Court File and Parties

CITATION: 2011 ONSC 740 COURT FILE NO.: DC-09-1491 DATE: January 31, 2011 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: 1443614 Ontario Inc. o/a Tila Tequila Bar (Appellant) AND: Registrar, Alcohol and Gaming Commission of Ontario (Respondent)

BEFORE: Cusinato, Aston and Heeney JJ.

COUNSEL: Charles Merovitz and Bob deToni, for the Appellant Joyce Taylor and Phillip Morris, for the Respondent

HEARD: January 31, 2011 at Ottawa

ENDORSEMENT

[1] This is an appeal of the decision of the Board of the Alcohol and Gaming Commission of Ontario dated January 14 and 27, 2009, in which the Appellant was convicted of certain infractions under the Liquor Licence Act and Regulations. At the outset of argument, Mr. Merovitz advised that the Appellant is abandoning the ground of appeal alleging the inadequacy of the reasons given below.

[2] With respect to the convictions arising out of the events of February 9, 2007, the sole ground of appeal argued was that the Commission failed to give timely and adequate notice of the alleged infractions, so as to give the Appellant a reasonable opportunity to defend itself. The Appellant relies on Shooters Sports Bar Inc. v Ontario (Alcohol and Gaming Commission), [2008] O.J. No. 2112 (Div. Ct.), where the court stated, by way of obiter, that a delay of 103 days from the time that the alleged infractions occurred until the time the owner of the bar was notified of them, deprived the owner of the ability to investigate the incidents and defend himself. This amounted, in the court’s view, to a breach of natural justice.

[3] In this case, the undercover officer made his observations on Feb. 9, 2007, and the owner was advised of the general nature of the allegations on Feb. 16, 2007, a delay of only one week. While more detailed disclosure was later provided in May 2007, there is no evidence that the owner, Mr. Mahmoud, asked for any particulars when he was told of the incidents on Feb. 16, which one would have expected if he felt that he needed this additional information to investigate the incidents.

[4] This issue was not raised at the hearing before Vice-Chair Hunt. Nevertheless, she raised the issue herself at par. 74 of her reasons of January 14, 2009, and concluded that there was no lengthy delay in putting the owner on notice of the findings of the undercover operation. We find no basis to disagree with her conclusion.

[5] The second incident occurred on May 12, 2007, when two inspectors and two police officers attended the premises. Two females were observed to be drunk. The owner was notified of this, and removed their alcoholic beverages, but instead of placing them in the charge of an employee for the purpose of removing them from the premises, he left them with another patron who undertook to drive them home. They were later observed in the lobby in the same condition, and one of them had a drink in her hand, which she stated she had purchased from a bartender.

[6] There was ample evidence before the Board upon which the findings could be made that the Appellant permitted drunkenness on the premises, and sold liquor to a person who was already intoxicated. We are in no position to re-evaluate or interfere with the assessment of the evidence by the Board unless it is demonstrated that the Board misapprehended the evidence, or that there was a palpable and overriding error amounting to an error of law.

[7] While the conviction for selling liquor to an intoxicated person was based, in large part, upon hearsay evidence, such evidence is admissible in a proceeding of this nature. We see no error in principle in the exercise of the Board’s discretion to admit and rely upon this evidence.

[8] The Appellant argued that the Board erred in failing to consider, assess and weigh certain evidence in favour of the Appellant. However, the Board does not have to address every fact in the evidence. It does not matter that the licensee's policies, staff training and overall vigilance meet or exceed a reasonable standard if on the particular occasions in issue an infraction was in fact committed.

[9] The final event occurred on June 3, 2007, when the inspector observed 21 persons on a patio licensed for 11. It was argued here that the Board erred in failing to consider the defence of necessity. The owner testified that a gang of 12 to 13 people were trying to force their way into the bar, as a result of which all security personnel were summoned to the area as a show of force. It was during this period that the excess patrons entered the patio.

[10] This defence was not raised at the hearing, and is being argued for the first time on this appeal. It appears that trial counsel made a deliberate decision not to raise it at the hearing as a defence, and used it instead as a mitigating factor on sentence. This had obvious persuasive effect, since the Board found these to be “extenuating circumstances” and that the owner acted reasonably.

[11] However, the defence of necessity has specific components which must be established, including the requirement of proportionality, and the requirement that there be “no legal way out”. Since this defence was not raised at the hearing, the necessary factual basis for this defence was not explored in the evidence. It cannot be said that the Board erred in law in failing to deal with a defence that was never raised. In our view, it is too late to attempt to raise this defence now, on an inadequate record.

[12] The appeals are dismissed.

Mr. Justice A. Cusinato

Mr. Justice D. Aston

Mr. Justice T. Heeney

Date: January 31, 2011