Registrar, Alcohol and Gaming Commission of Ontario v. Nancy’s Bar & Grill Inc., 2011 CanLII 19720

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

Registrar, Alcohol and Gaming Commission of Ontario Registrar

-and-

Nancy’s Bar & Grill Inc., operating as Nancy’s Bar & Grill Licensee

Panel: David Gavsie, Board Chair Bruce S. Miller, Board Member

Decision Date: February 17, 2011

Hearing Location: Toronto, 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 ) Aviva Harari, Representative 6477291 Canada Inc., Licensee ) Randall Barrs, Representative

Authorities

Bank of Montreal v. Horan et al. 1986 CanLII 2554 (ON HCJ), 54 O.R. (2d) 757

Ontario v. Ontario Public Service Employees Union (OPSEU) [1990] O.J. No. 635

2008221 Ontario Inc. (Pilot Tavern) (Re), 2007 CanLII 47087 (ON A.G.C.)

Prudential Securities Credit Corp., LLC v. Cobrand Foods Ltd. 2007 ONCA 425, [2007] O.J. No. 2297

Registrar, Alcohol and Gaming Commission of Ontario v. 2008221 Ontario Inc. (Pilot Tavern), 2008 CanLII 46925 (On S.C.D.C.) -2008-09-15

Background and Notice of Motion

A hearing into Notice of Proposal number 18282 dated September 3, 2010, to suspend liquor licence number 280976 issued to Nancy’s Bar & Grill Inc. (the “Licensee”), operating as NANCY’S BAR & GRILL, 1215 Weston Road, Toronto, Ontario, M6M 4P7, on the basis of an alleged violation of section 29 of the Liquor Licence Act (the “LLA”) and subsection 45(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA was held on January 5, 2011 in the City of Toronto.
The Registrar`s evidence was heard to completion by the Board on January 5, 2011.
Mr. Barrs then brought forward a motion of non-suit. The Board DISMISSED the motion.
Ms Harari then brought forward a motion that the Licensee should not be allowed to call evidence as the Licensee was not put to a formal election as to whether to call evidence when the Licensee brought the motion of non-suit forward and should therefore be deemed to have elected not to call evidence.
The Board requested written submissions on the motion.

Preliminary Matters for The Hearing

The Board ORDERED the exclusion of witnesses on consent.
Mr. Barrs advised the Board had heard a previous matter involving the Licensee but Mr. Barrs did not object to the same Board members hearing this matter.
Ms Harari advised by way of background that the NOP deals with two separate incidents. The May 1, 2010 allegation involves two intoxicated persons on the premises and the May 30, 2010 allegation involves one intoxicated person on the premises who was allegedly served alcohol.

