ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
BETWEEN:
Registrar, Alcohol and Gaming Commission of Ontario Registrar
-and-
6477291 Canada Inc., operating as Hooley’s Restaurant Licensee
DECISION ON MOTION
Panel: Alex McCauley, Board Member Bruce S. Miller, Board Member
Decision Date: November 2, 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 6477291 Canada Inc., Licensee: Dr. Binny Kuriakose, On his own behalf and on behalf of the Licensee
Authorities
671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983 R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326
Background and Notice of Motion
1A hearing into Notice of Proposal number 16733 dated October 20, 2008, to suspend liquor licence number 20638 issued to 6477291 Canada Inc. (the “Licensee”), operating as HOOLEY’S RESTAURANT, 292 Elgin Street, Ottawa, Ontario, K2P 1M3, on the basis of an alleged violation of subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (the “LLA”) was held on June 10, 2009 and October 13, 2009 in the City of Ottawa.
2The hearing dealt with an allegation of a breach of subsection 45(1) of the O.Reg. The matter was heard to completion by the Board on October 13, 2009. The Board issued its Decision on Findings on December 11, 2009.
3Two post-hearing Motions were filed by the Licensee. The first was a Motion for Disclosure and the second was a Motion to Reopen the original hearing, which were held on August 31 and September 7, 2010.
4This Decision is on the Motion for Disclosure.
Preliminary Matters
5The Board ruled that it would not accept the additional affidavits and documents submitted by the Licensee. All materials to be relied on were to be submitted by March 31, 2010, reference made to exhibit # 1, letter to Mr. Hill dated March 22, 2010 from Ms Eger of the Alcohol and Gaming Commission of Ontario (“AGCO”).
6The Board affirmed that it would proceed under the AGCO Revised Rules of Practice, specifically Rule 16.2, as outlined in exhibit # 2, letter from Ms Platt of the AGCO to Dale Hill and Dr. Binny Kuriakose dated July 6, 2010.
Licensee’s Submissions
7The Licensee submitted that the motion should be granted because the materials sought would change the Board’s original decision. Secondly, the information sought by the Licensee was in the hands of the Registrar at the time of the hearing and ought to have been disclosed. Further, the Licensee did not know of the material it now seeks before the hearing commenced, nor could it have known.
8In paragraph three of its factum, the Licensee states that in coming to its decision the Board relied exclusively on the testimonies of Inspectors Lambert and Rowntree. The Licensee illustrates his point further by pointing to paragraph 203 of the Board’s Decision on Findings.
9The Licensee hi-lighted the email that refers to Inspector Rowntree’s interaction with Staff Sergeant (“S/Sgt.) Ghadban of the Ottawa Police Service as outlined in tab C of the Licensee’s motion record. In this email, Inspector Rowntree is shown to be dishonest, unprofessional in his comments and not deterred from making false statements.
10The Licensee suggests the actions of Inspector Lambert as described in the letter of Tammy Varma, at tab B in the motion record of the Licensee, indicated poor judgment and unethical conduct. Further, Inspector Lambert was subsequently involved in a disciplinary matter at the bar she worked in where the bar in question was charged for over crowding.
11The Licensee suggests both Inspectors embellished their testimony at the Board’s hearing into the original allegations.
12The Licensee suggests that if the Board did not believe the Inspectors they would not have made findings against Hooley’s.
13The Licensee believes the documents sought will likely change the Board’s original decision. With respect to Inspector Rowntree, the documents will persuade the Board that he may make false statements and will go out of his way to get a conviction.
14The Licensee suggests based on his email from S/Sgt. Ghadban, Mr. Rowntree had lost his professionalism and had gone to personal attacks against Dr. Kuriakose.
15The Licensee suggests Inspector Lambert’s testimony cannot be trusted because after his advances towards Ms Varma were spurned, he retaliated by charging the bar where she worked.
16The Licensee suggests that the Inspectors conspired with each other against Hooley’s.
Registrar’s Submissions
17The Registrar’s Representative submits that the disclosure requests were not for documents relevant to the case at hand. Further, the requests were made too late.
18The Registrar’s Representative submits that the matters regarding the Inspectors was available to the Licensee at the time of the hearing and should have been brought up then.
