Shooters Sports Bar Inc. v. Ontario (Alcohol and Gaming Commission of Ontario), 2012 ONSC 3711

Shooters Sports Bar Inc. v. Ontario (Alcohol and Gaming Commission of Ontario)

CITATION: Shooters Sports Bar Inc. v. Ontario (Alcohol and Gaming Commission of Ontario), 2012 ONSC 3711

DIVISIONAL COURT FILE NO.: 306/10

DATE: 20120621

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

ASTON, HERMAN AND POMERANCE JJ.

BETWEEN:

SHOOTERS SPORTS BAR INC.

Appellant

– and –

REGISTRAR OF THE ALCOHOL AND GAMING COMMISSION OF ONTARIO

Respondent

Clive H. Preddie, for the Appellant

Richard E. Kulis, for the Respondent

HEARD at Toronto: June 21, 2012

ASTON J. (ORALLY)

1Shooters Sports Bar Inc. appeals from the decision of the Board of the Alcohol and Gaming Commission dated May 21, 2010, suspending the appellant’s liquor licence for fourteen days. This decision follows the Board’s April 22, 2010 finding that the appellant permitted drunkenness on its premises in contravention of the Liquor Licence Act.

2This Court has jurisdiction to hear the appeal pursuant to s.11 of the Alcohol and Gaming Regulation and Public Protection Act, 1996, which provides that an appeal may be made on a question of law only. Questions of law include breach of procedural fairness amounting to a denial of natural justice.

3Few of the grounds in the Notice of Appeal can be characterized as errors of law or denial of procedural fairness, the only basis upon which this Court can intervene. There is no appeal on questions of fact or mixed fact and law unless the latter includes some discrete and extricable question of law. This Court does not evaluate or weigh the evidence nor can we consider evidence not before the Board.

4The grounds for appeal that are within our purview are these:

(1) Did the Board deny procedural fairness because the two Board members who heard the matter had heard a similar matter in 2006?

(2) Did the Board err at law or deny procedural fairness because it admitted evidence that the appellant was found guilty of an offence in the Ontario Court of Justice stemming from the same facts and allegations the Board was considering?

(3) Did the Board apply an incorrect burden of proof?

(4) Did the Board err at law in drawing an adverse inference from the fact that the appellant did not call Dick Spiering as a witness when it was the Registrar who had compelled Mr. Spiering to attend the hearing?

(5) Did the Board fail to afford procedural fairness by failing to explain why it preferred the evidence of the Registrar’s witnesses over those of the appellant?

5I will deal with each of these in turn.

6First, did the Board deny procedural fairness because the two Board members who heard the matter had heard a similar matter in 2006? No objection was taken at the time of the hearing, nor has there been any motion to adduce fresh evidence or subsequently discovered evidence on this appeal. This alone is dispositive of this ground of appeal. Furthermore, the bare facts mentioned now do not displace the legal presumption that the Board heard the matter without any predisposition.

7Second, did the Board err at law or deny procedural fairness because it admitted evidence that the appellant was found guilty of an offence in the Ontario Court of Justice stemming from the same facts and allegations the Board was considering? Evidence that the appellant had been convicted of a regulatory offence under the Liquor Licence Act for the very same matter being considered by the Board was certainly admissible. In any event, the Board did not refer to this evidence in its reasons or appear to rely upon it.

8Third, did the Board apply an incorrect burden of proof? The burden of proof is a balance of probabilities, not proof beyond a reasonable doubt. There is no indication on the record of any error in this regard, nor was the point argued in oral submissions today.

9Fourth, did the Board err at law in drawing an adverse inference from the fact that the appellant did not call Dick Spiering as a witness when it was the Registrar who had compelled him to attend the hearing? Though the Board was apparently unaware of the fact that the Registrar had compelled the attendance of Mr. Spiering, it was nevertheless open to the Board to draw the inference that it did from Mr. Spiering’s availability because the licensee could have called him as a witness and simply chose not to do so. The inference drawn is a question of fact, which does not fall within the ambit of reviewable error.

10Fifth, did the Board fail to afford procedural fairness by failing to explain why it preferred the evidence of the Registrar’s witnesses over those of the appellant? The failure to give reasons or explain a decision is not a stand-alone ground for appeal but it is capable of establishing reversible error if it can be fairly characterized as a breach of natural justice. A losing party is entitled to know why the evidence of the other side was preferred over its own. In this case, the reasons are rather sparse but there are reasons.

11The inspectors concluded that the patron was intoxicated. The person in charge of the bar testified that in her opinion he was not. The Board had to resolve this factual issue as the crux of the case and had to decide which evidence it preferred and accepted. The Board recited the salient evidence from each witness. It weighed the evidence and accepted the evidence of the inspectors as more reliable. Reasons included the following:

(i) the inspectors took adequate contemporaneous notes which recorded details. The inspectors gave evidence within their notes which were found to be consistent “with regard to essential facts” and when the inspectors did not know about details outside their notes, they said so.

(ii) the evidence of the inspectors was consistent “regarding all matters of significance”.

(iii) the inspectors had more than enough time to make their observations and to assess the patron’s condition.

(iv) evidence of the staff person and the patron himself indicated he was served “at least” six beers in the course of the evening.

(v) an adverse inference was drawn from the failure of the licensee to have the patron testify because “he could have cleared up any doubts about his gait due to his size or speech impediment”.

12These reasons are not compelling but they are sufficient in the circumstances of the case.

13We therefore conclude that there is no merit to any of the grounds for appeal and the appeal is dismissed.

COSTS

14I have endorsed the Appeal Book on behalf of the panel, “For oral reasons given and recorded, the appeal is dismissed with costs fixed at $2,500 payable within 180 days.”