ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN R.S.J., LEDERMAN AND KARAKATSANIS JJ.
B E T W E E N:
REGISTRAR, ALCOHOL AND GAMING COMMISSION OF ONTARIO Registrar (Respondent)
- and -
2008221 ONTARIO INC., o.a. PILOT TAVERN Licensee (Appellant)
Phillip Morris, for the Registrar (Respondent)
Neal J. Smitheman, for the Licensee (Appellant)
HEARD at Toronto: September 15, 2008
KARAKATSANIS J.: (Orally)
1The appellant, 2008221 Ontario Inc., operating as Pilot Tavern, appeals from two decisions of the Board of the Alcohol and Gaming Commission of Ontario: The November 1st, 2007 finding that the licensee breached s.45(1) of Ontario Regulation 719/90, made pursuant to the Liquor Licence Act by permitting drunkenness on its premises and the January 10th, 2008 order suspending the licensee’s licence for seven days.
2The licensee claims that the Board erred in law by:
(a) forcing the licensee to call witnesses who were cross-examined on the alleged s.45(1) violation without first ruling on the licensee’s motion to dismiss;
(b) finding that the respondent had established a prima facie case;
(c) finding the licensee had permitted drunkenness, and
(d) imposing an unnecessarily punitive sanction.
3The only ground advanced at the hearing of this appeal before us by the licensee is that the Board erred in law in the manner in which it entertained and dealt with the licensee’s motion for a non-suit.
4The licensee brought a motion for a non-suit at the close of the Registrar’s case that there was no prima facie case with respect to the s.45 violation of permitting drunkenness. It was clear from the submissions made by Mr. Smitheman to the Chair that he wished the Chair to rule on s.45 immediately, but that he intended to call further evidence with respect to the s.52 violation of failing to post the liquor licence.
5The Chair indicated that he reserved his decision on the motion of non-suit with respect to the s.45 allegation. The defence called evidence dealing with both allegations. Specifically Mr. Smitheman led evidence in-chief from Ms. Nesrallah with respect to the s.45 allegation. Mr. Morris cross-examined the licensee’s witnesses with respect to both allegations.
6Although counsel for the licensee was not specifically asked to elect whether he would call evidence, it was clear from the discussions between the Chair and counsel that the choice was his. The Board is not required to entertain non-suit motions, allegation by allegation without requiring a complete election in any event.
7In any event, even if the non-suit motion was restricted to the evidence of the police officer alone, the Board did not err in finding that the evidence established a prima facie case. The licensee accepts that there was evidence of intoxication but submits that there was no evidence that the licensee permitted drunkenness as outlined in the Horseshoe Valley Resort Ltd. v. Alcohol and Gaming Commission, 2005 81108 (ON SCDC), [2005] O.J. No. 5895 (Div. Ct.). In this case, the evidence of the police officer, including his evidence that the manager admitted the person was a customer, Mr. Stephenson’s admissions that he had a few drinks, coupled with Mr. Stevenson’s condition was evidence capable of supporting an inference of a prima facie case that licence holder permitted drunkenness.
8Accordingly, the appeal is dismissed.
THEN R.S.J.
9It is our decision that the appeal is dismissed with costs awarded in the amount of $5,000.00
KARAKATSANIS J.
THEN R.S.J.
LEDERMAN J.
Date of Reasons for Judgment: September 15, 2008
Date of Release: September 18, 2008
COURT FILE NO.: 579/07
DATE: 20080915
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN R.S.J., LEDERMAN AND KARAKATSANIS JJ.
B E T W E E N:
REGISTRAR, ALCOHOL AND GAMING COMMISSION OF ONTARIO Registrar (Respondent)
- and -
2008221 ONTARIO INC., o.a. PILOT TAVERN Licensee (Appellant)
ORAL REASONS FOR JUDGMENT
KARAKATSANIS J.
Date of Reasons for Judgment: September 15, 2008
Date of Release: September 18, 2008