Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
jennings, whalen and cumming jj.
B E T W E E N:
1657575 ONTARIO INC. operating as PLEASURES GENTLEMEN’S CLUB and 1562423 ONTARIO INC. operating as STILLETTO’S
Applicants
- and -
THE CORPORATION OF THE CITY OF HAMILTON
Respondent
James M. Wortzman and Karey Anne Dhirani, for the Applicants
Paul R. Sweeny and Alexandra V. Mayeski, for the Respondent
HEARD at Toronto: March 23, 2007
Oral Reasons for Judgment
JENNINGS J.: (Orally)
1In passing By-law No. 01-156, the Hamilton Council expressed its intention to reduce from four, to two, the number of adult entertainment parlours in the city.
2The reduction was to be implemented by the expiry or revocation of existing licences. The issuer of licences could recommend a hearing before the Licensing Committee if the licencee had not actively carried on business “within a reasonable time” following the issuance of the licence.
3The applicant was granted a licence on March 6, 2006. It had not opened for business between that date and the hearing before the Licensing Committee on July 6, 2006. Notice of the hearing to revoke the licence for failure to carry on business within a reasonable time was given to the applicant by letter dated May 24, 2006. Following the hearing on July 6, 2006, the Committee unanimously voted to recommend to Council that the applicant’s licence be revoked for failure to actively carry on business within a reasonable time.
4The applicant submits that the Committee dealt with it in a way that was procedurally unfair or that constituted a denial of natural justice. We reject that submission.
5Council’s stated of objective of reducing the number of adult entertainment parlours was a permissible objective of municipal governance, provided the objective was arrived at fairly in accordance with the terms of the by-law.
6The applicant was given particulars of the complaint, it was given ample notice of the hearing and was able to participate in the hearing with counsel who presented evidence, carried out cross-examinations and made submissions. Although Will Say statements were not provided to the applicant in the City’s disclosure, the only issue before the Committee was whether the business was being carried on. It was agreed that it was not.
7The applicant also complained that the Committee was biased against it and made its decision in bad faith.
8In our opinion, the evidence does not establish bias or bad faith. We note that the evidence of Councillor Whitehead, a member of the Committee who the applicant acknowledged was sensitive to these issues, gave evidence that the hearing was fair.
9The applicant further submits that the findings of the Committee that the applicant was not carrying on business within a reasonable time, was patently unreasonable, which it agrees is the standard of review on factual findings made by the Committee.
10The evidence was that the applicant’s reason for not opening was its unwillingness to do so until it received its liquor licence from the provincial licensing agency. That licence would not be granted until the applicant’s principal paid arrears of retail sales tax owing with respect to another adult entertainment parlour owned by her. We were told on this hearing that those taxes remained unpaid.
11The finding of fact by the Committee in its report to Council that there had not been an opening for business within a reasonable time in the circumstances we have outlined, was not unreasonable. Any difficulties the applicant may have been experiencing in obtaining a liquor licence was not the responsibility of the Committee or of Council.
12Accordingly, the application for judicial review must be dismissed. I endorse the Motion Record as follows: “The application is dismissed for the oral reasons delivered by Jennings J. Costs fixed at $20,000.00, inclusive of disbursements and GST.”
JENNINGS J.
WHALEN J.
CUMMING J.
Date of Reasons for Judgment: March 23, 2007
Date of Release: April 12, 2007
COURT FILE NO.: 485/06
DATE: 20070323
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
jennings, whalen and cumming jj.
B E T W E E N:
1657575 ONTARIO INC. operating as PLEASURES GENTLEMEN’S CLUB and 1562423 ONTARIO INC. operating as STILLETTO’S
Applicants
- and -
THE CORPORATION OF THE CITY OF HAMILTON
Respondent
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: March 23, 2007
Date of Release: April 12, 2007