate. There is no pressure or incentive for him to allow people inside. He is paid hourly.

180. If there are issues in identifying a person, such as a picture being worn down or hair colour changed, Mr. Gorry will ask the person for a second piece of identification.

181. Regarding lists of patrons, Mr. Gorry’s aid the establishment has several VIP booths where patrons can have bottle service. If a person orders bottle service, their name goes on a guest list - that person and a number of others joining him or her.

182. The guest list is operative from opening to 11:00 p.m. There is no cover charge or line-up if a person’s name is on a guest list. Mr. Gorry checks their identification and tells them to go in. The name of the person who made the reservation is on the list and the number of others he or she is expecting. No other names are on the list.

183. Mr. Gorry will ask a patron if he or she is on a VIP list, and who they are with, which he will verify. If there are already the number of guests expected by a person whose name is on the list, Mr. Gorry will not extend that number. Everyone must show identification. Mr. Gorry uses the same diligence in checking all identification.

184. Through Mr. Gorry, the front door list for May 24, 2008 was made exhibit (Exhibit 11). It is computer generated. Mr. Gorry gets one at the start of the night and hands in the original at the end of the night.

185. The list shows the booths. Mr. Gorry said he identifies everyone with a reservation. He keeps a tally and when a table is full, no more guests are allowed.

186. Mr. Gorry said he was on duty at the front door of The Drink on May 24, 2008. There was an incident that night involving a group of Asian people. He checked identifications. He used the same practice as every night.

187. Mr. Gorry said inter-racial pieces of identification are difficult. People have similar features, hair styles, names, facial features and size. He will ask more diligent and additional questions in checking these identifications, for example; a person’s postal code, the expiry date.

188. The witness was not directly involved with the incident on May 24, 2008 which took place inside the Premises. He does not remember being informed. He recalled a large group of Asian people on the driveway.

189. Mr. Gorry was on duty on August 16, 2008 performing the same duties and using the same modus operendi. If a person said they were a guest, Mr. Gorry would: ask them to produce identification and whose reservation they would be under, verify their age and identification. There were no exceptions. Only people who were 21 or over were allowed in.

190. Mr. Gorry said there would have been a list for August 16, 2008 showing the name of the person who booked a table, number of guests, whether or not there was bottle service. No guest names were on the list, but this had no bearing on his checking patrons’ identification.

191. In answer to questions on cross-examination, Mr. Gorry said he had been in Ottawa for two and one-half years. In his security work, he has dealt with multi-racial people.

192. Mr. Gorry agreed that his job at the front door of The Drink is multi-tasking, doing six or seven different things for each guest. He also agreed that the establishment gets busier after 11:00 p.m. when line-ups usually start. Although people want to get inside, Mr. Gorry said the line-up stays orderly. Mr. Gorry maintains order. There is no pressure to let people in. Mr. Gorry identifies everyone who comes to the door.

193. Mr. Gorry said he starts work at 9:00 p.m. and stays on until 2:45 a.m. He takes small breaks. He is the only person doing this job. The line-ups range from five to 40 people. He said Friday night is slower than Saturday night.

194. Mr. Gorry said his post is at the front door. There is another doorman at the cover charge booth.

195. Tim McCarthy was called to give evidence. He is 27 and has a Bachelor of Commerce degree from the University of Ottawa. He now works for the Federal Government on a full time, permanent basis. He also works as a security person at The Drink and has done so for just over four years.

196. Mr. McCarthy has taken the Smart Serve course three times, and has also taken the tactical communication course offered by York Entertainment.

197. Mr. McCarthy said he was working at The Drink on May 24, 2008. He was standing by the cash where people pay a cover charge to get inside the Premises. He watches for safety concerns.

198. Mr. McCarthy has training in both first aid and CPR.

199. Mr. McCarthy described where he stands. It is at the end of a hallway coming into the Premises from the front door. He can see Mr. Gorry. Mr. McCarthy tells people what the cover charge is or if they are a guest list.

200. Mr. McCarthy said that on the night of May 24, 2008 a group of Asian people was in the Premises. There was a commotion at a VIP booth. Mr McCarthy went to the booth, saw the group of both males and females. Some of the group were standing, some were sitting. Mr. McCarthy saw no fighting or injuries.

201. Mr. McCarthy asked the group to come outside to talk. They did. There were roughly 10 people in the group. Mr. McCarthy asked if anyone was hurt. No one wanted help. Mr. McCarthy said good-bye and walked back inside the Premises. No one from the group showed any behavioural issues, Mr. McCarthy said.

202. In answer to questions on cross-examination, Mr. McCarthy said the hallway he described was perhaps 12 to 15 feet wide. He is not in easy conversation distance from Mr. Gorry. The hallway can be busy and noisy. His focus is his immediate area.

203. Mr. McCarthy said he stands to the side of the cover charge counter, with his back to the coat check at the end of the hall. He can see a corner of the inside of the establishment out of the corner of his eye to the left. He cannot see the back of the Premises, nor can he see the VIP booths from where he stands.

