Registrar, Alcohol and Gaming Commission of Ontario v. 1585727 Ontario Inc., 2010 CanLII 80936

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-

1585727 Ontario Inc., operating as or intending to operate as Matt’s Rib House

Applicant

DECISION

Panel: Patricia E. McQuaid, Vice-Chair, AGCO Jacqueline Castel, Board Member

Decision Date: October 18, 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 ) Rena Khan, Representative

1585727 Ontario Inc., Applicant ) Mathies Shymal Gomes, On his own ) behalf and on behalf of the ) Applicant

Allegations

[1]. A hearing into Notice of Proposal (“NOP”) number 18187 dated July 6, 2010 to refuse to renew liquor licence number 803968 issued to 1585727 Ontario Inc. (the “Applicant” or the “Licensee”), operating as MATT’S RIB HOUSE, 500 Laurier Avenue, Unit #15, Milton, Ontario, L9T 4R3, (the “establishment” or the “premises”), on the basis that it is not entitled to a licence under clause 6(2)(d) of the Liquor Licence Act (the “LLA”), was held on September 27, 2010 in the City of Toronto.

Decision

[2]. After considering all of the evidence and submissions, the Board UPHOLDS the Registrar’s NOP refusing to renew the Applicant’s liquor licence. Reasons follow.

Registrar’s Evidence

[3]. Clay Martin is an Ontario Provincial Police (“OPP”) Officer seconded to the Alcohol and Gaming Commission of Ontario (“AGCO”). He was asked by the Licensing and Registration Branch of the AGCO to conduct an investigation into two convictions for assault that Mr. Mathies Gomes, the principal of the Licensee, had disclosed on his renewal application for a liquor sales licence.

[4]. At this time, Ms Khan filed the Ontario Court of Justice reasons for judgment which the Board entered as Exhibit 1. Officer Martin stated that in this judgment, Mr. Gomes was convicted of two counts of assault, one count occurring in 2006 and the other occurring in 2007, contrary to the Criminal Code.

[5]. Next, Ms Khan filed the Conditional Sentence Order (the “Order”) for Mr. Gomes dated April 27, 2010, which the Board entered as Exhibit 2. Referring to the first page of the Order, Officer Martin explained that Mr. Gomes was imprisoned in the community for seven months, in relation to the first count of assault, and 2 months, in relation to the second count, subject to Mr. Gomes complying with the following conditions:

(a) keeping the peace and being of good behavior;

(b) appearing before the Court as required;

(c) reporting within 2 working days of the Order to a probation officer and thereafter as the probation officer directs;

(d) remaining within the Province of Ontario; and

(e) notifying the probation officer in advance of any change of name or address and promptly notifying the probation officer of any change of employment.

[6]. Officer Martin attended the establishment on May 12, 2010 to speak to Mr. Gomes about the convictions. They spoke in the kitchen. Mr. Gomes was wearing an electronic supervisor device around his ankle. He admitted to being familiar with the convictions, but denied having committed the assaults. He indicated that he was not near the victims when the assaults took place.

[7]. Mr. Gomes also showed Officer Martin the camera system he installed in the kitchen area after he was charged with assault.

[8]. Mr. Gomes also told Officer Martin that the sale of alcoholic beverages is a minor part of his business.

[9]. On cross-examination, Officer Martin confirmed the layout of the kitchen, including the fact that there is not a lot of space (3 or 4 feet) between the first table and the grill.

[10]. Officer Martin admitted that he observed the camera coverage of all areas of the kitchen.

[11]. In response to a question from the Panel, Officer Martin confirmed that the two counts of assault occurred in the establishment.

[12]. Officer Martin also confirmed that Mr. Gomes disclosed the two convictions, as well as two other charges for which he was acquitted, on his renewal application for a liquor sales licence. When he was originally issued the licence, there were no charges or convictions against him.

[13]. Officer Martin is not aware of any other derogatory information on the Licensee’s file.

Licensee’s Evidence

[14]. Mathies Gomes did not call any witnesses, but chose to make a statement under oath. He filed a letter dated September 23, 2010 from Kathy Cahill, Probation & Parole Officer, and a letter dated March 13, 2010, from the Reverend Lennox Smithin-John of the Alive Christian Centre, which the Board entered as Exhibits 3 and 4, respectively.

[15]. Mr. Gomes indicated that his restaurant is family-oriented and that he is essential to the operation of the restaurant.

