2018 ONSC 6938
DIVISIONAL COURT FILE NO.: 18-926
DATE: 2018-12-07
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEENEY, CONWAY and SUTHERLAND JJ.
B E T W E E N :
1784476 Ontario Inc. o/a Romby’s Tavern and Smokehouse
Appellant
– and –
Registrar of Alcohol, Gaming and Racing
Respondent
Gustavo F. Camelino
for the Appellant
Tamara Brooks and Faye Kidman for the Respondent
HEARD at Hamilton: November 2, 2018
Conway J.:
[1] The Appellant, 1784476 Ontario Inc. operating as Romby’s Tavern and Smokehouse, appeals the Order of the Ontario Licence Appeal Tribunal dated February 22, 2018 directing the Registrar of Alcohol, Gaming and Racing to revoke the Appellant’s liquor licence.
Background
[2] Romby’s Tavern and Smokehouse (the “Tavern”) is a family operated business. The Appellant owns the business and holds the liquor licence. The Appellant’s shareholders are Robert Wilson, his mother and his brother-in-law. Mr. Wilson was the general manager of the Tavern. His wife (Amy) and sister were also involved in the business.
[3] On October 5, 2017, Inspector Black, a liquor inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”), was driving by the Tavern. He testified that he saw a bus pull into the parking lot. A man exited the bus and entered the Tavern with a beer bottle in hand. Inspector Black followed the man into the Tavern and saw him deposit the beer bottle into a case of empties, take another beer and walk outside into the parking lot.
[4] Inspector Black spoke to the bartender Ciaran Cahill about the removal of liquor from the Tavern. Mr. Cahill testified that he would have stopped the man from leaving the bar with the beer but had not seen him walk outside. Inspector Black then talked to Amy Wilson, who he understood to be a manager of the Tavern, about the incident.
[5] While Inspector Black was talking to Amy Wilson, Robert Wilson joined the conversation. Inspector Black testified that Mr. Wilson was aggravated and agitated during most of the conversation. Mr. Wilson yelled and swore at Inspector Black, threw the lanyard from around his neck across the table tops, made aggressive motions with his arms in his face, and grabbed Inspector Black by the jacket in the chest area.
[6] Mr. Wilson testified that earlier that day he had received a Registrar’s Notice of Proposal to temporarily suspend the Tavern’s licence for illegal football pools being conducted at the Tavern. He did not know that Inspector Black was unaware of the temporary suspension. He approached Inspector Black and said “what the hell are you getting us for now?” Mr. Wilson did not deny touching the inspector’s jacket but testified that he was pleading with him and not being aggressive. He said that he removed his hands from the inspector’s jacket with an apology. Inspector Black acknowledged in his testimony that at some point during the conversation Mr. Wilson calmed down substantially.
[7] On October 10, 2017, the Registrar issued a Notice of Proposal to Revoke the Appellant’s liquor licence (“NOP”) on the grounds that:
• the past/present conduct of the Appellant afforded reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty, contrary to s. 6(2)(d) of the Liquor Licence Act, R.S.O. 1990, c. L.19 (the “Act”);
• the Appellant obstructed a person from carrying out an inspection, contrary to s. 45(1) of the Act;
• the Appellant permitted a patron to remove liquor from the licenced premises, contrary to s. 34(1) of Ontario Regulation 719/90; and
• on October 5, 2017, the licence holder assaulted an AGCO inspector while he was conducting an inspection at the licensed establishment.
[8] The Registrar issued an Order immediately suspending the Appellant’s licence in light of the assault on the AGCO inspector and the removal of liquor from the licensed premises. On November 6, 2017, the Registrar issued an Amended NOP alleging that the Appellant had permitted unlawful gambling on its premises, contrary to s. 45(1) of the Regulation.
Tribunal’s Decision
[9] The Appellant appealed the Amended NOP to the Tribunal. A four day hearing was held before Vice-Chair Avril Farlam.
[10] At the hearing, Inspector Black, Robert Wilson, Amy Wilson, Ms. Turner and Mr. Cahill testified about the events of October 5, 2017. Three other AGCO inspectors testified about prior inspections of the Tavern and interactions with Mr. Wilson in which he had been aggressive with the inspectors, although Inspector Sharpe testified that during his investigation of the unlawful gambling allegation, Mr. Wilson was open and receptive, provided the documentation requested and showed a willingness to comply with the Act. Inspector Sharpe testified about two other occasions in which his interactions with Mr. Wilson were not “unpleasant”.
[11] In her reasons released on February 22, 2018, the Vice-Chair found that the Appellant had permitted a patron to remove alcohol from the licenced premises and had failed to sufficiently monitor the exit door. She found that Mr. Wilson had obstructed an inspector from conducting an inspection and had assaulted the inspector. She found that Mr. Wilson had in the past expressed hostility to other inspectors by swearing at them and asking one of them to look past infractions. The Vice-Chair also found that the Appellant had permitted unlawful gambling on the premises by the conduct of football pools and had retained some of the proceeds for its own use.
[12] The Vice-Chair concluded that the Appellant’s past conduct afforded the Registrar reasonable grounds to believe that the Appellant’s business would not be carried on in accordance with the law and with integrity and honesty, pursuant to s. 6(2)(d) of the Act.
