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-
Restaurant Innovations Inc., operating as Moose Winooski’s Licensee
DECISION ON MOTION
Panel: David C. Gavsie, Chair, AGCO Kirsti Hunt, Vice-Chair, AGCO
Decision Date: August 6, 2010 Hearing Location: Kitchener, 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 ) Phillip Morris, Representative Restaurant Innovations Inc., Licensee ) Carolyn Brandow , Representative
Background and Notice of Motion
A hearing into Notice of Proposal number 16156 dated April 2, 2008, to suspend liquor licence number 24499 issued to Restaurant Innovations Inc. (the “Licensee”), operating as MOOSE WINOOSKI’S, 20 Heldmann Road, (formerly 100 Sportsworld Drive), Kitchener, Ontario, N2P 0A6, with respect to alleged violations subsection 20(1) and 45(1) of Ontario Regulation 719/90 (the “O.Reg.”) made pursuant to the Liquor Licence Act (the “LLA”) was held on August 19 and 20, 2009 and November 17, 2009 in the City of Kitchener.
On November 18, 2009, the Board issued an Order (the “Order”) adjourning the hearing sine die until the Board orders the hearing to recommence and new dates are canvassed. Subsequently, September 20, 21, and 23, 2010, were scheduled for resumption of these proceedings.
On Friday July 23, 2010, the Licensee’s representative served the Registrar’s Counsel with the Notice of Motion and then filed it in the Board’s Hearings Office which was received on Monday July 26, 2010, for this motion heard on July 28, 2010 requesting:
An Order requiring the further disclosure of records;
An Order adjourning the hearing until the appeal under the Freedom of Information and Protection of Privacy Act currently underway for disclosure of record has been determined or resolved:
In the alternative, an Order adjourning the hearing to a date on which, at the outset, Counsel for the Licensee is able to attend to argue the motion brought by the Licensee asking for a stay of proceedings; and
Such further and other relief as counsel may advise and the Board may deem just.
A. Preliminary matters
Registrar’s counsel, Mr. Morris, submitted for the record his concern that he received the motion record late leaving him limited time to respond. His remedy could be to seek an adjournment but he is prepared to argue the motion although Licensee’s counsel should explain why she did not follow the timeline in the Board’s order.
Licensee’s counsel responded that the June 23, 2010 letter provided two days which were not canvassed and by the time the July 28, 2010 date was offered, the 10-day timeline in the letter had already expired. She got the motion material in as soon as possible.
Decision
- The Board has the authority to vary the timelines based on its Rules of Practice. The Board realizes that the Licensee’s motion material was filed late but Mr. Morris has filed his factum and motion material and has indicated he is prepared to proceed. The Board accepts the materials filed by both parties. In the interest of justice and to move this matter along, the Board will proceed with hearing the Licensee’s motion.
B. Other Cases Involving Licensee’s Counsel
Mr. Morris submitted further that Mr. Lerner, counsel in this matter, has raised the same institutional bias issue in 4 other hearings and the parties have agreed that the pending bias motion in these proceedings would apply to all other proceedings. If something alters in this proceeding, he does not want to restart the motion in the other proceedings which could go on for another year. He asked that Licensee’s counsel confirm on the record that the bias motion in all the proceedings be argued together.
Licensee’s counsel, Ms Brandow, confirmed that it was her understanding that all 4 motions would be argued together. She has no instructions about the present motion. She could not say if the present motion is on behalf of all other proceedings.
Mr. Morris asked that she let him know about the present matter by the end of the week.
Decision
- The Board in this matter is seized with the motion today and is not seized with the other matters. The Board is here to consider the Moose Winooski’s case and is not prepared at the present time to order or decide any other matters in which Mr. Lerner is involved. Counsel can, if they wish, work out between themselves the other matters. The Board will deal with the motion today without reference to any other proceedings.
C. Affidavit in Registrar’s Factum
Ms Brandow asked that the Board strike various sections of the Registrar’s Factum because the information therein is not in evidence in that the affidavit of Ms Varva (Respondent’s Motion Record) does not swear to the truth or accuracy of the facts in the documents mentioned but she merely attaches letters. Some information is not in the affidavit and some information is not found anywhere in the factum.
Mr. Morris reviewed the paragraphs cited and submitted that none of the information is in dispute. It is part of the record. No letter in the Registrar’s affidavit is in dispute so there is no need to swear to the truth of their content. Mr. Morris indicated that he would deal with any substantive matters.
On being questioned by the Board, Ms Brandow indicated that there were no documents that she had not seen. She raised a concern generally about the evidence that can properly be considered because it is not in the affidavit. She has raised the issue. She wants to proceed today.
