CITATION: Zeng v. Ontario (Alcohol and Gaming Commission of Ontario), 2016 ONSC 3917
DIVISIONAL COURT FILE NO.: 212-15 DATE: 20160613
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
McLEAN, DAMBROT, and PATTILLO JJ.
BETWEEN:
Ke Wang Zheng o/a Kevin’s Convenience
Appellant
– and –
Alcohol and Gaming Commission of Ontario
Respondent
Darin S. Sederoff, for the Appellant
Aviva R. Harari, for the Respondent
HEARD at Toronto: June 13, 2016
DAMBROT, J. (ORALLY)
[1] The Appellant appeals from an order of the License Appeal Tribunal (“LAT”) issued on April 1, 2015 that his registration as a gaming supplier pursuant to the Gaming Control Act, 1992, S.O. 1992, c. 24 (the “Act”) be revoked. The LAT ordered revocation because it concluded that there were grounds to believe that the Appellant would not comply with a suspension or other conditions and ordered that his registration be revoked.
[2] The Appellant asks that the revocation of his registration be set aside, and that an appropriate suspension with conditions be imposed instead.
Background
[3] Registration as a gaming supplier under the Act permits a registrant to sell lottery tickets on behalf of the Ontario Lottery and Gaming Corporation. Section 10(b) of the Act requires the Registrar to refuse to register an applicant as a gaming supplier if there are reasonable grounds to believe that the applicant will not act as a supplier in accordance with the law or with integrity, honesty or in the public interest, having regard to the past conduct of the applicant. Section 12 of the Act permits the Registrar to propose to suspend or revoke a registration for any reason that would disentitle the registrant to registration under s. 10.
[4] When the Registrar proposes to revoke a registration, s. 13(1) of the Act requires the Registrar to serve notice of the proposed revocation on the registrant. The Registrar may then make the proposed order unless the registrant requests a hearing before the LAT within 15 days of service of the notice. After holding a hearing, the LAT may confirm or set aside the proposed order, and may attach such terms to its order as it considers appropriate.
[5] Pursuant to s. 14 of the Act, the Registrar may also order a registration immediately suspended where he or she considers it to be necessary in the public interest. A registrant is also entitled to a hearing before the LAT to review an order of suspension.
[6] The Appellant was registered as a gaming supplier on July 12, 2013. This registration permitted him to sell lottery tickets on behalf of the Ontario Lottery and Gaming Corporation.
[7] On December 5, 2014, acting on a tip that pirated DVDs were being sold on the premises, inspectors for the Alcohol and Gaming Commission of Ontario (“AGCO”) visited Kevin’s Convenience and discovered two gaming machines and 337 counterfeit DVDs. Prior to the discovery of the DVDs, the Appellant told the inspectors that there were no counterfeit DVDs present. When they were discovered, he said that he did not sell them.
[8] On December 10, 2014, the inspectors returned to the premises with two Toronto Police officers. Gaming machines and DVDs were still on the premises. Nineteen packages of unmarked cigarettes were also discovered.
[9] On December 12, 2014, the inspectors and the police returned to deliver a Notice of Proposed Order to Revoke Registration issued by the Registrar of the AGCO and an Order of Immediate Suspension. While on the premises, the inspectors and police officers witnessed a customer attempt to purchase “two of something,” which the Tribunal concluded was likely unmarked cigarettes. An additional search revealed more unmarked cigarettes hidden on the premises. Returning to the store twenty minutes later, the inspectors witnessed the Appellant replacing lottery tickets in the counter display case after being issued the Order of Immediate Suspension.
The LAT hearing
[10] The Appellant requested a hearing before the LAT. The sole issue before the LAT at the hearing was whether the Appellant’s past conduct provided reasonable grounds for the belief that he would not act as a supplier in accordance with the law or with honesty, integrity or in the public interest. The Tribunal held that it did. It reached the following conclusions:
In the case before the Tribunal, there is no evidence of infractions before or after the period December 5 to 12, 2014. And, with respect to the gaming machines, there is, as noted above, some evidence of compliance on December 12, 2014. However, there is also evidence that Mr. Zheng consistently was not truthful with the ACGO inspectors and the police officers. On December 5, 2014, before the box of DVDs was discovered in a cabinet, he told Ms. Leadbetter he had none. On December 10, 2014, before Ms. Fernando found the box of DVDs in a closet, he told both Ms. Leadbetter and Officer Howard that he had thrown them out. On the same day, before unmarked cigarettes were found in the freezer, he told Officer Howard that he had no illegal cigarettes and did not sell them. Moreover, after those unmarked cigarettes were seized on December 10, 2014, and Mr. Zheng had been charged under the Smoke Free Ontario Act, more unmarked cigarettes were found on December 12, 2014. Further, after Mr. Zheng had removed lottery tickets from the silent seller as instructed by Ms. Leadbetter in order to comply with the Order of Immediate Suspension on December 12, 2014, she found him re-inserting them when she returned to Kevin’s Convenience twenty minutes after leaving.
