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-
1261097 Ontario Limited operating as Spirale Banquet Centre
Licensee
DECISION ON FINDINGS
Panel: Patricia McQuaid, Former Vice-Chair, AGCO Brian Ford, Board Member
Decision Date: July 11, 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 ) Phillip Morris, Representative
1261097 Ontario Limited, Licensee ) Pradeep Chand and Sean Clarke, ) Representatives
Authorities
1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] O.J. No. 1553
Allegations
- A hearing into Notice of Proposal number 18218 dated July 21, 2010 to suspend liquor licence number 806344 (the “licence”) issued to 1261097 Ontario Limited (the “Licensee”) operating as SPIRALE BANQUET CENTRE, 888 Don Mills Road, Toronto, Ontario, M3C 1V6, (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 January 10, 11, 12, 13 and 14, 2011 in the City of Toronto.
Decision
- The Board DISMISSES the allegations of violations of section 29 of the LLA and subsection 45(1) of the O.Reg. Reasons follow.
Preliminary Matters
- The following exhibits were entered into evidence at the commencement of the hearing:
Exhibit #1, the Licence Profile;
Exhibit #2, letter from Mr. Chand to Mr. Morris dated January 5, 2011 regarding current ownership;
Exhibit #3A, letter to Phillip Morris from Jean-Paul Palmentier dated December 8, 2010, regarding his toxicology report with Statement of Qualifications attached;
Exhibit #3B, Amended report of Jean-Paul Palmentier’s toxicology report dated February 8, 2010;
Exhibit 4, letter from Ismail Moftah to Pradeep Chand dated January 3, 2011 with Statement of Qualifications attached;
Exhibit #5, report of the post-mortem examination of Mr. Jumaili dated February 11, 2010.
- There was an order to exclude witnesses with the exception of expert witnesses and Mr. Zaikos, a principal of the corporate licensee.
Registrar’s Evidence
Razmid Papazian is an employee of Thomas Cook and worked in the IT department with Mr. Darin Jumaili.
Mr. Papazian stated he saw Mr. Jumaili at noon on December 11, 2009 at work and again at the Thomas Cook party at 8 p.m that evening.
Mr. Papazian stated there was no issue regarding alcohol consumption at noon with Mr. Jumaili. He said the next time he saw him was when he was seated at a table with him at the party.
Mr. Papazian was asked if he could tell if Mr. Jumaili had anything to drink and he replied “no.” He also noted he did not smell any alcohol on Mr. Jumaili.
Mr. Papazian stated the party was the annual Thomas Cook Christmas party and it was being held at Spirale Banquet Hall. The food and alcohol were free.
Mr. Papazian stated they sat at the table for approximately 1½ - 2 hours during the meal and presentations. After the meal, Mr. Papazian got up from the table. He noted the bar was not open during the meal.
Mr. Papazian was asked if there was any alcohol on the table and he stated there were two bottles of wine, one red and one white, and whatever drink a person brought to the table with them from the cocktail reception which preceded the dinner.
Mr. Papazian was asked if Mr. Jumaili had consumed any alcohol at the table. He stated he believed he had a drink which he was told by Mr. Jumaili was a vodka mixed drink.
Mr. Papazian did not remember if Mr. Jumaili drank anything else other than the mixed drink.
Mr. Papazian was interviewed by an Ontario Provincial Police (“OPP”) officer on December 18, 2009 and gave a statement to the officer in which he stated that Mr. Jumaili probably had a glass of wine as well.
Mr. Papazian was asked if he drew any conclusion that Mr. Jumaili appeared drunk and he replied he did not.
Mr. Papazian stated that after 10 p.m. there was some dancing at the party. He left the party at 11:30 p.m. He had a bottle of beer at the party.
Mr. Papazian stated as he was leaving, he briefly saw Mr. Jumaili dancing on the dance floor and at the time he was holding a drink. He also stated that Mr. Jumaili was not doing anything out of the ordinary. Mr. Papazian stated he was not tasked to monitor people to see if anyone was drunk.
Mr. Papazian stated that on his way home he received a text message from Erin Campbell, at approximately 1:10 am, inquiring if he had any contact information for Mr. Jumaili.
Mr. Papazian stated he had a phone number and was asked to call to make sure Mr. Jumaili got home okay. He called, but Mr. Jumaili did not pick up. He stated he called a second time and left a voice message.
On cross-examination Mr. Papazian was asked how he became aware of the Christmas party. He replied that he received an e-mail advising him of the party, time and location.
Thomas Cook provided taxi chits. He stated he learned of the chits by word of mouth. He did not know how the chits were distributed. Mr. Papazian stated that he drove himself to the party.
He would see Mr. Jumaili daily at work. He did not socialize with him on a personal basis. He noticed nothing out of the ordinary when he saw Mr. Jumaili at the dinner table or later when he saw him dancing, nor did anyone comment about Mr. Jumaili’s behaviour.
Mr. Papazian was asked if he noticed Mr. Jumaili attending the bar and he replied he did not. Mr. Jumaili wasn't drinking any more noticeably than others at the party.
Mr. Papazian stated he saw Mr. Jumaili during the evening and found his comprehension normal and that Mr. Jumaili did not appear to be intoxicated.
On re-examination Mr. Papazian stated he did not notice Mr. Jumaili attend the bar at all that evening nor did he know how much anyone else had to drink that night.
In response to a Board question, Mr. Papazian stated the he saw Mr. Jumaili with two drinks at the party, one at the table and and one other drink in his hand on the dance floor.
Mr. Papazian does not recall if Mr. Jumaili had a glass of wine. He also did not know if Mr. Jumaili finished the drink he had at the table.
Scott Green is 28 years of age and self-employed.
Mr. Green stated he was a friend of Darin Jumaili and had seen him the night before the Christmas party. He stated that he spent the evening with Mr. Jumaili. They went to a restaurant and had a light meal with no alcohol. He also stated he stayed at Mr. Jumaili's house that night. He saw him for about 1-2 hours the following morning. There was no alcohol consumed at that time.
Mr. Green played squash with Mr. Jumaili at 5:30 p.m. on December 11th for approximately 1½ hours. Mr. Jumaili said that he had to go to a work party at 7:30 pm..
Mr. Green stated they did not consume any alcohol at the time.
Mr. Green received a text message from Mr. Jumaili between 10 p.m. and 11 p.m. The text was nothing special. He stated the text had a happy tone. Mr. Jumaili could have been drunk, but he did not know.
On cross-examination Mr. Green stated he last saw Mr. Jumaili at 7:30 p.m. and last heard from him when he received the text message between 10 p.m. and 11 p.m. He stated he did not know if Mr. Jumaili was drunk and had no way of knowing whether he was drunk at that time. Mr. Jumaili was someone who liked to drink but he was not an alcoholic. When he was drunk he would be happy and talkative. But he rarely saw him so very drunk so that he would be falling down or have slurred speech. He had seen him drink and drive a couple of times.
Mr. Green stated in response to a Board question that Mr. Jumaili would not be out of control when he was drinking though he might not be ok to drive.