204. Mr. McCarthy estimated it was about 1:00 a.m. when he went to the VIP booths the night of May 24, 2008. It was before closing. Mr. McCarthy said he saw no blood, no broken glass, nor any signs of a struggle on the floor.

205. Todd Brown gave evidence. He is 47. He was born and raised and lives in Ottawa.

206. With other partners, Mr. Brown said he manages 10 licensed establishments in the Ottawa Market under the name of York Entertainment Group. He is a shareholder in various corporate licensees, one of which owns The Drink. There is one other shareholder in that latter company.

207. On a day to day basis, Mr. Brown manages business, oversees other managers, deals with leases of premises, matters such as this hearing, and develops policies.

208. Mr. Brown started working in the Ottawa Market as a busboy in 1979. In 1983 he opened his first establishment. He has always worked in the Ottawa Byward Market.

209. Mr. Brown said the York Entertainment Group was formed in 1995. It planned to be very involved in the Market to develop business in the area. It is involved with the local business improvement area, liaises with the police about safety and security matters.

210. Mr. Brown said the Group started the Beverage Association for Responsible Service (BARS) to make the market a safe place, and a good area for tourists. The Group wants to be an integral part of the community and wants to help solve community problems.

211. The Group is also trying to form another non-profit association called “Drink Right” to educate the public on how they should drink and act in public establishments, what is the law, and that people should drink responsibly. The public does not look at minors as an issue.

212. The Drink opened in November, 2004. Target patrons were the 25 to 30 year old crowd. Policies were established so that patrons had to be 21 or over, and conformed to a dress code before they could enter the Premises.

213. Mr. Brown said the Ottawa Market was now a diversified, vibrant area, transformed from 1995 when the traffic was mainly university students with a few restaurants.

214. When Insp. Godard called him in September 2008, he first learned of the investigation. Insp. Godard said there was a police report and a complaint about minors in The Drink.

215. Mr. Brown said he was surprised. The mean age of patrons is 25 to 27. There is never a young crowd. This took a long time a long time to come to his attention. It is important for him to know these issues right away.

216. Since September 2008, there has been nothing further regarding minors in the Premises. Mr. Brown said they do their own spot checking. Two people work Thursday, Friday and Saturday nights. They act like liquor inspectors. They are not employees of any bar, nor are they friends of staff. They do checks and fix up any issues.

217. Mr. Brown said 95% of all problems can be stopped at the door by the doorman. The more rules, the better the customer. If people do not obey the rules they cannot get inside.

218. Mr. Brown stated that when his staff take the Smart Serve course, they must take it in person from an instructor, not online. He mentioned that the York Entertainment Group employees take a tactical communications course which is taught at Algonquin College.

219. Mr. Brown said that Scott Gorry is a model employee. He is older, mature and has lots of experience. He does not get persuaded, and likes to do a great job. Mr. Gorry is his best employee, best security person. He has now moved to Suite 34. He had issues but has corrected them.

220. Employees are given house policies and told how to enforce them. There is a risk manager at The Drink who does not stay in a particular location. This person circulates looking for any potential problem. There is also a security person for every 60 to 75 people in the Premises.

221. Management salaries are not based on sales. There is a bonus system of 20% of salary if there are no AGCO charges against the bar.

222. Mr. Brown said there is always one person on duty who has first aid training. Tim McCarthy has training and was on duty.

223. Regarding people using a false identification, where a patron is 19 to 21, employees are taught what identification is okay and valid. Everyone going in to The Drink must have valid identification even if 60 years old.

224. In answer to questions on cross-examination, Mr. Brown said that bartenders and servers get tips and they do not ask for identification. However; if someone looks underage, the bartenders and servers should ask for it.

225. Mr. Brown stated Mr. Gorry did not get fired. An issue came to light and all staff including him had to do re-training - Smart Serve and tactical communications. Since then, Mr. Gorry has been promoted to risk manager at another bar, Suite 34.

226. Mr. Brown said that on weekends, he goes from one bar in the Group to another. He and Steve Monuk, a third partner in the Group, work every other weekend. Also, after the incident at The Drink, they hired two additional people to inspect.

227. Prior to May and August, 2008, Mr. Brown said he had no concerns regarding The Drink. He spent time there. Between April and June, he spent one night a week at The Drink. He watched Mr. Gorry for 10 to 15 minutes from a spot across the street at peak times. From there he could not hear what Mr. Gorry was saying.

228. Mr. Brown said house policies are not written down. Employees at The Drink are told verbally that the age policy for patrons is 21 years old and up. This is again written throughout the tactical communications program.

229. Mr. Brown was not present at The Drink on the nights of May 24-25 or August 16, 2008.

230. In answer to questions on re-direct, Mr. Brown said regarding the bartenders checking for identification, every person needs valid identification to enter The Drink. Therefore serving staff does not need to check identification. But if they suspect an issue, they should ask for it.

231. Mr. Brown said the 21 years old policy regarding patrons is on their website, and made the comment that the kids are never charged if there is an infraction. Instead, the bar owners are forced to do everything.

