Citation: Chen v. (Ontario) Alcohol and Gaming Commission of Ontario), 2011 ONSC 6076
DIVISIONAL COURT FILE NO.: 152/10
DATE: 20111012
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, HOY AND LAUWERS JJ.
BETWEEN:
YA ZHEN CHEN Applicant (Moving Party)
– and –
ALCOHOL AND GAMING COMMISSION OF ONTARIO Respondent
Counsel: Scott Au, for the Applicant Richard E. Kulis, for the Respondent
HEARD at Toronto: October 12, 2011
HOY J. (ORALLY)
[1] The applicant, Ya Zhen Chen, seeks an order quashing the Direction to Exclude of the Board of the Alcohol and Gaming Commission of Ontario dated December 1, 2010.
[2] Counsel for the applicant raises three issues.
[3] First, he argues that having rescinded an earlier Direction to Exclude, dated January 27, 2010, the Board had no jurisdiction to issue the December 1, 2010 Direction which was based on the same facts. Second, he argues that the Board breached its duty of fairness because it did not hold a hearing before issuing its decision. Third, he argues that the Board’s decision issuing the direction to exclude was unreasonable, principally because it relied on inadmissible evidence.
[4] We deal with these issues in turn.
[5] As to the first issue, the applicant agreed, after consulting legal counsel, that the January 27, 2010 Direction would be rescinded, the Board would issue an amended notice proposed exclusion and the applicant would make written submissions to the Board as to why she should not be excluded. Having made this agreement, it is not open to the applicant to argue the Board was without jurisdiction to make the Direction to Exclude.
[6] As to the second issue, it was open to the applicant to request an oral hearing pursuant to s.10 of the Alcohol and Gaming Regulation and Public Protection Act, 1996, which by s.3 applies to the Gaming Control Act, 1992. The applicant, however, consulted legal counsel and agreed to proceed by way of written submissions. Having done so, it is not open to the applicant to assert the failure of the Board to hold a hearing as a basis to quash the Direction to Exclude.
[7] As to the third issue, the core of key allegations were not disputed in the applicant’s written submissions to the Board. In our view, the standard of review of the Board’s Direction to Exclude is reasonableness and its Direction to Exclude was reasonable.
[8] The applicant’s counsel raised constitutional and Charter issues in his factum. He did not file a Notice of Constitutional Question as required by s.109 of the Courts of Justice Act. He conceded that he was therefore not in a position to advance those arguments before us and we have addressed them.
DAMBROT J.
COSTS
[9] Costs to the respondent are fixed at $4,000.00
HOY J.
DAMBROT J.
LAUWERS J.
Date of Reasons for Judgment: October 12, 2011
Date of Release: November 7, 2011
CITATION: Chen v. (Ontario) Alcohol and Gaming Commission of Ontario), 2011 ONSC 6076
DIVISIONAL COURT FILE NO.: 152/10
DATE: 20111012
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, HOY AND LAUWERS JJ.
BETWEEN:
YA ZHEN CHEN Applicant (Moving Party)
– and –
ALCOHOL AND GAMING COMMISSION OF ONTARIO Respondent
ORAL REASONS FOR JUDGMENT
HOY J.
Date of Reasons for Judgment: October 12, 2011
Date of Release: November 7, 2011