Registrar, Alcohol and Gaming Commission of Ontario v. 1695368 Ontario Inc., 2011 CanLII 91230

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-

1695368 Ontario Inc. operating as Bar and Music Studio (Licensee)

Panel: Kirsti Hunt, Vice-Chair; Joan Lougheed, Board Member Decision Date: October 17, 2011 Hearing Location: Toronto, Ontario

Appearances Registrar, Alcohol and Gaming Commission: Phillip Morris, Representative 1695368 Ontario Inc., Licensee: Tak Chan, Representative

Authorities Hague v. Billings, 1989 CanLII 4065 (ON HCJ), [1989] O.J. No. 630 Seventh Wave Bistro (Re), [2005] O.A.G.C.D. No. 285

Allegations

1A hearing into Notice of Proposal number 18109 dated June 1, 2010 to suspend liquor licence number 812149 (“the Licence”) issued to 1695368 Ontario Inc. (the “Licensee”) operating as Bar & Music Studio, 360 Yonge Street, Second Floor, Toronto, Ontario M5B 1S5 on the basis of alleged violations of section 29 and subsection 45(1) of Ontario Regulation 719/90 (the “O. Reg”) made pursuant to the Liquor Licence Act (the “LLA”), was held on May 16, 19 and 26, 2011 in the City of Toronto.

Decision

2The Board FINDS that the Licensee contravened section 29 and subsection 45(1) of the O.Reg. Reasons follow.

Preliminary Matters

3Mr. Chan, representative for the Licensee, indicated that Mr. Kwon, the principal of the corporate licensee, is out of the country but he has authority to proceed in his absence.

4Mr. Morris, representative for the Registrar, stated that the choice to proceed was Mr. Chan’s. He added that there had been two disclosure orders by the Board and since the Licensee has not forwarded any disclosure regarding the issues raised, he presumed that the Licensee was calling no witnesses.

5Mr. Chan replied that he was not calling any witnesses. He added that he had just gotten off the telephone with Mr. Kwon who informed him that he has been able to locate IWS, the former manager of the premises, and would ask him to return to Canada for the third day of the hearing on May 26, 2011.

6Mr. Morris objected to IWS being called because no disclosure regarding him had been made. He noted that the Board issued a disclosure order on August 16, 2010, (Exhibit 1) after a pre-hearing conference. The Licensee should have provided disclosure 10 days before the hearing that was set for December 10, 2010. The Registrar asked for an adjournment which was granted by the Board and the hearing was then set for January 27 and 28, 2011. Next, the Licensee’s representative asked for an adjournment, to which the Registrar consented. The Board granted the adjournment on conditions which included a disclosure order as follows:

As it appears that Mr. Chan has not, as of January 25, complied with the Board’s Rules of Practice regarding disclosure, for the hearing to commence on January 27, 2010, the Licensee, through its representative, is to provide by February 15, 2011 a list of its witnesses and a detailed summary of their evidence and any further disclosure pursuant to Rule 1c.

7Mr. Morris submitted that the Licensee has been in breach of the disclosure order since February 15, 2011.

8Mr. Chan replied that the employees working at the time of the incidents had left the country or could not be reached so he had no disclosure to provide. The owner, who is in Korea on unrelated business, has only now had contact with the manager, IWS. The employees have given statements to the police.

9Mr. Chan asked the Board to make an allowance for the extenuating circumstances and allow IWS to give testimony if he can make it back to Canada. He does not know if IWS has a Visa to come to Canada.

10The Board held down the issue until Mr. Chan could get more information as to whether IWS could be present or not.

11At the end of the day Mr. Chan submitted that he had received a text message from Mr. Kwon stating that he was returning to Canada during the week of June 20th. The last day of the hearing is May 26, 2011, so he asked that the matter be adjourned to June to allow the manager to give evidence.

12Mr. Morris objected to an adjournment. He stated that it could be July if not later when IWS was back in Canada. This incident took place in January 2010 and there has been no attempt by the Licensee to get witness statements since that time. The first disclosure order was not complied with nor was the second. Licensee’s counsel hopes to get the witness back and get a statement from him thus delaying the matter further.

13Mr. Chan submitted that the NOP was not issued until June 1, 2010 and the Licensee could not get a statement from his ex-employees because they were no longer working for him during the summer of 2010. All the Licensee could do was try to track them down. JL was pregnant and she disappeared. He knows she is still in Canada but does not know where she is though they phoned her and left messages. IWS ceased to be an employee in early May of 2010. The target date to try to get IWS back is June 20, 2011 but his travel arrangements may not make this possible.

14Mr. Morris submitted that based on a Letter of Incident dated April 16, 2010 (Exhibit 4), Mr. Kwon would have known that the Registrar was looking into the alleged violations at that time. His witnesses should have been interviewed after the Letter of Incident if a bona fide attempt had been made by Mr. Kwon to find out what happened.

15Mr. Chan submitted that he would also like to call Mr. Kwon as a witness after he returns from Korea.

16Mr. Morris submitted that this is the first time he has heard of Mr. Kwon giving evidence. He objected to Mr. Kwon now giving evidence because no disclosure had been made regarding him despite two disclosure orders by the Board for which no response was received.

Decision regarding witnesses

17The Board stated that it will disallow the appearance of the witnesses in question. This matter has been outstanding for some time. The possible witnesses, IWS or JL, could have given statements while they were still employed by Mr. Kwon and at which time Mr. Kwon knew about the alleged infractions through the Letter of Incident. Mr. Kwon’s name was not disclosed as a witness, nor was his witness statement, despite two disclosure orders by the Board. It is inappropriate now that the hearing is under way to bring his name forward or that of the other possible witnesses. Also, to adjourn the matter is not appropriate based on the possibility that IWS can come to Canada. There is no assurance that he can be present by the last day of the hearing or some later date

18Therefore the Board denied the request for the adjournment and ruled that it would proceed with the hearing.