Erin Campbell is an employee of Thomas Cook and helped organize the Christmas party.
Ms Campbell stated that prior to dinner there was an open bar and that wine was served at dinner. The bar was closed during dinner. Each table had one bottle of white wine and one bottle of red wine.
Ms Campbell stated she only knew Darin Jumaili to see him.
Ms Campbell stated she saw Mr. Jumaili dancing at one point in the evening and that he looked silly with his arm movements and fist pumping. It was not her style of dancing.
Ms Campbell stated that she and every person in HR received taxi chits to give to staff in the event they needed a ride home. She also stated that if in their judgement they saw someone who had too much to drink, they gave that person a taxi chit.
Ms Campbell stated that after seeing Mr. Jumaili dancing she did not see him again during the night and she did not see him leaving Spirale. A lot of people left the party after the dinner and the prize draw.
Ms Campbell stated that at the end of the evening, at around 1 a.m., Jennifer Cox approached her and asked for assistance.
Ms Cox told her that Mr. Jumaili should not have driven off in his car and that they needed to find someone to get in touch with him.
Ms Campbell stated she contacted another employee, Mr. Papazian, and asked him to get a hold of Mr. Jumaili.
Ms Cox advised Ms Campbell that she and Mr. Lambert, another employee, tried to stop Mr. Jumaili from driving, but could not. Ms Cox also stated that she gave him a taxi chit.
On cross-examination Ms Campbell could not recall if Mr. Jumaili had a drink when she saw him. She also did not see Mr. Jumaili at the bar at any time. Mr. Jumaili did not seem intoxicated on the one occasion that she did see him, nor did anyone say anything to her about his condition during the course of the evening.
Ms Campbell stated when she observed Mr. Jumaili dancing he was dancing to the beat of the music.
On re-examination Ms Campbell stated that she did not see Mr. Jumaili at the bar though she could not see the bar from her location during the evening. She did not see him at all after the dinner.
Jennifer Cox is a Thomas Cook employee.
Ms Cox stated she did not see Mr. Jumaili in the early part of the evening. The first time she saw him he was dancing, in her view, rather oddly. He made strange arm movements, not in keeping with the music. He looked as if he had been drinking or he was a really bad dancer. She did not speak to him at that point. She did not know Mr. Jumaili personally.
Later in the evening, a co-worker came to her and asked what to do if they felt someone should not drive. Ms Cox asked who the person was and was told it was Mr. Jumaili.
Ms Cox looked for Mr. Jumaili and saw him standing by the door inside the hall with his coat on. Ms Cox went to him and asked him where he was going. He replied he was going for a smoke.
Ms Cox told Mr. Jumaili she did not want him to drive and gave him a taxi chit. After giving Mr. Jumaili the chit, he tickled her stomach, something she found to be inappropriate.
Ms Cox stated Mr. Jumaili took the chit and stated he was not leaving and that he was going for a smoke. Ms Cox told him she would go with him as she wanted to make sure that he did not drive because she felt he was drunk.
When asked why she felt he was drunk, she stated it was a combination of his dancing, his tickling her stomach and, in part, his conversation with her. In conversation, he was not clear on what he was doing and he did not seem to be really answering her questions.
As she went back to her table get her coat, she stopped to talk to someone else. She turned around and saw that Mr. Jumaili was gone from the area where they had been standing. She looked for him and noticed him outside walking in the parking lot. She called out to him, however, it was obvious to her that he was not listening.
Ms Cox stated she asked a co-worker, Robert Lambert, for help. It was very cold outside and she went back in to get a coat. She believes Mr. Lambert caught up to Mr. Jumaili and was heading back to the hall with him.
Ms Cox stated she called a cab and went out to tell Mr. Lambert and Mr. Jumaili that a cab was on the way.
Mr. Jumaili, at that time, was walking to his car. She stated they tried to get him to come back. They yelled at him and he put up his hand and waved, indicating that he heard them.
Ms Cox stated that at that point Mr. Jumaili drove off. She noted that he drove out of the parking lot fast. She went back into the hall and told Erin Campbell that Mr. Jumaili had left. She believes that this was at some point between 12:30 and 1 a.m.
On cross-examination Ms Cox was asked if she saw Mr. Jumaili at work the day of the party. She replied she had not, nor had she spoken to him earlier at the party.
Ms Cox did not recall seeing Mr. Jumaili drinking. She stated she saw him dancing and that he did not have balance problems. His speech was not slurred when she talked to him at the end of the evening, at least not that she recalled. As he walked away from her, she did not take note of him tripping or other balance issues. Ms Cox also said there was nothing out of the ordinary regarding his comprehension.
Ms Cox stated in response to a question that she was socially drinking that night.
When asked if her drinking that night would have affected her perception, she stated not at the time, but it could a year and a half later. She stated that drinking would affect her memory.
Ms Cox stated that she did not see any Spirale staff trying to assist at the end of the evening.
On re-examination Ms Cox was asked about her remark concerning Mr. Jumaili's dancing. She stated that it seemed out of character for him, although she did not know him that well.
In response to a Board question, Ms Cox stated that she had been drinking that evening and had drank enough that she should not drive.
Robert Lambert is an employee of Thomas Cook.
Mr. Lambert stated he knew Mr. Jumaili for approximately four years, both professionally and socially. Mr. Lambert stated he had drunk with Mr. Jumaili at a local pub on occasion.
Mr. Lambert stated he did not see Mr. Jumaili prior to the dinner and did not see him drink. He, himself, had five to six drinks that evening.
He saw Mr. Jumaili on the dance floor around 10:30 p.m. and did not see anything out of the ordinary. At about 11 p.m., the party thinned out by almost half. The next time he had anything to do with Mr. Jumaili was when a co-worker, Ms. Cox, came to him and asked him to help get Mr. Jumaili to take a cab. She seemed pretty frantic.
Mr. Lambert stated he saw Mr. Jumaili standing out front and he went over and talked to him. At first sight, he did not draw any conclusion regarding Mr. Jumaili’s state. He stayed close to Mr. Jumaili trying to make small talk and when he turned, Mr. Jumaili took the opportunity to leave and started running to his car. Mr. Lambert ran after him and asked him not to get into his car and not to drive.
Mr. Lambert stated that when Mr. Jumaili drove out of the parking lot he drove very fast.
When asked why he did not want Mr. Jumaili to get into his vehicle, he stated that he had too much to drink and would “blow over.”
He felt Mr. Jumaili was drunk. He had slurred speech and he kept saying “I'm fine, I'm fine.” In his experience, when people say that, they usually are not fine.
When asked if he made observations of Mr. Jumaili's gait, he stated that he was not totally stable; he kind of moved. When asked what he meant, he stated staggered would be a better word. He was holding onto Mr. Jumaili’s shoulder.
Mr. Lambert stated he was stunned when Mr. Jumaili took off. He did not see any Spirale staff at the door or in the parking lot.
