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-

651552 Ontario Inc. operating as Manor Entertainment Complex Licensee

DECISION ON FINDINGS

Panel: Kirsti Hunt, Vice-Chair, AGCO Joan Lougheed, Board Member

Decision Date: April 6, 2011

Hearing Location: Guelph, Ontario & 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 ) Joyce Taylor, Representative 651552 Ontario Inc., Licensee ) Adam Vassos and David Starr, Representatives

Authorities

Bazinet v. Davies Harley-Davidson, 2007 CanLII 23158 (ON SC), [2007] O.J. No. 2420 Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] S.C.J. No. 39 Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] S.C.J. No. 43 Horodynsky Farms Inc. v. Zeneca Corp (c.o.b. Zeneca Agro), 2006 CanLII 25345 (ON CA), [2006] O.J. No. 3012 Horseshoe Valley Resort Ltd v. (Alcohol and Gaming Commission), 2005 CanLII 81108 (ON SCDC), [2005] O.J. No. 5895 R. v. Dixon [N.S.S.C. sub nom R. v. McQuaid], 1998 CanLII 805 (SCC), [1998] S.C.J. No. 17 R. v. Lannigan, [2009] O.J. No. 2493 R. v. Rourke, [1977] S.C.J. No. 99 R. v. L. (W.K.) [W.K.L.], 1991 CanLII 54 (SCC), [1991] S.C.J. No. 40 Regina v. Young, 1984 CanLII 2145 (ON CA), [1984] O.J. No. 3229 Shooters Sports Bar Inc v. Ontario (Alcohol and Gaming Commission), [2008] O.J. No. 2112 1213963 Ontario Limited (Sin City Bar & Eatery) v. Ontario (Alcohol and Gaming Commission of Ontario), [2009]ONCA 323 2088675 Ontario Inc (c.o.b. Zubar) v. Ontario (Alcohol and Gaming Commission), [2010] O.J, No. 4592 Ontario (Liquor Control Board) v. Lifford Wine Agencies, 2005 CanLII 25179 (ON CA), [2005] O.J. No.3042

Exhibits

1. Area Map
2. Statement of M. Perrault
3. Map
4. Witness Statement of L. Fried at : 01:23 hours
5. Witness Statement of L. Fried at 08:50am
6. Finger print ID for L. Fried
7. Photo of L. Fried
8. DVD: Camera footage from November 7/8 2007
9. Ambulance call report
10. Alcohol Influence report
11. Intoxilyzer Tests
12. Certificate of Qualification for Technician
13. Statement re: L. Fried dated May 1, 2008
14. Interview Report from October 31, 2008
15. Affidavit of Lance Fried dated November 6, 2008
16. Statement of Qualifications for J. Wigmore
17. Wigmore Report dated March 3, 2009
18. Floor plan of the Manor Entertainment
19. List of camera files
20. Will say statement of Ms. Susan Dent

Allegations

1A hearing into Notice of Proposal number 16812 dated November 6, 2008 to suspend liquor licence number 11085 (the "licence") issued to 651552 Ontario Inc. (the "Licensee"), operating as MANOR ENTERTAINMENT COMPLEX, 211 Silvercreek Parkway South, Guelph, Ontario, N1H 3K5, (the "establishment" or the "premises"), on the basis of alleged violations 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 March 17 and 18, 2009 and June 11, 2009 in the City of Guelph. As well as July 10, 13 and 15, 2009, October 15, 2009, November 16, 19, 20, 23, 2009, March 11, 2010 and April 27, 2010 in the City of Toronto.

Decision

2After considering all the evidence, exhibits and submissions, the Board DISMISSES all the alleged violations relating to the incidents on November 7 and 8, 2007 and November 9, 2007. Reasons follow.

Preliminary Matters

3The Board ORDERED the exclusion of witnesses on consent of the parties.

Registrar's Evidence

4Michael Perrault has been a taxi driver in Guelph for 20 years. On November 8, 2007 he was traveling on Wellington Street, heading towards Downtown. Using Exhibit # 1, a map of the area, he indicated his exact location when he saw a gray vehicle at Wellington Street. The driver of the vehicle went through the red light and paused in the intersection of Wellington and Waterloo, before proceeding to the off-ramp of the Hanlon Expressway.

5This ramp is one way, for vehicles coming off the Hanlon Expressway. By going up the ramp, a vehicle would be going down the divided highway, the wrong way.

6The witness, seeing the vehicle going up the off ramp, radioed the dispatcher to phone the police and let them know about this.

7Luis Arruda, a resident of Cambridge, works as a truck driver. On November 8, 2007 just before 1 a.m., he was driving from Highway 401, heading to Highway # 6, returning to the company office in Ariss.

8On Highway # 6, he crossed Stone Road, and nearing the College intersection noticed some cars on the other side of the intersection. He saw two vehicles that appeared to be in an accident with all kinds of debris on the ground. Using Exhibit # 3, a map, he pinpointed the site of the accident.

9When he stopped and got out, someone told him a person had been thrown from a vehicle. He saw a green Ford Explorer, a Saturn in the centre of the road and a Mazda 3 in the ditch.

10He noted that the Ford Explorer had the driver side door smashed in and was facing southbound in the northbound travel lanes. He was told that the person in the vehicle was alright but that someone had been thrown from the Saturn.

11Using a flashlight he started looking along the ditch between the southbound and northbound lanes and found the third vehicle. The person in this vehicle said she was alright.

12There were no marks on the road or in the median to indicate someone had crossed it.

13The driver of the Saturn was found lying in the vehicle, with a sweater over her, and there was no response. Paramedics arrived and she was pronounced dead at the scene.

14Mr. Arruda was asked to wait at the side of the road. At this time he saw the driver of the Explorer. The witness stated that the driver was out of the vehicle; he was wobbly and appeared to be in shock.

15On cross-examination, the witness stated that he observed the driver of the Ford Explorer for two or three minutes. He also noted that there was "quite a bit of damage" to the driver's side of the vehicle.

16Kellianne Klein, lives in Guelph and works as a receptionist. On November 8, 2007, she was traveling as a passenger, with two other people. They were returning home from a fundraiser. It was approximately 12:40 a.m. when they were traveling southbound on the Hanlon Expressway. They observed an accident in the northbound lanes and saw two vehicles.

17As they were the first ones on the scene, she called 911 at 12:50 a.m. Her sister, Kendra and another passenger got out to cross the road to the accident. She stated that the silver car was damaged, and that there was not much left of the driver's side and that the front of the vehicle had been smashed in. Kendra told her they could not find anyone in the car, so they started checking the ditches.

18While checking the ditches, crossing the median to the northbound lane, the 911 operator asked if everyone was conscious. Kellianne approached the truck and saw a male driver. He did not respond when she asked if he was okay. But, then he did say he was okay when she asked if he had chest pain.

19She continued searching for the driver of the car. Someone found the driver in the vehicle and they could not get a response. Another call was placed to 911.

20The witness went back to the truck, asking the male if he was okay. He responded that he was fine. Ms Klein noted that he talked very calmly and slowly, almost slurred.