Registrar’s Evidence

19Constable (“Cst.”) Tracey Hutching, who is with the Toronto Police Service (“TPS”), testified that on January 9, 2010 Det. Harmsen advised her that there had been an assault at Bar and Music on January 8, 2010. He asked her to take photographs of the injuries of the two victims who were at 52 Division. A composite picture of the photos was made Exhibit 3.

20The first victim is Dimitru Ungureanu. Less than 24 hours after the incident, his right eye was red, purple and swollen. He had 50 stitches on his face, from the right side of his nostril to his chin. He also had stitches above his right eye and multiple scratches on his face and head. He had a 1 ½ inch cut on his left shoulder and a cut on his left thumb. There were red marks on the back of his neck which looked like a burn from a necklace. Pictures 0006 and 0015 show him in right and left profile.

21She next photographed Dimitru’s brother, Mihai Ungureanu. (Henceforth the Board will use each brother’s first name instead of the surname to distinguish one from the other). The white of his left eye was bloodshot. He had multiple small scrapes on the left side of his face and a bruise behind his left ear. His right lower back had redness like a rug burn mark. He had a red mark on his neck which looked like a chain had been pulled during a struggle.

22Cst. David Keefer, from the TPS, became involved through a radio call that came in at around 3:40 a.m. on January 8, 2010, asking officers to respond to an assault that had taken place at 360 Yonge Street. A 911 call had been received minutes before that. He and his partner Cst. Simmons arrived one to two minutes after receiving the call.

23The Bar and Music is in a row building on the west side of Yonge Street south of Gerrard Street between Elm Street and Walton Street. The establishment is accessed from street level by 10 to 12 steep narrow stairs. Once inside, there is a seating area with a chesterfield straight ahead and a service bar to the right. To the left of the door is a hallway with two to three karaoke rooms off it. He did not know where the hallway leads. The incident occurred in the seating area where the glass table and a vase had been destroyed. The service bar is 10 to 12 feet from the chesterfield and there is an unobstructed view from it to the chesterfield. It is not a large premises.

24When they arrived the scene was chaotic with EMS and Toronto Fire present, treating the victim, Dimitru Ungureanu. There was a large amount of blood on the floor of the seating area and on the chesterfield. The area was in disarray with the glass table in two to three pieces on the floor with large amounts of blood on them. After the victim was stabilized and transported to hospital, the officers tried to find out what had happened.

25Cst. Keefer spoke to a female, Allison Cormier, and his partner spoke to the victim’s brother. Ms Cormier stated that she had been drinking with the victim and his brother Mihai, who was her boyfriend. She had not seen how the assault started. She and Mihai had gone downstairs to have a cigarette on Yonge Street. As they were going back upstairs, they heard a series of noises and yelling. When they got upstairs, she saw Dimitru lying on the floor being kicked and punched by a group of unidentified males. Mihai tried to go to his assistance but was stopped by two to three males who pushed him away. Ms Cormier described a large amount of blood and a broken glass table. She could see facial trauma with a large cut on Dimitru’s cheek. She yelled out that she was calling 911 and the males said to go ahead. She called 911. The males then quickly left going downstairs with Mihai in pursuit. The suspects got into a light coloured Hyundai and left.

26Cst. Keefer tried to speak with someone working in the bar but there didn’t appear to be anyone around. It seemed everyone left so as not be involved or give information. There was a gentleman behind the bar and Cst. Keefer tried to find out his role in the establishment but the male did not speak English. The only information he got was that the altercation took place over a cigarette. His supervisor Sgt. Madill was able to speak to a male at the bar who was not the same person to whom he spoke.

27On cross-examination, the officer said that Ms Cormier was the only one who called 911 as far as he knew. Ms Cormier said that three or four of the assailants left through the front door. She was very upset. She did not provide timelines for how long they had been at the bar. The call for assistance came in at 3:40 a.m. and around 4 a.m. he was searching for someone who worked in the premises. He tried to speak to someone but communication was an issue.

28Cst. Gary Simmons, the partner of Cst. Keefer, confirmed the information about the time of the call they received, and the scene on their arrival. He added that the male being attended to was covered in blood. There was blood on the walls, furniture and a large pool of blood on the floor. In the waiting area, there was blood on the couch and the broken coffee table. From the blood he concluded that the assault had occurred in that area which was about 10 feet from the service bar; there was an unobstructed view between the two.

29Cst. Simmons tried to speak to the victim but was unable to do so because of the nature of his injuries. He spoke to the brother of the victim. His partner spoke to the brother’s girlfriend. The information he got from Mihai was that he and his girlfriend had gone outside for a cigarette. On returning, he saw a group of Asian males kicking and beating his brother who was on the floor. Mihai tried to intervene but was outnumbered. Allison said that she was going to call the police and one of the assailants told her to go ahead and the males continued to “put the boots” to his brother. When Allison said she would call the police, one of the assailants picked up a decorative vase and smashed it over Dimitru’s head. A few seconds after that, the group separated into two parties. One exited out the back and the other ran down the front stairs. Mihai gave chase and saw them get into a white Hyundai and speed off. Neither Mihai nor Allison could offer an explanation as to what started the fight.

30There was video surveillance on site but police were informed that only the owner, Jason Kwon, had access to it. Cst. Simmons located two bar staff. The male was identified as the manager, IWS, and the female was the bartender, JL. They sort of appeared and were standing behind the bar. They telephoned the owner and the officer was told that the owner would secure the video for police the next day.

31When staff was asked what precipitated the assault, the bartender said that it was because of the victim’s persistent requests for a cigarette. The officer’s conversation with them was not lengthy most likely because they were having difficulty with English. They did not have a lot to say. They indicated that the victim and his brother were drinking a fair amount, to the point of intoxication. Cst. Simmons could not make observations about the victim’s level of intoxication because he was unconscious as a result of his injuries. He spoke to Mihai who showed several signs of intoxication. He was slurring his words and repeating himself. He was unsteady on his feet. The officer and his partner went to the hospital to speak with the victim but were unable to do so because of his injuries.

32On cross-examination, Cst. Simmons stated that he attributed the signs of intoxication shown by Mihai to alcohol and not as a result of “being roughed up.”

33The manager and bartender appeared and were in the area of the service bar. He had no idea of the number of 911 calls that were made or if any staff called 911.

34In securing the scene, they checked the karaoke rooms and no one was in them. He did not see anyone behind the bar.

35Allison Cormier testified that she is the girlfriend of Mihai Ungureanu and Dimitru is his younger brother. On January 8, 2010 they went to Bar & Music around 12:30 to 1 a.m. She was with Mihai earlier. She had had no alcohol prior, nor did Mihai, he was sober. Dimitru telephoned them and they agreed to meet him downtown somewhere in the Dundas Square area. Dimitru did not seem intoxicated when they met him.

36They went upstairs to the lounge part, went to the service bar and she ordered drinks from the female bartender. Mihai and Dimitru were drinking beer and she had one vodka and cranberry. Then they sat in the area where there were a couple of couches and a coffee table. She could see the service bar which was five to 10 feet away. She saw some other patrons going in and out of the washrooms which are left of the entrance. She could hear singing in the karaoke rooms. There was no one else at the couches besides them. There was a male and female working.

37Near the end of the evening, Dimitru and Mihai ordered six beers which came in a six pack. They made the order about a half hour to forty five minutes after the first drinks which they got around 1 a.m. She thought it was a little after 2 a.m. because the end of the evening wasn’t until close to 4 a.m.

38She and Mihai smoke but Dimitru did not at the time. The first time she went downstairs for a smoke, Dimitru and Mihai came downstairs too. Mihai went up first and although Dimitru didn’t smoke, he kept her company until she went upstairs. That was before they ordered the six beers.

39After they got the six pack, they put it on the coffee table and then consumed it. It was after 3 a.m. and Dimitru had consumed 1 ½ beers. She and Mihai went down for another cigarette while they waited for Dimitru to drink his beers. Mihai had finished his beers.

40Before going out, she noticed the male and female bartender going back and forth clearing up. There had been no contact between Dimitru and any other patrons.

41They were downstairs on Yonge Street outside the front entrance for six to seven minutes. Mihai had propped the door open and they heard rustling and shouting coming from inside. She could hear Dimitru’s voice but could not identify the others. Dimitru was asking them to “please stop.” Mihai went up and she followed. She could hear Mihai asking them to stop and Dimitru saying the same thing. On entering she saw male patrons jumping around. Mihai and Dimitru were on the floor to the right hand side about two to four feet from the service bar with between seven and eight men kicking and punching them. Dimitru was crouching on the ground trying to protect himself from roughly four Asian males in their mid to late twenties. He was kicked in the head and back and punched in the back of the head. That took about a minute and a half to two minutes though it felt like a long time. The same thing was happening to Mihai. There were four males on Dimitru and three on Mihai but they were back and forth punching and kicking the two. The staff was behind the bar and they did nothing to help. At that point Dimitru was quieter and Mihai was saying, “We surrender, want to stop and go on our way.” The males didn’t want to stop and hit him. Ms Cormier tried to communicate with the assailants but they ignored her. One of the males grabbed Dimitru in a choke hold with his forearm around his neck and swung him around toward the couches, lifted him up and smashed his legs on the glass coffee table which broke. The attacker ended on the couch with Dimitru on his lap. Dimitru was struggling. His face was busted up and swelling, beet red and turning blue. She was concerned that he was running out of air. While still in the choke hold, the males were punching him in the face and stomach.

42She had had her back to Mihai so she did not see what had happened to him. Her concern was Dimitru who was turning blue. Mihai had been trying to talk to the attackers. He was able to get away from his attackers and she saw him running toward the northern hallway. Some of the males went down the hall with Mihai. Four others were still attacking Dimitru.

43One of the males picked up a tall wooden vase from beside the couch and smashed it on Dimitru’s face so hard that the vase broke. The whole of Dimitru’s face was bloody as were his clothes. There was blood everywhere. The male holding Dimitru stood up and pushed Dimitru off him. Dimitru lay on the ground. He was still conscious. The attackers fled through the front entrance and down the stairs. The bartenders were behind the bar and she asked them to call 911. They did not do anything. She did not see them pick up a phone.

44Then she went down the hall to see if she could find Mihai. She was in a state of shock, scared and very upset. She was afraid that the males would do the same to Mihai that they had done to Dimitru. He was not in the karaoke rooms. She went out of the exit at the end of the hall saw blood on the stairs. She followed the footsteps in the snow to the side street, then to Yonge Street and then toward the bar but did not see Mihai. She returned to the bar through the front entrance.

45Inside Dimitru was leaning against the wall between the couches. She asked him if he had seen Mihai and he said that he hadn’t. He seemed very lifeless and he sat on the couch to wait for the ambulance. She asked the bartender when the ambulance was coming and she said that she didn’t know. She grabbed Dimitru’s cell phone and called 911. The bar staff said nothing. She asked them for a towel because Dimitru was gushing blood from his face and she had blood on her hands and clothes. The female bartender gave her a bar towel. She put the towel on Dimitru’s mouth where the blood was gushing out.

46Mihai had been gone three to four minutes before he came through the front door. He had some injuries but was stable and coherent. She told him to sit and he sat beside his brother on the couch. He was upset about his brother’s condition. The ambulance came in about three to four minutes after the 911 call. She stayed on the phone with them just in case something happened. The staff did nothing to help beside give her the towel.

47The paramedics arrived and took over. Dimitru was conscious but was not able to respond to anyone. He was in and out of it. The paramedics looked at Mihai but he felt that he did not need medical care. Dimitru was taken to hospital by ambulance. The police questioned her, Mihai and the bartenders about what happened. She believed the episode took between 15 to 20 minutes.

48She remembered seeing bottles and glasses in the karaoke room. She did not see any staff member call 911. Every time she looked at them they were behind the bar, at the very south end where the cash register is.