On cross-examination, Mr. Lambert stated that when he saw Mr. Jumaili on the dance floor he did not appear intoxicated, Mr. Lambert stated Mr. Jumaili did not act unusual on the dance floor. Mr. Jumaili did have a drink in his hand while on the dance floor. He did not spill his drink nor lose his balance while dancing. No one made any comment to him about Mr. Jumaili’s dancing.
Mr. Lambert did not think that the drinks he consumed would alter his perception or memory.
Mr. Jumaili was able to respond to the questions that he put to him.. He kept saying he was fine. He seemed agreeable to wait for a cab and did not fall when standing with him. Mr. Jumaili did not trip or fall as he was running away from him. Mr. Lambert was asked if he hit anything when leaving the parking lot and he replied, “no, the lot was pretty empty.”
In response to a Board question, Mr. Lambert said that Mr. Jumaili was unsteady when he was holding him by the elbow to give him support. Mr. Jumaili ran to his vehicle straight and fast.
Cst. Roman Walizad of the OPP Traffic Safety Division responded to an incident on December 12, 2009 at 1:11 a.m. on the 407 Highway westbound off ramp to Bayview Avenue in Markham.
He was the first officer on the scene which involved a single vehicle roll over accident. At the time, Cst. Roman was in uniform and was driving a marked cruiser.
Cst. Walizad arrived on scene at 1:13 a.m., got out of his patrol vehicle and noted a vehicle that had rolled over into the left ditch off the exit ramp.
The vehicle was black and laying on the roof, with a lone male approximately three metres from the vehicle laying face down. The head of the male was bent towards the chest. At the time Cst. Roman checked for vital signs and they were absent. The male was not breathing and there was no heart beat.
Cst. Walizad tried CPR on the male, however, there was no response.
The ambulance arrived at 1:23 a.m. He noted the weather at the time was clear, windy and the road was dry. He stated there was lots of snow in the ditch and the area was well lit.
The coroner arrived at 2:25 a.m. and pronounced the male deceased at 2:27 a.m. The deceased was Darin Jumaili, d.o.b. July 5, 1970.
Cst. Walizad stated he smelled alcohol on the deceased.
Cst. Walizad advised the Board the distance from the accident scene to Spirale Banquet Centre was a total of 17 kms. He also stated that Mr. Jumaili (based on the post-mortem exam) was 5'9" and 170 lbs. The cause of death was blunt force trauma.
On cross-examination Cst. Walizad stated when he first arrived on the scene he did not see the head of Mr. Jumaili. It was when he turned him over that the head came up from the chest area.
Cst. Walizad stated that the vehicle, a BMW, was upside down when he arrived and the body was three metres away from the vehicle.
Cst. Walizad searched the vehicle and did not find any alcohol.
He smelled the alcohol before he started the CPR compressions. He noted there was blood on the ground around Mr. Jumaili.
Cst. Walizad was asked if he interviewed employees of Thomas Cook. He stated he did, conducting eight interviews. He contacted the senior manager of human resources at Thomas Cook and after speaking with her, he and his sergeant determined who should be interviewed.
His sergeant contacted the AGCO although he did not know when this occurred. Cst. Walizad never attended at the Spirale Banquet Hall and did not know if anyone from Spirale was contacted by the OPP. He was not aware that the banquet hall had 15 cameras in and around the premises.
Cst. Walizad was not aware of anyone going to Spirale to obtain videos from their surveillance system nor whether anyone called them regarding video footage.
In response to a question from the Board, Cst. Walizad stated he was responsible for gathering information about the accident victim to see where he came from, whether he had consumed alcohol, or whether someone caused him to leave and whether someone else was responsible for his death.
Mr. Morris in response to the Board question, asked if alcohol was a factor in the accident and Cst. Walizad replied that it was.
Cst. Ron VanDeursen is with the OPP Traffic Division in Aurora. Cst. VanDeursen is a collision reconstruction expert and was recognized as such based on credentials presented at the hearing.
The collision reconstruction report of the accident involving Mr. Jumaili was entered into evidence as Exhibit # 6.
Cst. VanDeursen referred to page 5 of Exhibit # 6, which was a picture of the off ramp from Highway 407 to Bayview Avenue. The image shows two lanes from the 407 and it widened into a third lane before the collision scene. Cst. VanDeursen stated the posted speed limit on the 407 is 100 km/h and the ramp speed limit is posted at 60 km/h.
Cst. VanDeursen stated that on the night of the accident, it was dark with clear visibility and artificial lighting. Mr. Jumaili was not wearing a seat belt at the time of the accident, and the vehicle’s tires were in poor condition.
At 1:07:01 a.m. on December 12, 2009, Mr. Jumaili's vehicle entered the westbound highway 407 from highway 404. He stated the vehicle's speed was captured on the entry gantry at 135km/h. Cst. VanDeursen stated when Mr. Jumaili's vehicle exited the 407 at the Bayview his vehicle was clocked at 141 km/h.
The distance between the ramp onto the 407 and the exit at Bayview was a distance of 2.08 kilometres. The time recorded to travel this distance was approximately 50 seconds. He calculated that the speed to cover this distance would be 149km/h. The critical curve speed on the exit ramp to Bayview Avenue is 144 km/h. This speed is calculated using a vehicle with suitable tires. Mr. Jumaili’s BMW was equipped with poor tires. Cst VanDeursen stated that speed was a contributing fact in this fatal collision. He also noted that the lack of a seatbelt contributed to the fatality.
When Cst. VanDeursen was asked about alcohol contributing to the accident, he replied that he had no evidence of alcohol when he wrote his report.
On cross–examination Cst. VanDeursen stated that he did not contact Spirale and he did not know if anyone else had.
Cst. VanDeursen reiterated that the lack of a seatbelt and speed were contributing factors. The radio was on, and loud, which could also be a contributing factor. Lighting was not a factor.
Jean Paul Palmentier is a scientist with the Centre for Forensic Science. Mr. Palmentier was qualified as an expert witness in toxicology and recognized by the Board as such.
Mr. Palmentier stated the blood and urine samples were submitted to the Centre of Forensic Science by the coroner, Dr. H. Kassam.
The blood sample submitted was tested and was found to contain 172 mg of alcohol in 100 ml of blood. The urine sample tested showed a level of 215 mg of alcohol in 100 ml of blood. He stated that the blood alcohol level of 172 mg of alcohol in 100 ml of blood, is the amount of alcohol in the blood at the time the person died which is more than twice the legal limit for driving.
Mr. Palmentier stated that urine levels lag blood levels by 20 to 30 minutes. In other words, it would show what the blood alcohol levels would have been 20 to 30 minutes prior to the blood sample being taken. He also stated that blood alcohol concentrations are more accurate than that of urine. This measure is a snapshot of what concentration of alcohol was in the person at the time and producing an effect.
Mr. Palmentier stated that the level of alcohol in the urine would be divided by 1.3 to determine the blood alcohol concentration. Therefore, 215 divided by 1.3 equals 165 mgs of alcohol in 100 ml of blood.
