Registrar, Alcohol and Gaming Commission of Ontario v. 6477291 Canada Inc., 2010 CanLII 81015

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-

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 ) Lawrence Greenspon, Representative

Authorities

671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59, [2001] 2 S.C.R. 983

Blackburn v. Midland Walwyn Capital Inc., 2003 CanLII 49369 (ON SC), [2003] O.J. No. 3177

Cabbagetown Restaurant and Bar (re), [2007] O.A.G.C.D. No 52

Castlerigg Investments Inc. v Lam and Lam Skin Care products Ltd., 1991 CanLII 7355 (ON CTGD), [1991] 2 O.R. (3d) 216

Carpenter v. Carpenter, [1993] O.J. No 2280

Gentles v. Toronto (City) Non-Profit Housing Corp., [2006] O.J. No. 1015

Background and Notice of Motion

1. A 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.

2. The 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.

3. Two post-hearing Motions were filed. 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.

4. This Decision is on the Motion to Reopen the original hearing.

5. The Licensee filed its motion to reopen the hearing and presented its factum and supporting arguments on March 31, 2010.

6. The Board directed that the evidence would be received through sworn statements, as set out in Rule 16.2 of the AGCO Revised Rules of Practice.

Preliminary Matters

7. Mr. Greenspon was permitted to introduce three new authorities for consideration by the Board.

8. The Licensee was not permitted to introduce further affidavit evidence at this juncture because all such evidence were submitted on March 31, 2010.

9. A request for an exclusion of witnesses by the Licensee’s Representative was denied as evidence had been introduced by affidavit and the motion did not proceed by way of oral testimony.

Licensee’s Submissions

10. The Licensee’s Representative submitted that the credibility of the Alcohol and Gaming Commission of Ontario (“AGCO”) Inspectors Lambert and Rowntree had not been tested. The Licensee’s Representative stressed that credibility was central to the issue of Mr. Kelly-Mor’s level of intoxication.

11. The Licensee’s Representative suggested that based on the cross-examination of Inspector Rowntree in paragraphs 55 to 57 in the Board’s December 11, 2009 Decision on Findings, it would have been much different if the Licensee had been in possession of certain information regarding the alleged conduct of Inspector Rowntree.

12. The conduct referred to was allegations that Inspector Rowntree released information about a police officer Staff Sergeant (“S/Sgt.”) Ghadban, information that allegedly was untrue and for which he was disciplined.

13. The Licensee’s Representative disputed the evidence in the affidavit of Richard Kulis. The Licensee’s Representative suggests that there was an element of Inspector Rowntree’s actions which were not completely excused by Mr. Major (Registrar’s motion record, Affidavit of Richard Kulis).

14. The Licensee’s Representative suggested that the e-mail of S/Sgt. Ghadban would lessen the credibility of Inspector Rowntree (Motion Record of the Licensee, Tab C). An examination of Inspector Rowntree regarding the incident with S/Sgt. Ghadban and an ability to assess his answers by cross-examination would probably have changed the results of the hearing.

15. The Licensee’s Representative drew the Board’s attention to his book of new authorities:

1. Carpenter v. Carpenter. Paragraphs 5, 6 and 7 were argued by the Licensee’s Representative that these paragraphs were persuasive in that the Justice ruled that the matter should be reopened in order to allow cross-examination on the basis of an issue of credibility and to not do so may allow a miscarriage of justice to occur.

2. Castlerigg Investments Inc. v. Lam and Lam Skin Care products Ltd. Paragraph one in the view of the Licensee’s Representative is compelling because the trial judge allowed the case to be reopened after reasons had been delivered but before the formal judgment had been taken out, the new evidence being unsworn statements. Paragraph 5 on page 3 in the view of the Licensee’s Representative suggests the same circumstances as that involving Inspector Rowntree. In the paragraph the Justice suggests if counsel had been armed with the statements for the purpose of cross-examination, he might have succeeded in shaking their evidence.

