Court File and Parties

CITATION: 1443614 Ontario Inc. and Alcohol and Gaming Commission, 2011 ONSC 772

COURT FILE NO.: DC-09-1491

DATE: February 2, 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

Motion for Adjournment – Reasons

[1] The Appellant brought a motion to adjourn its appeal. These are the reasons we undertook to deliver when dismissing the motion.

[2] The adjournment request was based upon a pending judicial review application in an unrelated matter. A licensee operating under the name “Moose Winooski’s” is challenging an interlocutory decision of the Board of the Alcohol and Gaming Commission of Ontario (the AGCO). The Board dismissed Moose Winooski’s motion to stay its proceedings, that motion alleging the AGCO lacks administrative independence and institutional impartiality. Moose Winooski’s has launched a judicial review application. It has also moved for an interim stay of its AGCO proceeding pending the determination of that judicial review application.

[3] The Appellant contends that the outcome in the Moose Winooski matter may obviate the need to hear this appeal. It submits that if the Board is found lacking in institutional impartiality, its decision in the matter before us would have to be quashed. The Appellant also submitted that if Moose Winooski is successful in obtaining an interim stay of its AGCO hearing pending the court’s decision on its judicial review application, that this Appellant should be afforded a similar position.

[4] Though framed as a request to adjourn this appeal for approximately three months to the Divisional Court sitting in Ottawa in April, there is no evidence Moose Winooski’s stay motion will be determined within that time, and it is almost certain the judicial review application itself will take much longer than that. The Appellant answered our concern in that regard by agreeing that any adjournment of this appeal to April would be peremptory against the Appellant regardless of the status of the Moose Winooski case.

[5] The Appellant contends there is no urgency respecting this appeal, pointing out it has been adjourned once already at the behest of the Respondent Registrar, and that there is no prejudice to the Respondent.

[6] We disagree. There is possible prejudice to the Respondent. The practical effect of an adjournment could be to shut down the Board, even if only temporarily.

[7] The public has an interest in the expeditious resolution of alleged infractions. The allegations against the Appellant are almost four years old already. The reasons for the delays up to now are not particularly important to the exercise of our discretion on this adjournment request.

[8] Tila Tequila is not in the same situation as other licensees who are facing hearings before the Board. Tila Tequila has had its hearing. To hear this appeal does not engage the same time and resources as the hearings themselves.

[9] Most importantly, the Appellant has never raised the bias issue at the heart of the Moose Winooski case and does not challenge the Board’s decision on grounds of actual bias, institutional bias or apprehension of bias. When it first sought an adjournment of the appeal several weeks ago, Tila Tequila was offered an opportunity to deliver an amended Notice of Appeal. It chose not to do so. Even now it does not propose to put the bias issue before the April panel of this court. It would be inappropriate to adjourn this appeal to await the determination of a legal issue that was never raised in this case.

Mr. Justice A. Cusinato

Mr. Justice D. Aston

Mr. Justice T. Heeney

Date: February 2, 2011

CITATION: 1443614 Ontario Inc. and Alcohol and Gaming Commission, 2011 ONSC 772

COURT FILE NO.: DC-09-1491

DATE: February 2, 2011

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

1443614 Ontario Inc. o/a Tila Tequila Bar (Appellant)

AND:

Registrar, Alcohol and Gaming Commission of Ontario (Respondent)

motion for adjournment – reasons

Cusinato J.

Aston J.

Heeney J.

Released: February 2, 2011.