19The allegations by Ms Varma are incorrect. There was never any evidence or allegation of Inspector Lambert having any vendetta against the York Entertainment Group, the group that owned the establishment Ms Varma referred to.
20The Registrar’s Representative submits that the leading case in this matter is R. v. McNeil. In paragraph 20 of that decision, the court refers to Stinchcombe. The court made the following determination. First, the material in possession of the prosecuting Crown must be relevant to the accused’s case. Second, the material will likely comprise the case against the accused.
21The records requested do not meet the requirement. The requirement is further illustrated in Stinchcombe.
22In paragraph 22 of McNeil, there is reference to Stinchcombe that states that the disclosure regime extends only to material relating to the accused’s case in the possession or control of the Crown. This material is referred to as the “fruits of the investigation”. The material requested by the Licensee cannot be considered relevant and therefore is not the fruits of the investigation.
23The Registrar’s Representative submits that the relevance of the material requested by the Licensee is greatly diminished by the Board’s decision where they reference the Licensee’s own witnesses in corroborating the evidence of the Registrar’s witnesses.
24This attempt by the Licensee in the view of the Registrar’s Representative is a fishing expedition on the part of the Licensee and the motion should be dismissed.
Reasons and Decision
25The Board has reviewed and considered the arguments of both parties and the material presented, and dismisses the motion.
26The Licensee is of the view that the material requested in its motion is necessary in order to discredit the testimony of AGCO Inspectors Lambert and Rowntree. The Licensee submitted that this was necessary because in coming to its decision on findings the Board relied exclusively on the evidence of the two Inspectors. The Licensee contends that if the Board had the information sought at the time of their decision, it would have changed the final decision of the Board.
27The Board dismisses this contention by the Licensee in part for the following reasons. The Board considered all of the evidence in coming to its decisions. Some of the most damaging testimony against the Licensee came from the Licensee’s own witness. The Licensee’s witness, Mr. Kelly-Mor, corroborates the evidence of both Inspectors. Mr. Kelly-Mor admitted to consuming six or seven beers, walking, singing and smashing a beer bottle on the street, (paragraph 201, Board’s Decision on Findings, December 11, 2009). The information requested by the Licensee in its motion would not affect the Board’s decision. The Licensee has also failed to meet the test set out by the Supreme Court of Canada in Sagaz (671122 Ontario Ltd. V. Sagaz Industries Canada Inc.).
28The Licensee, in the opinion of the Board, had the opportunity but never challenged the credibility of the Inspectors during cross-examination. The Board is not persuaded that there was relevant disclosure not given to the Licensee. It is the view of the Board that the Licensee had the opportunity during the course of the hearing to explore the matters of the credibility of Inspectors Lambert and Rowntree; there is no evidence before this Board that the Licensee was prevented from making that effort.
29The test required for disclosure as outlined in R. v. McNeil, has not been met. That decision as illustrated in paragraph 22 at the bottom, makes reference to Stinchcombe, and reads as follows, “Accordingly, the Stinchcombe disclosure regime only extends to material relating to the accused’s case in the possession and control of the prosecuting Crown entity. This material is commonly referred to as the fruits of the investigation”. Outside of the contention by the Licensee of bad character on the part of the Registrar’s witnesses, there has been no connection made out by the Licensee to matters relevant to the Board’s original decision or any other matters of relevance involving the licensed establishment, Hooley’s.
30The Licensee’s request is not supported by the case law, and in the Board’s view the additional disclosure sought is of no relevance to the Board’s original hearing or decision.
31There is no evidence or indication to the contention by the Licensee that there was a conspiracy against Hooley’s by Inspectors Lambert and Rowntree; it has absolutely no foundation in fact.
32Referring to McNeil, paragraph 59, the court said that even if there are findings of misconduct, it must be relevant to the proceedings. In the matter before the Board misconduct has never been established. It is our view that even if these allegations of misconduct alleged by the Licensee against Inspectors Rowntree and Lambert had been established, which they were not, to attach any relevance from those allegations to the matter considered by the Board at its hearing would be far fetched.
33Therefore, for the reasons given, the Board DISMISSES the Licensee’s Motion for Disclosure.
DATED AT TORONTO THIS 2nd DAY OF November, 2010
ALEX MCCAULEY, BOARD MEMBER BRUCE S. MILLER, BOARD MEMBER