Mr. Palmentier was asked if the alcohol concentration in the blood was in decline or rising at time of death. Mr. Palmentier stated that he felt the difference between 165 and 172 was not enough of a difference to make a determination and it would be his opinion that the level was in a plateau. The difference of 15 to 20 mg of alcohol in 100 ml blood is not significant enough to draw a conclusion other than that it was in plateau. The plateau phase can last as long as 30 minutes before it declines, that is, when elimination of alcohol from the body is occurring faster than the absorption. If the blood alcohol level was rising there would have to be consumption about 15 to 30 minutes prior to death.
Mr. Palmentier was asked about the blood alcohol level at 1:11 a.m. (the time of death). He stated it was 172mg which represented eight alcoholic drinks.
He was asked what the level would have been at l2:45 a.m. and he stated that it would have been between 172 mg and 181 mg of alcohol in 100 ml of blood.
Mr. Palmentier stated that the projected range at 12:45 a.m. was independent of gender, height, weight and age of the individual. However, he stated that it was dependent on the following in this instance:
The rate of elimination of alcohol from the blood ranging from 10 to 20 mg of alcohol in 100 ml of blood per hour.
The allowance for a plateau of up to two hours.
No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the time of death.
Mr. Palmentier stated that Mr. Jumaili would have had to have consumed 8¾ to 10¾ bottles of beer (5 per cent alcohol at 341 ml each) or 13¾ to 16¾ fluid ounces of spirits (40 per cent alcohol by volume) or some combination thereof, between 8 p.m. and 12:45 a.m. in order to have a Blood Alcohol Concentration (“BAC”) of 172 mg in 100 ml at 1:11 a.m., assuming an alcohol free state at 8 p.m.
Mr. Palmentier stated that a novice drinker would only need to have 8¾ beers in their system for the levels that were present in Mr. Jumaili.
Mr. Palmentier was asked if the BAC would change if the drink were of different concentrations (i.e. beer, spirits or wine). He replied that the volume of alcohol would remain the same.
With a BAC of 172 a driver of a motor vehicle would be impaired. A driver’s ability to make decisions, to act in a timely manner or to determine between choices of action would be negatively impacted. He also stated a person would also be more disposed to increased risk taking, such as speeding. Their perception of speed and distance would be affected as well.
When Mr. Palmentier was asked if a person with a BAC of 172 would show signs of intoxication, he replied that it would depend on their tolerance of alcohol at that level. Mr. Palmentier stated a light drinker would have exaggerated symptoms with a BAC of 172 showing effects on gross and fine motor skills whereas a moderate drinker would be less likely to show signs of intoxication.
Further, if a person is used to doing certain activities while under the influence of alcohol, they can get better at that activity. The ability of a third person to detect impairment will depend on the familiarity with the particular person and that person’s own experience with intoxication.
On cross-examination, Mr. Palmentier stated that the effect of the central nervous system was not addressed in the report though it is a factor in terms of tolerances. He did, however, refer to page 2 of Exhibit 3a, where he noted that impairment may occur in the absence of visible signs of alcohol intoxication, which may be due to tolerance. With time and practice functional tolerance may develop so that a person may not exhibit the physical aspect of intoxication; they may appear normal in the outward manifestations. Not all persons might be impaired in a particular faculty at a certain BAC.
Mr. Palmentier again stated he believes that Mr. Jumaili was in a plateau at the time of the accident and this is a conservative analysis of the test results.
Mr. Palmentier stated that the decision-making faculties may be impaired, without physical signs being apparent.
Ismail Moftah is a toxicologist who worked for the Centre of Forensic Science from 1974 to 2000 as a toxicologist, and was called as an expert on behalf of the Licensee. Mr. Moftah was qualified as an expert witness before the Board. The Board agreed to have his evidence heard following that of Mr. Palmentier at the request of the parties.
Mr. Moftah stated that he reviewed all documents given to him by Mr. Chand.
Mr. Moftah did not dispute the BAC or the UAC results of Mr. Jumaili, but that it was his opinion that the BAC was going up at the time of death based on the difference between the BAC and the UAC.
Mr. Moftah stated that there would be no odour of alcohol on a deceased person. He stated it can only be detected on the breath of a person, although pushing on the chest would expel air left in the lung and it would have had an odour of alcohol.
Mr. Moftah stated that we do not know what Mr. Jumaili’s “normal” behaviour was. Assessment of a person’s level of intoxication may depend on the observer’s familiarity with the person and the duration of any observations. A person with greater tolerance for alcohol may not exhibit signs of intoxication though they may be legally impaired. He and Mr. Palmentier were in agreement that a person can develop a functional tolerance to certain levels of alcohol.
Mr. Moftah stated that 40 per cent of the population would not show signs of intoxication with a BAC of 150. At 200 mg of alcohol in 100 ml of blood, 10 to 20 per cent of the population do not show signs of intoxication. With a BAC of 300 mg, only 1 in 1,000 would not show signs of intoxication.
On cross-examination, Mr. Moftah stated that in his experience, agreements between toxicologists are always greater than the disagreements. From his work experience at the Centre of Forensic Science, he is aware of their policies and procedures and would assume everything was done properly. He agrees with the amounts of alcohol consumed as stated in the report. He also agreed with the 172 to 181 BAC assumption at 12:45 a.m.
Mr. Moftah stated, however, that he believes that the BAC was on the rise not at a plateau. If in the rising phase, one has to take into account both the BAC, which in this instance is a snapshot in time, and the physical signs observed in advance of that. Regarding the latter, one has to rely on the evidence of witnesses, which seemed consistent with Mr. Jumaili not showing signs of intoxication.
Mr. Moftah believes Mr. Palmentier erred on the side of caution when stating the BAC was at a plateau. He believes it was going up.
Helen Giorgoudakis is a liquor Inspector with the AGCO.
Inspector Giorgoudakis stated she had no involvement with Spirale prior to December 21, 2009. This establishment is not located in the area for which she is generally responsible. She was on a temporary, six week assignment to this area. On that date, she received information from OPP S/Sgt. O' Halloran, the officer in charge of her unit. S/Sgt. O'Halloran asked her to follow up on an e-mail (Exhibit #7) he had received from OPP Sgt. Taylor-Bolton of the Traffic Support Unit of the Highway Safety Division.
The e-mail advised of an investigation into the fatal vehicle accident and mentioned the driver was at a Christmas function at Spirale Banquet Centre. Inspector Giorgoudakis stated that as a result of instructions from S/Sgt. O'Halloran, she contacted Spirale on December 22, 2009 by telephone.
Inspector Giorgoudakis stated that when she phoned the establishment the phone was answered by a female. She asked the female if she could speak to a manager of the establishment. The call was made at 3:13 p.m. and terminated at 3:31 p.m.
Inspector Giorgoudakis stated she was transferred to a Mr. Chris Christofi. She then advised Mr. Christofi of the fact that a fatal accident had occurred and the driver of the vehicle had been at a function at Spirale prior to the accident.
Inspector Giorgoudakis stated she read to Mr. Christofi the contents of the e-mail (exhibit #7) from Sgt. Taylor-Bolton to S/Sgt. O'Halloran.
