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-
681311 Ontario Limited operating as Shots Sports Tap & Grill Licensee
DECISION ON MOTION
Panel: Allan Higdon, Board Member Decision Date: August 5, 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 681311 Ontario Limited, Licensee ) Mark Huckabone and Christopher Kelly, Representatives
Allegations
- A hearing into Notice of Proposal number 15815 dated November 27, 2007 to suspend for 28 days liquor licence number 91379 (the “Licence”) issued to 681311 Ontario Limited (the “Licensee”) operating as SHOTS SPORTS TAP & GRILL (the “premises” or the “establishment”), 185 Pembroke Street East, Pembroke, Ontario, K8A 3J6, on the basis of alleged violations of section 29 and subsections 30(1), 30(2) and 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 March 7, July 15, July 16, July 17, October 27 and November 4, 2008, and December 3, 2009 in the City of Ottawa.
Preliminary Matters
- Panel Member Monteith resigned from his duties and responsibilities as a Member of the Alcohol and Gaming Commission of Ontario (“AGCO”) Board effective March 29, 2008, and was therefore unable to participate in making this order. The remaining Panel Member, Board Member Higdon, has rendered the order in this matter pursuant to subsection 4.4(1) of the Statutory Powers Procedures Act.
Licensee’s Motion
- On January 8, 2010 the Licensee forwarded a written submission to the Panel pursuant to a motion seeking a dismissal or stay of proceedings of the hearing on the basis that:
The exclusion of a party from the proceedings and the effect, if any, on the fairness of the proceedings;
The possibility of irreparable prejudice flowing from the discussion of improper witness conduct in the absence of the Licensee and the subsequent application of the Registrar to muzzle the Licensee and the initial acceptance of the unproven allegations by the Board members.
The Licensee is charged with permitting drunkenness or riotous, quarrelsome, violent or disorderly conduct on the premises contrary to subsection 45(1) of the O.Reg and selling or serving to intoxicated persons contrary to section 29 of the LLA. The dates of the alleged offences are June 29, 2007, August 11, 2007 and August 17, 2007.
The Licensee states that at the hearing of March 7, 2008, the Registrar’s Representative alleged to the Board that the Licensee and/or certain witnesses had discussed the proceedings together while outside the conference room during the first recess. Ms Taylor alleged the Licensee had made statements suggesting that witnesses “needed to say something” in response to the evidence.
These allegations were denied and none of the allegedly engaged persons were questioned about this allegation.
In summary, the Licensee was the target of unproven and unsubstantiated allegations that appear to have been accepted without the slightest ground or proof. No investigation was made to discover what actually happened, if anything, outside the hearing room.
The exclusion of one of the parties from the proceeding will render a hearing unfair. Any exclusion would contravene the Rules of Civil Procedure.
The Board’s exclusion of the Licensee from the hearing contravened the Licensee’s Charter rights and created a reasonable apprehension of bias.
A judicial stay of proceedings is the appropriate remedy in this situation.
The Licensee seeks an Order:
declaring that the Licensee’s rights guaranteed by subsection 11(d) of the Charter of Rights and Freedoms have been infringed;
declaring that the Licensee has been denied natural justice;
staying the proceedings against the Licensee;
dismissing or terminating the proceedings against the Licensee pursuant to the Rules of Practice of the Alcohol and Gaming Commission of Ontario;
such further and other relief as this Honourable Board deems just.
Registrar’s Response
Several objections were raised to this motion from the Licensee, among them the following:
The Licensee’s claim that the panel has pre-judged the matter is unfounded.
There is no excuse for the Licensee’s decision to file a motion four months after the alleged event. This motion is merely an attempt to delay proceedings.
Neither of the two parties was excluded from the proceedings whenever evidence was presented.
There is no evidence of a reasonable apprehension of bias against the Licensee. The Board simply ordered both parties to obey the Board’s order excluding witnesses and ensure they did not discuss testimony before giving evidence.
A stay of proceedings has been held by the Ontario Court of Appeal to be appropriate only as a last resort where compelling an accused to face trial would violate the community’s sense of fair play and decency. This is not a trial, but merely a disciplinary hearing for a licensee. Such a remedy does not apply in this case.
Decision
The motion for a dismissal or stay of proceedings is DENIED.
The Board has carefully reviewed the transcript of the incident which gave rise to the motion by the Licensee.
On March 7, 2008 at 10:44 a.m. the Panel resumed the hearing after a short recess to obtain copies of a document.
