Shoeless Joes Brant St. v. Registrar of Alcohol and Gaming, 2014 ONSC 7009
DIVISIONAL COURT FILE NO.: 507/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SPENCE, SWINTON & NORDHEIMER JJ.
BETWEEN:
2332385 ONTARIO INC., O/A SHOELESS JOES BRANT ST.
Appellant
– and –
REGISTRAR OF ALCOHOL AND GAMING
Respondent
R. Litkowski, for the appellant
A. Harari, for the respondent
HEARD at Toronto: November 19, 2014
nordheimer j.:
1The appellant appeals from the order of the Licence Appeal Tribunal dated October 4, 2013, that found the appellant had violated certain sections of the Liquor Licence Act, R.S.O. 1990, c. L.19 and its regulation, R.R.O. 1990, Reg. 719. As a penalty for these offences, the Tribunal imposed a suspension of the appellant’s liquor licence for five business days. The appellant appeals both the finding of the violations and the penalty imposed. The suspension order has been suspended pending this appeal.
2The Tribunal first issued a decision dated September 3, 2013, in which it made certain findings of fact.1 Following on that decision, the Tribunal invited submissions on the law to be applied and the appropriate sanction to impose. The Tribunal then issued a further decision dated October 4, 2013 that found the violations and imposed the five day liquor licence suspension.2
3Specifically, the Tribunal found that the appellant had committed the following violations:
(i) permitting a person who appears to be under the age of nineteen to have or consume liquor, contrary to s. 30(4) of the Act;
(ii) failing to ensure that an item of identification is inspected before liquor is served to a person under the age of nineteen, contrary to s. 41(1) of the Regulation;
(iii) permitting drunkenness on its premises, contrary to s. 45(1) of the Regulation.
4There is no dispute regarding the facts that underlie these violations. A group of five young men came into the appellant’s sports bar and restaurant sometime between 12:30 a.m. and 1:00 a.m. They were served two pitchers of beer and some shots of tequila. At approximately 1:18 a.m., an inspector with the Alcohol and Gaming Commission of Ontario entered the bar, accompanied by police officers. The bar was not crowded. The inspector noticed the group of five young men. They appeared to the inspector to be very young. The inspector approached the young men and asked for identification. Four of the five men produced their identification without issue. The fifth expressed objection to being questioned and became unruly. Eventually he was taken under control by the police officers and arrested.
5Of the five men, three were under the age of nineteen. Three of the young men, including the unruly one, appeared to be intoxicated.
6The bar was recently opened, with the consequence that a training manager was present. She observed the five young men come into the bar. She thought that they looked young and specifically instructed the bartender to check their identification. The bartender did check their identification. However, the bartender did not check the month of their birthdates, only the year. Consequently, the bartender missed the fact that three of the young men were under nineteen, albeit only by a matter of some weeks or months. No one else checked the identification including the training manager and the person who served the young men.
7The Tribunal found that the violations were made out on the evidence. The Tribunal subsequently imposed a five day suspension as the penalty for those violations.
8An appeal lies to this court only on a question of law.3 The standard of review has been held to be correctness. On this appeal, the main thrust of the appellant’s argument is that the defence of due diligence applies to these charges and that the evidence demonstrates that the appellant engaged in due diligence at the time.4 Before the Tribunal, the appellant took the same position whereas the respondent argued that the defence of due diligence was not available in administrative proceedings of this nature. The Tribunal did not decide that issue because it concluded that the defence of due diligence was not made out on the evidence. Like the Tribunal, I find it unnecessary to explore and decide the issue of whether the defence of due diligence is available in a proceeding such as this. I reach that conclusion because, again like the Tribunal, I find that, even if the defence of due diligence is available, the appellant has not met its burden of demonstrating that it exercised due diligence in the circumstances of this case.
9The appellant places great emphasis, in terms of the due diligence defence, on the training that its staff undergoes on issues such as the requirements of the Act and its Regulation. While that is a factor to be considered, training only goes so far. It is the implementation of the training that is more crucial. A person can receive all the training in the world but, if the person does not, or cannot, put that training to proper use, then the training is of little effect.