49A week or so after the incident, she did a video taped interview for the police.

50On cross-examination, Ms Cormier agreed that someone else could have called 911 but she asked the police afterwards and they said there was only one call. When the police officer interviewed the bar staff, she was beside them and they said that they had not called 911.

51She had no language or communication problem with the female bartender. They did not have a long conversation but she understood what they wanted when they ordered, she brought a towel when she asked for one and said she did not know when the ambulance was coming when she asked.

52She had contact with only the manager and bartender. They did not venture out from behind the bar during the fight. There were seven to nine people involved in the attack.

53They decided to go to the Bar and Music because she had not been there before and she wanted to check it out. None of them had had a conflict with any of the assailants before.

54They ordered the 6-pack about 45 minutes after getting the first round. That was around 2 a.m. give or take five minutes. When they went for their last smoke, Dimitru was finishing his beers. He still had 1 to 1½ beers left. There was no one else in the seating area.

55In reply, Ms Cormier stated that she saw two or three people go down the hall after Mihai. She thought he was running away from them.

56Sgt. Neil Madill of the TPS testified that on January 8, 2010 he got a radio call about a possible stabbing or assault at 4:40 a.m. at 360 Yonge Street and arrived moments later. Csts. Keefer and Simmons arrived shortly after him. On arrival in the premises, in the lounge area, he observed a white male bleeding from the head. There was a large puddle of blood on the floor and a large broken vase to the side. A female patron was present.

57He spoke with JL as well as IWS who was behind the bar. He also spoke to an Asian male who arrived a little later and identified himself as Jason Kwon, the owner of the bar. His main inquiry was suspect information and what had transpired. The response of the employees was that they did not really see anything. All they could describe were “fist flying.” The area with the broken table, vase and blood was about three to four feet from where JL was.

58On cross-examination, Sgt. Magill stated that he did not know if Mr. Kwon had been present during the incident. The other officers made arrangements with Mr. Kwon to secure the video tape from the premises. The employees could not give a description of the assailants.

59On questions from the Board, Sgt. Magill stated that he was not involved with the victim who was almost unconscious. It took the other officers several minutes to calm down the female patron before they could speak with her.

60Cst. Todd Higo of the TPS testified that at the time he was in the Major Crime, Vice Section. On February 6, 2010, he went to the premises with Det. Harmsen, Det. McCormick and Det. Hunt. It was 2:55 a.m. and the establishment was open. There was no one in the lounge area. Along the u-shaped hall to the left were karaoke rooms. In a room along the left hall, there was loud music and he observed at least 40 people crammed inside. A staff member was walking out of the room with a bin full of empty bottles. He observed Heineken and Corona bottles. The patrons were standing and drinking from Heineken and Corona bottles and glasses that appeared to contain mixed drinks. It was 3 a.m. by this point. They told staff that they needed to remove the signs of service and the rest of the bottles were removed by staff.

61On cross-examination, Cst. Higo stated that he did not smell or test the liquid in the glasses in the karaoke room. He agreed that the establishment would likely have an array of alcoholic and non alcoholic beverages.

62The lighting was pretty good. He could see several Heineken or Corona bottles. He did not see bottles with Janse’s Soda written on them. He saw the Heineken and Corona bottles on tables as well. The bin carried by the employee was full of bottles. Two or three other rooms were occupied but he saw no signs of service in them.

63Det. Christopher Hunt testified that his involvement began on January 9, 2010 when he was told that the victim in this matter and two witnesses were at 52 Division. He spoke with the victim, Dimitru Ungureanu, but he did not give a statement at that time because his injuries were such that he had difficulty communicating. Before attending, Dimitru had received medical attention. Dimitru had a small cut and bruising on the right side of his face, a cut over the right eye, and a large cut on the right side of the face running from the cheek to the chin that had several stitches. There were cuts, bruising and swelling on the side of his mouth and stitches. There were cuts, scrapes and bruising to the bridge of his nose. He had bruising and swelling to his right eye and redness to the cornea of the eye. There were cuts and bruising to his left shoulder and left thumb and scratches to the right side of his neck.

64On January 10, 2010 he spoke to the manager, IWS, who uses the English name Jacob, on the premises. IWS provided a statement (Exhibit 7) indicating that he was working on January 8, 2010. The incident happened around 3:20 to 3:30 a.m. when a fight erupted between unknown parties. Everything happened quickly.

65Based on the statement, the officer believed there were two fights. IWS said that when the brothers came in they were arguing. The one who went to the hospital (“victim”) got up and sat at the stools and was yelling at his brother and the brother’s friend. At that time a group of Korean people were leaving and he was yelling at them. Then the fight broke out. IWS told the brothers to finish their beers and leave. IWS did not see them leave but was told that they left.

66The victim was in the washroom and IWS saw him follow one of the males from the group who later beat him up. IWS thought something might happen so he approached them and heard a Korean male say something like, “I gave you a cigarette, why are you not leaving?” He did not hear the answer. The Korean male pushed the victim and a friend next to him also punched him. The fellow who first punched him, picked up a karaoke machine but IWS stopped him. Then they all went back to their rooms. The victim was bleeding. IWS tried to ask him if he was okay but the victim said, “Don’t touch me” and left.

67The group that first punched the victim came out to pay their bill. While they were trying to pay the brothers came up the stairs. He was not sure which brother came in first, but the group tried to pull the brothers in from the door. That is when the fight started. One of the brothers got taken to the floor near the Christmas tree by three attackers. One of the Asian males grabbed his stool and tried to hit the white male but IWS grabbed the stool. One of the Asian males threw the white male at the sofa and he fell on the glass table which broke.

68IWS was then in the big room and when he got back the victim got up. He was bleeding from his face so IWS grabbed a towel and told him to sit down. He would not listen and was walking around looking for his brother. IWS thought that eventually the girlfriend got him to sit down. That is when she called 911 and then the police came.