Additional Evidence for the Registrar

232. At the commencement of the third day of the hearing on December 21, 2009, Ms Taylor, for the Registrar, indicated she intended to call a further witness. A will-say statement had been provided to the Licensee’s representative in October. Ms Taylor said she was not aware of the witness’ name before K.K. gave her evidence for the Registrar.

233. Licensee’s representative said he would not object to the calling of the witness, but asked the Board to be aware that this evidence would be provided after the Registrar had closed his case.

234. Matt Whittaker was called to give evidence. He is 25 years old and a resident of Ottawa. He graduated from Carleton University in 2007 with a sociology degree.

235. Mr. Whittaker said he is a part owner of a business and full owner of another. He was a boxer in high school and still has an interest in it. He does not have a criminal record.

236. Mr. Whittaker knows K.K. He met her at the Ringside Charity Gala, a black tie, networking and fund-raising event. Tickets for the event were $200 to $1000. Mr. Whittaker was there coaching boxers.

237. Mr. Whittaker recalled that K.K. was sitting at a table with friends. He did not know her before. They carried on small talk. There was no discussion of age. Mr. Whittaker assumed everyone present was at least 20.

238. After the event, the two of them texted intermittently. He called it online social networking.

239. The next time they met in person, K.K. texted Mr. Whittaker and asked him what he was doing Friday night. He responded he was going downtown.

240. K.K. responded she had broken up with her fiancé and asked what Mr. Whittaker was doing Friday. Mr. Whittaker invited K.K. to The Drink and she replied she would like to go.

241. Mr. Whittaker put K.K.’s name on a guest at The Drink so she would not have to wait in line.

242. That Friday was a mid-August night. Mr. Whittaker was sitting on the patio of The Drink. There were seven in the group. He saw K.K. arriving, and went to the doorman and told him K.K. was on the list.

243. Mr. Whittaker said the doorman identified her, checking her identification which Mr. Whittaker saw him do, and K.K. entered The Drink. K.K. was with a friend. They stayed on the patio the whole evening.

244. A friend of Mr. Whittaker drove a group of five people home, including some who went to Kanata. That friend was the designated driver.

245. About a month and a half later, K.K. sent Mr. Whittaker a message which he kept on his phone. A copy of that message was entered as Exhibit 12. Mr. Whittaker said Exhibit 12 was an accurate copy of the message. In it K.K. made the comments:

a) It was her 17th birthday; and

b) Mr. Whittaker had thought K.K. was 21.

246. Mr. Whittaker said he was surprised, and that K.K. was too young for him. The two did not speak after this. He had no idea she was 16 when he met her at The Drink. K.K. had told him she was 21.

247. In answer to questions on cross-examination, Mr. Whittaker said the gym he is part owner of does not have a liquor licence. The other business he owns has no connection to alcohol.

248. Mr. Whittaker said he is a regular patron of The Drink. He knows some staff by face.

249. At the boxing gala in June 2008, Mr. Whittaker did not see K.K. with her mother. He did not recall seeing or meeting the other girl’s parents.

250. Mr. Whittaker said it was not his responsibility to check K.K.’s age. He had no interest in determining her age. He did not even think about it.

251. On the night they met at The Drink, K.K. had texted Mr. Whittaker that they were on their way. Mr. Whittaker saw them walking up to the front door of The Drink. He immediately recognized her even though it was only the second time he had seen her. Her picture was on her Facebook page.

252. Mr. Whittaker said at The Drink, one person checks identification before a patron can go through to the patio. He did not remember a cover charge table.

253. Mr. Whittaker said he had approached staff and told them that K.K. and a friend were on the guest list. They by-passed the line-up. They would have had a stamp on their hands.

254. Mr. Whittaker did not recall how to get to the bouncer at the front door from the patio. There was a line-up along the fence that bordered the patio. Staff made sure no one got onto the patio. A bouncer supervised the patio.

255. Mr. Whittaker said patrons were identified only at the front door, not again as they went out to the patio.

256. Patrons approached the doorman from two sides – the VIP line-up on his right and the regular line-up on his left. Mr. Whittaker said he approached the doorman from the doorman’s left, and told him to put two people on the guest list. The doorman turned toward the two girls.

257. Mr. Whittaker wanted the girls to get into the bar. He did not care if they had proper identification. But he was positive the doorman checked the girls’ identification. He remembered the incident. It took the bouncer three seconds to check their identification. He looked at it and handed it back. Mr. Whittaker said the girls were not asked for identification again.

Potential Expert Witness for the Licensee

258. At the outset of the hearing on the first day, September 9, 2009, the Representative for the Licensee indicated they intended to call an expert witness and had provided material to the Registrar’s Representative the day before.