21When the driver of the truck got out of the vehicle, using the passenger-side door, she saw him walking to the back of the truck, leaning on it and almost holding himself up. He was stumbling as he walked behind the ambulance. In response to a question about the state of the driver, Ms Klein stated "my gut tells me he was drinking".

22On cross-examination, Ms Klein stated that when she was in an accident she was a bit panicky; in comparison, the driver of the Ford Explorer was calm. He was seen kicking open the door on the passenger side of the vehicle and then seen leaning on the side of the truck.

23Kendra Klein is a sister to Kellianne Klein. She lives in Guelph and works with children with special needs. On November 8, 2007 she had been attending an Easter Seal fundraiser and was driving with her sister Kellianne and another passenger.. At 12:45 a.m., on the way home, they came across the accident.

24She stated that as they traveled south on the Hanlon, after the Wellington overpass, she saw dust and debris settling and knew there had been a car accident. The accident took place in the northbound lane, north of the College intersection.

25She saw the truck first and noted that the driver was conscious. She asked if he was okay and he responded saying he did not know what happened and said 'they all stopped in front of me'. His speech was slurred and he appeared disoriented.

26The second vehicle was a car with a lot of damage, and looked like it had been ploughed into. She could not locate the driver immediately and started looking in the ditch. Someone told her the driver of the car had been located.

27When EMS arrived, she saw the driver of the truck get out on the passenger side. She stated he fell to the ground, got up and walked to the rear of the truck, leaning on it the whole way. His walk was shuffled and it appeared he could not hold himself up.

28Her impression, when he responded to her questions, was that he was drunk.

29On cross-examination, the witness confirmed that the truck driver had slurred speech, he fell and she saw him kick the passenger door of the vehicle. She stated that it would be reasonable to expect him to be shaky after an accident like this.

30She was not close enough to smell alcohol and could only smell gas and rubber at the accident scene.

31Dwayne Buhrow, worked for Royal City Ambulance, now known as Guelph Wellington EMS. He has been a paramedic for 20 years.

32On November 8, 2007 he was dispatched at 00:51 hours to a multiple vehicle accident (MVA) on the Hanlon Highway, north of college. He and his partner arrived at approximately 00:53 hours and saw two vehicles, one a Ford Explorer Sport truck, the other, a Saturn. Both vehicles were in the northbound lanes.

33An unknown male stated there was an unconscious lady in the car and they did not want to move her. His partner assessed the person in the Saturn and told him she was a "code 5" which means she had died.

34The witness went to the Explorer truck and saw a person come from the rear of the vehicle, stating he was the driver and had been traveling southbound. He did not see any tire marks indicating the truck had crossed over the median.

35He recorded that the person had an unsteady gait, and there was alcohol on his breath, suggesting to the witness that he was drinking. The person was asked to come to the ambulance and was cooperative and compliant at all times.

36When Police Constable ("PC") McGuinness arrived, he reported their findings and the driver of the truck was arrested, handcuffed and taken to the police car.

37To clear the person medically, a check was done of his blood pressure, cardiac status, pulse, oximitry (oxygen level) and blood glucose levels. The result was that he was deemed stable, no signs of injury and no signs of shock.

38The witness stated that he felt there was no question that the driver of the Explorer truck had been drinking, having an unsteady gait, a smell of alcohol on his breath and he appeared blank or numb to the history of events that had just occurred.

39On cross-examination Mr. Buhrow stated that his assessment was based on 20 years experience of seeing people at an accident. At the accident neither he nor his partner saw any evidence of injury to the driver of the truck and confirmed that there were probable signs of alcohol consumption.

40In response to questions from the Board, he stated that although there could have been emotional trauma, the signs he saw were indicative of alcohol consumption, not shock.

41Brian Rooney, an advanced care paramedic with EMS, attended the accident on November 8, 2007 and authored the report.

42He stated that his partner attended the driver of the small pick-up truck while he attended to the fatality.

43Mr. Rooney stated that the driver of the truck had no medical trauma or injury noted. He refused transport to the hospital. The driver of the truck was handcuffed in the back of the police cruiser when the medical assessment was done. The driver's vital signs were within normal range. He noted slurred speech, but since the person was not moving in the cruiser, he could not assess further.

44He stated that he was not trained to deal with emotional trauma. In his opinion he noted slurred speech in relation to possible intoxication. The driver understood questions, even though some were asked two or three times. He did not smell alcohol on his breath.

45David Brazier, PC, has been a member of the Ontario Provincial Police ("OPP") since 1994. He is a technical collision investigator with the Wellington County Traffic Unit, and investigates whenever there is a fatal motor vehicle accident. His investigation focuses on the cause of the accident looking at the motor vehicles, roadway design and other physical factors.

46He reviewed the details of the site, stating that the collision was head-on between the Saturn and the Ford Explorer, resulting from the Ford traveling the wrong way on a divided highway. Weather was not a factor. There were no skid marks from the Ford and after the accident it continued to travel forward.

47It was not possible to do speed calculations since there was no physical evidence available, such as pre-impact braking.

48Greg Henderson has worked with the OPP since 2005. He was called at 1:01 a.m. to assist with traffic control following a MVA on the Hanlon.

49He was asked, by the arresting police officer, Officer McGuinness, to set up for a breath test. The test was started on Mr. Fried, who was identified as the driver of the Ford Explorer, at the Rockwood Detachment at approximately 2:26 a.m.

50He noted that Mr. Fried was cooperative. He observed watery eyes that were glassy and bloodshot and a strong odour of alcohol on his breath. He was swaying and unsteady on his feet. Mr. Fried had to put his hand down to steady himself as he sat on a chair. His hands shook as he fumbled with the wrapper on the mouthpiece.

51The witness reviewed the list of questions asked of Mr. Fried, and Mr. Fried replied that the accident occurred at 11:00 p.m. He had left the Manor to go home. He did not remember how much beer he drank and that his last drink was one hour ago. When asked if he was drinking at the Manor, he replied, "yeah, I think so."

52The witness, referring to Exhibit # 11, the Intoxilizer Test, stated that two tests were done. The first of two tests was done at 2:29 a.m. with a result of 211 mg alcohol in 100 ml of blood. He noted that the legal limit is 80mg in 100 ml of blood.

53Mr. Henderson stated that he noted signs of impairment, including slurred speech and stuttering; bloodshot, watery, glassy eyes; red, flushed face; a smell of alcohol on his breath; and that his fine and gross motor skills were "not working properly."

54He stated that with the observations and test results, he concluded that Mr. Fried was impaired due to the consumption of alcohol.

55On cross-examination the witness stated that he first met Mr. Fried at 2:26 a.m. and he was having difficulty standing and walking. In his opinion the signs of impairment were obvious and he did not see any change in the signs of intoxication in time spent with him.

56Scott Grover, a constable in Guelph for 14 years, visited the Manor on November 9, 2007 at 10:30 p.m. This was a joint forces inspection, with eight team members entering the premises. He was in tactical uniform and not undercover.

57On arrival at the Manor he observed a male, across the bar from 25 feet away, who was unsteady on his feet. When about eight feet away he noted he was hanging on to anything to maintain his balance and had red, glassy eyes.

58He accompanied AGCO Inspector Purvis to see the Manager, Sam Cohen. Inspector Purvis was inquiring about video recordings. Mr. Cohen said that footage was kept for seven days. He stated that the meeting with Mr. Cohen lasted about 15 or 20 minutes and was informal in nature. He did not raise any concern about the possible intoxicated patron with the Manager.

59The witness stated that when he left the bar, the patron was seen in the parking lot, walking slow and deliberately, almost as though he had a limp or knee injury. There was no eye contact; he had a "thousand yard stare", and was staring off. The male was giving slow and deliberate responses to questions, stating that he had been drinking out of town and was inside the establishment for about an hour. The male did not state where, out of town, he had been drinking. The officer did not ask where. A taxi was called to take him home.

60On cross-examination, PC Grover stated that he did not see the patron drinking in the bar or being served. He observed the patron for two or three minutes. He did not ask if the patron was injured or if he had been drinking in the establishment. He did not know if staff had asked the patron to leave, or how he left. PC Grover stated that he did not raise the concern about the male patron with Mr. Cohen when he spoke with him.

61Chris Sutter, a police constable since 2000, was at the Manor on November 9, 2007 with Scott Grover, conducting a liquor inspection with a joint forces team of eight people.

62On arrival, staff were advised of the inspections. He stated that PC Grover advised him he was following a male outside who was possibly intoxicated. The witness joined PC Grover in the parking lot. When two to three feet from the patron, he noted the odour of alcohol, eyes were watery and bloodshot and he was leaning on a vehicle to maintain balance.

63In response to questions, PC Sutter stated that he could not recall why they went to the office inside the establishment and did not have a recollection of what else he did that night.

64Lance Fried stated he is presently incarcerated because of the events of November 8, 2007.

65He stated that on the morning of November 7, 2007 he was tending vending machine locations in the morning, mowed grass in the afternoon at home and had two or three drinks.

66On questioning, he stated that he drank a glass of vodka with ginger ale. He put the bottle of vodka in the back of his Explorer, but did not remember how much alcohol was in the bottle.

67He remained at home until he went to the Manor around 8 p.m. or 8:30 p.m., indicating that it takes approximately a ½ hour to 40 minutes to drive to the Manor.

68While at the Manor, Mr. Fried stated that he drank four or five bottles of beer. He thought it was Molson Export and could not remember if he drank other brands. He left around midnight.

69Stating he could not remember the circumstances that led to leaving the building, he said that he did not drink in his vehicle and drove out of the parking lot.

70Mr Fried stated that after the accident, he realized he was on the wrong side of the Hanlon, the north/south road.

71He stated that he did not drink when getting onto the Hanlon and had just got on there when a vehicle came at him. He said he did not think it was going to drive straight into him.

72He did not know what happened immediately, but opened the passenger door and got out the other side of his vehicle. He said he did not drink after the collision.

73Referring to Exhibit # 13, an interview with a private investigator on May 1st, Mr Fried confirmed that his responses were accurate, stating that he did not have a drink in his vehicle and that the vodka bottle must have come from the back of his Explorer at the time of the accident. He stated that the response to the question on page 2, question 4, Exhibit # 3, was accurate, indicating that he does not believe he has a problem with alcohol, and that he has never been to an AA meeting.

74In response to the question on page 3, Question # 1 of Exhibit # 13, Mr. Fried stated that the answer was accurate and that he usually drank two or three drinks everyday at home.

75When asked how often he drank, Mr. Fried stated that he drank, "maybe three or four drinks once or twice a week."

76Referring to Exhibit # 14, Mr. Fried confirmed that this document reflected an interview with the OPP in the fall of 2008. He stated that all the statements were correct.

77Mr. Fried indicated that he was interviewed by a private investigator before the OPP interview and once again after it.

78In reference to Exhibit # 15, titled an "affidavit of Lance Fried," the witness stated he had been told there was approximately 12 minutes that passed from the time he left the establishment to the time of the accident. When asked if he drank after getting into his vehicle to leave the Manor, he replied that he told the investigator that he did not but then the investigator said it was possible that he drank.

79He stated that the signed affidavit indicating this was already typed up by the investigator and was not in his words.

80In response to further questions, Mr. Fried stated that on the night of the accident he thought he was alright and did not really remember feeling any effect from alcohol. He remembered the police interview and having a breathalyser test, but did not remember the names of the officers and did not remember the questions.

81He stated that he did remember being in the Flamingo Room at the Manor but did not remember being served a beer there. He thought he remembered taking a beer with him.

82On cross-examination Mr. Fried stated that he had two or three vodkas at home after 3 p.m. He left the house at approximately 8 p.m. At the accident site, he said he did not remember a female police officer, but did remember saying he was coming from the Manor. He did not recall the police officer asking him if he drank before or anywhere else.

83Mr. Fried stated that once or twice before he may have drank alcohol in the car. On the day of November 7, he had open alcohol under the back seat of his vehicle but could not remember how much was left in the bottle.

84When asked about personal matters, Mr. Fried stated that his father had a stroke two years before; it was hard and drinking did not help. When asked if it made things worse, he replied, yes.

85In clarification to his meetings with private investigators, Mr. Fried confirmed that he had three meetings with investigators. He confirmed that in Exhibit # 15, he agreed with his statement that he did not have a clear recollection of whether he had consumed alcohol in his vehicle, although it was possible. He stated that he did not remember drinking in his vehicle.

86He stated that he had not read the affidavit closely and read it over in five minutes with two men sitting in front of him.

87In response to questions, he stated that he left the Manor around midnight and had four or five beers there, but he could not remember everything precisely. When drinking vodka at home in the afternoon, he did not measure the amount he drank. He felt he was sober when he went to the Manor.

88He remembered the breathalyzer reading being high and did not know if the beer he drank at the Manor would take him to a high reading.

89He did not recall leaving the Manor and then coming back in again.

90When asked why it took 12 minutes to drive the kilometre where the accident occurred, he stated that he did not know, but he may have stood outside or sat in his car for a couple of minutes. He stated he did not consume alcohol during this time.

91In reply, Mr. Fried stated that he would not have used the words contained in the affidavit

92He stated that he used a free pour when drinking vodka during the day and did not measure the amounts.

93When asked if he was "under the influence" when driving to the Manor, Mr. Fried stated he had some influence of alcohol, but that he could drive. He said he did not know what "under the influence" meant.

94In response to questions from the Board, Mr. Fried stated that he was sure he did not drink after leaving the Manor. He did not remember being asked to leave the Manor and then coming back in. He indicated that he was told that this is what happened.

95Mr. Fried stated that his lawyer was not present when he was interviewed by private investigators.

96Barbara Beauchamp, a legal assistant, was attending the Mohawk Casino Slots. She did not consume any alcohol and left at approximately midnight or 12:30 a.m.

97Travelling north on the Hanlon / Highway # 6, she recalled seeing headlights coming toward her just before impact. Her airbag went off and she could not see through the windshield. She realized she went into the ditch from the right hand slow lane of the highway.

98She stated that the accident happened suddenly and she did not have an opportunity to do anything.

99Joe Mezzatesta, is a Constable with the OPP for 26 years and presently working for the AGCO. He referred to Exhibit #14, and his interview with Lance Fried on October 31, 2008. The handwritten report (Exhibit # 14) was done by the witness to record the responses of Lance Fried.

100He stated that Fried was clear and straight forward in all his answers. After the interview, Fried read the document and initialled the document. Sgt. Rice was present and initialled the pages, as well.

101On cross-examination the witness stated that, at the time of the interview, he did not know that two bottles of alcohol were found in Mr. Fried's vehicle. He had limited information and learned of this later.

102He clarified that the interview was done to determine if Fried drank prior, during or after being at the bar and to determine the circumstances of the evening. He did not ask Fried if he consumed alcohol in his vehicle. During the interview, Fried did not respond to some questions and he could not tell if Fried did not want to answer or if he really did not recall.

103He stated that both officers at the interview were in plain clothes, but Fried knew they were OPP.

104James Wigmore, a Forensic Alcohol Toxicologist, was qualified as an expert witness and confirmed that, in his opinion, the testing instrument was in good working order. He said that a person cannot operate a motor vehicle if in excess of 80mg/100ml of blood.

105Mr. Wigmore, referring to Exhibit # 17, stated that if Mr. Fried was at a zero blood alcohol concentration ("BAC") when he entered the Manor Entertainment at 9:14 p.m., he would have to consume between 12 to 14 bottles of beer to obtain a BAC of 200mg/100ml at 2:49 a.m.

106If he had consumed alcohol prior to entering the Manor, then the amount to be consumed would be less than 12 to 14 bottles of beer.

107Mr. Wigmore stated that, knowing the breathalyzer reading at 02:29 hours was 0.211 and at 02:49 hours was 0.206, he is able to calculate that the BAC at the time of the accident (12:50a.m.) would be 200 to 240 milligrams of alcohol in 100 millilitres of blood (mg/100ml)

108Mr. Wigmore stated that, given the history, as he was told, of drinking by Mr. Fried, he would be considered to be a light to moderate drinker.

109When told that Mr. Fried had approximately three unmeasured drinks of vodka at 3 p.m., Mr. Wigmore stated that, in his opinion, since Mr. Fried did not arrive at the Manor until 9:15 p.m., the BAC would be "0".

110Mr. Wigmore indicated that to get a reading of 200mg/100ml blood, a moderate drinker would have to have 9 bottles of beer. He stated that if the blood alcohol level was "0" at the time Mr. Fried entered the Manor, he would have to consume 12 to 14 bottles of beer at the bar.

111Assuming that Mr. Fried drank a maximum of six drinks in the establishment, between the hours of 9 p.m. and 12:38 a.m., and assuming that he had nothing after this time, Mr. Wigmore estimated that the blood alcohol level would be 120 to 180 mg/100ml blood. He said this would be average for a moderate drinker, like Mr. Freid.

112He stated that at a level of 120, one might see slight un-coordination and slowing speech; at 180 there would be blood -shot eyes, slurred speech and greater un-coordination.

113On cross-examination, Mr. Wigmore stated that he reviewed the case summary, the certificate of the qualified breath technician, the alcohol influence report and the printed intoxilyzer test records. He did not review video tapes from the Manor or from the police station. He did not use the tapes taken from the Manor to determine sobriety.

114He stated that considering Mr. Fried was an infrequent drinker, one would expect an average tolerance, consistent with the symptoms described, and would indicate that there would be difficulty driving.

115He stated that, in his experience, a police technician gives better observations of intoxication than an arresting officer. It relates to experience, training and observation of the person in question.

116When asked, if Mr. Fried had consumed five beers between 9 p.m. and midnight, what the absorption rate would be, Mr. Wigmore replied that the BAC would be 145 and one would see slurred speech and a staggering gait for a person with average tolerance.

117He stated that seeing Mr. Fried get out of his vehicle, stumble and fall to the ground would be actions consistent with the BAC. He indicated that the handcuffs and walking on open ground would have had an impact on his motor skills, as well.

118He stated that his calculations did not include the possibility of Mr. Fried drinking after he left the establishment. He was told by the technician that his last beer was at the Manor and used this assumption in his analysis.

119He did not know that Mtr. Fried left the establishment twice.

120Mr Wigmore stated that if Mr. Fried drank three average drinks at home around 3 p.m., his BAC would have been "0" when he entered the Manor. He would have had to drink five or six beers to get the readings that have been reported.

121He supported the idea that if you drink in a short time, there would be rapid effects and you would see more signs of intoxication.

122He confirmed that if Mr. Fried consumed three average drinks at home in the afternoon, the reading would be "0"hen he arrived at the Manor at 9:15 p.m. If he consumed five drinks from 9:15 p.m. until 12:19 a.m., Mr Wigmore stated that it would be impossible to reach a BAC of 200.

123The witness stated that he only considered beer in his calculations. Although he was aware of seized alcohol at the scene of the accident, he did not consider the consumption of vodka in his calculations.

124In reply, Mr. Wigmore stated that if a person, with average tolerance, drank a lot of alcohol in a short time, they would show little sign at first and the physical signs would get progressively worse.

125In response to questions from the Panel, Mr. Wigmore stated that although Mr. Fried had testified that he was feeling the effects of alcohol before he arrived at the Manor, Mr. Wigmore did not answer this question in the studies. If Mr. Fried was at "0" at 9:15 p.m., he would not be feeling the effects of alcohol.

126John Purvis, an Inspector with the AGCO and in charge of the Guelph area, received an email message from Daniel Deslippe, informing him that the OPP in Wellington County were investigating an impaired driver who came from the Manor.

127He was aware of the joint forces operation that had been arranged for November 9, 2007 and that the Manor would be the first site to be inspected. Representatives from the police, fire, municipal by-law enforcement, the health department and AGCO entered as a group at 10:40 p.m. They did not stay as a group once inside.

128Inspector Purvis went to look at a monitor inside the front hall. He noted that the date and time stamp were not accurate. The monitor date time stamp said 'October 30, 2007; 2:30 a.m., but the real time was November 9, 2007; 10:40 p.m.

129This monitor also showed feed from the parking lot camera.

130He stated that he walked through the establishment, along the service bar, checking for infractions. He observed a male patron walking toward him. The male was unsteady on his feet and staggering. The patron stopped and held the railing to steady himself. As Inspector Purvis watched, he noted the staff did not speak to the male patron.

131Inspector Purvis said he continued to watch the male patron as he approached the door, where two police officers were standing. The patron saw the police at the door and sat down at a nearby table. Inspector Purvis went to the police officers, advising them of the intoxicated patron.

132Officer Grover joined Inspector Purvis to meet with the manager, Mr. Sam Cohen. He asked Mr. S. Cohen for copies of the video tapes from the night of November 8, 2007. He told Mr. Cohen that the request related to an over-service investigation.

133Inspector Purvis stated that the Licensee told him that the recordings were digital, kept for seven days and all cameras were recording. Inspector Purvis requested the recordings of November 7 to November 8 from 9 p.m. to 1 a.m. He informed Mr. S. Cohen that he was investigating a patron who was over-served, resulting in a car crash on Highway 6.

134Inspector Purvis indicated that Mr. S. Cohen was cooperative. He called in staff and explained what was needed. Staff involved informed Inspector Purvis that it would be difficult to get all the information on one disc. The Inspector issued a formal written request that the information be submitted on or before November 12, 2007 and left the office area approximately 15 to 20 minutes after arriving.

135As he left the establishment, Inspector Purvis noted that the intoxicated male patron was still seated. After going to his vehicle to get a business card for Mr. S. Cohen, he noted on leaving the second time that the male patron was outside in the parking lot with two police officers. He joined them and observed the patron telling the police officers that he had been inside the establishment for about one hour and had nothing to drink in the bar. The male stated he had been drinking before coming to the Manor. Inspector Purvis took note of his slurred speech.

136Inspector Purvis stated that the police arranged for a taxi after confirming the name and address of the patron.

137The joint forces team left at 11:25 p.m.

138On November 13, 2007, Inspector Purvis received a phone call from Mr. Roger Cohen, advising him that the discs were ready to be picked up. He arrived at the Manor at 1:45 p.m. and Mr. R. Cohen confirmed the date and times on the discs being provided.

139Inspector Purvis spoke with Mr. R. Cohen about the date stamp inaccuracies observed on the monitors on November 9, 2007. The Licensee assured Inspector Purvis that the dates on the CD's were accurate.

140Inspector Purvis reviewed the CD's on November 14, 2007 and noted that there were no exterior camera shots. He phoned Mr. R. Cohen and was advised that there had been a small fire on November 2, 2007 and the exterior camera, although on, was not recording.

141Inspector Purvis confirmed this information with the Guelph fire department. On January 15, 2008, he met with Roger and Sam Cohen at the Manor to see the laundry room area where the fire occurred. He observed a burn mark on the floor and an electrical cord repaired with tape.

142In order to know who he was looking for, Inspector Purvis contacted the OPP for a picture of Lance Fried (Exhibit #7).

143During his evaluation of the discs, Inspector Purvis noted that the recordings are frame by frame video taken at ½ to 1 second intervals.

144Referring to Exhibit #8, a DVD, Inspector Purvis pointed out Mr. Fried in the frames from 8 p.m. to 1 a.m. on camera views, from cameras marked 5, 8, 10 and 13 at various locations including the service bar, pool table area, and stage. He noted times that beer were served and made these observations of the service times:

1. Camera 8 at 21:16:41 hours
2. Camera 8 at 21:30:38 hours
3. Camera 10 at 21:53:31 hours
4. Camera 10 at 22:25:45 hours
5. Camera 6 at 00:19:08 hours

145Inspector Purvis stated that Camera 10 at 00:31:44 hours shows Mr. Fried reaching in his back pocket and said that he appears to be almost falling off the stool. At 00:31:55, on the same camera, it appears that the bartender is calling a security staff person who approaches Mr. Fried, taps him on the back and escorts him out of the building. He noted that Mr. Fried left the premises at 00:32:57, as seen on Camera 13. He is seen to return at 00:38:19, and is seen on camera being escorted out, by the same staff member, for the second time at 00:38:37.

146Inspector Purvis confirmed that he did not see any further camera footage involving Mr. Fried after this time.

147In answer to questions about indicia of intoxication, utilizing various camera locations from the time Mr. Fried arrived at 21:14:46 until 00:32:14 when he is asked to leave, showing Mr. Fried at the bar, stage area and walking through the premises, passing other patrons and sitting on a stool, Inspector Purvis stated that he did not observe specific signs of intoxication and stated that he looked like he was in control of his motor skills.

148On cross-examination Inspector Purvis stated that in reviewing the tapes, his intent was to determine any infractions, particularly signs of intoxication. He stated that the Licensee was cooperative in providing the tapes as requested.

149In answer to questions, Inspector Purvis stated that on camera 13 Mr. Fried is seen arriving, walking down the entrance hallway at 21:14:46. He did not observe any actions or behaviours of concern. Referencing various camera time frames, Inspector Purvis stated that he did not observe any specific indications of intoxication and stated that Mr. Fried looked like he was in control of his motor skills.

150He indicated that on Camera 10, at the service bar, at 00:31:45, Mr. Fried is seen seated on a bar stool. He is leaning to his right to reach into his back pocket and he almost fell over.

151In answer to questions about the actions of patrons observed walking along the railing in the service bar area, Inspector Purvis stated that he observed two men and two women holding the rail as they walked and observed Mr. Fried holding the railing as well.

152In response to questions from the Panel, Inspector Purvis stated that on the tapes he observed Mr. Fried and the security staff from 00:32:05 to 00:32:36 hours, as Mr. Fried got up from the bar stool in the service bar area and was being escorted out of the premises. He stated he did not observe any signs of intoxication during this time frame.

153Inspector Purvis stated that when Mr. Fried returned to the premises for the second time at 00:38:09 he did not observe any behaviours or walking that was of concern.

154Mr Purvis stated that he did not ask Mr. S. Cohen why Mr. Fried was removed. Just prior to Mr. Fried being asked to leave, he observed a glass on the bar in front of Mr. Fried which appeared to be a glass used for non-alcoholic drinks. When leaving with the security guard, Mr. Fried appeared cooperative. During the walk out of the premises and then coming back inside, he did not observe any apparent signs of intoxication on the tapes.

155In relation to November 9, 2007, Inspector Purvis stated that he observed the intoxicated patron before speaking to the Licensee. He asked for the tapes but did not remember mentioning the intoxicated patron to the Licensee.

156Inspector Purvis stated he did not see the patron being served or consuming alcohol. The patron told him he had been at the Manor for one hour and overheard him, in the parking lot, telling the police that he had not been drinking there. No one asked the patron why he was leaving at the time the joint forces team arrived and there was no request for tapes of this incident.

157In response to the Panel, Inspector Purvis stated that he did not know that the floor of the premises is sloped near the bar and that the railing is a safety measure.

Licensee's Evidence

158Raed Mammo owns a coffee shop in Guelph and is a regular visitor to the Manor. On November 7, 2007, he left the Manor at approximately 12:30 a.m.

159Referring to a map (Exhibit #3), he stated that there was a silver grey truck in front of him on Silvercreek. He noted that the vehicle was about to go the wrong way onto the highway. As he tried to get the attention of the driver, he observed him looking right and left, seeming to be confused and that he had something in his hand. He did not see a bottle.

160The next day at the coffee shop he heard that there had been a big accident on the Hanlon.

161On cross-examination he stated that he saw the driver behaving erratically, but did not call anyone because he did not have a cellphone with him. He did not contact police when he heard about the accident the next day.

162He saw the driver stopped in the middle of the intersection. There is a big sign telling drivers not to go in that direction to get on the highway.

163In reply Mr. Mammo stated he could see the driver when he pulled up alongside the vehicle.

164He stated that he heard that the police had the driver who caused the accident and that is why he did not call them.

165Bryan Smith was employed at the Manor for eight years, doing a variety of jobs including manager, security and floor supervisor. He has been responsible for training and hiring of staff. Presently he is semi-retired, and is in charge of liquor control for the Manor. He consults with the Licensee on legal matters.

166Prior to this, he was employed by the Metro Toronto Police for 15½ years.

167A day or two after November 7, 2007, he was told that a liquor inspector had been in. He was asked to check the videos for the evening of November 7, 2007. A bartender pointed out Mr. Fried and he was able to follow his movements from one camera to another. There are 16 cameras on site and all the video recordings from these cameras were prepared for Inspector Purvis.

168Mr. Smith stated that taping is done at one frame per second and you would see if someone was staggering, holding a wall, etc. He stated that his observations of the video show Mr. Fried to be walking normally.

169He noted that the floor is sloped in one area; the flooring is tile and uneven. There is a railing in this area and he has seen patrons use it frequently.

170On reviewing various frames on the videos tapes, Mr. Smith confirmed seeing Mr. Fried consuming five beers at 21:16:41 hours, at 21:30:38 hours, at 21:53:31 hours and at 22:25:45 hours and at 00:19:08 hours.

171He stated that he did not observe any sign that Mr. Fried was intoxicated during the times he was seen on the tapes.

172He stated that he observed Mr. Fried holding the hand rail as he was escorted out of the premises and also observed the security person holding the railing.

173He stated that the tapes show Mr. Fried re-entering the premises five and a half to six minutes after he left. He is seen in the hallway and is not staggering or stumbling. He is escorted out again, 24 seconds later. He did not know why Mr. Fried came back inside the Manor.

174Mr. Smith confirmed that at 00:02:35, Mr. Fried is seen on the tapes holding a tall glass with a straw in it. He stated that this is a glass used at the Manor for pop or water. Mr. Fried is seen sipping the contents through a straw.

175He stated that alcohol is served in a smaller glass and it would not be possible for him to be drinking alcohol out of this tall glass.

176On cross-examination, Mr. Smith confirmed that Mr. Fried did not seem confrontational with security. Mr. Smith confirmed that the policy at the Manor states that if a patron makes an inappropriate comment to a female staff person, the patron is immediately removed.

177He agreed that Manor parking is on multiple sides of the building and it could take a few minutes to get to your car.

178In reply, Mr. Smith said the outside cameras were working but were not recording on November 7, 2007 due to fire damage. Therefore, there was no footage available.

179He was able to observe Mr. Fried's motor skills on the tapes and did not observe any signs of intoxication.

180Susan Dent is no longer in the employ of the Manor Entertainment. On November 7, 2007 she was working as a bartender in the Flamingo Room which is also known as a VIP Lounge. She also was responsible for collecting a cover charge if a patron wished to purchase a dance with one of the ladies.

181She stated that November 7th was a Wednesday which is a slow night. She interacts with every patron in the area and recalled that Mr. Fried did not purchase any alcoholic beverages from her. Ms Dent said that patrons often bring their drinks with them from the main bar.

182She stated that Mr. Fried had come into the VIP area four or five times with female staff. The last time he came into the area, he was retrieving his wallet and keys. She said that this sometimes occurs with patrons.

183In response to questions, Ms Dent said she went with Mr. Fried into the area and observed that he was not slurring his speech, his motor skills were fine, eyes were not glassy and she did not note a smell of alcohol.

184Ian Nichol is presently employed elsewhere, but on the night of November 7, 2007, he was working at the Manor Entertainment in security as a doorman. He stated that there is a policy to immediately remove a patron if he is aggressive toward a staff person.

185When the bartender signalled him, Mr. Nichol told Mr. Fried that he was gone and had to leave the establishment. Mr. Fried stood up, and walked out, cooperating with Mr. Nichol. As they walked down the exit corridor, Mr. Nichol was directly behind Mr. Fried.

186Mr. Nichol stated that the patron did not stumble, stagger or lean against the walls on his way out to the door. He asked the patron if he needed a cab. Mr. Fried said no, that he was walking. Mr. Nichol recalled that his speech was direct, straightforward and clear.

187When Mr. Fried came back in, Mr. Nichol stated that he met him, putting his hands up, telling Mr. Fried that he was not welcome. Mr. Fried acknowledged him and walked out. Mr. Nichol stated that he did not really have a conversation with Mr. Fried at this time. Mr. Nichol did all the talking.

188On cross-examination Mr. Nichol stated that they did not keep a log of who was removed and why. That information is available on the videos.

189He stated that he did not ask where Mr. Fried lived, when he said he was walking. He did not follow him into the parking lot, since his job was to provide security inside the establishment.

190He stated that he did not see any cars leave the parking lot in the few minutes that he watched the outdoor surveillance camera.

191Jason Bonus was employed at the Manor for two years. On November 7, 2007 he was working as a bartender.

192He stated that he reviewed the tapes the day after the incident, with Eric Benish, a manager at the Manor. He remembered Mr. Fried, when he saw him on the tapes.

193Mr. Bonus stated that alcohol is served in a "rock glass" which is a short wider glass. Non-alcoholic beverages are served in a tall, thin glass.

194He stated that at 00:02:43 hours he ID'd Mr. Fried on the tape. At that time, he was holding a tall glass used for non-alcoholic drinks, as per policy of the Manor.

195He noted that at the time Mr. Fried was served a Molson Export beer, his motor skills were fine, he was not swaying in his chair and could speak fine. He did not seem to be intoxicated.

196Mr. Bonus stated that a female bartender came to him just after midnight, telling him that Mr. Fried had to leave, saying he was belligerent. Mr. Bonus told Mr. Fried he would have to leave and called the bouncer, Ian, over, indicating the individual had to be removed immediately. Mr Fried got up and walked out, and did not appear intoxicated.

197On cross-examination Mr. Bonus stated he did not make notes of the event and there was no incident log. He recalled finishing service to patrons before he approached Mr. Fried.

198He stated that he called the bouncer, Ian, with a raised hand to get his attention. With the signal, the bouncer knew the patron had to go.

199In reply Mr. Bonus stated that people are constantly moving on the bar stools. The floor is tiled and "out of whack". A chair can get stuck in a groove. He did not see Mr. Fried falling off the stool and did not observe anything out of the ordinary.

Reasons, Analysis and Decision

200Throughout the hearing, the parties referred to Exhibit #8 as a CD, DVD, recording video and tape. For clarification, the Board accepted all terms, acknowledging that the parties were referring to Exhibit #8.

Re: November 9, 2007

201The Board reviewed all the evidence relating to this matter and does not find there is adequate evidence to make a finding on the allegations under subsection 45(1) of the O.Reg.

202During a routine inspection of the premises, an inspection team arrived at approximately 22:37 hours. Inspector Purvis was in attendance to speak with the Licensee about the tapes for the evening of November 7 and 8, 2007.

203Inspector Purvis noted a male patron who appeared unsteady on his feet and pointed him out to PC Grover, who was in a tactical uniform with 'police' written on the front and back.