69IWS stated that he had seen the group at the bar two weeks before. He had seen them on a couple of separate occasions. On this night, they came in around 11 p.m. First there were four males and maybe one girl and then others joined them. At the end of the evening there were seven to eight males and three to four girls. That night they did not reserve a room or pay for it. They were in room 1. They had been drinking. IWS did not know any of them personally. They were all Chinese.

70When asked why he did not call police, IWS said that he didn’t know. When asked why he walked away from the fight while it was still going on, IWS said that he wanted to make sure that there were no bottles left in the room.

71IWS thought the males left by the front door. He thought the brother went out the back door. When he came back and saw his brother’s face he started to cry. He then came over and asked IWS if he knew the Asian males.

72Det. Hunt asked IWS if there were any cameras on the premises and was told that there were three, one on the stairwell, one near the cash and one at the rear. He requested that the video be made available to the police. Due to technical difficulties, they were only able to get video from the camera at the cash and back door. From the stairwell they got only a short portion which was later lost. None of the fighting was caught on camera. From the camera in the cash register area you can see some arms but not the fight.

73The CD with footage from the cash camera was made Exhibit #5. Det. Hunt reviewed the video and pointed out IWS who was wearing a plaid shirt, JL with a long ponytail, a male with a baseball cap and a hoodie and a girl with a white hat and glasses who were all seen behind the bar. Only IWS and JL were identified and they were behind the bar, moved off screen and returned behind the bar. At 3:25, there is a group on screen who appear to be trying to pay at the cash resister. Next IWS looks to his right and quickly moves in that direction with another male. At 3:27, IWS re-appears behind the bar and at 3:28 he looks at the monitor. He looks toward the lobby while a male is looking at the monitor. IWS moves forward pushing the male in front of him. Moments thereafter, IWS and JL move behind the bar. At 3:29 IWS goes to the back of the bar, grabs a bucket and disappears. He returns with the bucket which has something in it. JL is also back behind the bar and appears to be putting something on the bar. At 3:38 IWS takes a towel from behind the bar and leaves and JL also leaves.

74On January 27, 2010, Det. Hunt went to the premises and got a statement from JL (Exhibit 6). She said that the first thing she saw when she looked up was that the males got the victim into the room and knocked him down. They let him up and told him to get lost. They (staff) told him to leave. He then got mad at the manager for being asked to leave. Later the other males were coming out of the room to pay and the brothers were coming up the stairs. She guessed they wanted to start again because they came back up the stairs and they went at it. When the one male came back up the stairs, there were a few males on him. They ganged up on him right around the lobby area. JL went to another room and when she came back the table was smashed and the vase was broken. The male was bleeding from the face. JL indicated that she did not see most of the fight. The suspects left and that was it. The male who got beaten up was walking around looking for his brother. The brother and the girl with them had left.

75The girl had a couple of cocktails and the males had a few beers, three each or it could have been five. The brothers were angry with each other all night. They were vulgar. They seemed to be keeping to themselves. Earlier the victim started with a bunch of Koreans. They (staff) stopped that one. She thought that what had happened was that the brothers were swearing at each other and the Asians thought they were swearing at them. Staff settled that one and the Asians left. The brothers went back to talking amongst themselves.

76JL did not know the suspects but wanted to find out who they were because they didn’t pay their bill. There were about five males and a couple of girls. She thought she had seen them once before. They were Asian in their mid twenties.

77When asked whether she thought of calling the police, JL said that she was trying not to get hit. After the Asians left, they asked the girl to call an ambulance.

78During the fight she left to go to the other rooms to tell people to stay in the rooms. She took one hall and IWS took the other. That was the first fight she had seen in the premises.

79Det. Hunt spoke to Jason Kwon who advised him that the suspects didn’t pay their bill. They owed $615 plus the damages. The suspects have not been back since.

80On February 6, 2010, Det. Hunt arrived at the premises at 2:52 a.m. with Det. Harmsen, Det. Higo and Det. McCormick to do a liquor licence inspection. They inspected the individual karaoke rooms. There were about 40 patrons inside room 2 and it was fairly crowded. The music was playing and the patrons were standing and sitting in the room. He observed several patrons holding Heineken and Corona bottles and consuming from them. There were also Heineken and Corona bottles on a table as well as an open bottle of wine and some mixed drinks with vodka and rum. He picked up the glasses and smelled them. He also saw Heineken and Corona bottles in the garbage inside the room. He had been in the room for about two minutes when he saw a staff member picking up bottles and cleaning up.

81At 3:05 a.m. he spoke to IWS about this incident and the one on January 8, 2010. He issued two summonses and served them on IWS. IWS did not say anything about the beer bottles being a non-alcoholic beer or it being Korean.

82On cross-examination, Det. Hunt explained that one summons was for fail to remove signs of service and the other was that the licence holder permitted disorderly conduct.

83The lighting in room 2 on February 6th was bright and it seemed that they were wrapping up in the room but the music was still playing. The lighting in the other rooms were dim. He picked up and smelled some of the drinks and no one was concerned about that.

84Regarding January 8th, Det. Hunt stated that from speaking to IWS and JL, his impression was that only they were working that night. The girl with the white hat and glasses and the male with the blue baseball cap on the video, were not identified. It appeared that they were working there because they walked behind the bar, but that has not been confirmed. Mr. Kwon did not say anything about other people working there that night.

85Det. Hunt did not know if the video was certified but indicated that it came from Mr. Kwon. He did not know what certifying a video would mean. The time on the video is consistent with when the altercation took place and the radio call received at 3:41 a.m. To his knowledge police did not receive a call indicating that the time was not correct. He did not have anything in his notes indicating that Mr. Kwon said that the time on the video was wrong.

86He did not know if the video was cropped. It came from Mr. Kwon. Besides the video shown to the Board, there was also a video with some images of individuals in the staircase and some images from the camera at the rear of the premises. There were no images of the fight because of the way that the cameras are set up.

