COURT FILE NO.: 680/03

DATE: 20031117

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J., MCRAE AND EPSTEIN JJ.

B E T W E E N:

DAVID FRENCH, KELLY MACFARLANE, and other proposed witnesses

Applicants

• and -

THE ALCOHOL AND GAMING COMMISSION OF ONTARIO

Respondent

Paul Stern, for the Applicant David French

Owen Wigderson, for the Applicant Kelly MacFarlane

Ian R. Smith, for the Applicant other proposed witnesses

Richard Kulis, for the Registrar of The Alcohol and Gaming Commission of Ontario

Brian Gover, for the Liquor Control Board of Ontario

Douglas C. Hunt, Q.C. and Alistair Crawley, for the Applicant Lifford Wine Agencies Ltd.

HEARD: November 17, 2003

CUNNINGHAM A.C.J.: (Orally)

1While there are several applications before us, we have decided to hear what we consider to be the threshold issue first. This threshold issue is the application of Lifford Wine Agencies Ltd. for an order quashing the order of the Alcohol and Gaming Commission of Ontario, dated November 3rd, 2003, granting intervenor status to the Liquor Control Board of Ontario in two motions brought by Lifford.

2These motions were brought within the main proceeding, the nature of which is essentially a prosecution by AGCO by way of notice of proposal to revoke Lifford’s licence for certain violations of the Liquor Licence Act and regulations thereto.

3In each of the motions Lifford seeks a stay of the proceedings. The first stay has been requested based on allegations of witness tampering. The relevant facts briefly put disclose that Ms. Koonings, an employee of the LCBO testified that her direct superior, David French effectively threatened her that her career at the LCBO would be jeopardized if she told the whole truth when she appeared as a witness in the proceeding. In the second motion, Lifford seeks a stay based on an alleged distribution of transcripts in violation of the Board’s order that there be exclusion of witnesses and that the proceedings be held in camera. For these reasons, Lifford says that its right to a fair hearing has been irreparably compromised.

4Prior to hearing Lifford’s second stay motion the Board heard argument and ruled on the applications to intervene on behalf of the LCBO and Mr. French. The Board granted intervenor status to the LCBO and denied Mr. French’s application. In granting intervenor status to the LCBO, the Board said the following:

“Lifford, by its motions, has altered the nature of the adversarial proceedings between the registrar and itself by directly focusing on the actions of the LCBO and in particular by those of the senior LCBO employee. To that extend, we note that the registrar cannot purport to represent the LCBO.

How can the Board fairly decide whether these actions have so tainted the right of Lifford to a fair hearing without granting the right to take part in the proceedings and be present throughout the motions.”

5Counsel for the LCBO argues that the LCBO has an interest in the subject matter of the stay motions and may in fact be adversely affected by the findings made in those motions. It is common ground that the standard of review is correctness. There is no privative clause in the legislation and no special expertise by the Board in respect of this issue.

6While the Board has discretion to grant intervenor status, we are of the view that its decision to give such status to the LCBO in these circumstances was incorrect. First, in light of the submissions of Lifford’s counsel to the effect that his client has no intention of suggesting any participation of the LCBO in the alleged witness tampering, the LCBO has no interest in the stay motions. With respect to the Board’s concern, Lifford did not change the nature of the proceedings, rather it learned of the discussion between Koonings and French that appeared to involve French’s counselling Koonings to lie when she testified.

7In her evidence, Ms. Koonings described that discussion. Her evidence in this respect was denied by French. There was no reason why the Board could not have continued to hear the evidence and make its own determination as to the veracity of the evidence given and whether Lifford’s right to a fair hearing had been compromised. We fail to see what positive contribution the LCBO could make to the hearing. This is a narrow dispute between Lifford and the ACGO. The driving force is the adversary system that assumes that each party will present the best possible evidence and argument in favour of that party’s position and that the role of the tribunal is to reach a decision based upon that evidence and argument. It follows that the intervention of the LCBO in the circumstances here would introduce a distortion such as that identified in Hurd v. Hewitt (1994), 20 O.R. (3d) 639.

8In the result there will be an order quashing the order of the AGCO, dated November 3rd, 2003 granting standing to the LCBO.

CUNNINGHAM A.C.J.

MCRAE J.

EPSTEIN J.

Date of Reasons for Judgment: November 17, 2003

Date of Release: November 24, 2003

COURT FILE NO.: 680/03

DATE: 20031117

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT