ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., DUNNET AND COO JJ.
B E T W E E N:
MIGHTY MIKE’S (1229322 ONTARIO LTD.) Appellant
- and -
THE REGISTRAR OF THE ALCOHOL AND GAMING COMMISSION OF ONTARIO Respondent
David S. Reiter, for the Appellant
Phillip Morris, for the Respondent
HEARD: September 10, 2003
1The Board of the Alcohol and Gaming Commission of Ontario suspended for two days the licensee appellant for having breached the provisions of s.29 of the Liquor Licence Act and s.45 of the Regulation 719 under the Liquor Control Act. This is an appeal from that decision limited to a question of law under the provisions of s.11(2) of that statute.
2The appellant takes the position that there was no evidence from which an inference could be drawn that the appellant served liquor to a customer who was or appeared to be intoxicated and secondly, the Board conducted the hearing in a way that gave rise to a reasonable apprehension of bias, and in that context that the transcript is incomplete, thus preventing proper consideration of this point.
3In our view, there was on the totality of what happened at the hearing and what was and was not placed before the Board, evidence upon which the Board was entitled to come to the conclusion that the facts supported the offences. There was no absence of evidence. The conclusions of fact of the Board are of course entitled to deference from the Court. They have expertise in carrying out their duties to maintain standards of behaviour and to regulate the conduct of those who are licensed to carry on the business of serving liquor to the public.
4We cannot agree that all the references to the transcript, separately or together, to which counsel referred in argument or in his factum, or what is set forth in the affidavit of Mr. Reiter, that they together or separately support a realistic argument that there was a reasonable apprehension of bias. We apply the test set forth in Committee for Justice and Liberty v. National Energy Board (1978) 1976 2 (SCC), 1 S.C.R. 369, adopted as a test by the Supreme Court of Canada over the intervening years on many occasions.
5We are not persuaded that the Board parted from the principles set out, for example, in Jones v. National Coal Board, [1957] 2 All E.R. 155 at 159. Nothing done by the Board interfered with the proper conduct by counsel for the licensee of his client’s case. There was vigorous interplay, a good deal of which was perhaps triggered by counsel for the appellant but nothing on the basis of which a charge of bias could be sustained.
6While there was no obligation perhaps upon the Board to have the hearing transcribed, there is a transcript. While there are some very limited gaps, there is no legitimate support for the proposition that any missing words play any part in the presentation of this appeal. The appeal will be dismissed.
7For the reasons given, the appeal is dismissed. Costs to the respondent are fixed at $3,500. The suspension is to commence at 11:00 a.m. September 15th, 2003 and end at 2:00 a.m. on September 17th, 2003.
CUNNINGHAM A.C. J.
DUNNET J.
COO J.
Date of Reasons for Judgment: September 10, 2003
Date of Release: September 25, 2003
COURT FILE NO.: 819/01
DATE: 20030910
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., DUNNET AND COO JJ.
B E T W E E N:
MIGHTY MIKE’S (1229322 ONTARIO LTD.) Appellant
- and -
THE REGISTRAR OF THE ALCOHOL AND GAMING COMMISSION OF ONTARIO Respondent
ORAL REASONS FOR JUDGMENT
COO J.
Date of Reasons for Judgment: September 10, 2003
Date of Release: September 25, 2003