204When PC Grover was about eight feet from the male, he noted glassy eyes and that the male was holding onto chairs, etc. to maintain balance before he sat down at a table. He noted that it looked as though it might be caused by a limp or knee injury. He did not see any staff near the male.

205Members of the team, two Guelph police officers were in the parking lot with the patron when PC Grover spoke with the male. No one asked the patron whether the male's gait was due to an injury or limp even though in evidence PC Grover stated that he had this impression.

206PC Grover noted glassy eyes and PC Sutter noted bloodshot eyes, and the odour of alcohol.

207PC Grover stated that the patron told him that he did not drink at the Manor but had been drinking out of town. The officer did not question the male about the amount of alcohol consumed or the location of the establishment where he may have been drinking. The Board concludes that PC Grover accepted this information as being accurate from the male.

208The Board notes that there was never a request for the tapes of this incident. It is the view of the Board that the tapes would have confirmed if the male was served at the Manor or if staff had contact with the male and ought to have known he was intoxicated.

209No one informed the Licensee or his staff about the patron on the night of November 9, 2007, although the male had been observed just before PC Grover and Inspector Purvis went into a meeting in the Licensee's office. There were numerous visits to the establishment after that date and the incident was never discussed with the Licensee. By the time the Licensee was aware of the allegation, through a Letter of Incident in July 2008, the tapes were erased, under their normal procedure for keeping the tapes for seven days. Thus, the Licensee was denied the opportunity to review or save the recordings related to the allegation and the opportunity to interview his staff in a timely manner.

210In evidence, the Board was told that eight inspection team members entered the premises, but there was no evidence presented that anyone on the team saw the male drinking or being served a drink.

211The Board concedes that the male may have been under the influence of alcohol, but stops short of stating that there was sufficient evidence to make a determination that he was served or had consumed alcohol while at the Manor Entertainment.

212If the male had been declined service on his arrival or had not yet been served by the staff, there would not have been a reasonable time or opportunity to assess the patron for signs of intoxication. The Board is unable to make a determination, based on the evidence that staff should or ought to have known of intoxication for this patron. There is insufficient evidence to conclude that the Licensee permitted drunkenness.

213Therefore, the Board considered the lack of timely notice to the Licensee and gave careful consideration to the evidence as presented. The Board does not find there was adequate notice to the Licensee nor was there adequate supporting evidence and DISMISSES the allegations made under subsection 45(1) of the O.Reg.

Re: November 7 & 8 2007

214The Board has thoroughly reviewed all the evidence, exhibits and submissions of both parties on this matter.

215It is noted that in submissions, the Registrar presented new information and made an additional argument. The Board, in reaching a decision, points this out noting that some of this information was not in the evidence presented at the Hearing. This was taken into consideration during the analysis of evidence.

216The Board accepts, as fact, that Mr. Fried was involved in a fatal motor vehicle collision, while travelling in the wrong direction on the Hanlon, which is a divided highway in Guelph. The Board notes the sensitivity of this case and of some of the evidence presented, given that there was loss of life at the site of the motor vehicle collision involving Mr. Fried.

217In reaching a decision, the Board was mindful of the area of authority of the AGCO and the decision reflects an analysis of evidence as it relates to the allegations directed toward the Licensee under subsection 45(1) of the O.Reg and section 29 of the LLA.

218In making a decision the Board must be satisfied through a two-part test. First to establish, on the facts, that there was drunkenness in the licensed establishment under the Licensee's control and second, that the Licensee knew or ought to have known that the patron was drunk, thereby permitting drunkenness.

219The Board accepts all the evidence as it relates to observations of Mr. Fried at the scene of the accident and the toxicology results that were taken in the police station, one hour and thirty minutes after the accident and at one hour and forty minutes after the accident. The Board notes that the results were consistently in the range of 200 mg/ml after leaving the establishment.

220Mr. Fried was interviewed many times, immediately after being involved in a motor vehicle accident at the police station and several times later by investigators, including police and a private investigator. The affidavit in Exhibit # 15, was not written by Mr. Fried, and he stated that he signed it as a prepared statement, written for him. He stated during questioning that he did not remember questions he was asked previously, did not have a clear recollection of some events and had some recent personal events that were traumatic to him. The Board also notes that Mr. Fried's lawyer was not present when he was interviewed by private investigators.

221Mr. Fried stated he did not drink alcohol on the night of the incident, but he stated he did drink in his vehicle in the past and agreed that there were two partly empty bottles of vodka in his vehicle at the time of the accident. He admitted that he had been drinking by free-pouring alcohol from a bottle in the afternoon.

222Mr. Fried stated that on the evening of November 7, 2007, he felt he was "under the influence" but could drive, when he went to the Manor. When questioned, Mr. Fried said that he 'thought' he was told by his lawyer that he had been told to leave the Manor and that he had come back in. He said that he did not have a clear personal recollection of these events.

223The Board found that the evidence given by Mr. Fried was unreliable due to many inconsistencies.

224The Board found that all the other witnesses gave their evidence in a clear and direct manner.

225The Board accepts the consistent evidence of witnesses, at the site of the MVA and at the police station, that Mr. Fried demonstrated indicia of intoxication. The evidence as described by citizen witnesses, police and paramedics included watery bloodshot eyes, swaying and unsteady on his feet, slurred speech and an odour of alcohol on his breath.

226On November 9, 2007 Inspector Purvis requested all the tapes of November 7 and 8, 2007. He stated that the Licensee was cooperative and although there was delay in receiving the tapes, he noted that it was due to the volume of material and the difficulty downloading the information to usable discs.

227In submissions the Registrar raised concerns that there were no recordings of the VIP area being presented. The Board accepts the evidence from Inspector Purvis that he had received all the recordings as requested. The Board also accepts the evidence that the original DVD contains views from the sixteen indoor cameras. Both parties had the recordings at their disposal to review and present any camera angle as evidence.

228It was the right and privilege of the Registrar to ask for specific tapes or analysis of additional camera views.

229The Board accepted the recordings as taped in intervals of one frame per second and notes that both parties used the recordings extensively in providing evidence about what happened in the premises.

230Mr. Smith, on behalf of the Licensee examined the tapes and stated that, during the course of the evening of November 7 and 8, 2007, Mr. Fried is seen on eleven of the camera views. The Board accepts his evidence as presented in an honest and forthright manner.

231Inspector Purvis did an independent review and analysis of the recordings and was called by Ms Taylor to present evidence on behalf of the Registrar. The Board found his evidence, also, to be clear and concise.

232The Registrar suggests in submissions that the Licensee did not provide for approximately 93 minutes of surveillance images of Mr. Fried and that there was no images of the service bar area inside the VIP area.

233The one second delay between frames was accepted by all parties during the course of the hearing and at no time did anyone raise concerns that the time lapse was a factor that hindered the observation of Mr. Fried's activities and behaviour while inside the establishment.

234The Board notes that the Registrar did not present in evidence nor specifically request the recordings from the bar camera in the VIP area during the course of this lengthy hearing.

