Court File and Parties
COURT FILE NO.: 477/03 DATE: 20030808
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
B E T W E E N:
541814 ONTARIO LIMITED operating as ATHENS BAR Applicant
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ALCOHOL AND GAMING COMMISSION, AND DEPUTY REGISTRAR OF THE ALCOHOL AND GAMING COMMISSION Respondents
Counsel: Anthony Moustacalis, for the Applicant Richard E. Kulis, for the Respondent
HEARD: August 8, 2003
Oral Reasons for Judgment
ROULEAU J.: (Orally)
Introduction
1This is a judicial review application brought by the applicant 541814 Ontario Limited, operating as Athens Bar. It seeks to review a decision of the Deputy Registrar of the respondent Commission wherein the Deputy Registrar exercised a discretion she had under s.97 of Regulation 719 enacted pursuant to the Liquor Licence Act. By her decision she refused a temporary extension to the applicant’s liquor licence which would have allowed for 25 additional patio seats during the Taste of the Danforth event. The decision was given in writing on August 7th. Since the Taste of the Danforth event is scheduled to run from August 8th to 10th, the parties have submit that leave should be granted to have this matter heard by a single judge of the Superior Court, pursuant to s.6(2) of the Judicial Review Procedures Act, and I agree.
Standard of Review
2Given the discretionary nature of the decision sought to be reviewed, the expertise of the tribunal, the absence of a privative clause, the purpose of the Liquor Licence Act and the nature of the problem, the parties all but conceded that the appropriate standard of review is reasonableness. This is the standard that I will apply in my review of the Deputy Registrar’s decision.
Background
3The applicant’s request for the temporary extension was made in June. In late May, however, counsel for the applicant had alerted the respondent that an application would be submitted. For the last few years a similar temporary extension had been granted to the applicant for this annual event but, because the applicant had recently been charged with several alleged infractions of the Liquor Licence Act, the applicant was concerned that it’s request for an extension this year would not be automatically granted as in prior years.
4The applicant secured all of the necessary city approvals for the physical extension of the patio and made extensive written submissions to the respondent concerning its request for the temporary extension of the liquor licence.
5In argument the applicant submitted that the respondent was informed of or knew:
(i) the importance of the one event to the applicant’s business;
(ii) the economic climate in Toronto in light of the SARS outbreaks;
(iii) the record of receiving the temporary extension for the last four years without incident;
(iv) the long record of the applicant as a licensee operating without problems until those incidents which were the subject of the charges in late 2002, early 2003;
(v) that one or more inspections were carried out since the laying of the charges and that these inspections gave no indication that there were any continuing compliance problems;
(vi) that the charges would have already been dealt with if the hearing on these charges had proceeded in May as originally scheduled. If the charges had been dealt with at that time there likely would have been no obstacle to the granting of the temporary extension. It was only because of an adjournment granted at the request of the respondent that these charges remained outstanding at this time. At the hearing the applicant cited several examples where licensees facing similar charges, including a proposal by the Deputy Registrar that their licence be revoked, resolved these charges by agreeing to a suspension with a duration of only 5 to 30 days. The applicant specifically referred to Maple Leaf Sports Bar, a licensee in competition with the applicant that had been facing similar charges. That licensee resolved the charges by agreeing to a relatively short suspension order by the Commission in March of this year and was nonetheless granted a temporary extension for the Taste of the Danforth event. The only difference the applicant submits, is that Maple Leaf Sports Bar had had the charges dealt with prior to the request for the extension;
(vii) the singling out of the applicant from the many other licensees in the area who have been granted temporary extensions for this event would be very injurious to the applicant;
(viii) steps were taken by the applicant to have the long-standing owner be present throughout the Taste of the Danforth event, right up to the closing hour, thereby ensuring that the staff that was on site when the alleged breaches occurred in late 2002 and early 2003 would not be in control during the Taste of the Danforth event.
6The respondent nonetheless refused to grant the temporary extension. In her reasons the Deputy Registrar stated that:
“In exercising my discretion as to whether or not to grant an extension of an existing licence I have regard to whether it is in the public interest to extend your client’s licence to sell and serve liquor given its past conduct. The internal policy which has been in place since 2002 that guides my decision looks at a licensee’s past conduct including provincial offences charges, regulatory breaches found by the Board of the AGCO and outstanding allegations of infractions and disciplinary proceedings.
I am advised that inspections of your client’s establishment have revealed numerous breaches of the Liquor Licence Act or regulations including five incidents of a failure to remove the evidence of the sale and service of liquor, selling and serving outside the prescribed hours and permitting drunkenness. These infractions are the subject of a Notice of Proposal to revoke your client’s liquor licence issued by me on January 30, 2003 as well as a Supplementary Notice of Proposal dated February 25, 2003.
In reviewing your client’s request for a hearing, I note that he has taken no position with respect to the alleged infractions but in reviewing the inspector’s notes released to you as disclosure for the upcoming hearing I note that your client admitted the infractions of November 22, 2002 to the inspector by saying “you got me”. Despite that knowledge your client continued to violate the Liquor Licence Act and regulations in the same manner on December 20, 2002, December 29, 2002, January 11, 2003 and January 25, 2003.
Your client has the right to appeal the proposal to revoke its licence to the Board of the AGCO but your statement that “no licensee in these circumstances receives more than a licence suspension from the Board” is not one that I accept. There are allegations of ongoing non-compliance with the regulatory regime by your client which have resulted in the initiation of a process to revoke your client’s liquor licence. In light of these factors, I am of the opinion that it is not in the public interest to grant your client’s request for a temporary extension of its liquor licence.
Should you wish to seek a judicial review of this decision, please provide the appropriate notice and supporting documentation to Richard Kulis in the Legal Department who may be reached at (416) 326-8280.”
Analysis
7Given that the decision makes no reference to any of the factors put forward by the applicant, the applicant has asked me to conclude that the Registrar did not exercise her discretion pursuant to the Act and simply ruled that since charges had been laid against the applicant the request for an extension should automatically be denied. This according to the applicant is no exercise of discretion and is therefore unreasonable.
8The respondent has referred me to the text of s.97 of Regulation 719, which clearly sets out that the granting of the temporary extension is discretionary. The section reads as follows:
“The Registrar of Alcohol and Gaming may approve a temporary physical extension of the premises to which a licence to sell liquor applies for a period of 14 days or less if the extension is adjacent to the premises to which the licence applies.”
9Counsel for the respondent then went on to say that since it was the Deputy Registrar that was responsible for the earlier finding that the applicant has breached the Liquor Licence Act and that it was she who recommended that the applicant’s licence should be revoked pursuant to the Liquor Licence Act, s.15(1), it was only reasonable for this same Deputy Registrar to conclude that it was not in the public interest to grant the temporary extension. She could not, on the one hand say that the licence should be revoked and, on the other hand, say that it was in the public interest to temporarily increase the applicant’s capacity. As a result, the respondent submitted, the extension was a privilege that should be withheld in the circumstances.
10The applicant for its part argues that the respondent has confused the role of the Deputy Registrar as prosecutor in respect of the charges and her role as the person who is called on to exercise discretion with respect to temporary extensions. While the charges and facts underlying the charges are clearly relevant and ought to be taken into account in the exercise of the s.97 discretion, these facts and the Deputy Registrar’s decision to pursue revocation as a remedy for the alleged breaches should not dictate that the request for a temporary extension be refused as appears to have been the case. The applicant points out that:
(i) the charges that are still at the stage of allegations and have not yet gone before the Alcohol and Gaming Commission of Ontario for a hearing;
(ii) according to its research most of the recommendations for revocation of licences have in similar circumstances been resolved by the imposition of relatively short suspensions;
(iii) the charges are not as serious as many others where public safety was involved. Even cases involving public safety were resolved by suspensions and not revocations;
(iv) given the timing, there is no effective right to appeal the decision of the Deputy Registrar to the Commission;
(v) despite the pending charges the licensee is still legally operating the premises. The issue is simply one of a temporary extension of a valid licence and steps have been taken by the applicant to ensure that proper supervision of the event will occur;
(vi) given the significance of the event, the refusal to grant the extension may well have more serious financial implications to the applicant than any suspension likely to be imposed by the Commission if the charges are ultimately proven to be founded. Since there has yet to be a hearing on the charges, the applicant says that this constitutes punishment before the hearing.
11Based on the record and the submissions of counsel, it seems to me that the Deputy Registrar did in fact confuse her role as prosecutor of the charges and her role in exercising discretion to allow or refuse a request for a temporary extension of a liquor licence pursuant to s. 97 of Regulation 719. It appears that, having decided in January and February of 2003 to recommend to the Commission revocation of the applicant’s licence, the Deputy Registrar felt that she could not, in response to the application for a temporary extension say that it was in the public interest to grant the applicant’s request for an extension.
12In my view her decision in January and February 2003 to recommend revocation of the licence should not have dictated her response to the s.97 application for a temporary extension. She was required to exercise her discretion pursuant to s.97 taking into account all of the factors submitted by the applicant and weighing those against the information she had that led to the charges; based on all of this she would then make a decision in the public interest.
13The Act contemplates that the applicant can continue to operate as a licensee pending disposition of the charges, unless special circumstances exist. The applicant should not therefore have been effectively disentitled to the extension simply because of the Deputy Registrar’s decision in January, 2003 to seek revocation of the licence. There was evidence of later inspections suggesting compliance, evidence of steps taken to assure better supervision of the premises during the Taste of the Danforth event, evidence of other factors, financial and social that should be taken into account. These, if taken into account and if weighed fairly and without giving undue weight to the charges and proposal to revoke the licence may well have led to a different decision such as the issuance of an extension with conditions attached.
Remedy
14The applicant has submitted that, as a remedy, I should order that a temporary extension to the permit be granted since the Deputy Registrar is in clear conflict given her prosecutorial role. While it is true that the Deputy Registrar does have a certain conflict in her role and, as I have determined, has confused the two in her decision of August 7th, I do not consider that the appropriate remedy is for me to step into the Deputy Registrar’s role. The Act provides that the Registrar, or in the present case, Deputy Registrar, is to exercise both of these functions. The granting of temporary extensions is clearly discretionary and should be exercised by the Deputy Registrar applying the test provided in the Act and as explained herein. The respondent has confirmed that, if remitted for a new decision, this decision can be rendered before the commencement of the Taste of the Danforth festival.
15The decision is therefore quashed and remitted to the Deputy Registrar for a new decision.
Costs
16Costs to the applicant fixed at $600.
ROULEAU J.
Date of Reasons for Decision: August 8, 2003
Date of Release: September 22, 2003
COURT FILE NO.: 477/03 DATE: 20030808
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
B E T W E E N:
541814 ONTARIO LIMITED operating as ATHENS BAR Applicant
- and -
ALCOHOL AND GAMING COMMISSION, AND DEPUTY REGISTRAR OF THE ALCOHOL AND GAMING COMMISSION Respondents
ORAL REASONS FOR JUDGMENT
ROULEAU J.
Date of Reasons for Decision: August 8, 2003 Date of Release: September 22, 2003