259. Towards the end of the hearing on the second day, October 8, 2009, the Licensee’s Representatives again referred to their desire to call an expert witness. The Registrar’s representative objected on the basis that the individual was not an expert in the areas being put forward. Material had been furnished by the Licensee’s Representative to the Registrar’s Representative including the curriculum vitae (“c.v.”) of the individual, Professor (“Prof.”) Rod Lindsay. Prof. Lindsay was not present. After discussion, the Board ruled that the person intending to be qualified as an expert should appear before the Board to have the opportunity to explain his qualifications and be examined. The issues to be dealt with by the potential expert witness was:

“whether a person can reasonably match a photo of an individual they do not have prior experience with to that person who is present at the time of the decision”

(quoted from first paragraph of material attached to Mr. Carter’s letter dated October 13, 2009 to the AGCO Hearings Department)

260. After the completion of Mr. Whittaker’s evidence on the third day of the hearing on December 21, 2009, the Board asked for oral submissions regarding the qualifying of Prof. Rod Lindsay as an expert.

261. Mr. Carter, for the Licensee, said he had discussions with Ms Taylor, for the Registrar, to try to narrow the issues relating to Prof. Lindsay. There are no issues regarding Prof. Lindsay’s qualifications as an expert in his c.v. and his work with line-ups. The issue was: can Prof. Lindsay testify as an expert in the area of facial recognition. Ms Taylor’s position is that this is not Prof. Lindsay’s area of expertise.

262. Mr. Carter stated that there is an error rate in matching a photograph to a live person or another photograph. There is a difference from what occurs in eye witness identification. This was conceded in Prof. Lindsay’s report. In cross-racial identification, Prof. Lindsay noted there are no studies. Mr. Carter said there are cases on this point and it is common knowledge. The only aspect of the expertise is recognition.

263. Ms Taylor stated the Registrar’s position. Prof. Lindsay is an expert in areas involving memory and the ability to pick out correct photographs from memory. He also may an expert in police photo line-ups again involving memory. He also may have expertise in child witnesses identification involving memory.

264. In this case, Ms Taylor said, memory is not an issue. Prof. Lindsay’s expertise is in memory. Ms Taylor submitted as an authority chapter 18 from the report of the Goudge Inquiry into Dr. Charles Smith. In this chapter, the role of the court, and the law and practice of the courts in dealing with expert witnesses is set out. Ms Taylor said the judge must define the subject area about which the witness has expertise.

265. Ms Taylor referred the Board to the following on page 472 of the Inquiry:

“The trial judge’s first task as gatekeeper is to define clearly the subject area about which the proposed witness has the required expertise to offer opinion evidence to the court. The trial judge should insist at the outset that counsel confine with precision the proposed area of expertise and the issues to which the opinion will be directed.”

266. Ms Taylor also referred the Board to the following starting at the bottom of page 473 of the Report and continuing on page 474:

“The Court now takes a more rigorous approach to the requirements that the expert evidence be relevant and necessary, that its prejudicial effect not outweigh its probative value, and that it possess sufficient threshold reliability to justify its admission. The stringent test for the admissibility of expert evidence applies to all potential experts, no matter how distinguished, educated and experienced they may be. No one should receive carte blanche.”

267. Again, on page 274:

“The importance of clearly defining the limits of the witness’s expertise is therefore vital.”

268. Also on page 274 at the bottom:

“Defining the limits of expertise is a key part of the trial judge’s role as Gatekeeper.”

269. Ms Taylor said it is the Registrar’s position that the area of expertise is not relevant when defined with precision and when limited to the issues of this case.

270. Mr. Carter said he would like to call Prof. Lindsay. He referred specifically to page 8 of Prof. Lindsay’s c.v. under the heading “Non-referred chapters” to the first two publications – “Face perception and recognition in eyewitness memory”, and “Facial recognition”. Prof. Lindsay was one of the authors of both.

271. Regarding the Goudge Inquiry Report, Mr. Carter stated that it deals with problems in the criminal justice system where the rules are already strict. The interests before the Board are not the same. The rules of evidence are relaxed. It is not the same environment as that reported in the Gaudge Inquiry.

272. The Board ruled it would ask questions of Prof. Lindsay to determine whether or not he could give evidence as an expert witness. The Board will add as an exhibit, Mr. Carter’s letter of October 13, 2009 with attachments consisting of Prof. Lindsay’s report and conclusions, with his c.v. (Exhibit 13).

273. One of Prof. Lindsay’s conclusions reads:

“It is reasonable to expect at least a 15% error rate when people attempt to match photo identification to people standing in front of them. Even this rate is almost certainly too high an estimate for accuracy in a bar.” (“C1”)

274. In answer to questions, Prof. Lindsay said this could be wrong. Conditions at or in bars are not as good as in research settings. At a bar, a large number of decisions must be made under time. There are distractions. Prof. Lindsay said he has not specifically studied this specific area.

275. Another of Prof. Lindsay’s conclusions reads:

“Many factors could contribute to lower accuracy including poor photographs (driver’s licences are notoriously bad photos in some places), time pressure (long line-ups, impatient customers, pressure from managers), and poor or uneven lighting to list just some of the more obvious conditions.” (“C2”)

276. In answer to questions, Prof. Lindsay stated it is common knowledge that driver’s licence photographs are poor.

277. Another conclusion stated reads:

“Psychologically, at least one in seven people who attempt to enter a bar with fraudulent photo identification likely will succeed even with the clearest of photos and due diligence from staff.” (“C3”)

278. Prof. Lindsay was asked if C3 is fact or an assumption. Prof. Lindsay said the error rate comes from studies, but they were small. The studies did not come from bars. Bars would be worse, or definitely not any better. He never tested C2 in the context of bars.