The Registrar's Representative stated she wanted to bring a matter to the Board’s attention and requested all witnesses to leave the room, including Ms Kimberly Brown, who was present on behalf of the corporate Licensee.
The Licensee's Representative had been notified of Ms Taylor’s intentions and asked that his client be permitted to remain. The Panel Chair ruled that all witnesses should leave.
Those present remaining in the hearing room during this mid-hearing conference were the two panel members, the Registrar’s Representative and the Licensee’s Representative.
The Registrar's Representative stated the Licensee was overheard discussing matters with other witnesses in the hallway during the previous recess. She requested that Ms Kimberley Brown and her mother be prohibited from speaking to the other witnesses.
The Licensee's Representative replied that the witnesses outside denied categorically that there had been any discussion. Any order to witnesses telling them not to talk about their testimony would be prejudicial. His client’s credibility had been harmed by this allegation.
The Registrar's Representative replied that her request was not meant to suggest there had been any calculated wrongdoing. She stated “... I have certainly not used the words ‘coercion’ or ‘obstructing justice’ or anything along those lines.”
This panel member suggested that “a conversation” take place, simply reminding parties that witnesses should not speak to each other before testifying. This was agreed to by the Chair and the panel recessed the mid-hearing conference at 10:57 a.m.
Upon resumption at 10:58 a.m. and in the absence of any witnesses, the Chair asked the Licensee's Representative “to control both your witnesses and anyone who is sitting here from your side”. The Chair stated that he would exclude any witnesses who attempted to relay information to each other.
The Chair asked the Licensee's Representative if he was in agreement with the warning and he stated that he was. No order was issued.
The Chair then advised the representatives for both parties that his comments were applicable to both sides. If there were any transgressions, offenders would be ejected.
Ms Kimberly Brown was then invited to return, as was the witness whose testimony was interrupted by the mid-hearing conference. The hearing resumed to hear further testimony.
The stay of proceedings is sought on two basic issues.
The first issue involves the “exclusion of a party from proceedings”.
In this case, the Licensee’s Representative, who is also legal counsel, was present at all times during the mid-hearing conference to discuss essentially procedural matters. No evidence was presented during this mid-hearing conference.
The Licensee's Representative was given an opportunity to address the concerns raised by the Registrar's Representative. There was no violation of the principles of natural justice at any time.
The Licensee's Representative stated that the form of warning given by the Chair was agreeable to him (page 33 of transcript).
The objection therefore has no foundation in fact or in law and is dismissed.
The second basis for the stay application involves the allegation of “irreparable prejudice flowing from the discussion of improper witness conduct”.
The transcript clearly shows the Registrar’s Representative tried to minimize any intimation of prejudice in her intervention and specifically avoided the mention of words such as “coercion” and “obstructing justice”. She also notes the Board has dealt with this type of issue before in other proceedings and those other hearings continued (page 31).
In response to the Licensee’s Representative’s raising of this issue during the hearing, this panel member noted “...we deal with parties making allegations against each other all the time and we’re very used to weighing points made ...” The issue raised is not un-typical and arises from time to time in a hearing and is dealt with routinely.
AGCO Board panels do not operate in a criminal court environment. Hearings are less formal than those held in a court. The applicability of the section of the Charter in an administrative tribunal hearing dealing with a licensing matter in a regulated industry cited by the Licensee’s Representative differs from that of a criminal trial. In administrative hearings, witnesses are often unaware of legal procedure and it is not unusual to have to remind witnesses that they should not discuss testimony prior to testifying. Unless it is clearly wanton or blatant, no adverse inference is placed on a caution or reminder not to discuss testimony.
The allegations that there was an attempt to “muzzle the Licensee” or there was an “initial acceptance of unproven allegations” are completely without merit as the transcript clearly shows. The panel did not pre-judge the matter. No adverse ruling or order was issued by the panel against the Licensee. There is no basis for a reasonable apprehension of bias as suggested by the Licensee’s Representative.
The Licensee's Representative was given the opportunity at all times to address the concerns expressed and ultimately he stated his agreement with the manner in which the incident was resolved by the Chair. Furthermore, there was a significant delay in the Licensee’s Representative in bringing forward this motion to dismiss or stay the proceedings, after a number of sittings, and essentially after the hearing has concluded.
These allegations as a basis for a dismissal or stay of proceedings are therefore DISMISSED and the motion is DENIED.
DATED AT TORONTO THIS 5th DAY OF August , 2010
ALLAN HIGDON, BOARD MEMBER