Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc., 2012 ONSC 2484
DIVISIONAL COURT FILE NO.: 468/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, SACHS AND WILTON-SIEGEL JJ.
BETWEEN:
REGISTRAR, ALCOHOL AND GAMING COMMISSION OF ONTARIO
Appellant
– and –
751809 ONTARIO INC. operating as FAMOUS FLESH GORDON’S
Respondent
Scott C. Hutchison and Paul Jonathan Saguil, for the Appellant
Richard Posner, for the Respondent
HEARD at Toronto: April 24, 2012
WILTON-SIEGEL J. (orally)
[1]
Introduction
The Registrar, Alcohol and Gaming Commission of Ontario appeals a decision of the Board of the Alcohol and Gaming Commission (“the Board”) dated September 22, 2011, refusing to revoke the respondent’s liquor licence.
[2]
Background
The Registrar issued a Notice of Proposal under s.15 of the Liquor Licence Act, R.S.O. 1990, c. L.19 (“the Act”) to revoke the respondent’s liquor licence because Mr. Barletta, the sole officer, shareholder and director of the respondent, has been very actively involved in the Hell’s Angel’s Club for many years, including a lengthy period as president of the London chapter.
3The test for revocation of the licence relied upon by the Registrar is set out in para. 6(2)(d) of the Act, which provides that:
(d) the past or present conduct of the persons referred to in subsection (3) affords reasonable grounds for belief that the applicant will not carry on business in accordance with the law and with integrity and honesty; […].
4An appeals lies to this Court only on a question of law (s.11(2) of the Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c. 26).
[5]
Submissions of the Appellant
The Registrar argues that the Board committed two errors of law. First, the Registrar says that, in referring to a balance of probabilities standard in a number of places, as well as the requirement that the proof must be compelling, the Board applied a higher standard than the “reasonable grounds for belief” standard in paragraph 6(2)(d) of the Act. In addition, in describing the focus of this test as the “governability” of the registrant, the Registrar says the Board departed from the test of actions “in accordance with the law and with integrity and honesty”.
[6]
Analysis
Even assuming that the standard of review on this appeal is correctness, reading the decision as whole, we do not believe that the Board applied the wrong standard or the wrong test. The Board recited the provisions of paragraph 6(2)(d) on a number of occasions and articulated its task in paragraphs 54, 69 and 88 of its decision. The Board made it clear that the standard addressed the operation of the licenced establishment.
7In stating its conclusions, the Board began by reiterating the test in paragraph 137 of its decision:
Mr. Barletta’s/the Licensee’s past and present conduct must be considered as a whole in order to determine whether there are reasonable grounds for the Board to believe that he will not, if continued to be licensed, carry on business in accordance with the law and with honesty and integrity.
8This statement clearly expresses the standard as reasonable grounds for belief rather than a higher standard. It is also clear from the language at paragraphs 137 and 139, as well as from other references in the decision, that the term includes “governability” is used as a short form reference to the test of carrying on business in accordance with the law and with honesty and integrity.
9The Board’s decision involved a determination of mixed fact and law. The Board was required to undertake a difficult task of weighing the evidence against the test in paragraph 6(2)(d). The Board concluded that:
“… [h]ere, where there is not a hint of impropriety on Mr. Barletta’s part in operating the licensed establishment, it would be improper for the Board to conclude that there is a risk of non-compliance such as would justify the revocation of the Licence”.
10In reaching this conclusion, the Board assessed all of the pertinent factors pertaining to the licensee, not merely the fact of Mr. Barletta’s membership in a criminal organization and the recent judicial determinations regarding, among other things, the characteristics of such membership.
11As the Board did not commit an error of law in reaching its decision, the appeal must be dismissed. It is not the task of this Court to re-weigh the evidence and to substitute our findings for those of the Board regarding its decision.
SWINTON J.
[12]
Disposition and Costs
I endorse the Appeal Book, “This appeal is dismissed for oral reasons delivered today. Costs to the respondent fixed at $5,000.00.”
WILTON-SIEGEL J.
SWINTON J.
SACHS J.
Date of Reasons for Judgment: April 24, 2012
Date of Release: May 15, 2012
CITATION: Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc., 2012 ONSC 2484
DIVISIONAL COURT FILE NO.: 468/11
DATE: 20120424
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, SACHS AND WILTON-SIEGEL JJ.
BETWEEN:
REGISTRAR, ALCOHOL AND GAMING COMMISSION OF ONTARIO
Appellant
– and –
751809 ONTARIO INC. operating as FAMOUS FLESH GORDON’S
Respondent
ORAL REASONS FOR JUDGMENT
WILTON-SIEGEL J.
Date of Reasons for Judgment: April 24, 2012
Date of Release: May 15, 2012