COURT FILE NO.: 339/06
DATE: 20070424
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, GREER AND SWINTON JJ.
B E T W E E N:
MIKOS HOTELS LIMITED o/a ROYAL HOTEL
Appellant
- and -
REGISTRAR OF THE ALCOHOL AND GAMING COMMISSION OF ONTARIO and THE BOARD OF THE ALCOHOL AND GAMING COMMISSION OF ONTARIO
Respondents
Spiro Nicolakakos, for the Appellant
Phillip Morris, for the Respondent Registrar
HEARD at Toronto: April 24, 2007
SWINTON J.: (Orally)
[1] The appellant appeals from the decisions of the Board of the Alcohol and Gaming Commission of Ontario dated April 27, 2006 and May 10, 2006 in which the Board found a breach of s. 45(2) of O.Reg 719/90 under the Liquor Licence Act, R.S.O. 1990 c.L.19 and ordered a 28 day suspension.
[2] Section 45(2) provides:
The licence holder shall not permit a person to hold, offer for sale, sell, distribute or consume a controlled substance as defined in the Controlled Drugs and Substances Act (Canada) on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.
[3] An appeal lies to this Court only on a question of law. (s.11 of the Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c.26). The standard of review is correctness (see Ontario (Registrar of Alcohol and Gaming) v. Hosseini-Rad, [2004] O.J. No. 1273 (Div. Ct.) at paragraphs 5-6).
[4] Whether the appellant had exclusive control of the smoking room is a question of fact that is not subject to appeal. There was ample evidence upon which the Board could conclude that the appellant licensee had exclusive control of access to the smoking room.
[5] The appellant submits that the room was not part of the licensed premises, and therefore s. 45(2) of the Regulation is not applicable. The subsection makes no reference to “licensed premises” as in other parts of the Regulation and an earlier version of the Regulation.
[6] In our view, the Board correctly concluded that the appellant contravened s. 45(2) by permitting the dancers to use the smoking room to consume drugs, as this was part of the “premises” within s. 45(2). Therefore, the appeal is dismissed.
CARNWATH J.
[7] Costs to the respondent fixed at $3,000.00, inclusive of fees, disbursements and GST.
___________________________
SWINTON J.
___________________________
CARNWATH J.
___________________________
GREER J.
Date of Reasons for Judgment: April 24, 2007
Date of Release: May 3, 2007
COURT FILE NO.: 339/06
DATE: 20070424
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, GREER AND SWINTON JJ.
B E T W E E N:
MIKOS HOTELS LIMITED o/a ROYAL HOTEL
Appellant
- and -
REGISTRAR OF THE ALCOHOL AND GAMING COMMISSION OF ONTARIO and THE BOARD OF THE ALCOHOL AND GAMING COMMISSION OF ONTARIO
Respondents
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: April 24, 2007
Date of Release: May 3, 2007