[16]. Twenty-six percent of the restaurant’s sales come from alcohol. He does a lot of banquets and Christenings, and his ability to sell alcohol is crucial for these types of events.

[17]. He is complying with all of the terms of his probation, and he is also wearing an electronic device around his ankle.

[18]. He has never been charged with any offences under the LLA.

[19]. In response to a question from the Panel, Mr. Gomes indicated that he still maintains he is not guilty of the two counts of assault, notwithstanding the findings of the court.

[20]. He chose not to appeal his convictions because of the expense and his need for closure to what has been an ordeal for him and his family.

[21]. Mr. Gomes described the number of cameras and camera coverage in the kitchen.

[22]. The establishment is open from 11 a.m. to 9 p.m. Monday to Thursday, 11 a.m. to 1 a.m. on Friday, 11 a.m. to 10 p.m. on Saturday, and 4 p.m. to 9 p.m. on Sunday.

[23]. He has four employees at the establishment, a chef, two servers, and a manager.

Registrar’s Submissions

[24]. Ms Kahn highlighted various paragraphs of the court’s decision (Exhibit # 1) which described the nature of the offences and the reasons for the court’s findings.

[25]. Mr. Gomes was convicted of two counts of assault. The victims of the offences were two employees. One of the victims was described by the court as a “vulnerable” person. At the time of the offences, the victims were working in the licensed establishment.

[26]. Mr. Gomes has not accepted responsibility for his actions.

[27]. The Board is required to accept the findings of the court.

[28]. All of the above constitute reasonable grounds to believe that the Applicant will not carry out business in accordance with the law and with integrity and honesty.

Applicant’s Submissions

[29]. Mr. Gomes stated that if he loses his liquor licence, he will have to close his restaurant. He has three young children to support, and he does not know what he would do if he did not have his restaurant.

[30]. He has been complying with the terms of his probation and meets with his probation officer every 15 days.

[31]. He has surveillance cameras in the kitchen of the establishment. As such, if there were ever allegations of this nature in the future, he would be able to prove whether or not they are substantiated.

Reply Submissions

[32]. The Licensee could continue to operate the restaurant without a liquor licence.

Reasons

[33]. For a finding under clause 6(2)(d), the past or present conduct of the applicant must afford reasonable grounds for the belief that the applicant will not carry on business in accordance with the law and with integrity and honesty.

[34]. The following past and present conduct of Mr. Gomes affords the Board reasonable grounds for the belief he will not carry on business in accordance with the law and with integrity and honesty:

1. Mr. Gomes has two recent convictions for assault (offences occurred in 2006 and 2007), which the Board considers to be serious;

2. the victims of the assaults were both employees, one of whom the court classified as a “vulnerable” person;

3. the offences were committed at the establishment to which the liquor licence applies; and

4. Mr. Gomes has not, including at the hearing, accepted responsibility for the offences and, therefore, has not shown any remorse.

[35]. The Board reviewed the letter from Mr. Gomes’ Probation and Parole Officer which indicated that to date there have been no reported violations of his conditional sentence and no reported contact with police. Nevertheless, Mr. Gomes’ present conduct does not override his past conduct, particularly given that his criminal convictions are serious and recent, they occurred at the establishment, and the victims were employees, one of whom was a “vulnerable” person.

[36]. The Board also reviewed the letter of Mr. Gomes’ Pastor at the Faith Alive Christian Centre (the “Centre”) and does not doubt that he is a respected and valued member of the Centre. However, this too does not override his recent and serious criminal conduct committed in the kitchen of the establishment.

[37]. The Board recognizes that the loss of a liquor licence will impact Mr. Gomes’ earnings. Financial impact is not, however, a relevant consideration under clause 6(2)(d).

Conclusion

[38]. Therefore, for the above reasons, the Board FINDS, pursuant to clause 6(2)(d) of the LLA, that the past conduct of the Applicant affords reasonable grounds for the belief that the Applicant will not carry on business in accordance with the law and with integrity and honesty.

Order

[39]. In light of the finding under clause 6(2)(d) of the LLA, the Board UPHOLDS NOP number 18187 to REFUSE to renew liquor licence number 803968, issued to 1585727 Ontario Inc., operating as MATT’S RIB HOUSE, 500 Laurier Avenue, Unit #15, Milton, Ontario, L9T 4R3.

DATED AT TORONTO, THIS 18th day of OCTOBER, 2010.

PATRICIA McQUAID, VICE-CHAIR, AGCO JACQUELINE CASTEL, BOARD MEMBER