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)
[1] The 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.
[2] As a penalty, the Board suspended the appellant’s liquor licence for six days.
[3] The appellant appeals from those decisions.
[4] This 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.
[5] The 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
[6] A 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.
[7] A 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)
[8] The 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.
[9] The 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.
[10] However, the Board denied cross-examination on the outcome of any investigation and any proceedings against the adjacent establishment.
[11] The 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.
[12] Any 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.
[13] Therefore, the outcome in one proceeding based on different evidence is not relevant to the issues in the appellant’s hearing.
[14] The 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”
[15] The appellant submits that the Board erred in law in failing to articulate a legal test for “intoxicated” and “drunkenness”.
[16] It 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.
[17] The Board made findings of mixed fact and law on these issues.
[18] The 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.
[19] As no error in law has been identified by the appellant, we see no merit to this ground of appeal.
Issue #3: Penalty
[20] Given its expertise, the Board’s decision on penalty should be accorded a deferential standard of reasonableness.
[21] The Board found that the contraventions of permitting drunkenness and selling and supplying liquor to a customer who appears intoxicated were serious matters.
[22] There 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.
[23] The 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.
[24] In the end, the Board considered the proper factors and imposed a penalty that was within an acceptable range.
[25] The appeal is therefore dismissed.
HEROLD J.
[26] The 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.
HEROLD J.
SWINTON J.
Date of Reasons for Judgment: June 7, 2010
Date of Release: June 11, 2010
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
ORAL REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: June 7, 2010
Date of Release: June 11, 2010