[13] She was satisfied that there were sufficient grounds to revoke the Appellant’s licence and ordered the Registrar to carry out the Amended NOP. She held that revoking the Appellant’s licence was appropriate given the “seriousness and escalating pattern of behaviour” of Mr. Wilson toward inspectors. She accepted both parties’ submissions that there were no conditions that would be appropriate to attach to the Appellant’s liquor licence and stated that she was not confident that the Appellant had made any commitment to a change in behaviour.”
Jurisdiction and Standard of Review
[14] Section 11 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G provides that decisions of the Tribunal may be appealed to the Divisional Court, but only on a question of law.
[15] The standard of review of the Tribunal’s decision is reasonableness: see 2193145 Ontario Inc. o/a Boston Pizza v. Registrar, Alcohol and Gaming, 2016 ONSC 3552, at paras. 24-28. The reasonableness standard is concerned mostly with the existence of “justification, transparency and intelligibility within the decision-making process” and whether the decision “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. at para. 47.
Analysis
[16] The Appellant submits that the Tribunal erred in law by completely misapprehending the evidence or completely failing to take relevant and important evidence into account, citing Shooters Sports Bar Inc. v. Alcohol and Gaming Commission, 2008 25052. In that case, the court found that the Board failed to consider crucial evidence of a witness. It completely omitted the witness’ evidence in setting out its findings and provided an inaccurate summary of the witness’ evidence in other parts of its reasons. The court concluded that the Board’s reasoning demonstrated a complete misapprehension of the evidence.
[17] In this case, the Appellant has not established any such error of law in the Vice-Chair’s treatment or understanding of the evidence. The Vice-Chair conducted a balanced and thorough review of the relevant evidence. She was not required to refer to each piece of evidence. She considered evidence from both the Appellant and the Registrar. Each of her factual findings was supported by the evidence and open to her on the record. We are not persuaded that she completely misapprehended or ignored any material evidence in making her findings so as to constitute an error of law.
[18] Specifically, the Vice-Chair considered in detail Mr. Wilson’s version of events with respect to his interaction with Inspector Black on October 5, 2017. She preferred the version provided by Inspector Black. This anchored her finding that Mr. Wilson obstructed Inspector Black in carrying out his inspection and that his conduct ran contrary to the “cordial and professional” relationship that inspectors are entitled to have with liquor licensees. It further supported her conclusion that Mr. Wilson did not afford Inspector Black the respect and courtesy to which he was entitled, nor his ability to carry out an inspection “without apprehension of being touched.”
[19] In our view, the Appellant is essentially asking this court to re-weigh the evidence and come to a different conclusion. That is not the role of this court. It is not for this court to substitute its conclusion on the evidence for that of the Tribunal. As stated by the Court of Appeal in Finkelstein v. Ontario Securities Commission, 2018 ONCA 61, at para. 101:
The function of a reviewing court, such as the Divisional Court, is to determine whether the tribunal’s decision contains an analysis that moves from the evidence before it to the conclusion that it reached, not whether the decision is the one the reviewing court would have reached: Ottawa Police Services, at para. 66. With due respect to the Divisional Court, it failed to do so in the case of the Panel’s decision about Cheng. Instead, it impermissibly re-weighed the evidence and substituted inferences it would make for those reasonably available to the Panel. That was an error.
[20] Finally, the Appellant has not demonstrated any error of law in the legal test applied by the Vice-Chair to determine that the Appellant had contravened the Act or the Regulation. In particular, the Appellant has failed to establish any error in the Vice-Chair’s conclusion that the Appellant’s past conduct afforded the Registrar reasonable grounds to believe that the Appellant’s business would not be carried on in accordance with the law and with integrity and honesty, pursuant to s. 6(2)(d) of the Act.
[21] As set out in Ontario (Alcohol and Gaming Commission) v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157, at para. 26, this test entails an examination of the past and present conduct of the person seeking to acquire or maintain the privilege of carrying on an activity authorized by the state, namely a licensed establishment. The test the Registrar must meet under s. 6(2)(d) is whether there are reasonable grounds for the belief that the person will, in future, carry on the activity in a way that is not contrary to the public interest. Given the totality of the evidence of the Appellant’s past and present conduct, including its contraventions of the Act and Mr. Wilson’s conduct towards inspectors, the Vice-Chair’s conclusion that the Registrar had satisfied the test in s. 6(2)(d) fell within a range of possible, acceptable outcomes and was therefore reasonable.
Decision
[22] The appeal is dismissed.
[23] If the parties are unable to agree on costs, they may deliver cost submissions of no more than three pages, together with a Costs Outline, by December 17, 2018. No reply submissions are permitted.
Madam Justice B. Conway
I agree
Mr. Justice T. A. Heeney
I agree
Mr. Justice P. Sutherland
Date: December 7, 2018
2018 ONSC 6938
DIVISIONAL COURT FILE NO.: 18-926
DATE: 2018-12-07
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEENEY, CONWAY and
SUTHERLAND JJ.
B E T W E E N :
1784476 Ontario Inc. o/a Romby’s Tavern and Smokehouse
Appellant
– and –
Registrar of Alcohol, Gaming and Racing
Respondent
REASONS FOR JUDGMENT
CONWAY J.
RELEASED: December 7, 2018