Court File and Parties

Court File No. 294/04

Released: 0507##

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: Braches Inc., Operating as Shoeless Joe’s v. Registrar of Alcohol and Gaming Commission

Before: Matlow, E. Macdonald, and Swinton JJ.

Counsel: Lauren Sukerman for the Appellant Braches Inc. Joyce A. Taylor for the Respondent

Heard at Toronto: June 30, 2005

Endorsement

[1] This appeal is limited to questions of law (Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c. 26, Sch., s. 11(2)).

[2] The Board had a discretion to refuse an adjournment of the hearing. It determined that the appellant had had sufficient time to locate witnesses. Given the circumstances, there was no denial of natural justice in its refusal to grant the adjournment. Moreover, the witnesses whom the appellant sought to have testify were to bolster the credibility of Mr. Ilias, who did not testify himself.

[3] There was evidence to support the Board’s conclusions that there had been service of alcohol after 2:00 AM, contrary to s. 25(1) of O. Reg. 719/90, that the licence holder permitted drunkenness and quarrelsome conduct on the premises contrary to s. 45(1) of the regulation, and that the licence holder failed to clear signs of service and consumption within 45 minutes of the end of the period during which liquor may be sold or served under the licence, contrary to s. 29 of the regulation. It is not the task of this Court to re-evaluate the weight to be given to the evidence. Nor is it the task of this Court to determine whether Mr. Ilias’ conduct was quarrelsome, as that is a question of mixed fact and law, which is not subject to appeal to this Court.

[4] The Board was not functus officio when it issued the amending order finding a violation of s. 29 of the regulation. The Board stated that it had inadvertently failed to deal with this issue when it issued the decision on the merits. It had not yet considered the appropriate penalty. As the Supreme Court of Canada stated in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 at para. 21, the application of the doctrine is more flexible and less formalistic in respect of decisions of administrative tribunals which are subject to appeal only on a question of law. As well, the Court held that an administrative tribunal which has failed to dispose of an issue fairly raised by the proceedings may do so in order to complete its statutory task (at para. 23). Nothing in the statute prohibited the Board from reconsidering or amending its order. In dealing with the issue which it had failed to consider, the Board was completing its statutory task. It came to its conclusion on the basis of the uncontradicted evidence of the inspectors and submissions made at the initial hearing.

[5] The decision on the appropriate penalty is a matter within the expertise of the Board. The Board found, as aggravating factors, that the person in charge was intoxicated, behaved in a quarrelsome manner and was uncooperative with the inspectors. The Board relied on the need for both specific and general deterrence. There has been no error shown in the exercise of the Board’s discretion. The penalty of a 14 day suspension of the liquor licence falls within the range in other cases where there have been multiple infractions, even when the licensee had no prior adverse record.

[6] The appeal is dismissed. If the parties cannot agree on costs, the respondent may make written submissions within 14 days of the release of this decision, and the appellant may make responding submissions within 10 days thereafter.

Matlow J.

E. Macdonald J.

Swinton J.

Released: