CITATION: 168774 Ontario Inc. v. Registrar of Alcohol and Gaming, 2017 ONSC 3579
DIVISIONAL COURT FILE NO.: DC-16-0733
DATE: 2017-06-07
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATHESON, TRIMBLE and SHEARD JJ.
BETWEEN:
168774 ONTARIO INC. o/a SWAZZEES RESTAURANT AND BAR Appellant
– and –
REGISTRAR OF ALCOHOL and GAMING Respondent
– and –
LICENCE APPEAL TRIBUNAL Intervenor
Paul R. Hosack, for the Appellant
Aviva R. Harari and Rena Khan, for the Respondent
Benson Cowan and Valerie Crystal, for the Intervenors
HEARD at Hamilton: June 7, 2017
TRIMBLE J. (ORALLY):
[1] This is an appeal from the decisions of the Ontario Licence Appeal Tribunal of May 12, 2016 and May 31, 2016. The Tribunal found that the appellant breached the Liquor Licence Act by selling alcohol to individuals who are or appear intoxicated, contrary to s. 29 of that Act, and for allowing drunkenness to occur on the property, contrary to s. 45(1) of Ontario Regulation 719/90 passed under the Act, and imposed a 40 day licence suspension. The Tribunal’s decision addressed two separate instances, one involving a patron called “P.D.” and the other patron called “K.M.”, each on separate occasions.
Jurisdiction
[2] Section 11(1) and (3) of the Licence Appeal Tribunal Act provides for an appeal to this Court from a decision or order of the Tribunal and restricts such appeals to questions of law only.
Standard of Review
[3] The parties disagree as to the standard of review for this Court. The Appellant submits that the proper standard of review to be applied by this Court in an appeal from a question of law is correctness, citing the Divisional Court’s 2014 decision in 2130845 Ontario Inc. o/a Heart & Crown v. Ontario (Registrar, Alcohol and Gaming Commission), 2014 ONSC 3595. The Respondent submits that the correct standard of review for a Tribunal decision is reasonableness, relying on more recent decisions of this Court, most recently 2193145 Ontario Inc. v. Ontario (Registrar, Alcohol and Gaming Commission), 2016 ONSC 3552 (see paras. 26 and following).
[4] We prefer the more recent cases concluding that the reasonableness test applies. However, we also conclude that the outcome of this appeal would be the same regardless of which standard is applied.
Facts
[5] The Reasons for Decision set out the facts in detail. The high-level facts in this case are as follows:
a. On the evening of February 28th to March 1st, 2015, P.D. consumed alcohol before she went to Swazzees, consumed more alcohol at Swazzees, and then left on foot. Later, she was found dead outside, having died from hypothermia.
b. Five days later, on March 5th, K.M. consumed alcohol before attending at Swazzees, and consumed more alcohol while he was there. His server, a different server than P.D.’s server, cut him off and offered him a drive home. He declined the offer, left on foot, and sometime later was found on the street suffering from hypothermia.
Issues
[6] The Appellant raises four issues in its factum:
that the Tribunal overemphasized the evidence of the experts, effectively reversing the onus;
that the Tribunal erred in weighing and assessing certain evidence;
that the Tribunal failed to keep a recording of all of the evidence; and,
that the sanction was excessive.
1. The Expert’s Evidence
[7] The Appellant submits:
a. that a toxicologist’s evidence can only be used as a check against, or a test of, other witnesses’ recollections; and,
b. the Tribunal used the toxicologist’s evidence as the main reference point from which to assess the evidence of the witnesses, and in so doing, effectively reversed the onus.
[8] It is apparent from the Tribunal’s decision that it considered all evidence, both expert and lay, in reaching its decision. It made findings of fact based on its review of all of the evidence. We are not persuaded that the Tribunal reversed the onus, making no error of law in that regard.
2. Evidence Issues
[9] The Appellant submits that the Tribunal misdirected itself with respect to many aspects of the evidence and in doing so, failed to place any weight, or placed insufficient weight, on certain evidence. This was the major focus of oral argument.
[10] This is not a question of law only, which is the proper scope of an appeal. In any event, we do not find that the Tribunal’s decision in this regard was unreasonable.
[11] It is apparent from the Tribunal’s decision that it considered all of the evidence before it and there was an evidentiary basis for its findings. We do not repeat every alleged issue the Appellant raised with the Tribunal’s findings of fact. Two examples suffice to illustrate the point:
a. In paragraph 137 of the Appellant’s factum, it submits that the Tribunal misdirected itself by ignoring and failing to place any weight on the evidence of the witness, including B.J.R. who was with P.D. most of the day, and her observations about P.D.’s level of intoxication. A review of the decision indicates, however, that the Tribunal considered the evidence of B.J.R. and did not put weight on her evidence because she admitted to being very intoxicated that night and to not monitoring P.D.’s alcohol consumption.
b. In paragraph 139 of the Appellant’s factum, it submits that the Tribunal failed to take into account evidence that K.M.’s whereabouts were unaccounted for for approximately an hour after he left Swazzees, during which time he might have consumed more alcohol. A review of the decision indicates, however, that the Tribunal considered this factor and rejected the argument, finding that there were no other premises in the vicinity at which K.M. could have consumed alcohol after leaving the Appellant’s premises.
3. Incomplete Record
[12] There is a gap in the recording, predominantly in the evidence of P.D.’s server. The Appellant submits that this makes it difficult on this appeal to properly assess whether the Tribunal made findings that were unreasonable, ignored evidence, and made findings not supported by the evidence.
[13] We have assumed that this procedural fairness issue is properly before us.
[14] Where portions of the transcript of the evidence are missing, the main concern for an appellate court is the potential denial of justice arising from the inadequacy of the record on which the appellate court must make its decision. In other words, the issue is whether there is a risk, by virtue of the incomplete record, that the Appellant may be denied his or her ground of appeal (see R. v. Hayes, [1989] 1 SCR 44 and R. v. Baldry, 2004 O.J. No. 6014 (SCJ)). The Court is concerned with the potential miscarriage of justice. As a rule, in order for an appellate court to intervene and order a new trial, there must be a serious possibility that the missing portion of the transcript deprived the applicant of a ground of appeal (see R. v. Hayes, supra and R. v. Dobis, 2000 O.J. No. 646 (CA).
[15] We dismiss this ground of appeal for the following reasons:
a. The Tribunal is not required to keep a record under either the Licence Appeal Tribunal Act, (s. 6(3)) or the Statutory Powers of Procedure Act, (s. 20). The question of whether there is nonetheless an obligation to make a record need not be dealt with on this appeal because we conclude that the missing portion of the evidence does not deprive the Appellant of a ground of appeal.
b. We also note that there is no allegation that the failure to properly record part of the evidence arose from bad faith or wrongdoing on the part of the Tribunal.
c. In this case, there is no serious prejudice to the Appellant. The Appellant gave detailed written submissions to the Tribunal, including a detailed review of the evidence it was relying on in support of its position. Those written submissions regarding the evidence were given to this Court and considered on this appeal.
d. The Appellant has not demonstrated that there is a serious possibility that the missing portion of the evidence deprived the Appellant of a ground of appeal before this Court.
4. Sanction
[16] The Appellant submits that the Tribunal imposed sanctions are extreme and excessive in the circumstances.
[17] Before the Tribunal, the Appellant submitted that the appropriate sanction for these two infractions combined was a licence suspension of 20 to 22 days. The Registrar submitted that the appropriate sanction was a licence suspension of 60 days. The Tribunal imposed a sanction of a licence suspension combined of 40 days.
[18] The Liquor Licence Act and the regulations give the Tribunal wide discretion with respect to the sanctions it may impose. The Tribunal’s decisions on sanction are discretionary and are entitled to a high level of deference (see Baker v. Canada, [1999] 2 SCR 817 and Canada Post Corporation v. Public Service Alliance of Canada, 2010 FCA 56.
[19] The Appellant did not demonstrate an error of law in the sanction imposed by the Tribunal for the following reasons:
a. The Tribunal considered such factors as the seriousness of the infractions, the seriousness of the consequences, that no change or remedial steps were undertaken between the two instances giving rise to the infractions, and the principles of specific and general deterrence.
b. The Tribunal considered such mitigating factors as these were the first administrative actions taken against the Appellant and that K.M.’s server cut him off and offered him a drive home.
c. No error in principle has been demonstrated. In essence, the Appellant challenges the application of the law to the facts.
[20] In oral argument, the Appellant also submits that the reasons do not show sufficient analysis of what is required to show drunkenness. The oral submissions however, centred on the Appellant’s concern that the evidence supporting the conclusions about drunkenness was improperly weighed and assessed by the Tribunal. We considered the two cases put forward. In our view, they are insufficient to support the proposed error.
Conclusion
[21] The Appellant has not demonstrated that the Tribunal made any error of law.
[22] In view of the foregoing, we dismiss the appeal.
MATHESON J. ENDORSEMENT:
[23] “Appeal dismissed for reasons given orally. Costs to the Respondent fixed at $4,000.00, all inclusive”.
Trimble J.
Matheson J.
Sheard J.
Date of Oral Reasons for Judgment: June 7, 2017
Date of Release: June 9, 2017
CITATION: 168774 Ontario Inc. v. Registrar of Alcohol and Gaming, 2017 ONSC 3579
DIVISIONAL COURT FILE NO.: DC-16-0733
DATE: 2017-06-07
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATHESON, TRIMBLE and SHEARD JJ.
BETWEEN:
168774 ONTARIO INC. o/a SWAZZEES RESTAURANT AND BAR Appellant
– and –
REGISTRAR OF ALCOHOL, GAMING AND RACING Respondent
– and –
LICENCE APPEAL TRIBUNAL Intervenor
ORAL REASONS FOR JUDGMENT
Date of Oral Reasons for Judgment: June 7, 2017
Date of Release: June 9, 2017