87The officer could not confirm that JL called 911 after the first part of the altercation.

88He did not know what was in the bin that IWS brought back to the bar counter. During his interview when asked why he walked away from the fight, IWS said that he wanted to make sure there were no bottles in the room. During the interview IWS seemed fairly calm until the point when asked why he did not call police and why he left the room. Then he seemed a little more reluctant but did provide an explanation. The officer did not think IWS had any issues with the ability to communicate in English.

89In reply, Det. Hunt stated that during her interview, JL did not ask for an interpreter. He spoke to her several times while trying to set up the interview and she seemed to speak English quite well. Because of that he did not think it was necessary to inform her of the right to have an interpreter present.

90The officer was able to identify IWS and JL on the video because he believed IWS told him.

91Mihai Ungureanu testified that he is 28 years old. His brother is Dimitru and Allison Cormier is his girlfriend. On January 8, 2010, he and Allison were together and called his brother around 10 or 11 p.m. because they decided to go out to some bar and enjoy themselves. He had had some wine earlier but he was sober when he called his brother. They decided to meet downtown somewhere on Yonge Street. When they met Dimitru, he did not look drunk. Dimitru said he had had two beers or something like that. They stayed where they met for a bit deciding where to go. Finally, they decided to go to Bar and Music Studio. He had been there before and used to go there all the time. It is a nice place to go and have a meal. At the time he had not been there for about six months.

92On their arrival at 1 a.m., they walked up to the service bar. A male and a female were behind the bar. Allison ordered a Corona each for him and his brother from the female who served them. They went to sit down where there was a couch and table which is about 4 feet from the service bar. They were sitting and talking and it took about 15 minutes to finish their drinks. They were having a nice conversation. He was not fighting with his brother.

93They did have more alcohol. Because it was late, almost 2 a.m., staff tried to serve them more beer. They ordered two beers each for him and his brother. That night they had 6 beers. Allison did not order another drink. They started to drink their beers while talking. There were a lot of people going back and forth for the karaoke. He did not have a conversation with them but just said hi.

94He and Allison decided to go outside for a second smoke. Dimitru stayed upstairs because he was not finished his beers. The first time when they had gone for a smoke, Dimitru came with them. He is a smoker but had stopped. Sometimes he did have one puff. Neither he nor his brother had an argument with any other patrons to this point. He and Allison went downstairs for a second cigarette and were there for about 5 to 8 minutes. They had propped open the door and he heard Dimitru call his name and scream. He ran upstairs to see what was going on. At the top of the stairs, he saw two males grabbing Dimitru who was trying to get out the door. He tried to grab Dimitru but was unable to because a male grabbed him. Two males then pulled him inside. Others brought Dimitru in too. There were six males and there were some females too. They were Korean between 24 and 28 years old.

95They kept punching his brother and he asked why they were fighting them. A couple of people jumped him and he ended on the ground. He saw a couple of people jump Dimitru. He didn’t know what they did to his brother. He only knows what they did to him. He could feel punches from everywhere to his head and ribs. He was screaming because it was painful. Five of six males were punching and kicking him. He managed to get up and a male got on his back and choked him. He kept asking them to stop and telling them that he was done. He looked at Dimitru and his face was a red blue mix, like a dead face. He asked them to leave his brother alone but they kept swearing, kicking and punching him. He put his hand out and asked that they not kill his brother. The male holding Dimitru let him go and pushed him on the couch and punched and kicked him.

96Then a male took a strong heavy vase, swore at his brother and smashed it on his face. There was blood everywhere. He saw two males running toward the back hall so he followed to Yonge Street. He had chased two outside and two or three of them followed him. He tried to talk to them, asking them who they were and trying to distract them in a hope of seeing police on the street. They tried to fight him and one male kicked him on the back. Another male urged them to go because the police were going to come. He followed them and they got into a white car. He looked for police and then went back to see his brother. When he got upstairs the police were there. His brother was on the couch and there was blood everywhere. His brother smiled and said, “Okay,” but there was blood coming from his face.

97The employees were just standing behind the bar. His girlfriend said she called the police. He was asking why the police were too late and they came just after the fight although there are police all over the downtown area. Allison said that she had asked the people who served them to call police but they did not call. Allison told him that they seemed reluctant to call the police. The fight took 10 to 15 minutes. He did not know at what point she called police.

98On cross-examination, Mihai stated that he only saw one male and one female employee. He did not know if there were others in the back. Allison told him that the two employees did not want to call the cops but he didn’t know if anyone else called them.

99When he was down, one of the females also kicked him. He only saw males attacking his brother.

100He did not see a female patron get upset with his brother. When he and Allison went outside, they left Dimitru sitting on the couch. There was no argument between him and his brother. There was no drug use because he never uses drugs nor does his brother. He has never been arrested for trafficking or selling drugs or for drinking offenses.

101In reply, Mihai stated that he has never been in court regarding drugs. He was in court because he called his ex-girlfriend too many times and he got 18 months probation. That had nothing to do with the Bar and Music Studio.

102On being questioned by the Board, Mihai said that during the fight Allison was inside. She was asking the males not to fight. They did not touch her. She is still his girlfriend. Allison had a vodka and cranberry drink in the bar.

103Dimitru Ungureanu testified that on January 8, 2011, he met his brother Mihai and his girlfriend downtown at Dundas Square. Before that he had been at home and had a couple of beers. He was not drunk but felt buzzed. When they met they had some coffee and talked about where they were going to go. They decided to go to the karaoke bar. He had not been there before nor had Allison. They got there around 1 a.m. They went to the service bar and there was a female and a male working there. They ordered a Corona for all of them but he didn’t know who served them because Allison paid. When they got their drinks, they went to sit at the couch which faces the service bar. There was no one else in that lounge area.

104About a half hour later, they went downstairs for a cigarette. He is not really a smoker but had one or two puffs just for fun. They were downstairs for about 5 to 10 minutes. He had no problems with any other patrons before going outside. His relationship with his brother was good. He was not fighting with him.