279. Mr. Carter submitted that studies have been done in the subject area. Prof. Lindsay responded by saying facial matching has been studied. He receives studies to review. He reads Burton’s papers who is an expert. However, this case is different from the research. Line-up identification is Prof. Lindsay’s speciality, e.g. murder or robbery cases. He has been qualified as an expert.

280. Ms Taylor submitted that regarding C1, Prof. Lindsay is depending upon common knowledge and years of research how changes of circumstances apply. Prof. Lindsay said he was not sure he could produce something that was better. Ms Taylor concluded by saying there is no research on door staff admitting patrons. He does not know this establishment.

281. The Board ruled Prof. Lindsay was not an expert in facial recognition, and therefore could not give evidence as an expert on that subject at this hearing. Prof. Lindsay’s expertise is in line-up recognition or identification. What is in front of the Board at this hearing is different. Prof. Lindsay may have read the research of others, e.g. Burton, but it is not exactly on point. Prof. Burton has not done research of this specific subject leading to his conclusions - C1, C2 and C3. He is not an expert on security identifying patrons at a bar.

Registrar’s Submissions

282. Ms Taylor said that it is the Registrar’s position that all allegations in the NOP have been proven on the balance of probabilities.

283. The Board has heard evidence from a number of witnesses well under age on May 24-25, 2008, namely Female Patron 1 who was 17, Female Patron 2 who was 17, Female Patron 4 who was 16, Female Patron 5 who was 17, and Female Patron 3 who was 17. All were drinking alcohol in the establishment that night.

284. Female Patrons 2 and 3 presented the same identification to gain entry. That identification indicated they were 23 at the time. It is clear that they appeared under 19 to have or to consume liquor, even when they appeared before the Board at the hearing.

285. It is clear they consumed in the Premises. Were they permitted to do so? It is the Registrar’s position that the Licensee’s obligation does not end at the door.

286. Regardless, with the door staff’s identification of patrons - particularly with two females in the same group using the same identification showing an age that clearly did not match appearance - given the superficial security, not asking supplementary questions nor for secondary identification, not being asked to sign a paper - any of these could have been done or asked for. Scott Gorry said he would do any of these if he had difficulty in identifying a patron.

287. Once inside, no one asked them for identification. The Licensee’s obligation does not stop at the door, said Ms Taylor.

288. At least two girls were at the service bar when shots were ordered. Female Patron 2 said she placed the shots order because the bartender could not understand her male friend because his accent was too strong.

289. At the booth, all were consuming from vodka bottles. The Licensee should have known minors were there, so it was “permitted”. The people were in the bar for a considerable time. Female patron 1 arrived at 11:00 p.m. and left at 1:00 a.m. after the assault. Female Patron 2 arrived before 12:00 midnight, around 11:45 pm, and left after the assault. Female Patron 5 arrived around 11:30 p.m. as part of a group of 10, as did Female Patron 4. Female Patron 2 arrived at 11:45 pm with Female Patron 3. All left after the assault which took place around 1:00 am. All were there for at least an hour before the assault took place.

290. The word “permit” has been jurisprudentially defined in the recent Sin City decision of the Court of Appeal as meaning “knew or ought to have known”. But also the Licensee must be in a position to control. There is a built in obligation on the Licensee as to what is going on in the establishment.

291. The Registrar’s position is that the Licensee ought to have known there were underage people drinking in the establishment. They were all there for over an hour.

292. Female Patrons 2 and 3 were at the service bar and were served “Porn Star” shots. They were not asked for identification before the shots were served to them. Under subsection 44 (1) of the O. Reg, the Licensee is required to ask for identification and none was asked for as the witnesses testified. Even if the Licensee let them in to the establishment, the Licensee has not satisfied the obligation under subsection 41(1) of the O.Reg - a legal obligation.

293. Regarding the alleged breach of subsection 45(1) of the O.Reg, Ms Taylor said the initial attack on Female Patron 2 by Female Patron 1 was sudden. Subsequently, a fight occurred where both were on the floor. Licensee’s staff failed to intervene. The males and females around the booth broke up the fight.

294. It was the brother of Female Patron 1 who took her outside, not staff. Only after friends controlled the situation did staff take any initiative. Even then, staff offered no help.

295. Female Patron 2 testified that a bouncer made them all leave and did nothing to assist. Female Patron 3 said two staff members took them out without any offer of help. Female Patron 5 said Female Patron 1 was kicked out. Staff asked what happened. Staff offered no help and they were not escorted out.

296. Ms Taylor said that by failing to deal with the fight once it broke out, the Licensee did permit quarrelsome, violent or disorderly conduct to occur. The Board has seen evidence of the injuries to Female Patron 2. The staff evidence was that they did not see anything or anyone who was injured. That is difficult to believe given the photographs placed into evidence.