10In this case, it is apparent that the bartender, however well-trained he may have been, failed in the most basic aspect of checking identification for underage drinkers and that is to carefully check the full birthdate of the person. Checking only the year of birth fails, by as much as a full twelve months, to catch individuals who are over eighteen but still under nineteen.
11Further, no one else checked the identification notwithstanding the obvious concerns regarding the ages of the five young men involved. The training manager did not check the identification nor did the person who served the young men. They both relied on the bartender. Further, there was evidence that it was a second bartender who poured the tequila shots but s/he was not called to give evidence. There was, therefore, no evidence as to the steps, if any, that s/he took to check identification. Consequently, only one of four responsible persons checked the young men’s identification and the check that that person did was fundamentally flawed.
12Further, with respect to the finding of “permitting drunkenness”, the evidence established that three of these young men showed signs of intoxication, i.e., drunkenness. The question then is whether the appellant knew or ought to have known of their condition and whether the appellant permitted them to be on the premises: 1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] O.J. No. 1553 (C.A.) at para. 3.
13On the evidence, the indicia of drunkenness ought to have been evident to the appellant’s employees but they served the young men in any event. I would note on this point that, if the young men arrived between 12:30 a.m. and 1:00 a.m., and the inspector noticed the drunkenness when he arrived at approximately 1:18 a.m., the reasonable inference could be drawn that the young men were drunk when they entered the bar. Again, despite all of the claimed training that is said to have been given, the appellant’s staff either did not discern the intoxicated state of these young men or chose to ignore it. Indeed, on this point, the bartender (who failed to properly check the identification) said that he did not check for signs of intoxication of these young men, although he did smell marijuana. The person who served the young men was not called as a witness so there is no evidence whether or not she checked for signs of intoxication.
14Consequently, on the evidence that was before the Tribunal, I cannot find any fault with the conclusion that it reached that the appellant had committed the violations that the Tribunal found. I conclude, as the Tribunal did, that, on these facts, the appellant has failed to put forward evidence that would establish a defence of due diligence.
15In terms of the penalty, the appellant submits that, at most, a suspension of three days ought to have been imposed. This was a new establishment that had just begun business. As a result, it had no prior convictions. Further, the appellant had taken a number of steps since this incident to tighten its procedures. No repetition of these offences has occurred since.
16The imposition of a penalty is a matter of discretion for the Tribunal to determine. It is in the best position to decide what penalty is appropriate with its knowledge of what has happened in other cases and its view of the seriousness of the offences. This court would only be justified in interfering with the penalty imposed if there were an error in law – for example, the penalty was clearly unreasonable in the sense of being grossly disproportionate to the nature of the offences or being harsh and/or excessive. Underage drinking, and drinking to excess, are two of the more serious offences under the Act and the Regulation. The social dangers associated with such conduct are well-known. I can find no basis for concluding that the penalty of a five day suspension, in the circumstances of this case, is so outside the realm of reasonable penalties as to rise to the level of an error of law that would permit our intervention.
17The appeal is dismissed. The appellant shall pay to the respondent its costs of the appeal fixed in the amount of $4,000, inclusive of disbursements and HST. The appellant shall submit proposed suspension dates acceptable to the Registrar within seven days of the date of these reasons, failing which the Registrar may set the suspension dates without further notice.
NORDHEIMER J.
SPENCE J.
SWINTON J.
Date of Release:
CITATION: Shoeless Joes Brant St. v. Registrar of Alcohol and Gaming, 2014 ONSC 7009
DIVISIONAL COURT FILE NO.: 507/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SPENCE, SWINTON & NORDHEIMER JJ.
BETWEEN:
2332385 ONTARIO INC.,
O/A SHOELESS JOES BRANT ST.
Appellant
– and –
REGISTRAR OF ALCOHOL AND GAMING
Respondent
REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Release:
Footnotes
- 2332385 Ontario Inc. (c.o.b. Shoeless Joe’s Brant St.) (Re), [2013] O.L.A.T.D. No 228.
- 2332385 Ontario Inc. (c.o.b. Shoeless Joe’s Brant St.) (Re), [2013] O.L.A.T.D. No 240.
- Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, sched. G, s. 11(3)
- The due diligence defence is set out in R. v. Sault Ste. Marie (City), 1978 11 (SCC), [1978] 2 S.C.R. 1299.