105He finished his first drink and then they ordered more about a half hour after the first ones. The order came as a deal with six beers. All three of them were drinking beer. His brother and Allison went down for another cigarette. He was still drinking. They were gone for 5 to 10 minutes. Between the first and second time they went for a cigarette there were only the bartenders present. In that time he did not have a verbal argument or fight with his brother or anyone else. He was just feeling good and enjoying himself.

106When Mihai and Allison went down for the second cigarette, he was on the couch drinking his beer. Then a group of around 10 people came out from somewhere in the back because he did not see them come in from the front door. They were Korean or Chinese looking. They showed up at the table and one or two of them started to ask personal questions and asking who he was and why he was at this bar at this time and who he was with. From the way they were walking and looking at him, he thought something was going to happen. He was not comfortable answering their questions so he stood up. He did not say anything to them. When he stood up, they started hitting him with their fists and legs on his face and different parts of his back. He was trying to defend himself. He tried to cover his head but that didn’t help so he called his brother. It took about one to two minutes from the start of talking to hitting. They were speaking English. He was about 10 to 15 feet from the service bar. The employees were behind the bar. He did not know what they were doing because he was concentrating on himself.

107At one point, he ended up on the ground where he stayed and tried to cover himself. They were still hitting and kicking him. Then he felt a big stab on his face and after that he can’t remember anything until he woke up in the hospital. The next day he had pain all over his body and a big cut on his face. When he saw his face in the mirror he was scared. His face and half of his head was swollen big. The Board noted that the witness had a scar on the right side of his face running from his chin toward his eye.

108Dimitru agreed that he had been convicted of a criminal offense in 2007. He pled guilty to assault. He was charged in December 2010 with break and enter and that is yet to go to trial. He has no other criminal record and no record of anything that happened in a bar.

109On cross-examination, Dimitru stated that before going out he had three or four beers at home over a three hour period. He finished drinking around 11 p.m. He went out between 11 p.m. and 12 a.m. It took him about 15 minutes to get downtown. He walked around for an hour or so before going to the bar.

110At the bar they ordered right away. They had some kind of special for six beers and he thought they bought that. He thought they ordered six beers for the three of them. Personally he drank one and a half beers at the bar. From 8 p.m. onward, he drank eight or nine beers. When asked about his alcohol consumption, Dimitru stated that he never drinks until he loses control. He keeps to his limits.

111Dimitru explained “buzzed” as being on the way to getting drunk. He remembers what he was doing and everything that happened until the incident. Before the incident, he did not communicate or chat with any of the other patrons. He could not remember having an argument with his brother. They were talking not arguing. When asked if the music was loud enough so that they were talking loudly enough that people might think that they were arguing, Dimitru replied that he did not know and they were not speaking English but were speaking their own language. He did not try to have a discussion with an Asian female.

112When asked again about how much he had to drink, Dimitru stated that he had 1 ½ beers in the bar. They only ordered the six pack of beer. They talked for around a half hour or so but he wasn’t sure of the time. He consumed one beer before 1:30 a.m. or so. He and his brother went downstairs. He was drinking his second beer when the incident happened. He did not know what time that happened. He did not look at the time to know what time things happened.

113The group did not come through the front door because if they had he would have seen them. They had to have come from the back part. He only saw the two people working there that night. The last thing he remembered was a sharp pain on his face.

114During the fight no one tried to stop it. He could not see anything because he was on the ground trying to cover his head. Mihai was outside but he came in so he probably called his name for help. He did not see the attack on his brother.

115He pled guilty to assault in 2007. The fight was between five people and his friend. He had to assault one of the others to take his friend away. He could not just watch it. He agreed that alcohol was involved. Before he got involved he had been drinking but could not now remember how much.

116In re-examination, Dimitru stated that he has never been convicted of public intoxication. No one tried to stop the fight on January 8, 2010.

117On being questioned by the Board, Dimitru stated that he had started to drink at home around 9 or 9:30 p.m. Downtown, they had take-out coffees but nothing to eat. He did not speak to anybody at the bar except his brother and Allison. He did not call staff for help.

118Det. Peter Harmsen testified that on January 9, 2010 he was present for the video statement of Allison Cormier. She and the Ungureanu brothers came to 52 Division at 5:30 p.m. that day. He observed that Dimitru had multiple injuries visible on his face. He asked Cst. Hutchings to take photos.

119He searched the police computer system for 911 calls regarding 360 Yonge Street for the early morning hours of January 8, 2010. There were three calls from Allison Cormier at 3:33:29 at 3:34:31 and at 3:37:07 (Exhibit 8).

120On February 6, 2010 Det. Harmsen was involved in a liquor licence inspection at the premises. He arrived at 2:52 a.m. at the front door and entered at 2:55 a.m. There were a couple of people behind the bar and a couple of people walking around in the lobby area. He inspected some karaoke rooms on the south hallway. No one was in them and there were no signs of service.

121Room 2 was occupied by about 40 to 45 people. Some people were still drinking mixed drinks from glass containers and plastic cups. He smelled some of them and they smelled of alcohol. The people who were drinking had the smell of alcohol on their breath. Some patrons were also drinking beer. He knew it was alcoholic beer because they were bottles of Corona, they smelled like beer and the people consuming had a smell of alcohol on their breath. He had direct contact with five or six people who were drinking but he did not talk to all of them. There were quite a few empties of Corona and Heineken on a table.

122While he was in the room a male walked in with a plastic container and picked up beer bottles and mixed drink containers. It was around 3 a.m. and one patron became verbally aggressive when police told the group that they were not allowed to drink any more. Just after 3 a.m., he spoke to the person clearing drinks from the room and identified himself as a police officer. The employee verbally identified himself as DKY and produced his Smart Serve certificate. He also spoke to the bartender JL as well as the manager IWS. The officer advised him that he would be laying charges because there were signs of service present after 2:45 a.m. There was no discussion about the beers being non-alcoholic beverages.

123On cross-examination, Det. Harmsen explained that if information given during a 911 call is incorrect, the dispatcher will keep asking questions until police know where to go.

124In reply, Det. Harmsen stated that even if there had been 20 calls, the dispatcher once alerted to this incident would have brought those calls to the same incident.

Licensee’s Evidence

125The Licensee called no witnesses.

Registrar’s Submissions

126Registrar’s counsel submitted that the licensee has a statutory obligation to not permit riotous, quarrelsome, violent or disorderly conduct to occur on the premises. At a minimum, this duty required them to call the police once they realized a violent assault was occurring on the premises. Credible and detailed evidence shows that they failed to do so, thereby permitting such conduct and breaching subsection 45(1) on the O. Reg. on January 8, 2010.

127There is credible evidence from police officers that on February 6, 2010 there were patrons consuming liquor and numerous signs of service and consumption in karaoke room number 2 after 2:45 a.m. The Licensee therefore breached section 29 or the O. Reg.

Licensee’s Submissions

128No submissions were received from the Licensee although the Board extended the time for receiving submissions when none had been received by the designated date.

Reasons and Analysis

January 8, 2010

129The allegation is that contrary to subsection 45(1) of the O.Reg, the licence holder permitted drunkenness or riotous, quarrelsome, violent or disorderly conduct to occur on the licensed premises.

130The Board has carefully reviewed the testimony, exhibits and submissions. The evidence from Allison Cormier, Mihai and Dimitru Ungureanu is clear that a violent assault took place in the licensed premises after 3 a.m. on January 8, 2010. The brothers were punched and kicked by a group of 7 to 10 other patrons. Dimitru was choked and thrown on a coffee table, which broke with his fall. He sustained facial injuries when a large vase was smashed on his head. In their statements to police, the bartender and manager agreed that a fight took place in the premises.

131Cst. Keefer and Cst. Simmons described the large quantity of blood on the furniture, wall and floor which illustrate the viciousness of the attack. The multiple injuries to the brothers were described in detail by Cst. Higo and are shown in Exhibit 3. Mihai sustained multiple minor injuries but Dimitru’s injuries required treatment in hospital. Det. Hunt, who saw Dimitru the next day, described the extensive injuries to Dimitru which included injuries to his face, eye, neck, shoulder, back and nose.

132It is unclear as to what exactly precipitated the assault. The parties had been drinking but it did not appear that alcohol was a major factor.

133Based on the evidence of Allison Cormier, the assault lasted at least 10 minutes. The Board agrees with Registrar’s counsel, that the staff had the means and the time to call 911.

134The evidence of Allison Cormier is that she asked staff to call police but she saw no staff member take any action. Allison herself ended up calling 911. Although it was suggested that some unidentified staff person called 911, the evidence of Det. Harmsen is that his search of the police system showed three calls were made and all were from Allison Cormier.

135The bartender and manager did not call police based on their statements to police. When asked why she did not call police, JL stated that she was trying not to get hit. When IWS was asked the same question, he answered that he did not know.

136The two staff persons did however take some action. According to JL, she and IWS went down the halls to the karaoke rooms telling people to stay inside and not get involved. What the Board finds troubling is the statement of IWS that he left in the middle of the fight to make sure that there were no bottles left in the karaoke room. That statement seems to be confirmed by the video where IWS is seen grabbing a bucket and leaving the service bar. At 3:30:12 (Exhibit 5) he returns to the bar with what appears to be a full bucket.

137Given the violence of the assault and the number of people involved, the safety of patrons and calling police should have been the first priority.

138The Board accepts the Registrar’s counsel’s submission that the Court held in Hague v. Billings that the bar in question had a duty to take affirmative action which included the duty to call police. Registrar’s counsel further submitted that a similar duty exists in respect to the licensee’s obligation to prevent patrons from being assaulted in their establishment.

139Therefore the Board FINDS that the Licensee permitted riotous, quarrelsome, violent and disorderly conduct to occur on the premises in violation of subsection 45(1) of the O. Reg.

February 6, 2010

140The allegation is that on February 6, 2010, contrary to section 29 of the O.Reg., the licence holder failed to clear signs of service and consumption in the licensed premises within 45 minutes after the end of the period during which liquor may be sold and served under the licence.

141After reviewing the credible and corroborative evidence of Cst. Higo, Cst. Hunt and Det. Harmsen, it is clear that after their arrival at 2:55 a.m. people in karaoke room number 2 were still drinking alcoholic beverages. They observed patrons consuming from bottles of Heineken and Corona and from mixed drinks. Cst. Hunt and Det. Harmsen smelled some of the mixed drinks and stated that the contents smelled of alcohol. The officers also observed empty bottles of Heineken and Corona on tables and Cst. Hunt also observed some of these bottles in the garbage in the room. He also observed an open bottle of wine on a table.

142Cst. Hunt observed a staff member in the room collecting alcohol bottles and Cst. Higo observed him walking out of the room with a bin full of empty Heineken and Corona bottles.

143It was suggested that the bottles observed may have been non-alcoholic Korean beer but the officers were firm in their testimony that they observed bottles of Heineken and Corona. Cst. Hunt spoke to IWS, the manager, after his observations and IWS did not say anything about the beer bottles being Korean or non-alcoholic.

144The signs of service and consumption must be cleared by 2:45 a.m. The officers made their observations after entering at 2:55 a.m.

145Therefore, the Board FINDS that the licence holder failed to clear signs of service and consumption in violation of section 29 of the O.Reg.

Conclusion

146For the above reasons, the Board FINDS the Licensee contravened section 29 and subsection 45(1) of the O.Reg.

147The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file a written response. The Registrar’s representative may serve and file a reply within three (3) days of the receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission, at the address on the front page of this decision in accordance with the Board’s Rules of Practice.

DATED AT TORONTO THIS 17th DAY OF October, 2011

KIRSTI HUNT, VICE-CHAIR JOAN LOUGHEED, BOARD MEMBER