Inspector Giorgoudakis stated that Mr. Christofi told her he was not aware of the accident.
She advised Mr. Christofi of his responsibilities as a manager and also the responsibilities of serving staff as it pertains to observing patrons as they interact with them. Further, she advised Mr. Christofi that the establishment is responsible for what happens inside and around the licensed premises.
She then advised Mr. Christofi that the police report of the accident would be forwarded to the Deputy Registrar for review. She then told Mr. Christofi that if the AGCO legal representatives had any questions they would send a letter to the Licensee for further clarification or documentation. She gave him contact information should he have any further questions. She believes she may have cited s. 45 (1) of the O.Reg.
Mr. Christofi was aware that a Christmas party had taken place that particular weekend. He seemed caught of guard by the end result of the incident. Inspector Giorgoudakis was asked if there was any information about security cameras provided to her. She replied she had not received any such information nor had she been provided with security footage nor requested to conduct an education session though she offered to attend to conduct one.
Inspector Giorgoudakis' report was entered into evidence as Exhibit #8. The report was typed by her as she spoke to Mr. Christofi and states as follows (as read into evidence by the inspector): “From H.O. Spoke to the LOR, Mr. Chris Christofi, and advised of infraction of TOX from 2009 12 12. Advised report is being sent for a Deputy Registrar’s Review”. After this, she had no further involvement in this matter.
On cross–examination Inspector Giorgoudakis stated her job was to notify the licensee of record and then forward the report to the Deputy Registrar.
Inspector Giorgoudakis was questioned about her involvement and it was noted by counsel that her notes of her December 22, 2009 conversation did not go into detail, yet her “will say” statement contained significant information about the conversation with Mr. Christofi that was not in her notes. Inspector Giorgoudakis replied that her only job was to notify the licensee of record about the report received from police.
Inspector Giorgoudakis was asked if she advised the Licensee if charges were pending and she stated she did not believe she did that - the police would investigate.
Inspector Giorgoudakis stated that it was correct that no information was in her notes regarding a person being deceased as a result of an accident. She stated, however, that she read the e-mail about the accident from Sgt. Taylor-Bolton to Mr. Christofi.
The inspector was asked if she forwarded the e-mail to Spirale and she replied she did not.
On re-direct Inspector Giorgoudakis reiterated that she had no other sources of information about the incident other than the e-mail from S/Sgt. Taylor-Bolton.
In response to a question from the Board, Inspector Giorgoudakis stated that she was not conducting an investigation as it was a police matter. Further, at this point, she had no specific information regarding the details of a possible violation. She stated that she had no other involvement with Spirale other than the phone call.
Licensee’s Evidence
Karin Wilson is an employee of Thomas Cook. Ms Wilson stated she attended the Thomas Cook Christmas party on December 11/12, 2009. She arrived at the party early and left early, before the end of dinner, between 9- 9:30 p.m.
Ms Wilson stated that she knew Darin Jumaili professionally and found him to be hardworking and an extremely bright individual.
Ms Wilson stated that she saw Mr. Jumaili at dinner and he was happy and sober. He was seated at her table. He had a glass of red wine with dinner. No one said anything to her about Mr. Jumaili’s behaviour during the evening.
On cross-examination Ms Wilson stated that she only saw Mr. Jumaili drink a glass of wine and that she did not see him during cocktails, nor would it be like him to show up early to the event.
Keith Williams is a Thomas Cook employee. He stated that he was seated at the same table as Darin Jumaili during dinner at the Christmas party. He did not talk with him during dinner.
Mr. Williams also stated that he saw Mr. Jumaili dancing later in the evening and that he appeared to be having a good time. This would have been about 11-11:30 pm. He did not seem to be intoxicated when he was dancing; he did not see him lose his balance. No one said anything to him about Mr. Jumaili’s behaviour that evening.
Mr. Williams stated that he did notice Mr. Jumaili attending the bar for drinks.
On cross-examination, Mr. Williams stated that he only saw Mr. Jumaili on the dance floor at the party once. On that one occasion that he did see him, and it was nothing more than a glance in his direction, he did not see Mr. Jumaili pounding the air with his hand when he was dancing.
On re-direct Mr. Williams stated that Mr. Jumaili usually danced with one hand in his pocket and the other holding a drink - that is the way he saw him at the party. He did not seem intoxicated.
Martti Gangadeen is an employee of Thomas Cook. Mr Gangadeen stated Mr. Jumaili may have had a drink at the dinner table but he did not appear to be intoxicated. He spoke to him briefly during dinner.
Mr Gangadeen also stated he saw Mr. Jumaili during the night and that he did not appear intoxicated to him nor did he notice anything unusual about him.
When asked if he saw Mr. Jumaili at the bar, he stated he might have once but that was about all.
Mr Gangadeen stated left the party between 11:30 p.m. and 12 a.m. (midnight).
On cross-examination Mr Gangadeen stated he was not sure if he saw Mr. Jumaili purchase a drink. He saw him dancing around 10:30 p.m..At this point, he was standing about 6-8 feet away from Mr. Jumaili, at the edge of the dance floor. Though he was not focussed solely on Mr. Jumaili, he did observe him for a couple of minutes, perhaps as much as ten minutes.
Mr Gangadeen was asked if he was present when a woman by the name of Tamara asked for a taxi chit, to which he responded that he could not remember. Nor did he recall hearing Tamara ask Jennifer Cox what to do “when you know a person is going to drive and had been drinking.” He did not recall being part of any discussion about whether Mr. Jumaili should be driving.
Kathleen Leslie Halloran is a Thomas Cook employee and attended the Christmas party.
Ms Halloran stated she knew Mr. Jumaili quite well. She stated Mr. Jumaili was outgoing and extremely intelligent. She enjoyed working with him.
Ms Halloran stated she saw Mr. Jumaili at the Christmas party. She sat at the same table as Mr. Jumaili during dinner. When she spoke with him, he seemed to have no problem with comprehension nor was his speech slurred.
Ms Halloran stated she saw Mr. Jumaili several times during the night and saw him dancing. He did not appear intoxicated. He did not lose his balance at any point. No one spoke to her about Mr. Jumaili’s behaviour that evening.
On cross-examination Ms Halloran stated that she was giving her testimony from her memory and that she did not make notes of the evening.
Ms Halloran stated that she saw Mr. Jumaili on several occasions during the evening until she left at around midnight. She also stated that Mr. Jumaili did not do anything to draw attention to himself in any way, nor did she give him any particular attention.
Mardo Kassadian is an employee of Spirale and has worked there for one year and five months at the time of his testimony. Mr. Kassadian has been a bartender for approximately nine years.
Mr. Kassadian stated he is Smart Serve trained (see Exhibit 9) and knows what to look for as it pertains to intoxication. He also stated that if he notices anyone who appears to be exhibiting the signs of intoxication they are cut off. Signs of intoxication that he would look for are: glossy, blurry eyes, redness in the face, excessive sweating, manner of walking, aggressive or overly talkative behaviour His interaction with patrons at the bar, as they order and affirm their drink gives him an opportunity to assess a person for intoxication. If he determines that a person is intoxicated, he will not serve them and will make the other bartender aware of the situation. They work as a team.
Mr. Kassadian was asked if he was working on December 11, 2009, and he stated, based on the timesheet, he was, but he has no specific recollection of the evening.
Mr. Kassadian stated the main bar at Spirale is located in the lobby and that there is a portable bar inside the ballroom. The main bar is often closed during dinner. If there is a cash bar during an event, people are more conservative in the amount they consume. With an open bar, less so. People will take a drink and may not even finish it. People waste more alcohol when they are not paying for it. If there is an open bar, he is even more diligent in monitoring patrons for intoxication. There is more responsibility on him when there is an open bar.
Mr. Kassadian stated that there is a phone in the lobby that can be used to phone for a taxi. As well, he will call and has done so on many occasions.
On cross-examination Mr. Kassadian stated he did not find out about the fatal accident until December of 2010. He was told at that time that a tragic incident had occurred, and that he was one of the bartenders working that evening.
Mr. Kassadian was asked if there were any security cameras and he stated that there were, describing their locations. He stated there were cameras in the foyer, one close to the main bar and one close to the second bar.
Mr. Kassadian was shown Exhibit #10 (a photo of the bar area) and he pointed out the camera above a door next to the main bar. He did concede that when it is busy at the bar area, it is hard to know what the other bartender has served and to whom.
Peter Kalagiros works at Spirale as a bartender part-time and works full-time at the LCBO as a store manager. He has worked as a bartender for over 20 years and is Smart Serve trained.
Mr. Kalagiros provided a general explanation of his duties at Spirale, elaborating on the policy should an intoxicated person be identified. In that instance, after detecting signs such as stumbling, slurred speech, lack of control of body movements, he would deny service, offering water instead. The maitre’d is advised of the situation and he would, in turn, relay the information to a manager. The event convenor would be advised as well. The intoxicated person would be sent home in a cab. Mr. Kalagiros stated that in his four years working at Spirale, age related issues regarding service of alcohol have been more of an issue than intoxicated patrons.
Mr. Kalagiros stated he was working on December 11, 2009 as a bartender and recalled the evening, in part due to the fact that they gave out great trips as prizes.
He started work at about 6:30 p.m. There was a host bar and they served domestic beer and standard drinks. He also stated that just one bar was open - bar A. He also stated that there was no bar inside the banquet hall and the main bar was closed during the dinner.
Mr. Kalagiros stated that no one was refused service that night. The numbers at the event were manageable for he and Mardo, the other bartender. Nothing out of the ordinary occurred that evening. The bar closed for the night at 1 p.m.
Mr. Kalagiros stated that he found out about the incident with Mr. Jumaili in June 2010 from Peter Taxidis.
Mr. Kalagiros stated that he called for taxis six to seven times that night and noted that they were giving out taxi chits.
Mr. Kalagiros stated that he was not interviewed by police.
On cross-examination Mr. Kalagiros stated that he provided his ‘will say’ some time in December 2010 on a Thursday before Christmas.
Mr. Kalagiros stated that after dinner, there was no rush to the bar and he recalls people commenting that the party was boring. He also stated he did not know if people were dancing and did not go to look. He did not leave the bar. He does not keep a written record of what he serves each person, but remembers faces and what people order. He did not know Mr. Jumaili and could not say how much he had to drink that night. Serving someone 6 ¾ to 8 ¾ drinks in a 11/2 hour period would not be permitted, in his view. A person could order two drinks at a time and could, on a tray, carry away 8 drinks.
On re-direct Mr. Kalagiros stated that they do not serve trays of drinks and could not recall if anyone was given a tray from the bar that night. He also stated that in his experience people have different tolerances for alcohol. He has been trained to look for signs of intoxication. People will react differently to alcohol and some will try to hide any signs of intoxication so one has to be ready, watching for it.
John Zaikos is one of the owners of Spirale and has been for over 12 years. He has been involved in the restaurant business through his family’s businesses, since childhood, probably at least 22 years. Prior to this matter, he has had no issues with the AGCO for liquor licence infractions.
Mr. Zaikos stated that Spirale has an employee guide for bar staff (Exhibit #11) and an employee guide for wait staff (Exhibit # 12). Each member of the bar staff has to have a Smart Serve certification card.
During special events, a person is removed if intoxicated, with the assistance of a banquet hall manager and the convenor. Spirale does not usually hire uniformed security as it is generally not necessary for events there and does tend to detract from the atmosphere of the function. He was aware that Thomas Cook employees were at the exit giving taxi chits to those who requested or required them.
Mr. Zaikos stated that Spirale has a policy to deal with intoxicated persons and it is outlined in the employee guide. They are trained to look for signs of intoxication such as their manner of walking, glossy eyes, slurred speech and loud aggressive behaviour. He stated that in a banquet hall venue it is easier to know and identify possible intoxicated persons because usually people know each other at these events. Intoxicated persons are less of an issue than dealing with issues around minors, especially at weddings.
Mr. Zaikos stated that he was working on the night of December 11, 2009 due to the large size of the Thomas Cook party - around 400 people. He reviewed the contract details for the event (Exhibit 13). They had hosted the Thomas Cook Christmas party for the previous 2 or 3 years. The bar was closed during dinner, for about two hours, re-opening at about 9:45 -10 pm. About 40-50 per cent of the attendees left the party right after dinner which resulted in an overflow in the coat check area.
Mr. Zaikos stated that nothing out of the ordinary happened at the party to his knowledge. It was a tame atmosphere. He also had no contact with Mr. Jumaili.
Mr. Zaikos stated that the hall is equipped with security cameras, to protect themselves both for security and liability purposes. There are two cameras outside and 11 inside. Exhibit 14 consists of two photographs which show the location of some of those cameras. Security camera footage is stored on their hard drive and kept for 5-6 days during a busy time such as the Christmas season and about two weeks during their slower business periods.
Mr. Zaikos became aware of Mr. Jumaili's accident in late May or June 2010 when he received a call from Peter Taxidis, a partner. He was told by Peter that an AGCO inspector had spoken to Chris Christofi in December. He was not aware of the phone conversation prior to this.
Mr. Zaikos stated that Mr. Christofi told him that he received a call about an AGCO matter and that he had been told that someone would contact him if required. He assumed that if Mr. Christofi had been told more that he would have done more. By December 22, 2009 it is unlikely that there would have been footage from December 11, 2009. The OPP never contacted anyone from Spirale.
In terms of communication from the AGCO, there was the phone call in December 2009 and then a formal letter about the incident dated June 11, 2010 (Exhibit 15). He was not contacted by anyone from Thomas Cook. Mr. Jumaili’s accident was not even mentioned when he attended at the Thomas Cook offices to pick up payment for the event.
On cross-examination Mr. Zaikos was asked if there was a list of employees who worked on December 11, 2009 to which he responded that he did not have one. Not all staff, such as the two people working in the coat check, would have their Smart Serve certification.