These actions demonstrate a pattern of dishonesty and lack of respect for the law. In particular, Mr. Zheng’s disregard for the Order of Immediate Suspension persuades the Tribunal that neither a further suspension nor conditions on the registration would result in compliance. The Tribunal therefore concludes that revocation of the Appellant’s registration is the appropriate sanction.
The Standard of Review
[11] Section 11(1) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, C. 12, provides that a party to a proceeding before the LAT relating to a matter under the Gaming Control Act, 1992 may appeal the decision of the LAT to the Divisional Court. Secion 11(3) restricts such appeals to questions of law alone. The standard of review on such an appeal is reasonableness: see 751809 Ontario Inc o/a Famous Flesh Gordon’s v Registrar, Alcohol and Gaming, 2014 ONSC 6707 (Div. Ct.) at paras. 30-31.
Analysis
[12] The Appellant argued that the LAT erred in law in the following respects:
by failing to articulate adequate reasons for rejection of an order imposing conditions as an alternative to revocation; and
by imposing a penalty which is too harsh and does not reasonably reflect the seriousness of the offence.
[13] We would not give effect to either ground of appeal.
[14] With respect to the adequacy of reasons, I note that in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at paras. 14-16, the court set out how an appellate court should approach the task of assessing the reasons of the adjudicator as follows:
14 Read as a whole, I do not see Dunsmuir, 2008 SCC 9, [2008] S.C.J. No. 9 as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses -- one for the reasons and a separate one for the result (Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at s.12:5330 and 12:5510). It is a more organic exercise -- the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47).
15 In assessing whether the decision is reasonable in light of the outcomes and the reasons, courts must show “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.
16 Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., 1973 191 (SCC), [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.
[15] In this case, the reasons are clearly adequate to the task. They permit this court to easily understand why the Tribunal made its decision to determine whether the conclusion is within the range of acceptable outcomes. In other words, the Dunsmuir criteria are met. The Tribunal declined to impose conditions as an alternative to revocation because in their view, the actions of the Appellant, which they outlined, in particular, the Appellant’s disregard for the Order of Immediate Suspension, demonstrated a pattern of dishonesty and lack of respect for the law, and persuaded the Tribunal that neither a further suspension nor conditions on the registration would result in compliance.
[16] With respect to the harshness of the decision, I would simply say that the selection of an appropriate remedy by a specialized tribunal is quintessentially a matter of discretion that is owed considerable deference on appeal: see Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817. Only rarely will a discretionary decision reflect an error of law alone.
[17] There is no doubt that the remedy in this case was harsh. The conduct under review was of short duration, and the Appellant pointed to other cases where arguably more serious misconduct by a registrant attracted only a suspension with conditions. However in light of the Tribunal’s evidence-based finding that neither a further suspension nor conditions on the Appellant’s registration would result in compliance, revocation was inevitable. It was open to the LAT to conclude that other cases in which revocation was not ordered were distinguishable. The decision of the LAT was reasonable, and the LAT committed no error of law in imposing a penalty of revocation in the circumstances of this case.
Disposition
[18] This appeal is dismissed.
McLEAN, J.
COSTS
[19] I have endorsed the Appeal Book as follows: “This appeal is dismissed with costs of $1,000, awarded to the Respondent.”
___________________________ dambrot, J.
McLEAN, J.
L.A. PATTILLO, J.
Date of Reasons for Judgment: June 13, 2016
Date of Release: June 15, 2016
CITATION: Zeng v. Ontario (Alcohol and Gaming Commission of Ontario), 2016 ONSC 3917
DIVISIONAL COURT FILE NO.: 212-15 DATE: 20160613
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McLEAN, DAMBROT, and PATTILLO JJ.
BETWEEN:
Ke Wang Zheng o/a Kevin’s Convenience
Appellant
– and –
Alcohol and Gaming Commission of Ontario
Respondent
ORAL REASONS FOR JUDGMENT
DAMBROT, J.
Date of Reasons for Judgment: June 13, 2016
Date of Release: