Eileen Church Carson

The appellant, operator of Rebel and Cabana Pool Bar, appealed the Registrar's proposals to add new conditions and refuse the removal of existing conditions on its liquor licence, primarily concerning outdoor noise that disturbed Toronto Island residents.

The Tribunal found that while noise had disturbed residents, the appellant's recent implementation of a cardioid speaker system and sound monitoring, along with the City of Toronto's new objective decibel-based noise by-law, constituted a change in circumstances.

The Tribunal rejected the Registrar's proposed condition to ban all outdoor amplified music, finding it disproportionate.

Instead, the Tribunal removed the subjective 'inaudibility' conditions and replaced them with objective decibel limits and mandatory sound monitoring, while adding conditions regarding capacity, community communication, and notification of future applications.

The Appellant, operator of Rebel and Cabana Pool Bar, appealed a Notice of Proposal by the Registrar to attach nine new conditions to its liquor licence, including a ban on outdoor amplified music, and a Notice of Proposal refusing to remove existing conditions.

The Tribunal found that while noise from the premises had disturbed nearby Toronto Island residents, a complete ban on outdoor amplified music was disproportionate given the Appellant's recent successful noise mitigation efforts and the implementation of a new decibel-based municipal noise by-law.

The Tribunal ordered the removal of several subjective and unenforceable conditions, replacing them with objective, decibel-based sound monitoring requirements aligned with the municipal by-law, while adding other conditions to address community concerns.

The appellants appealed an arbitrator's costs award under section 45 of the Arbitration Act, 1991.

The arbitrator had awarded the respondent its full legal expenses, including fees paid to its corporate counsel for 'litigation support'.

The court first determined that leave to appeal an arbitral costs award is not required under section 133(b) of the Courts of Justice Act, as that provision applies only to courts.

On the merits, the court found that the arbitrator did not err in principle or act plainly wrong in awarding full indemnity costs, noting that the Arbitration Act does not bind arbitrators to the scales of costs in the Rules of Civil Procedure.

The court also upheld the arbitrator's decision to allow recovery of the litigation support fees.

The appeal was dismissed.

The applicant brought a motion to strike the respondent's affidavits, arguing they contained inadmissible hearsay, opinion, argument, and constituted "fresh evidence" without leave.

The court emphasized the strict rules of evidence for affidavits, noting a troubling trend of non-compliance.

The court struck several paragraphs for inadmissible hearsay due to failure to specify sources and belief, and for inadmissible opinion and argument from lay witnesses.

The court rejected the "fresh evidence" argument, clarifying that the tests for fresh evidence do not apply to evidence filed before the main application hearing.

Leave to amend was granted for some struck paragraphs where deficiencies could be cured, but denied for others, particularly those containing opinion evidence from unqualified affiants.

No costs were awarded due to divided success and unreasonable positions taken by both parties.

The respondent moved to quash an appeal of an arbitral costs award on the basis that the appellants failed to seek leave to appeal under s. 133(b) of the Courts of Justice Act.

The appellants argued that the Arbitration Act and their arbitration agreement provided broad appeal rights without the need for leave.

The court dismissed the motion to quash, finding that the appeal was not manifestly devoid of merit and that the requirement for leave in commercial arbitrations with broad appeal agreements remains an open question to be determined by the judge hearing the appeal.

The defendants were successful in obtaining a temporary stay of the Ontario action and sought costs of the motion on a partial indemnity scale.

The plaintiff argued that costs should follow the cause and be awarded upon final disposition, or that the parties should bear their own costs because the defendants were only partially successful.

The court rejected the plaintiff's arguments, finding the defendants were the successful parties and entitled to costs payable forthwith.

Costs were fixed at $23,687.55 on a partial indemnity scale.