Registrar’s Evidence

Charlene Graham has been a police officer with the Toronto Police Service for two years.
She went to Nancy’s Bar & Grill on May 1, 2010. She was dispatched there as a result of a complaint that a female had been threatened and pushed by another female. The witness was advised both females had been drinking. She arrived at 10:02 p.m.
The witness saw the female suspect, A.E., outside Nancy’s Bar & Grill when she arrived. It was obvious A.E. had been drinking. She was stumbling, slurring her words and had a heavy odour of alcohol. A.E. stated she had been drinking at Nancy’s Bar & Grill and was celebrating her son’s birthday. The witness’ partner, Victor Romita dealt with the female complainant who was also present.
Radio checks revealed that A.E. had a history of mental instability.
The investigation revealed that the complaint was unfounded.
Both parties were cautioned regarding intoxication and were sent home and told not to return to the bar that night.
She spoke to the Licensee, Nancy Iannarella, and advised her that both females were intoxicated and to call the police if they returned. She warned Ms Iannarella against over service.
On cross-examination the witness stated she had been to Nancy’s Bar & Grill before. She described the patrons at Nancy’s Bar & Grill as “living on the edge.” They have medical and drug problems.
A.E. was standing outside when she arrived and it appeared that A.E. was waiting for the police. It was the first time she had dealt with A.E. She never asked A.E. how much she had to drink or whether A.E.’s son was there. She never asked any questions regarding the service of alcohol.
A.E.’s speech was slurred. She didn’t know if A.E. was missing any teeth.
There was no reply.
In response to a question from the Board she stated she spoke to the Licensee inside the bar. She was on the scene for approximately half an hour. She did not lay any provincial offence charges.
She stated in response to a question from Ms Harari that she has the discretion whether or not to lay provincial charges.
Victor Romita has been a police officer with the Toronto Police Service for four years and served with the military for ten years prior to that.
On May 1, 2010 he was partnered with Charlene Graham. They were dispatched to Nancy’s Bar & Grill and arrived at 10:02 p.m. They were sent to the bar regarding an assault complaint. The call had been received by police dispatch at 9:19 p.m. The complaint was that a female had threatened to kill another female and had assaulted her in the past. Dispatch advised females had been drinking.
The witness dealt with the complainant who advised him that A.E. had pushed her in the basement of Nancy’s Bar & Grill. The complainant had been drinking, she smelled of alcohol, her speech was slurred and her story didn’t make a lot of sense as it kept changing. The witness had prior dealings with the complainant and she has emotional and medical problems. He believed the assault complaint to be unfounded.
Both the complainant and the suspect were cautioned regarding intoxication and told to leave the bar.
He left the scene at 10:45 p.m.
On cross-examination he stated he never saw either of the two individuals consuming alcohol.
The complainant was outside the bar on arrival. Her story didn’t make much sense but that is not unusual for her. He did not ask her if she consumed any alcohol at Nancy’s Bar & Grill nor did he ask her how much she had to drink. Several patrons told her the complainant was in Nancy’s Bar & Grill.
He didn’t know if the complainant took any drugs or medication.
He did not speak to the Licensee.
On reply he stated he made a note in his notebook that the complainant had been drinking.
Neline Fernando has been an Inspector with the AGCO for the past four years. She was an Ontario Provincial Police Special Constable for eight years prior to joining the AGCO.
She went to Nancy’s Bar & Grill on May 30, 2010 to do an inspection. She was accompanied by AGCO Inspector Jade Leadbetter and Sergeant McFadyen. They arrived at 1:25 a.m. There were ten people inside the bar which is a small premises. .
The witness saw a female exhibiting signs of intoxication. She was swaying and staggering. She was talking loudly to no one in particular and had slurred speech.
She spoke to the Licensee, Nancy Iannarella, and pointed out the female. Ms Iannarella stated, ’No she`s not drunk. She’s fine. She’s always like that.’
The witness spoke to the female patron who identified herself as L.T. L.T. had a strong odour of alcohol on her breath and stated she didn’t know how much she had to drink.
The witness spoke to the Licensee. L.T. interrupted her and started to cry and said ’mommy, mommy.’ She then stopped crying and started to laugh.
L.T. told the witness that she was taking medication for her back. She was swaying and staggering, had glazed eyes and heavy eyelids. L.T. was holding a glass of beverage alcohol. The witness told the Licensee not to serve L.T. any more alcohol.
The Inspector went outside. She looked back in the premises through a window and saw L.T. with a new glass containing some sort of fluid. She went back in and L.T. told her she had just purchased the new drink.
The witness then spoke to the Licensee who stated she had served L.T. a new drink. The Licensee stated, ’Yeah she wanted one more, it’s okay.’
The witness then left the premises.
On cross-examination the witness stated she had never met L.T. prior to the night in question.
She felt, based on her experience, that L.T. was intoxicated and didn’t have medical problems.
The witness agreed that L.T. could have been drinking elsewhere and could have had nothing to drink for the past several hours. She never asked L.T. how much she had to drink at Nancy’s Bar & Grill.
The witness believed L.T. was laughing and crying as a result of alcohol consumption. She did not know when L.T. arrived at the premises.
The witness stated she uses the term beverage alcohol when she doesn’t know what type of alcohol is in a drink. There was a strong odour of beverage alcohol coming from L.T.’s glass. She never asked L.T. what type of alcohol she was consuming.
She knew that L.T. had a new drink after the witness went outside as she noticed that L.T.’s glass was full and it had only been half-full when the witness was talking to L.T.
The new drink was beverage alcohol and was the same dark colour. She never asked the Licensee what was in L.T.’s drink. The witness is confident it was beverage alcohol.
The Licensee took the drink from L.T. who asked for her money back.
There was no reply.
When the witness testified she gestured that L.T. had been holding a drink up by her mouth area when the witness noticed an odour of alcohol coming from L.T. The Board questioned the witness on how she could tell the difference between the odour from the glass and the odour from L.T.’s breath. The witness replied she can tell the difference as a person’s breath smells “staler.”
Jade Leadbetter has been employed as an AGCO Inspector for four years. She was an Ontario Provincial Police Special Constable for four years prior to becoming an Inspector.
She went to Nancy’s Bar & Grill on May 30, 2010 at 1:25 a.m. to assist with an inspection.
She saw a female patron showing signs of intoxication as soon as she entered. The female was unsteady on her feet and was staggering all around the establishment. The patron’s eyes were droopy, her speech was slurred and she was speaking in a loud voice. The patron slumped on a bench and she saw Inspector Fernando speak to her.
The witness testified she spoke to the bartender. Mr. Barrs objected for the record as he stated he knew the testimony would be allowed even though it couldn’t be tested through cross-examination. The Board allowed the witness to continue ruling that hearsay evidence was allowed and the Board would assess the amount of weight it should be given. The witness stated the bartender told her that L.T. was served one vodka and coke.
She left the establishment and did not go back in when Inspector Fernando re-entered.
On cross-examination she stated she had never met L.T. prior to the evening in question.
The witness advised there were ten people in the premises. She was sure the bartender knew she was asking questions about L.T. and not another person.
There was no reply.
In response to a question from the Board, she stated it was a small premises. She did not know the capacity. The bar is at one end and you can see all the tables from there. There are no obstructions.

Licensee’s Motion

Registrar’s counsel advised the evidence for the Registrar was complete. Mr. Barrs made a motion there be no finding made on both dates as the evidence was “very questionable.”
Mr. Barrs reviewed the May 1, 2010 incident first. He pointed out the police felt that the complaint was bogus. Registrar’s counsel did not call any of the patrons as witnesses. The police officers found both the females outside Nancy’s Bar & Grill. The officers never asked where they had been drinking, when they had been drinking or how much they had to drink. Both females were told to go home and no charges were laid. The complaint is unfounded.
There is no evidence that either of the two patrons drank inside Nancy’s Bar & Grill and there is only hearsay evidence that they were inside the premises. One or both of the females in question may have been high on something but there is no evidence as to what that may have been.
At the highest the two individuals were found outside the premises. The officers were told the females had been drinking. There is no evidence the females were inside and the police officers didn’t ask any questions.
The May 30, 2010 incident is a little more complicated. There is no evidence of what was in L.T.’s glass. She is in a less than healthy state, acting oddly and has some problems with her physical control. The Licensee advised the Inspector that L.T. wasn’t drunk and always acts like that. It should be noted that the Registrar did not call L.T. to testify.
L.T.’s behaviour was bizarre and it could be consistent with alcohol consumption or other problems. L.T. told Inspector Fernando that she was taking medication but the Inspector did not believe her.
Inspector Fernando’s evidence lacks the air of reality. How can she decipher what odour is coming from the glass. We would all be pretty hard pressed to detect the odour of vodka. It’s absurd to suggest you can detect that odour from other odours in the bar.
Nobody can describe the fluid in the glass. Nobody asks any questions. Inspector Fernando’s evidence is not credible.
There was very little investigation done on the second visit that night.
Both allegations are not made out and based on the balance of probabilities, no finding should be made.
Ms Harari replied that the Board needed to consider the totality of the evidence.
On May 1, 2010 there were two intoxicated patrons on the premises. Two police officers attended to investigate an assault allegation and that was their focus. They found two individuals who said they had been drinking. These are not trained liquor inspectors but are police officers. One of the patrons stated she was at Nancy’s Bar & Grill for a birthday party. One of the officers knew the complainant and noted she was acting differently and had been drinking. There is evidence both patrons were intoxicated.
Inspector Fernando gave great detail about the May 30, 2010 incident concerning the patron’s signs of intoxication. There were only ten people in the bar. There was no question as to who Inspector Leadbettor was asking about when she spoke to the bartender. Inspector Fernando told the Licensee to stop serving L.T. and she was served another drink as soon as the Inspector walked out of the bar. The Licensee stated L.T. wanted one more drink and the Board can assume the drink contained liquor. There is no evidence it was not alcohol.
The Board should disallow the motion.
The Board ruled against the motion. There has been a prima facie case made by Registrar’s counsel on the allegations based on the evidence. In the Board’s view the onus of dismissing the allegations of the Registrar by motion is higher than the onus in making findings.
Ms Harari then stated that this is an administrative hearing and not a criminal one. She supplied the Board with the Board’s and the Divisional Court’s decision in Pilot Tavern. She stated that it is a principle in administrative law that when the respondent brings a motion of non-suit that there is a requirement to make an election whether to call evidence. She stated Mr. Barrs should have done this when he brought his motion forward. The Licensee should not be allowed to call evidence.
The Board requested written submissions from both counsel on Ms Harari’s motion.

Registrar’s Submissions

A Licensee may bring a motion of non-suit on the grounds the Registrar has failed to make out a case for the Licensee to answer. The test to be applied by the Board is to assess whether the Registrar has made a prima facie case.
The Rules of Practice of the Alcohol and Gaming Commission of Ontario do not address the procedures for a non-suit motion nor does the Statutory Powers Procedure Act. The procedure to be followed has been established through case law. Over the years there has been some variation on the question of whether the moving party must concurrently elect to call no evidence. The question was resolved in Bank of Montreal v. Horan in that a motion for non-suit will not be entertained without an election to call no evidence. This position was confirmed by the Court of Appeal in Prudential Securities Credit Corp. LLC v Cobrand Foods Ltd.
The Divisional Court in Ontario v Ontario Public Service Employees Union confirmed that motions before administrative tribunals should conform to the law that governs the court.
It is a well established principal that a defendant cannot proceed with a motion for non-suit without making an election as to whether to call evidence. If the defendant chooses not to call evidence then the panel will rule on the motion after it has been argued. If a defendant elects to call evidence then the decision on the non-suit motion would be reserved.
In the present case there has been a deemed election not to call evidence by the Licensee. While the Board may not have put the Licensee to a formal election, in the circumstances, an election not to call evidence is a reasonable conclusion. Had there been an intention to call evidence, same should have been clearly stated prior to the motion and the decision on the motion would have been reserved. While counsel for the Licensee did indicate at the start of the hearing that he intended to call evidence it is unlikely at that time that he had decided to bring a motion of non-suit forward.
In reviewing the decision of the Divisional Court in Pilot Tavern it is clear that the Court confirmed that the Board shall not consider motions for non-suit without requiring an election.
In Prudential Securities Justice Laskin, on behalf of the Ontario Court of Appeal noted:

A non-suit motion adds to the time and expense of a trial. And because of the election requirement it has little practical value. Perhaps a defendant bringing the motion seeks a tactical advantage in being able to argue first. To succeed on the motion, however the defendant must show that the plaintiff has put forward no case to answer, in most lawsuits an onerous task.

If a licence holder could bring a motion for non-suit, receive the Board’s decision, and if unfavourable, could call evidence, this would result in non-suit motions being brought in every matter as same is without any consequence.
While a tribunal is entitled to control its own process, the principles of fairness and natural justice must apply. Failing to require an election or deeming an election has been made gives the defendant an unfair advantage. The Licensee is represented by counsel and counsel ought to be aware of the consequences of bringing the motion of non-suit forward.
It is the Registrar’s position that the Licensee not be permitted to call evidence.

Licensee’s Submissions

There is no established case law.
There is no deemed election and in fact the licence holder indicated she would give evidence along with two or three civilian witnesses.
As the evidence came out there was merit in asking the Board, which never asked for a formal election, to consider whether this was a prima facie case. There is no tactical advantage or prejudice to the Registrar.
Non-suit applications are rare because few cases are devoid of credible evidence, not because there should be some negative consequence. Fairness and natural justice, which govern tribunal matters, dictate that the Licensee is entitled to call evidence as was previously indicated.
There was no reply.

Analysis/Reasons/Findings

The Board has carefully considered all the evidence and the submissions presented and DISMISSES the motion.
The Board agrees that the facts in Pilot Tavern are different from those in this matter. The Board finds the decision of the Divisional Court in Pilot Tavern to lack clarity as to whether the Board shall not consider motions for non-suit without requiring an election. The Board notes that this question was not the subject of the court’s decision.
The Board also notes that the other cases cited by Ms Harari involve the civil courts. Administrative tribunals are able to control their own processes to some extent. While it may be the prevailing practice in the civil courts to put the moving party to an election, and at the same time of being very mindful of the OPSEU decision, in the Board’s view, this does not exclude the possibility of some discretion on the Board’s part. The Board needs to balance fairness and natural justice with efficiency and expediency. The avoidance of costs and time may weigh in favour of not putting a Licensee to a formal election depending on the circumstances of the case. If the motion of non-suit is not frivolous then why should a Licensee be forced to go through the expense and time of calling a defence?
In the Board’s experience motions of non-suit are very rare. The motion in this case was not frivolous or vexatious. The Board seriously considered the merits of the motion of non-suit even though the Board eventually denied it.
It should also be noted that Mr. Barrs stated during the hearing that he would be making a motion at some point in the proceedings and would, depending on the outcome of the motion, call or not call any evidence. Mr Barrs did not state the nature of the motion.
The other issue centres on fairness. Ms Harari refers to Justice Laskin’s comments in Prudential Securities. Justice Laskin stated that a non-suit motion adds to the time and expense of a trial and suggested a defendant bringing the motion may seek a tactical advantage in being able to argue first.
First, the Board sees no tactical advantage in this case for the Licensee to bring the motion forward. If the goal of an election is to reduce time and expense then the Board questions why Ms Harari did not raise the issue of election at the time Mr. Barrs brought his non-suit motion forward. The matter may have been able to be dealt with in a more expedient manner had the issue been raised at the time.
Administrative tribunals often have unrepresented people appear before them. They may have adjudicators sitting who lack substantive formal legal training. In the Board’s view, it would have been better practice if the matter of an election had been raised when Mr. Barrs brought the motion of non-suit forward and not after the Board had ruled on the motion.

Conclusion

The Board has reviewed the materials supplied by the parties and reviewed their submissions and for the reasons given DISMISSES the motion.

DATED AT TORONTO THIS 17 DAY OF FEBRUARY , 2011

DAVID GAVSIE, CHAIR, AGCO BRUCE S. MILLER, BOARD MEMBER