Decision
- Ms Brandow has agreed the material in Ms Varva’s affidavit has been seen by Licensee’s Counsel. Everything from the hearing, and the exhibits for the motion are already in evidence. The Board considers the objection to be one of form. Therefore, the Board accepts the affidavit of Ms Varva as filed.
D. Further Disclosure of Records
Regarding substantive disclosure matters, Ms Brandow submitted that the letter of April 27, 2010 from Mr. Lerner to Ms Platt of the Alcohol and Gaming Commission of Ontario (“AGCO”) is not in the Respondent’s factum (A copy of that letter was tabled and made Exhibit 1 for this July 28, 2010 Motion). The letter deals with the Freedom of Information (FOI) response. One of the redacted FOI documents is correspondence from an unknown person outside the AGCO who mentions pre-drinking which is relevant to the substantive matter. Her understanding is that the document was provided to or discussed with Registrar’s counsel, Mr. Kulis, before Mr. Morris took the file over.
The letter chain to someone outside the AGCO is also relevant to the pending bias motion which deals with the lack of administrative independence and institutional impartiality. These types of matters caused a reasonable apprehension of bias.
Communication is at the heart of the disclosure requested in the FOI request. Questions arising from the redacted document are 1) who is involved in the communication, and 2) was there overlapping of functions or simply a prosecutorial process with the witness? Very important to the pending bias motion is the organizational structure of the AGCO, the lack of separation of functions, and the crossing over.
Mr. Morris submitted that he did not have the document and had no knowledge of Mr. Lerner speaking to Mr. Kulis. He is prepared to deal with it.
Ms Brandow undertook to get a copy of the document to Mr. Morris.
Regarding what else is missing regarding the pending bias motion, Ms Brandow referred the Board to the Index for Information and Privacy Access (Licensee’s Motion Record, tab K), specifically the last two pages being an index. Some documents were disclosed, some were not and some were partly disclosed or redacted. As indicated in Mr. Lerner’s affidavit (paragraph 19) the redactions removed the chain of who was involved in the communications. The chain is the issue in overlapping functions related to the three functions of the AGCO – adjudicative, policy and prosecutorial or regulatory side. One of the Board members in this hearing is involved in a communication chain. The Board cannot make decisions regarding the Ministry which is a party to the Information and Privacy Commissioner of Ontario process. But the Ministry is getting information from the AGCO. The Board has the power to order disclosure of the documents sought through the Registrar, which will be relevant and important on the motion (Mr. Lerner’s affidavit, paragraph 29).
Mr. Morris submitted that Ms Brandow first has to establish whether she is entitled to the documents. There is no test of relevance through the Freedom of Information and Protection of Privacy Act (“FIPPA”) under which there is no judicial proscription against a fishing expedition. Mr. Kulis advised Mr. Lerner of that in his letter of November 12, 2009. Mr. Lerner chose to go to FIPPA before the hearing date. Ms Brandow has to establish that she has the right to disclosure regardless of FIPPA.
Mr. Lerner said in his submissions on November 17, 2009 that there is no personal attack. There was no concern about actual bias. We don’t know if Ms. Brandow is raising that. She has suggested there is correspondence between the Board and the Registrar in this matter. If she is raising the issue of actual bias, she should say that.
Ms Brandow has not brought the documents from FIPPA. She has not said what her concerns are. She is not entitled under disclosure rules to get what she can’t under FIPPA. Under disclosure rules, the Registrar is not obligated to give all details. The case law says that the Licensee cannot ask to be given everything and then see what he can find. This is a public interest hearing. It is a case involving a death. The Board’s position on cases involving a death can be found in its decisions.
Ms Brandow responded that the Board can order disclosure of such further particulars, information or documents as the Board may consider necessary for a full and satisfactory understanding of the issues. This is not a fishing expedition. Documents have been received that have raised important issues of independence, with an overlapping and overreaching structure. The information sought will be both relevant and extremely important to the issue. This is not a personal attack but relates to the structure of the AGCO.
Decision and Order regarding Disclosure
The Board has jurisdiction to deal with matters which refer to disclosure.
The Board orders disclosure by both parties on all substantive matters raised in the Notice of Proposal, in accordance with the AGCO Rules of Practice.
The Board is not prepared to issue a disclosure order with respect to the pending bias motion. As the Board has no motion material at this time on the issue of bias, and therefore does not know if the material, for which disclosure is requested, is relevant or not.
The Board notes that FOI process initiated by the Licensee’s Counsel is separate and distinct from the issue of disclosure for purposes of this hearing
Adjournment
Ms Brandow submitted that the Board can grant an adjournment if it is necessary to permit an adequate hearing to be held. The decision is at the Board’s discretion. A key issue is whether or not one party is prejudiced if an adjournment is not granted.
