COURT FILE NO.: 549/06

DATE: 20070307

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: Jupiter Café and Sports Bar Inc. (Applicant) and The Registrar of Alcohol and Gaming Commission of Ontario (Respondent)

BEFORE: Justice Cumming

COUNSEL: J. Randall Barrs, for the Applicant Phillip Morris, for the Respondent

HEARD: March 7, 2007

ENDORSEMENT

CUMMING J.

The Motion

[1] The Applicant moving party. Jupiter Café and Sports Bar ("Jupiter"), owned by Ms. Gabirial Karunarathnalage, seeks a stay of an Order dated September 28, 2006, (confirming an oral order made at the conclusion of the hearing September 18, 2006) by the Board of the Alcohol and Gaming Commission of Ontario ("Board") revoking Jupiter's liquor licence, pending appeal to Divisional Court.

Background

[2] The Board found various breaches by Jupiter of R.R.O. 1990 Reg. 719, s. 45(1) and (2) under the Liquor Licence Act, R.S.O. 1990, c. L-19. This included the uncontested evidence of police officers that drug dealing in crack cocaine was openly conducted in the premises, the admission by the licensee that she knew drugs were being sold, and that few, if any, serious attempts were made to seek the assistance of the police or to retain effective security. There was also evidence of serving patrons who were intoxicated. The Board found that the licensee "was very aware of what was happening and was content to let it continue."

[3] Based upon the evidentiary record before the Board the Board was of the view the "establishment …is clearly out of control" and there is "a lack of proper management by the licensee."

Disposition

[4] The Divisional Court may grant a stay of the Board's Order until disposition of the appeal: Alcohol, Gaming Regulation & Public Protection Act, S.O. 1996, c. 26, s. 10(7) (the "Act).

[5] The burden of proof rests upon the party seeking the stay pending an appeal. The hearing at hand is not, of course, a consideration of the merits of the appeal. However, on a motion to stay, the Court may consider the apparent bona fides of the appeal.

[6] By s. 11(1), (2) of the Act, an appeal of the Board's decision can be made to the Divisional Court on a question of law only. Jupiter forcefully asserts through its counsel that there was insufficient evidence for the Board to reasonably make the decision made, that is, there is no foundation in the evidence to reasonably come to the conclusions made. While this is a matter for the appeal, for the purpose of the motion at hand I state that my own review of the record is to the contrary. That is, in my view, the chance of success on appeal is so very problematical that I am skeptical of the bona fides of the appeal.

[7] Jupiter claims irreparable harm if the stay is not granted. Support for this contention is made in one line of the one page affidavit of Ms. Karunarathnalage, "The continued closure will result in the loss of the business."

[8] Moreover, Jupiter has been closed for six months and commenced the motion at hand only February 9, 2007. The appeal has not yet been perfected and a date sought for the hearing of the appeal. In my view, Jupiter has not established there is irreparable harm through the closure pending the appeal.

[9] In my view, the balance of convenience is against a stay. The fact the appellant will forgo business profits and perhaps go out of business permanently if a stay is not granted, as submitted by Jupiter's counsel, is far outweighed in the case at hand, given the factual record and the public interest in removing a liquor licence from a restaurant where there is proven drug activity with the knowledge of the owner. Finally, the Board found there was no effective remedial action taken and no sufficient plan in place to protect the public.

[10] Jupiter addresses the concern of rectifying the problem during a stay period by Ms. Karunarathnalage saying in her affidavit "Jupiter Sports Bar and Café is prepared to employ full time security person and install live camera recorders in all strategic places." The evidence of P.C. Grisel Wells on this motion is that between April 10, 2006 and September 18, 2006 Jupiter "was a focal point for crack users and crack prostitutes in the Jane-Lawrence area" notwithstanding the security system then employed. Given the inadequacy of security changes as seen by the Board in the interim period between the Notices of Proposals from the Board and the eventual hearing, one cannot have confidence that meaningful security measures would be put in place during the stay period.

[11] For the reasons given, the application for a stay is dismissed.

[12] Submissions were made as to costs. Jupiter submits that costs should be deferred to the Divisional Court for a determination upon the disposition of the appeal. The Respondent seeks costs of $2,000.

[13] In my view, this is a situation where costs should follow the norm in civil proceedings of following the event. I fix costs of the appeal on a partial indemnity scale at $2000., inclusive of GST and all disbursements, payable forthwith by Jupiter to the Respondent.

CUMMING J.

DATE: March 7, 2007