3. Blackburn v. Midland Walwyn Capital Inc. The Licensee’s Representative argues that the Justice reopened the trial to hear fresh evidence in order to prevent the miscarriage of justice. The Licensee’s Representative argues that fresh cross-examination would have had an impact on the Board’s ruling. Credibility is the issue. The Board should have all the relevant evidence available to it. This would establish fairness and an avoidance of a miscarriage of justice.

Registrar’s Submissions

16. Ms Taylor submitted that the issue involving Inspector Rowntree as reviewed by Mr. Major was not misconduct; that allegation was not sustained by Mr. Major. Mr. Major stated that Inspector Rowntree misspoke. His actions therefore are not relevant to the Board’s hearing.

17. The Registrar’s Representative suggests that if the information had been in the hands of the Licensee at the time of the hearing, it would not have been permitted. The matter involving Inspector Rowntree had nothing to do with any licensee or any Board procedure.

18. Mr. Major in his letter of November 20, 2009 to Dr. Kuriakose, attached at tab “D” of the Registrar’s motion record, in the second last paragraph states, “the actions of Inspector Rowntree, in my view, do not amount to conduct that would question his integrity or credibility on evidence that he provided at the hearing”.

19. It would be far fetched for the Licensee to attempt to attach any relevance to the allegation that was reviewed by Mr. Major to the original hearing.

20. The Registrar’s Representative referred to 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. The Registrar’s Representative stresses the two-part test in Sagaz is the definitive rule with regard to the reopening of matters before the court. The two-part test is outlined in paragraph 62 of the court’s decision. To paraphrase; the first rule is, would the new evidence if presented at trial have changed the outcome. Secondly, could this evidence have been obtained before trial?

21. The Registrar’s Representative argues that the Licensee’s motion fails both parts of the Sagaz test. The Licensee alleges the Board relied solely on the evidence of the AGCO Inspectors. This is not correct. The testimony at the hearing from Mr. Kelly-Mor, the intoxicated patron, corroborated the observations of Inspectors Lambert and Rowntree.

22. Inspector Lambert’s evidence was not challenged and it was his evidence that described the actions of Mr. Kelly-Mor as he entered the licensed premises. Inspector Rowntree’s evidence was secondary. He remained back to clean up the glass from Mr. Kelly-Mor’s broken beer bottle.

23. Even if the Board were to admit the evidence relevant to the conduct of Inspector Rowntree, it is extremely unlikely that this evidence would change the outcome of the hearing.

24. The second part of the Sagaz test has also not been met. The test required is that the evidence to be relied on could not have been obtained with due diligence prior to the hearing. The material involving the allegation against Inspector Rowntree has been available and the Licensee has had knowledge of this material. On January 22, 2009, Dr. Kuriakose sent an e-mail to Mr. Gavsie (Registrar’s motion record, Tab B). There was a reply letter dated August 12, 2009 from Mr. Major to Dr. Kuriakose (Registrar’s motion record, Tab C), further there was the letter from Mr. Major to Dr. Kuriakose dated November 20, 2009 (Registrar’s motion record, Tab D). These are all tied to the complaint of February 2009. There has been no explanation why these matters were not raised on June 10 or October 13, 2009. The Licensee has not shown what measures they took to investigate this matter prior to the hearing dates or at the hearing or prior to the Board’s decision being rendered.

25. It is clear that the Licensee cannot meet any part of the Sagaz test.

26. In Gentles v. Toronto (City) Non-Profit Housing Corp., paragraphs 21 through 23, the court set a standard requiring the parties first to ensure due diligence in finding the evidence prior to the case conclusion. The court was also mindful of the value of this evidence. The Registrar’s Representative submits the Licensee meets none of these four special requirements to bring fresh evidence.

27. The authorities introduced by the Licensee’s Representative on the day of this motion predate and conflict with the rule established by the Supreme Court in Sagaz. Today they would have been overturned.

28. The exception was Blackburn v. Midland Walwyn Capital Inc. This case contradicts Sagaz but was issued around the same time. There is no knowledge if this decision was appealed. It should be noted that Justice Gordon permitted the new evidence because the reasons in his decision had not yet been completed.

29. The Registrar’s position is that the motion to reopen the hearing should be dismissed.

Licensee’s Reply

30. The Licensee’s Representative submitted that Mr. Major was not in a position to speak to Inspector Rowntree’s credibility or his conduct relative to the hearing. Mr. Major was stating a position.

31. The Licensee’s Representative submitted that the investigation involving the conduct of Inspector Rowntree may have commenced in 2008 but continued into 2009. The Licensee only received the relevant information to ask the questions after the hearing. If you can’t ask questions because you didn’t have the evidence, this in of itself is a reason to reopen the hearing.

32. The Board should want to know the issues of credibility in the interests of justice.

Reasons and Decision

33. The Board has reviewed the materials supplied by the parties and reviewed their submissions and DISMISSES the motion.

34. The Registrar’s Representative submits that the overriding principle in deciding this motion is the rules as established by the Sagaz case. The Board agrees. The test established in Sagaz is the appropriate test to apply to proceedings before the Board. This was stated by the Board in its decision in Cabbagetown Restaurant and Bar. The Board quotes from paragraph 19 of that decision, “The objectives of fairness to parties and finality of the hearing process at stake in Sagaz are equally significant in any adjudicative proceeding including those before this Board”.

35. The Board is of the opinion that the additional evidence proposed would not have been admitted at the hearing. There has been no finding of misconduct on the part of Inspector Rowntree. The Licensee suggests that the interactions of Inspector Rowntree in the matter involving S/Sgt. Ghadban of the Ottawa Police Service are so egregious as to taint his credibility in the hearing held before the Board. The Board disagrees. Inspector Rowntree’s interactions with S/Sgt. Ghadban have no relevance to the hearing held before the Board. The Board would not have admitted irrelevant cross-examination, nor would it have permitted a fishing trip on the part of the Licensee to taint the reputation of a witness, without relevant cause. Further, if the Board were to admit such evidence it is our view that it would not have changed the outcome of the hearing.

36. In its factum, paragraph 3, the Licensee states, “In coming to its decision the Board relied exclusively on the testimonies of Inspector Mark Lambert and Inspector Andrew Rowntree”. This is incorrect. In coming to its decision the Board relied on all the evidence. The evidence supplied by the Licensee’s own witnesses corroborated the evidence of the AGCO Inspectors. Specifically, the evidence by the intoxicated male, Mr. Kelly-Mor, as considered by the Board in paragraph 201 of its Decision on Findings. Further, the Board pointed out the inconsistencies between the evidence of the Licensee’s witnesses as illustrated in the Board’s findings at paragraph 200. From all of the evidence presented it was not improper for the Board to prefer the evidence of the AGCO Inspectors over the Licensee’s witnesses as illustrated in paragraph 203 of the Board’s Decision on Findings.

37. The Board is of the view that the information regarding Inspector Andrew Rowntree, sought by the Licensee was available in various forms as early as 2008. The Licensee offered no reasonable explanation as to why they never sought to obtain the material they wanted before the hearing, during the hearing or at some point prior to the issuance of the Board’s decision. The Licensee made no attempt during the hearing to cross-examine the AGCO Inspectors regarding their conduct. If the Licensee was attempting to introduce evidence that would affect the credibility of the Registrar’s witness that would have been an appropriate time. Now with respect is too late.

38. Therefore, for the reasons given, the Board DISMISSES the Licensee’s Motion to Re-open the hearing.

DATED AT TORONTO THIS 2nd DAY OF November , 2010

ALEX MCCAULEY, BOARD MEMBER BRUCE S. MILLER, BOARD MEMBER