The pending bias motion is scheduled to proceed in advance of the resumption of her client’s hearing. One issue is bringing forward more information through the FOI appeal process which the Licensee believes is important to the bias motion. The second issue is the availability of counsel.
Mr. Lerner was counsel for the first two days of the Registrar’s evidence and initiated the bias motion. Ms Brandow became involved shortly thereafter and Mr. Lerner indicated that she would be handling the bias motion. Paragraph 11 of Mr. Lerner’s affidavit indicates that a communication was made that she was scheduled for a trial in court on the days scheduled for the motion. The trial was previously scheduled. There is a possibility that the other matter may not proceed. The trial is scheduled for two weeks starting September 13, 2010, so there need not be a long delay. Ms Brandow asked for the hearing to be adjourned to a date when she is available.
There is an absence of prejudice. The public interest is not pressing since the first day of the hearing was 1 ½ years after the event and considering how long the matter has taken, a few more weeks is not significant. There is no evidence witnesses will become unavailable. This is not a case where there have been repeated adjournment requests or the Licensee has gotten new counsel. Here counsel is not available.
Mr. Morris submitted that there is no reason to adjourn pending the FOI process. The Statutory Powers and Procedures Act empowers the Board to control its own process.
Regarding availability of counsel, there is a public interest in having this matter dealt with expeditiously. The hearing was adjourned on October 20, 2008 pending the outcome of the criminal matter. The hearing began in August 2009. The delay since has been as a result of the issues raised in the Licensee’s pending bias motion. Now four more AGCO cases represented by the Licensee’s Counsel are being held up. The May 11, 2010 transcript of a conference call contains nothing about Ms Brandow being in trial in September.
Mr. Lerner first made mention of a bias motion during the hearing on November 17, 2009. But for the Beatty Report, the Registrar would have argued disclosure and the motion on that date. The Board set the date for the bias in September motion and Mr. Lerner has known about it at least since May, 2010. Mr. Lerner should have gotten another co-counsel who is available.
Counsel spoke of only a two week delay but there is everyone’s schedule to consider. Mr. Morris said he does not know what witnesses he may need to call for the bias motion.
Ms Brandow replied that the transcript from the May telephone call cannot be relied upon because it is not here today.
At that point, the Board contacted Ms Platt of the Board’s Hearings Office who testified by telephone that she wrote the letter on May 11, 2010 setting the dates of September 20, 21 and 23, 2010 with the location to be determined. (Respondent’s motion record, tab U). She wrote the letter pursuant to a conference call with herself, Mr. Kulis, and Mr. Lerner held on May 11, 2010. During that call those three September dates were agreed to. The parties confirmed that they were available. Ms. Brandow was not present on that call. Ms Platt does not have in her notes nor does she recall any mention during the call that those dates might not be good for Ms Brandow. Ms Platt was also present on an earlier conference call on May 11, 2010 with Mr. Kulis, Mr. Lerner and the panel members.
On cross-examination by Ms Brandow, Ms Platt agreed that Ms Brandow was on the earlier call that day and that she signed off the call. She was not on the second call. In her notes for the second call, Ms Platt said she noted the participants and the dates agreed to by the parties. She also made a note to ask about location. She would have made a note of it if Mr. Lerner had said that Ms Brandow was not available that week, and she does not recall mention of that at all.
On cross-examination by Mr. Morris, Ms Platt agreed that Mr. Lerner had agreed to the dates. After sending the letter, she did not receive any letter from Mr. Lerner stating that Ms Brandow was not available.
Decision regarding Adjournment
The Licensee’s motion for adjournment is denied. The reasons are as follows:
Regarding the FOI, the Board has no idea how long it will take, nor what may be or may not be relevant.
Regarding the public interest, the hearing in this case started in August 2009 and the Board is concerned with the time that has passed from the date of the event in November 2007 until now. The memory of witnesses may fade. Second, regarding the public interest, there are at least 4 other cases on which Licensee’s counsel is counsel, all of which are being held up pending resolution of the bias motion in this case, in effect bringing to a halt the Board’s hearing process on all these matters.
Regarding the September dates, those dates were set on May 11, 2010 unconditionally. The first time the Board was made aware of Ms Brandow’s potential conflict was when the Board received the Motion Record of the Licensee on July 26, 2010, although it was apparently served on the Registrar on July 23, 2010.
The bias motion is to start on September 20, 2010, as scheduled. The parties shall be prepared to call evidence on the Notice of Proposal on September 21 and 23, 2010, depending on the outcome of the bias motion.
The location for the hearing on September 20, 21 and 23 will be in Kitchener, or another location if the parties can agree on one by advising Ms Platt one week from the hearing of this motion.
DATED AT TORONTO THIS 6th DAY OF August , 2010
DAVID C. GAVSIE, CHAIR, AGCO KIRSTI HUNT, VICE-CHAIR, AGCO