297. Regarding the August 16, 2008 incident with K.K. and her 17 year old friend, both were permitted to enter The Drink. K.K.’s evidence that she did not have to show identification should be preferred to any other evidence. Mr. Whittaker’s evidence was based on his experience at the door, and not based on his recollection of what had occurred that night.

298. Ms Taylor said Mr. Whittaker testified that he was always asked, so they did ask. That was the context in which he answered. He could not remember how he got to the front door. He did not remember how it took place but said when the girls approached the door staff, Mr. Gorry was facing him. The girls approached Mr. Gorry’s back. Mr. Gorry turned around to speak to the girls. Mr. Gorry’s left shoulder was towards Mr. Whittaker.

299. Ms Taylor continued. Mr. Whittaker has been to the establishment many times. This was the only time that K.K. was there. The event got her into trouble with her parents. The event will stick in her mind more than that of Mr. Whittaker. He was trying to be a good host.

300. There was also evidence from K.K. that she consumed alcohol in the establishment. She was there for two and one-half hours – 11:30 p.m. to 2:00 or 2:30 a.m. K.K. testified the manager chatted with her. He put his business card in her shirt pocket. K.K. said she was not asked for identification. There were no questions asked about her age, notwithstanding Mr. Brown’s testimony that no one under 21 is allowed inside.

301. The Licensee should have known that K.K. was under 19. They should have drawn that conclusion. It is clear she had and consumed liquor in the establishment. Her friend did so also.

Licensee’s Submissions

302. Mr. Carter said liability cannot instantaneously attach the moment a fight breaks out. If a bar removes someone, then they do not “permit”. If they take immediate steps to deal with problem, there is no breach of subsection 45(1) of the O.Reg.

303. Regarding subsection 30(4) of the LLA, There is no evidence they knew. Each witness said she showed a valid government-issued identification. The identification was real for all but one. Ages on it were above 19. The identification was checked at the door.

304. There is an issue of the passing back of an identification card by Female Patron 2 who said it was a driver’s licence. The other person who used it, Female Patron 3, said it was a health card. Something is wrong.

305. A number of witnesses under 19 said they used fake identification. In one case Female Patron 1 used her sister’s identification. The Board can draw the inference there would be a resemblance. The picture was of an Asian female.

306. While several witnesses used fake identification, the identification was real, not manufactured.

307. Mr. Carter said the Registrar has not established that the establishment ought to have known some people were under 19. These people fooled or tricked the doorman who has extensive training, experience, has a university education, taken his job seriously, and has no personal incentive to get people into the Premises. Identifying someone cross-racially is more difficult, said Mr. Carter.

308. Regarding subsection 41(1) of the O.Reg, Mr. Carter said only two people actually attended at the service bar – Female Patrons 2 and 3. Female Patron 2 said she ordered: Female Patron 3 did not. Female Patron 3 said they – male friends – just bought it for me and Female Patron 2. Female Patron 3 did not back up Female Patron 2’s story.

309. Female Patron 2 said friends bought her drinks in her statement, but in evidence she said she bought drinks at the service bar. This is a difference. In fact, Female Patron 2’s testimony differed in a number of respects from her statements (Exhibits 1A and 1B). Her testimony was exaggerated. She has hired lawyers to represent her in a civil suit. Her original statements (Exhibits 1A and 1B) are better than her testimony to the Board because they were made closer to the event.

310. As to subsection 45(2) of the O.Reg, Mr. Carter said that the quarrelsome behaviours occurred when the glass throw came out of nowhere. Nothing had been built up. There was no lead up to it so that the establishment ought to have known it would occur.

311. The witnesses agreed that what happened occurred quickly. Female Patron 3 said she was tipsy but not drunk. In chief, she said after the incident, staff came within 10 seconds. In cross-examination, she said it could have been within 10 seconds.

312. The Licensee did not permit the behaviour to occur. All who gave evidence agree that they were asked to leave. The behaviour was addressed and the participants asked to leave. Female Patron 3 testified that two staff members escorted the group out.

313. Mr. Carter said that Female Patron 2 testified she grappled on the floor. She heard bad words, but she did not say that in her statements (Exhibits 1A and 1B). This was another exaggeration.

314. Female Patron 5 testified she just consumed a few drinks. She saw the glass being thrown. The combatants were being held back by friends and did not get at each other, was her evidence. The rolling on the ground did not occur.

315. Mr. Carter stated the incident happened out of the blue. The response by staff occurred in 10 seconds. The Licensee did not “permit”.

316. As for the August 16, 2008 incident, the issue is whether the Licensee knew or ought to have known. It is agreed K.K. was in the Premises and consumed, but did K.K. show identification, did the Licensee permit her to have or consume?

317. K.K. testified no identification was checked. She had lied to her parents before she went to The Drink that night, and she lied afterwards. She said she had false identification on her that shows she was over 21.

318. Mr. Carter said K.K. has a history of not being honest. Her emails to Mr. Whittaker show that (Exhibit 12). Mr. Whittaker testified that K.K. did show identification, and he was at the door. K.K.’s statement (Exhibit 4) has lies in it. In Exhibit 12, K.K. herself texted to Mr. Whittaker “Ya. I’m a pretty good liar, eh?” Mr. Whittaker was taken aback about the revelation of her true age.