Mr. Zaikos stated he did not know how much alcohol was served that night. He stated that he would remember if there had been long line ups at the bar that evening. A portion of the contract price, somewhere between $16 to $20 per person is attributed to alcohol. It is a fixed price contract.
Mr. Zaikos stated there are a number of cameras and they may have been relevant in terms of following Mr. Jumaili’s movements through the night.
Mr. Zaikos stated that Mr. Christofi told him he did not know about the fatality prior to June 2010.
Mr. Morris then pursued a line of questioning suggesting to Mr. Zaikos that he knew in December 2009 of the fatality, that the partners talked about the incident and that they viewed the video camera footage, did not disclose it to anyone and in fact destroyed it, all of which Mr. Zaikos vehemently denied. Further, Mr. Morris in cross-examination put to Mr. Zaikos that this was why Mr. Christofi was not a witness at this hearing.
Though Mr. Chand had indicated that Mr. Zaikos would be his last witness, after Mr. Morris cross-examination described above, Mr. Chand stated that he wished to call one further witness: Mr. Christofi. Mr Morris objected to this witness being called. No ‘will say’ had been provided and, in his submission, his line of questioning went to the ‘notice’ issue which had been raised by the Licensee through its counsel.
The Board ruled that in the circumstances, it would permit Mr. Christofi to give evidence on the limited basis: to respond to the hypothetical put to the witness about disclosure by Mr. Christofi to Mr. Zaikos and the subsequent action they took to allegedly destroy a tape, in order for the Licensee to provide full answer and defence to the allegations before the Board. The Board did request that a ‘will say’ statement be provided to Mr. Morris as soon as possible and before Mr. Christofi’s evidence the next day.
The ‘will say’ statement was not provided until 9:30 am on the morning of January 14th. The Board was prepared to give Mr. Morris additional time to review the statement, however, he stated that he was prepared to proceed.
Mr. Christofi is one of the owners of Spirale and has been since 1998. He was working at the Thomas Cook Christmas party on December 11, 2009.
Mr. Christofi was asked when he was contacted by the AGCO with regard to the events of December 11/12, 2009 and he could not say for certain. He stated the best he could do was say it was early winter 2010.
Mr. Christofi stated he spoke with a woman from AGCO and he was advised that there was a pending investigation and that it was being forwarded to proper authorities for review and he would be contacted.
Mr.Christofi was asked if he was told it involved a fatality and he replied absolutely not. He stated, “If she had, I would have inquired of staff if they recalled anything and then bring it to my partners. I would also have checked the video as well.”
Mr. Christofi was asked if he viewed or erased any video footage at Spirale. Mr. Christofi replied that he had not as he does not have the password to get into the video system. He was certain that no one did that.
On cross-examination Mr. Christofi stated that he was a 30 per cent owner, president, and director of the company.
Mr. Christofi stated he was aware that a seven to 14 day suspension on his business would impact the business financially, the extent of the impact depends on when during the year a suspension occurs.
Mr. Christofi stated there were 13 to 14 cameras at Spirale and that they were saved to a hard disc drive. These cameras can provide useful information regarding potential liability.
Mr. Christofi stated he could not recall the date that the AGCO Inspector called him or how long their conversation lasted. Mr. Christofi could not recall the specifics of his conversation with the inspector.
Mr. Christofi stated that he did not recall if the inspector told him the date but she did say that it was a Thomas Cook event. He also did not recall if she discussed an intoxicated person. What he does remember is that the inspector stated there was an infraction and it would be sent to proper authorities and that he would hear back from them.
Mr. Christofi denied Mr. Morris’ suggestion that he was told an intoxicated patron that had left the establishment and been in an accident resulting in a fatality.
Mr. Christofi was asked how he could say absolutely not. He replied, “I recall she did not discuss detail or the accident, it would stick in my mind.”
Mr.Christofi could not recall if he was told of a police investigation.
Mr. Christofi stated that the content of Exhibit 7 (the email from Sgt Taylor-Bolton to staff Sgt O’Halloran) was not read to him. The first time he, and his partners, became aware of the allegation of a drunken person was when he received the Letter of Incident (“LOI”) on June 11, 2010. After its receipt, they met with Mr. Chand and prepared a letter of response.
Mr. Christofi stated that he did tell Mr. Zaikos and others in June of the call from the AGCO inspector. “I told them that I was told there was an incident and it was under review - that I would hear back later.”
Analysis
The Board has carefully reviewed the evidence and the written submissions of counsel, which submissions will not be summarized in any detail.
There is consensus among all the witnesses, and counsel, that the death of Darin Jumaili on December 12, 2009 was tragic.
Mr. Jumaili was apparently smart, talented and well-liked. He got into his car after the Thomas Cook Christmas party at the Spirale Banquet Hall and drove off, shortly thereafter dying in a single vehicle accident. At the time of death, he had a BAC level of 172, far exceeding the legal limit. Whether that level was rising or at plateau is not critical to the determination of the issues before the Board.
PC Van Deursen, the collision reconstruction expert cited speed, poor condition of tires, and lack of a seatbelt (Mr. Jumaili was thrown from the vehicle) as the contributing factors to this accident and death. PC Van Deursen did not address whether alcohol contributed to the accident, because that is not his role.
PC Walizad, who was the first on scene at the accident, did investigate what transpired ahead of the accident – where had Mr. Jumaili come from, whether he consumed alcohol, who if anyone might be responsible for the death. He did, therefore, speak to numerous Thomas Cook employees. He became aware of the fact that there had been a Christmas party at which Mr. Jumaili attended immediately prior to the accident. He did not speak to any staff or owner at the Spirale Banquet Hall nor attend there.
In reviewing the evidence of those employees (all of whom gave their evidence in an honest and forthright manner), several consistent facts emerge: no one could specifically recall seeing Mr. Jumaili before the dinner commenced. At the dinner table, Mr. Jumaili had perhaps one mixed drink and a glass of wine. The bar was closed while dinner was served and through the announcement of prize winners. Throughout that 1½ - 2 hours, no one at the table observed anything unusual in Mr. Jumaili’s behaviour, certainly no overt signs of intoxication were noted.
Mr. Jumaili was observed on the dance floor by Mr. Papazian, Ms Campbell, Ms Cox, Mr. Lambert, Mr. Williams, Mr. Gangadeen and Ms Halloran. It was Ms Halloran who stated, of all the witnesses, that she knew Mr. Jumaili quite well. Several of the witnesses saw him with a drink in hand while dancing. A couple of the witnesses, Ms Campbell and Ms Cox, noted that his style of dance appeared silly – as if he was a bad dancer, or, at best, not their style of dance. Ms Halloran, when asked about his dancing, smiled with her response: it seems his dance style was unique. No one made comment about his balance, or lack thereof, while dancing.
So, on the evidence before the Board, Mr Jumaili was observed to have perhaps three drinks while, as Mr. Morris pointed out in his examination of the witnesses and in submissions, no one was tasked to monitor Mr. Jumaili’s consumption, no one commented that he was seen at the bar numerous times, or at all, after dinner. Two witnesses: Ms Cox and Mr Lambert made observations about him at the end of the evening.
Ms Cox, after being alerted by a fellow employee, approached Mr. Jumaili at the door and asked him where he was going, to which he responded that he was going for a smoke. She told him she did not want him to drive and gave him a taxi chit. Ms Cox concluded he was drunk, because of his inappropriate response of tickling her stomach, the way he danced and because he seemed not to be answering her questions. Clearly something concerned her, and her recall at the hearing fairly detailed yet she did not note or comment upon his speech, his balance or his appearance – the more obvious indicia of intoxication.
Ms Cox’s concern was such that she went to get help – from Mr. Lambert, who, at the hearing was clearly affected by the events of December 11th. Mr. Lambert had socialized with Mr. Jumaili in the past. When he saw Mr. Jumaili earlier in the evening, on the dance floor, he noticed nothing unusual. Later, when he went to speak to Mr. Jumaili at Ms Cox’s behest, in an attempt to prevent his departure in his car, he initially did not draw any conclusion about his state, however, he then noted slurred speech and observed some unsteadiness, though he was responsive in their conversation. In a split second it seemed, Mr. Jumaili broke away running across the parking lot to his car. He ran in a straight line; he did not stumble or fall as he did so.
What the Board has before it, in evidence, is, at best some signs of intoxication observed by Mr. Lambert, and though no clear signs, a sense by Ms Cox that Mr. Jumaili was intoxicated, at the end of the evening, at approximately 12:30 a.m. Up to that point, there is no evidence that Mr. Jumaili exhibited signs of intoxication yet, based on the scientific evidence, Mr. Jumaili was legally impaired and to a point that one would think, surely he had to have exhibited signs of intoxication. However, as stated by Mr. Palmentier, (see Exhibit 3a), impairment may occur in the absence of visible signs of alcohol intoxication, which may be due to tolerance. On the evidence presented, including that of Mr. Palmentier and Mr. Moftah, the Board can only conclude that Mr. Jumaili had developed a level of functional tolerance such that he did not demonstrate visible signs of intoxication.
Against this context, the Board must asses the specific allegations in the NOP. In the particulars provided it states: “On December 11, 2009, a male patron consumed alcohol in the premises. He drove away in his vehicle and was involved in an accident. The male patron died as a result of the accident. His BAC was 172 mg/100ml.” All facts were established. Yet, tragic though the facts are, for responsibility under the LLA and its regulations to flow to the Licensee, the Registrar must establish on the evidence as per subsection 45(1) of the O.Reg that the “licence holder permitted drunkenness…to occur.” It is well settled, with the Court of Appeal decision in Sin City Bar and Eatery that there are two components to this: drunkenness on the premises and permitting that drunkenness. Further, permitting drunkenness on the premises requires proof that the Licensee knew or ought to have known of the drunkenness on the premises, a determination that must be made in all the circumstances and, in particular, in the context of the various obligations and duties placed on the licensee by the relevant legislation and regulations.
Mr. Jumaili was most probably impaired when he left the premises, and there is no evidence as Mr. Morris rightly states, that he consumed liquor when he left the premises, but within the parameters set by the Court of Appeal for consideration, the Board cannot conclude, even if the facts may suggest that Mr. Jumaili may have been drunk, that the licence holder permitted that drunkenness, that is, that the Licensee knew or ought to have known of the drunkenness. There is a paucity of evidence to suggest signs of intoxication were exhibited by Mr. Jumaili during the course of the evening, as noted above.
The Licensee did have managers, servers and bar staff on duty at this corporate Christmas party. It had policies in place to monitor drunkenness, and quite candidly stated that intoxication is not the issue at events in the same way that service to minors can be. Nothing out of the ordinary was noted. True, the bartenders did not know how much Mr. Jumaili was served (and toxicology evidence suggests he consumed a significant amount of alcohol) but neither is there evidence of anyone seeing Mr. Jumaili consume more than three drinks. What the Board has before it is an inexplicable gap in facts between what has been established on the evidence and what has been established Mr. Jumaili had in his system at the time of death. Both counsel, from their respective points of view, have stated that the Board cannot engage in conjecture or speculation. In light of the absence of sufficient evidence on which it can perform the required analysis, the Board must dismiss the allegation of a violation of subsection 45(1) of the O.Reg.
Similarly, with respect to section 29 of the LLA, there is an absence of evidence on the issue of “permit.” There is evidence of three drinks consumed by Mr. Jumaili, but no evidence of intoxication or an appearance of intoxication when he may have been served. The Board cannot infer from his impairment at the time of death that he must have been served alcohol when he was intoxicated or appeared to be so, however much anyone might want to conclude that consequences should flow to someone, other than the victim, when such an incident occurs. Therefore, the Board dismisses the allegation of a violation of section 29 of the LLA.
The Board has reached its determination, in large part due to a lack of relevant evidence before it on the salient issues. Counsel expended significant time during the course of the five day hearing, and in their written submissions, focussed on what evidence was not, and perhaps could, or should have, been available to the Board. Indeed, what might have been in hindsight is always elucidating. PC Walizad, if, in addition to interviewing Thomas Cook employees had received instructions to attend at the Spirale Banquet Hall and interview its employees, might have gained relevant information, including the surveillance tapes. Ms Giorgoudakis, or the AGCO generally, might also have had gathered relevant information, if any investigation had been done between December 22, 2009 and June 11, 2010 when the Letter of Incident was sent to the Licensee.
Much time, and rancour, was spent on how much, or little, was conveyed by the inspector to Mr. Christofi in December 2009 and what actions he or Mr. Zaikos took following that conversation. The Board does not need to, nor will it, comment on the divergence between Ms Giorgoudakis report of her conversation (Exhibit 8) and the detail she provided about the conversation in her evidence. However, she did state that the report would be sent to the Deputy Registrar for review. It was, and six months later, contact was again made with the Licensee. Mr. Morris urged upon the Board that Mr. Christofi and Mr. Zaikos had to have checked the video shortly after the incident, decided they did not like what they saw, and erased it. This is speculation and was denied by the two individuals. There was no evidence to support this assertion in cross-examination and the Board, absent any proof, accepts the denial. Further, Mr. Morris asserts that they did not volunteer the video to police. The Board notes that there was no contact from police, let alone a request made, and there is no allegation of a failure to facilitate, or to obstruct, an inspection/investigation.
To even suggest any adverse reference be drawn would effectively result in a failure to give due regard to the division of responsibility between the responsibilities of Registrar and licensee – raising a danger of placing the burden of adducing evidence on the licensee, when it rests with the Registrar. It is not the Licensee’s obligation to provide evidence that may, as asserted by the Registrar, inculpate; the onus rests with the Registrar to establish, on the balance of probabilities, that a violation occurred.
Conclusion
- For the above reasons, the Board DISMISSES the allegations of violations of section 29 of the LLA and subsection 45(1) of the O.Reg.
DATED AT TORONTO THIS 11th DAY OF July , 2011
PATRICIA MCQUAID, FORMER VICE-CHAIR BRIAN FORD, BOARD MEMBER