Hitti v. Ontario (Alcohol and Gaming Commission of Ontario), 2011 ONSC 6854

Citation and Court Information

CITATION: Hitti v. Ontario (Alcohol and Gaming Commission of Ontario), 2011 ONSC 6854

DIVISIONAL COURT FILE NO.: 512/11

DATE: 20111118

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN:

RONALD HITTI Applicant

– and –

REGISTRAR, ALCOHOL AND GAMING COMMISSION OF ONTARIO and DEPUTY REGISTRAR, ALCOHOL AND GAMING COMMISSION OF ONTARIO Respondents

Counsel: D. Russ Makepeace, for the Applicant Richard E. Kulis and Tamara Brooks, for the Respondents Gerard Mitchell, for the Licensee

HEARD at Toronto: November 18, 2011

Oral Reasons for Judgment

PARDU J. (orally)

[1]

Overview

A licensee, Toronto Bespoke Inc. consented with the assistance of his counsel to conditions barring Ronald Hitti from any connection with the business. Ronald Hitti now seeks an interim injunction preventing the respondent from enforcing those conditions and requiring that reference to Ronald Hitti’s name from the face of the licence setting out the conditions, be removed.

[2]

Background

The Commission conducted an investigation into the application for the licence and spoke to Suhaib Nasir, the sole owner of the licensee, and his counsel Mr. Makepeace.

3The affidavit of Daniel Peters, the Commission investigator discloses the following:

Mr. Nasir advised me that he was 27 years old and lived with his parents. Mr. Nasir advised me that he had no investments, credit cards or current source of income. According to Mr. Nasir, he had only $1,000.00 in a bank account. Prior to his licence application (December 2010 to April 2011) Mr. Nasir was an event planning consultant at Mr. Hitti’s business at 128 Peter Street.

Mr. Nasir advised me that he was approached by Mr. Hitti to take over the lease and financing for 128 Peter Street and to apply for a liquor licence. Mr. Nasir advised that he took over a lease debt of approximately $90,000 and financing of $287,000 plus a further loan of $167,000.

Mr. Nasir advised me that his agreement with Mr. Hitti had a confidentiality clause and that he did not initially disclose to the AGCO his involvement with Mr. Hitti.

Mr. Nasir, in the presence of counsel, Mr. Makepeace, advised me that Mr. Hitti was no longer an investor nor in any way an operator in the business at 128 Peter Street. Mr. Nasir further stated that he had no objection to there being a condition on the liquor licence that would prohibit Mr. Hitti from being on the premises.

4Mr. Nasir has now filed an affidavit deposing the following:

My plan for this enterprise has always included having Ronny Hitti’s help and advice to create a positive and successful business that could continue into the future. I have experienced working in such businesses but given my large investment in this one, I have planned on learning and improving my business with Ronny’s consultation.

5He says he consented to the restrictions in the licence rather than face delay and miss the busy holiday season. Mr. Nasir, is of course, free to decide who he will allow to participate in his business.

6Mr. Hitti has a history of problems with liquor licenses. He and the business owned by him both went bankrupt albeit some years ago. There was a failure to remit large amounts of trust funds which were to have been set aside for retail sales tax. In 2003, following a hearing, the Commission found that the past/present conduct of the business afforded reasonable grounds for the belief that she and/or Ronald Hitti will not carry on business in accordance with the law and with integrity and honesty. The allegation was that Hitti was operating the business using his girlfriend as a front because he knew he would have concerns about getting another liquor licence.

[7]

Analysis

There is no dispute as to the applicable test. That defined in RJR-MacDonald Inc. v. Canada. Mr. Hitti complains that the imposition of the conditions barring him from the premises without notice or giving him an opportunity to be heard was unfair.

8The Commission does not dispute that Mr. Hitti’s application raises issues which require a hearing but disputes that there is evidence of irreparable harm and submits that the balance of convenience favours maintaining the conditions.

9The respondent has consented to removal of Mr. Hitti’s name from the face of the licence so that visitors to the establishment will not see his name as those stated with the restrictions.

10I am not persuaded that Mr. Hitti will suffer irreparable harm if he cannot be associated with the business in the short interval until this application can be heard. There are no particulars given which would allow me to come to an independent conclusion in that regard, for example, as to his other work and prospects.

11Having regard to the findings made in 2003, that there were reasonable grounds that Hitti would not carry on business with integrity and honesty, the balance of convenience also favours maintenance of the conditions until the hearing.

[12]

Disposition

Motion for the stay of conditions is dismissed. The licensee consents to an order that the respondent provide a copy of its record to the applicant and I so order.

13I have endorsed the Motion Record as follows: Application for interim injunction dismissed for reasons given orally. On consent, order that respondent provide copy of record of respondent for application for a licence by Toronto Bespoke Inc. Applicant to perfect application by November 30, 2011. If licensee wishes to file material to do so by December 15, 2011. Respondent to file all of its material by January 4, 2012 and hearing may be scheduled as soon as possible after that date.

[14]

Costs

Costs of motion for interlocutory injunction fixed at $500.00 payable to respondent by applicant as costs should follow the result of this motion.