IN THE MATTER OF THE LIQUOR LICENCE ACT
R.S.O. 1990, c. L. 19 s. 11.1(3)(b) AND 21(1)
AND IN THE MATTER OF AN APPLICATION FOR A FERMENT ON PREMISE LICENCE BY MEGA BREWING CO. LTD. INTENDING TO OPERATE AS MEGA BREWING CO. LTD., 450 TRUDEAU DRIVE, UNIT #1, SARNIA – ESTABLISHMENT NO. 808563
NOTICE OF PROPOSAL NUMBER 18249
DECISION ON A MOTION AND ORDER
Appearances
Registrar, Alcohol and Gaming Commission ) Phillip Morris, Representative
Mega Brewing Co. Ltd., Applicant ) Richard Watt, Self-Representing
the Corporate Applicant
- A hearing into Notice of Proposal (“NOP”) number 18249 dated August 24, 2010 to refuse an application for a ferment on premise licence made by Mega Brewing Co. Ltd. intending to operate as Mega Brewing Co. Ltd., 450 Trudeau Drive, Unit #1, Sarnia (Establishment No. 808563) (“the Applicant”) on the basis that the corporate applicant is disentitled to a licence pursuant to subsections 6(2)(a) and 6(2)(d) of the Liquor Licence Act, commenced on November 19, 2010 in the City of Sarnia.
Background Facts
Mr. Richard Watt is the sole shareholder, officer and director of the corporate Applicant. On behalf of the corporation, he waived the right to representation.
At the commencement of the hearing, a witness exclusion order was made on consent.
At Mr. Watt’s request, and with Mr. Morris’ consent, Mr. Jeff Karr, was allowed to be called out of order, as a witness and testified on behalf of the corporate Applicant, that is, before Mr. Morris had called all of his witnesses. Mr. Karr is the corporate Applicant’s accountant and was Mr. Watt’s personal accountant as well until 2006.
At the close of the first day of the hearing, Mr. Morris made an oral motion on behalf of the Registrar, seeking leave to discuss the testimony of the Applicant’s witness, Jeff Karr, with the Registrar’s main witness, Det. Cst. Christine Bourrie, before the hearing recommences. Det. Cst. Bourrie has not yet given evidence at the hearing.
Mr. Watt, on behalf of the corporate Applicant, has not provided disclosure to the Registrar regarding Mr. Karr’s evidence as required by Rule 10 of the Alcohol and Gaming Commission’s Revised Rules of Practice (“the Rules”). Neither has he provided any such disclosure for the other witnesses he intends to call.
Reasons
Two primary purposes of the mandatory mutual disclosure requirements under Rule 10 of the Rules are fairness and natural justice. Specifically, the disclosure rule ensures that, in matters that come before the Board for adjudication, both sides have a reasonable opportunity to know and prepare for the case they will need to meet. In turn, this helps secure a “just, expeditious and cost-effective determination of every proceeding on its merits” (Rule 1.1 of the Rules).
In this case, the mandatory disclosure requirement was not met by the corporate Applicant. This has disadvantaged the Registrar, particularly in preparing his main witness, Det. Cst. Bourrie, and is prejudicial to his right to ready his case.
Also, if all of the Registrar’s witnesses had been called, followed by the corporate Applicant’s witnesses, which is the typical scenario, Mr. Morris would have had the right to call Det. Cst. Bourrie to give reply evidence in response to any new evidence raised by the corporate Applicant’s witnesses. This opportunity is precluded in relation to Mr. Karr’s evidence because he and Det. Cst. Bourrie are being called as witnesses, out of order. Without a remedy, this outcome would also prejudice the Registrar’s right to prepare for and present his case.
The prejudice that has been identified, above, will be addressed in two ways. First, Mr. Morris should be given the right to discuss Mr. Karr’s evidence with Det. Cst. Bourrie before she is called upon to testify. As well, the corporate Applicant should complete the mandatory disclosure requirements as contemplated by the Rules, although within an abridged time frame as the next hearing date is set for Wednesday, December 8th, 2010.
Order
Therefore, the Board ORDERS that the Registrar, through his representative, shall be allowed to discuss the evidence given by Mr. Jeff Karr at the hearing with Det. Cst. Bourrie before calling her as the Registrar’s witness.
Also, the Board ORDERS that the corporate Applicant shall disclose to the Registrar’s Representative pursuant to Rule 10 of AGCO Revised Rules of Practice, and specifically pursuant to Rule 10.3, a list of its witnesses and a detailed summary of each witness’ evidence, as well as disclosure pursuant to Rule 10.2, such disclosure to be made to the Registrar by no later than 5.00 p.m., Friday, December 3, 2010.
DATED AT TORONTO THIS 2nd DAY OF DECEMBER, 2010.
S. GRACE KERR, BOARD MEMBER BRIAN J. FORD, BOARD MEMBER