235The Board accepts the evidence from the Registrar's witness, Inspector Purvis, that the Licensee was cooperative and provided all the recordings for the night of November 7 and 8, 2007. Inspector Purvis indicated to the Board that he extensively reviewed and analyzed all the recordings of the evening of November 7 and 8, 2007, making notes of each time and each camera that recorded Mr. Fried's activities while inside the establishment. These details were presented to the Board as evidence.

236The Board heard credible evidence that the parking lot cameras were not recording on the night of November 7 and 8, 2007. This malfunction was due to a fire and Inspector Purvis confirmed this during his investigation, through receipt of a Fire Department report.

237Inspector Purvis stated that Mr. Fried arrived at 21:14 hours and was removed from the premises at 00:32:57, as seen on Camera 13. He is seen to return at 00:38:42. This is a total of five minutes that Mr. Fried is outside the building.

238There were no recording cameras to determine his actions or the location of his parked vehicle.

239The Board accepts the evidence that Mr. Fried was removed from the premises for a second and final time at 12:39 a.m. and the motor vehicle accident occurred at 12:50 a.m.

240The Board accepts the evidence of Mr. Bonus, that he is no longer employed at the Manor Entertainment, but on the night of the allegations, was working as a bartender. A female bartender told him that Mr. Fried had to leave because he had become belligerent. He stated that the policy is to escort someone out of the building immediately if that person becomes rude. Following policy, Mr. Bonus called security.

241He stated that he did not see any signs of intoxication. Mr. Fried got up and walked out; he was speaking clearly and was not swaying when he walked.

242The recordings of this interaction validated this testimony as the Board was able to observe Mr. Fried getting up from the stool and walking, without assistance, down the centre of the hallway, to the exit. He did not sway or hold the wall for support.

243The Licensee's witness, Ms Dent, the bartender in the VIP area stated that she did not serve Mr. Fried any alcoholic drinks. She only serves premium beers in this area and there was no evidence presented from the recordings that he was served or was drinking premium beer.

244Mr. Nichol, who is no longer employed at the Manor Entertainment, stated that he was working as a security doorman on November 7, 2007. He was signalled by a bartender to remove Mr. Fried. When he told Mr. Fried he had to leave, the patron stood up and walked out. As he followed the patron, he noted that Mr. Fried did not stumble, stagger or lean on the wall or furniture for support. His speech was direct and clear.

245Mr. Nichol stated that when Mr. Fried came back inside the premises, he still did not appear to be intoxicated; he was walking straight, standing straight and responded right away when told to leave.

246This evidence was supported by the camera views that showed Mr. Fried walking down a corridor to the exit door, re-entering and then walking out of the premises, down the same corridor. On the recordings (Exhibit #8) the Board observed Mr. Fried walking down the centre of the corridor without assistance and without swaying or staggering.

247The Board did not see any actions by Mr. Fried as presented through the recordings that illustrated actions or behaviours that may be considered indicia of intoxication during the time that Mr. Fried was at the Manor Entertainment.

248The evidence presented consistently indicated that Mr. Fried consumed five beers in the course of the evening. In Exhibit 17, the expert witness, Mr. Wigmore, stated that if Mr. Fried's last drink was at 3:00 p.m. he would have a zero BAC when he entered the Manor Entertainment at 9:14 p.m. Mr. Fried would have to consume 12 to 14 bottles of beer to obtain a BAC of 200mg/100ml at 2:49 a.m. as was reported by the police toxicologist. The signs of intoxication should have been apparent at the Manor Entertainment.

249Mr. Wigmore indicated that his analysis did not include the possibility that Mr. Fried may have consumed alcohol after leaving the Manor Entertainment. He was told that Mr. Fried's last drink was at the Manor and used this assumption in his analysis.

250The Board carefully reviewed the witness statements and the recordings (Exhibit # 8). The recordings supported the witness statements and the Board does not find that signs of intoxication were apparent when Mr. Fried was at the Manor Entertainment.

251The board accepts that Mr. Fried was seen being served and consuming five beers over an approximate 3½ hour period of time. This was specifically noted on cameras marked 5, 8, 10 and 13, covering various locations including the service bar, pool table area, and stage. Inspector Purvis specifically noted Mr. Fried with beer at these times:

1. Camera 8 at 21:16:41 hours
2. Camera 8 at 21:30:38 hours
3. Camera 10 at 21:53:31 hours
4. Camera 10 at 22:25:45 hours
5. Camera 6 at 00:19:08 hours

252Inspector Purvis stated that he did not observe specific signs of intoxication and stated that during his review of all the recordings, Mr. Fried looked like he was in control of his motor skills.

253Mr. Smith's testimony corroborated this analysis of observations of the recordings.

254Mr. Bonus stated that the floor is uneven and every stool rocks. It was clear to the Board, in observing the recording numerous times, that at one point, Mr. Fried was leaning over in order to reach in his back pocket. His feet were resting on the rung of the stool and he was leaning on the bar while reaching into his back pocket. Mr. Fried did not fall off the stool. Knowing the condition of the floor and seeing Mr. Fried on the tapes reaching into his back pocket, the Board cannot make a determination that the momentary loss of balance on the bar stool, was an indicator of intoxication.

255The recordings of Mr. Fried's movements throughout the evening showed him moving about the establishment to various areas and having contact with staff, including the dancers, waitresses, bartenders and security.

256The recordings did not show Mr. Fried swaying or falling as he moved to different areas of the establishment. His movements were not indicative of a person who is intoxicated.

257In response to the patron holding the rail near the bar, the Board heard clear evidence that the floor near the bar is sloped. A rail was installed as a safety measure. In reviewing the tapes, the Board observed Mr. Fried, staff and other patrons holding the rail as they walked through this area. Therefore, there cannot be an assumption that Mr. Fried was showing signs of intoxication by holding the rail when he walked on the sloped floor.

258The Board heard that it was a slow night at the establishment, and took into consideration that a number of staff had direct contact with Mr. Fried in the course of the evening. They did not observe signs of intoxication and their evidence was corroborated by the recordings presented in Exhibit #8.

259As a result, the Board is unable to conclude that staff knew or ought to have known that the patron was intoxicated.

260In determining if the patron was drunk while on the premises of Manor Entertainment, the Board has assessed and weighed the evidence of the Registrar's and the Licensee's witnesses.

261The parties have asked the Board to consider various scenarios and make assumptions that would explain the differences in the behaviour of Mr. Fried while at the Manor Entertainment and at the time of the MVA and the BAC after the accident.

262Assumptions on drinking patterns were presented to explain the indicia of intoxication at the time of the MVA and the toxicology results that were taken 1 ½ and 1 ¾ hours after the MVA.

263There is no scenario that satisfies the Board. The Board is compelled to consider the factual evidence that was presented covering the 3½ hours that Mr. Fried was in the establishment under the control of the Licensee.

264The Board determines that there are not sufficient indicia to conclude on a balance of probabilities that Mr. Fried was intoxicated while in attendance at the Manor Entertainment and that the Licensee permitted drunkenness.

Conclusion

265For the reasons given, the Board DISMISSES the allegations under section 29 of the LLA and subsection 45(1) of the O.Reg.

DATED AT TORONTO THIS 6th DAY OF April , 2011