319. Mr. Carter stated that the Board should not believe K.K. She did have identification on her and it was checked. Her friend who was with her was not called to be a witness.

320. Mr. Gorry has good qualifications and background. The Drink has a 21 and over policy. Mr. Brown testified as to the policies at The Drink.

321. Mr. Carter continued. Mr. Whittaker is unknown to the Licensee. He testified in a clear and honest manner. He said what he recalled. He was there when K.K. arrived and said he saw identification being shown by her. Mr. Gorry said that everyone is checked for identification at the door.

322. Under subsection 41(1) of the O.Reg, identification was checked at the door. It is not necessary to check again each and every time, said Mr. Carter.

323. Subsequent inspection found no issues regarding minors.

324. The Board did not see the witnesses on the night of the event. Mr. Whittaker was obviously fooled. It could be obvious with some people but not with others.

Registrar’s Reply Submissions

325. Ms Taylor said the Licensee is relying on a due diligence defence. The establishment took appropriate measures. People fooled the doorman who has a good background. The Board should dismiss their argument.

326. In the Divisional Court decision of Rejeanne’s Bar & Grill which was rendered subsequent to the Ontario Court of Appeal decision in Sin City, the Divisional Court rejected due diligence as a defence. Due diligence has a meaning in the Sin City context.

327. Ms Taylor said that Mr. Boxall raised due diligence as a defence, with evidence of the Licensee’s policies and monitoring. Also, subsequent inspections found no violation. This, said Ms Taylor, is relevant to sanctions, but not to findings.

328. Female Patron 5, said Mr. Carter, contradicted other witnesses regarding combatants fighting on the floor. On cross-examination, Female Patron 5 remembered Female Patrons 1 and 2 were on the floor, so she was consistent.

329. Regarding the “Porn Star” shooters, Mr. Carter was confusing talking about ordering, paying and serving. Also, Female Patron 2 did not contradict the testimony of Female Patron 3. The male friend bought the shots. Female Patron 3 testified to that too. Female Patron 3 did not give evidence as to who ordered the drinks. The bartender did not understand the male friend, so Female Patron 3 ordered.

330. Regarding service, both Female Patrons 2 and 3 were served shooters. Subsection 41(1) of the O.Reg deals with service. Neither girl was asked to produce identification before they were served.

331. Regarding the argument that if one produces one’s identification once, that person is home free, the Licensee is required to inspect.

332. Ms Taylor said that Mr. Carter indicated all minors had identification showing they were 19 or older, that should have raised red flags. Some identification indicated people were 23. This questions the scrutiny of the identification by the Licensee.

333. With regard to Mr. Whittaker’s evidence, there was no evidence how far away he was from the bouncer or K.K. when she produced identification, even though Mr. Whittaker said he saw it being produced.

Reasons and Analysis

334. In the NOP, the Registrar has alleged three violations have been committed by the Licensee:

a) under subsection 30(4) of the LLA

b) under subsection 41(1) of the O.Reg; and,

c) under subsection 45(1) of the O.Reg.

Subsection 30 (4) of the LLA

335. Subsection 30(4) of the LLA reads as follows:

“30(4) No licensee or employee of a licensee shall permit a person who appears to be under the age of nineteen years of age to have or consume liquor in the licensee’s licensed premises.”

336. The Registrar has to show that, based on a balance of probabilities, (i) the Licensee or an employee “permitted” the violation to have occurred, (ii) that the person appeared to be under 19, and (iii) that the person had or consumed liquor in the premises.

337. Based on the consistent, credible and uncontroverted evidence of the female patrons 1, 2, 3, 4 and 5 all of whom were under the age of 19 on May 24 /25, 2008 and of K.K. who was 16 on August 16, 2008, the Board finds that persons under the age of 19 years had and consumed alcohol on the premises on those evenings.

338. No evidence was presented at the hearing as to the age appearance of any of the witnesses on the nights the alleged violations took place according to the NOP. However the witnesses appeared to the Board to have been under the age of 19 on those nights which occurred a year to a year and a half before the hearing started.

339. In one situation, K.K. was the age of 16 on August 16, 2008, not only well under the age of 19, but even further well under the age policy of the establishment, namely that no one under the age of 21 was permitted entry to the Premises.

340. The Board finds, on a balance of probabilities, that persons who appeared under 19 years of age were allowed entry to the Premises as alleged by the Registrar in the NOP.

341. The third element of this alleged violation is that the Licensee or an employee of the Licensee permitted it to have occurred.

342. The word “permit” has been stated by the Ontario Court of Appeal in its recent decision in the Sin City case to mean that the person referred to in the section – here the licensee or employee of the licensee – “knew or ought to have known” that the violation would occur.

343. The establishment is a bar. People go there to drink and, no doubt, to have a good time. People under the age of 19 were allowed entry on two different nights. On the night of May 24/25, 2008, a large group of patrons sat in a VIP booth with bottles of vodka on the table and were free-pouring their own drinks. A couple of these patrons went to the service bar and ordered and consumed shooters.

344. Aside from a questionable cursory check of a piece of identification to gain entry to the Premises, the evidence showed there was no further request for identification, nor did staff monitor the VIP booth on May 24-25 before the glass throwing incident took place. Patrons were at that booth, aside from the occasional trips to the washroom or the service bar from 11:30 p.m. or so until the incident took place around 1:00 a.m.

345. During that period of time, no staff was seen at the VIP booth except to ask if further drinks or bottles were needed, and no staff at the service bar asked any patrons in the group for identification, even though more and more alcoholic beverages were served to the group.

346. On the night of August 16, 2008, K.K. was in the premises on the patio from about 11:30 p.m. until she left at 2:30 a.m. early the next morning. Her evidence, uncontested, was that she was served a vodka drink which she did not like so she gave it to her friend H.C., who was 17. K.K. said that neither she nor H.C. were asked for identification either at the front door of afterwards when she and H.C. ordered drinks.

347. Mr. Gorry was on duty at the front door of the establishment on both nights in question. He was checking identification. Although he said he finds some people difficult to recognize from the identification they use, he has other techniques to verify identification. Yet from the evidence of the Female Patrons and from K.K., Mr. Gorry chose not to use these techniques. He only gave a cursory glance at the identification, or did not even look at it. Two Female Patrons used the same piece of identification. This evidence was unrefuted. The conclusion to be drawn is that the Licensee through its employee permitted minors into the establishment to have or consume liquor.

348. Based on the above, the Board finds that the Licensee did permit the violation envisaged by subsection 30(4) of the O.Reg to occur.

349. The Board therefore FINDS that the Licensee did breach subsection 30(4) of the LLA.

Subsection 41(1) of the O.Reg

350. Subsection 41(1) of the O.Reg reads:

“41(1) The licence holder shall ensure that, before liquor is sold or served to a person under the age of nineteen years, an item of identification of the person is inspected.”

351. On the night of May 24/25, 2008 Female Patron 2 was 17 years of age. She testified that two male friends at the service bar tried to order shooters, but the bartender could not understand what they were saying. Female Patron 2 told the bartender she wanted eight shots of “Porn Stars.” She was not asked for identification; she was served the drinks, and consumed two herself.

352. On the night of August 16, 2008, K.K. testified after admission to the Premises, she and Mr Whittaker went to the service bar. Mr Whittaker ordered drinks for both K.K. and her friend H.C. Both had the same drink. The bartender according to her evidence knew the drinks were for K.K. and H.C. The Bartender did not ask for identification from either of them.

353. The Licensee’s Representative argued that once a person’s identification is seen on entry, there is no further need to check it again inside the premises. That is not, however, how subsection 41(1) of the O.Reg reads. The Licensee and its employees have an ongoing obligation regarding the sale or service of liquor to determine that a potential consumer of alcohol is not under 19 years of age. The lead-in to the provision is: “The licence holder shall ensure…”

354. In their case, the licence holder did not ensure in both instances that Female Patron 2, and K.K. and her friend H.C. were 19 years of age when they ordered alcoholic drinks or alcoholic drinks were ordered for them.

355. Therefore, the Board FINDS the licensee breached subsection 41(1) of the O.Reg.

Subsection 45(1) of the O.Reg

356. Subsection 45(1) of the O.Reg reads:

“45(1) The Licensee 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.”

357. The Registrar’s submissions make it clear that it was the fight between Female Patrons 1 and 2 on the night of May 24/25, 2008 and what prompted it, that is the basis for the alleged violation.

358. There is no doubt that violent or disorderly conduct occurred. Female Patron 1 threw a glass with a drink in it at Female Patron 2, whether she intended to or not. Female Patron 1 was found guilty of an assault in a criminal court.

359. For the Board to make a finding, the Board must be satisfied that on a balance of probabilities the Licensee permitted it to happen.

360. As the Ontario Court of Appeal stated in the Sin City decision (supra) this means that the Licensee knew or ought to have known about the violent or disorderly conduct.

361. By all accounts, the throwing of the glass and contents happened suddenly. There was no prior confrontation. Female Patrons 1 and 2 rushed at each other, wound up on the floor, and were separated quickly by friends.

362. Although there was no evidence that the Licensee’s staff intervened to break up the fight, staff did arrive and asked everyone in the group to leave the Premises.

363. The staff did deal with the group by taking control of the situation and ushering the group outside.

364. Under the circumstances, the board FINDS that the Licensee did not know nor should have known the violent or disorderly conduct would occur nor allowed it to continue, and consequently makes no finding under subsection 45(1) of the O.Reg.

Conclusion

365. For the above reasons, the Board FINDS the Licensee contravened subsection 30(4) of the LLA and subsection 41(1) of the O.Reg and DECLINES to make a finding of a violation of subsection 45(1) of the O.Reg.

366. The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file 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 a written response. The Registrar’s representative may serve and file a reply within three (3) days of the 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 10th DAY OF March , 2010

DAVID C. GAVSIE, CHAIR, AGCO ALEX MCCAULEY, BOARD MEMBER