Horseshoe Tavern v. Alcohol and Gaming Commission, 2010 ONSC 3341

CITATION: Horseshoe Tavern v. Alcohol and Gaming Commission, 2010 ONSC 3341

DIVISIONAL COURT FILE NO.: 249/09

DATE: 20100607

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

HEROLD, LEDERMAN AND SWINTON JJ.

BETWEEN:

475687 ONTARIO LIMITED o/a HORSESHOE TAVERN Appellant

– and –

REGISTRAR, ALCOHOL AND GAMING COMMISSION OF ONTARIO Respondent

COUNSEL:

David Shiller, for the Appellant

Joyce Taylor, for the Respondent

HEARD at Toronto: June 7, 2010

ORAL REASONS FOR JUDGMENT

LEDERMAN J. (ORALLY)

1The Board of the Alcohol and Gaming Commission of Ontario found that the appellant contravened s.29 of the Liquor Licence Act, R.S.O. 1990, c.L.19 by selling and supplying liquor to a customer who was or appeared to be intoxicated and that it also contravened s.45(1) of O/Reg. 719/90 by permitting drunkenness on the part of the same customer on the premises.

2As a penalty, the Board suspended the appellant’s liquor licence for six days.

3The appellant appeals from those decisions.

4This Court has jurisdiction to hear an appeal on a question of law only, pursuant to s.11 of the Alcohol & Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c.26.

5The appellant raises three grounds of appeal:

(i) The Board denied the appellant procedural fairness by not allowing its counsel to cross-examine the Inspectors as to the outcome of any investigation done of the adjacent establishment and the result of any disciplinary proceedings brought against that establishment. The Inspectors had observed and made an investigation of the customer leaving the appellant’s patio and attending at the adjacent establishment during the very same time period during which they were conducting their investigation of the appellant.

(ii) The Board erred in law by failing to articulate a legal test for the word “intoxicated” in s.29 of the Liquor Licence Act and for the word “drunkenness” in s.45(1) of the Regulation.

(iii) The penalty imposed by the Board was excessive and unreasonable.

Issue #1: Procedural Fairness

6A standard of review analysis is not applied to allegations of procedural unfairness. The Court must determine whether the appellant was accorded appropriate procedural fairness in the circumstances.

7A party has a right to cross-examine witnesses at a hearing under s.10.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22, but it is limited to matters that are “reasonably required for a full and fair disclosure of all matters relevant to the issue in the proceeding”. (emphasis added)

8The Inspectors observed the behaviour of the customer at both the appellant’s premises and the adjacent establishment’s premises during the time frame in question.

9The Board correctly concluded that such observations of the patron were relevant to the question of his state of sobriety and could be the subject of cross-examination.

10However, the Board denied cross-examination on the outcome of any investigation and any proceedings against the adjacent establishment.

11The appellant argued that a finding by another Board in those proceedings that the patron was not intoxicated would have been highly relevant at the appellant’s hearing.

12Any conclusion about the patron’s condition while at the adjacent establishment would turn on findings of fact based solely on the evidence adduced in that other proceeding. The evidence presented at different proceedings may not be of the same quality and may give rise to different results.

13Therefore, the outcome in one proceeding based on different evidence is not relevant to the issues in the appellant’s hearing.

14The Board was correct in not allowing cross-examination on such irrelevant and collateral matters. Therefore, there was no denial of procedural fairness.

Issue #2: The Legal Test for “Intoxicated” and “Drunkenness”

15The appellant submits that the Board erred in law in failing to articulate a legal test for “intoxicated” and “drunkenness”.

16It is apparent from the Board’s conclusion that it gave those words their ordinary and plain meaning. In doing so, the Board made no error in law.

17The Board made findings of mixed fact and law on these issues.

18The Board accepted the evidence of the Inspectors that the customer exhibited numerous signs of intoxication and drunkenness, and that despite multiple interactions between the customer, and the security officer and bartender, they took no steps to deal appropriately with him.

19As no error in law has been identified by the appellant, we see no merit to this ground of appeal.

Issue #3: Penalty

20Given its expertise, the Board’s decision on penalty should be accorded a deferential standard of reasonableness.

21The Board found that the contraventions of permitting drunkenness and selling and supplying liquor to a customer who appears intoxicated were serious matters.

22There were no extenuating circumstances. In fact, the customer interacted with the staff at numerous times and yet they not only permitted him to remain on the premises despite his condition but continued to serve him alcohol.

23The Board did take into account mitigating circumstances such as the fact that this was the first time the appellant was found to have contravened these provisions relating to intoxication in twenty-seven years of business. However, the Board acknowledged the need for both specific and general deterrence.

24In the end, the Board considered the proper factors and imposed a penalty that was within an acceptable range.

25The appeal is therefore dismissed.

HEROLD J.

26The appeal is dismissed for oral reasons delivered today by Lederman J. The appellant shall pay to the respondent its costs of this appeal fixed by us at the sum of $5,000 all inclusive. The issue of the dates for the six day suspension to be served is remitted to the Board.

LEDERMAN J.