Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2012-08-09

FILE: 6901/LLA

CASE NAME: 6901v. Registrar of Alcohol and Gaming

Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c. L. 19 - to Suspend a Licence

1646686 Ontario Inc. o/a as Island Mix Restaurant & Lounge Applicant

-and-

Registrar of Alcohol and Gaming Respondent

DECISION AND ORDER

ADJUDICATOR: Kenneth W. Koprowski, Vice-Chair

APPEARANCES:

For the Applicants: J. Randall Barrs, Counsel

For the Respondent: Rena Khan, Counsel

Heard in Toronto July 24, 2012

DECISION AND ORDER

BACKGROUND

The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal, dated July 18, 2011, Number 18803, which proposed to suspend for 14 days the licence of 1646886 Ontario Inc., operating as Island Mix Restaurant & Lounge, 1050 Brock Road, Units 14 and 15, Pickering, Ontario (the "Applicant"). The Applicant appealed the Notice of Proposal to the Licence Appeal Tribunal.

The particulars stated in the Notice of Proposal, Exhibit #1, were that, on March 26, 2011, there was a drunken patron in the licensed establishment, contrary to Section 45(1) of Regulation 719/90.

The Tribunal received the Applicant’s Notice of Appeal, Exhibit #2, on August 19, 2011. The reason given by the Applicant in its Notice of Appeal for disagreeing with the Registrar’s proposal was stated as follows:

“The patron in question was not intoxicated by alcohol and not overserved.(sic)”

FACTS

Three witnesses testified on behalf of the Registrar. Although neither party requested an Order from this Tribunal to exclude witnesses, the witnesses for the Registrar who had not yet testified were not in the hearing room while each of the others testified.

Evidence on Behalf of the Registrar

Evidence of Christopher Tassone

Mr. Tassone had been, as at the time of this hearing, an inspector with the Alcohol and Gaming Commission for four years. Before that, he had been a police officer for ten years. Mr. Tassone referred to notes that he had made of the incident at the Applicant’s premises and Counsel for the Applicant had no objection to Mr. Tassone referring to his notes during his testimony.

Mr. Tassone confirmed that he and another inspector, together with an officer from the Ontario Provincial Police and members of the Durham Regional Police Services, arrived at the Applicant’s premises on March 26, 2011, at approximately 1:16 a.m. He described the premises as well lit. It was not busy. He had been there in the past, when it was busier. There were approximately only twenty or thirty patrons in the room. The area was “wide open,” to quote his testimony. To his left, there were tables and, to his right, there was an elevated area and straight ahead was the bar.

He performed a walk-through and, within about two or three minutes, noticed a male customer that he considered to be intoxicated sitting with one other person at a table situated in the elevated area. He noticed that the customer’s head was swaying from side to side and that his eyes were closing from time to time. The customer also had a bottle of beer sitting in front of him. Mr. Tassone went to the customer right away. When he talked to the customer, he noticed that his speech was slurred and that he acted disoriented. When the customer became upset when Mr. Tassone asked him for identification, Mr. Tassone called the police officers to the table.

Mr. Tassone could not say how many staff persons were working. The other inspector was the one who talked to the staff.

On cross-examination, Mr. Tassone acknowledged that the Applicant is a full-service restaurant, serving breakfast, lunch and dinner. He further acknowledged that he had never before seen the male customer that he believed was intoxicated and did not know anything about his medical condition. Mr. Tassone was never told whether the customer had diabetes. He also did not know how the customer had been behaving just before Mr. Tassone arrived and acknowledged that the male customer’s condition may have started just before Mr. Tassone arrived at the premises. He could not say how many beers the customer had consumed. He also could not say what the server on the floor or the manager on duty saw concerning the customer’s condition.

On Counsel for the Applicant suggesting that music may have been playing in the room, Mr. Tassone could not recall if there was any music playing.

Mr. Tassone confirmed that the customer was not very friendly and seemed offended and did not co-operate when asked for identification. That was when Mr. Tassone called the police to the table. He acknowledged that the customer’s behaviour could have been the result of his attitude towards the police and not have arisen from the effects of alcohol.

He also confirmed that there were possibly two or three members of the Durham Regional Police Services present at the table, as well as the Ontario Provincial Police constable.

In response to questioning from the Tribunal, Mr. Tassone confirmed that no one ever informed him that the customer had a medical condition.

Evidence of Constable Bob Sodhi

Constable Sodhi has been a constable with the Ontario Provincial Police since April, 2002 and, at the time of this incident, had been seconded to the Alcohol and Gaming Commission.

He wished to refer to his notes to refresh his memory. He made his notes at the restaurant soon after this incident on March 26 and had not made any changes. Unlike the case with Mr. Tassone, Counsel for the Applicant did not state that he had no objections to Constable Sodhi referring to his notes, but was silent on the matter.

Constable Sodhi stated that he had been performing spot inspections with Inspectors Tassone and Baird, beginning Friday, March 25, 2011. At about 1:16 a.m. on Saturday, March 26, they entered the Applicant’s premises. Within about thirty seconds after he entered the premises, he noticed two males sitting in the elevated area of the room. He noticed that the customer about whom Mr. Tassone testified had glassy and red eyes and his movements were slow. He appeared to have a delayed reaction when making his movements.

Constable Sodhi and Mr. Tassone approached the table. Mr. Tassone talked to the customer who appeared intoxicated. For about seven to ten minutes, Constable Sodhi talked to the other person sitting with the customer. Both had a bottle of beer in front of them. The person sitting with the male customer easily identified himself as N.S., a friend of the customer. Constable Sodhi stated that his notes revealed that N.S. stated to him that he had picked up his friend, subsequently identified as C.C., at his friends’ home, where C.C. had been drinking, although there was no evidence as to how much C.C. had consumed at home. There was also nothing in his notes to show what time the two men arrived at the Applicant’s premises.

Constable Sodhi also stated that his notes revealed that N.S. had told him that C.C. was drunk, an allegation that N.S., during his testimony, vehemently denied. The constable’s notes also indicated that N.S. told him that he had called a cab for C.C.

Constable Sodhi also stated that he recorded in his notes that N.S. had told him that “they” had 3 to 4 bottles of beer at the Applicant’s premises. Counsel for the Applicant suggested that the word, “they,” referred to the total amount that the two men consumed and not necessarily to the amount that each one consumed, separately. Constable Sodhi interpreted N.S.’s statement to mean that they each consumed that amount of beer.

Constable Sodhi did not see any signs of intoxication in N.S.

Constable Sodhi then noticed that C.C. was fumbling while retrieving his wallet from his pocket and that he was reacting slowly. His eyes were heavy. The constable recalled that there was a strong odour of alcohol from his breath. Counsel for the Applicant made much of the fact that the constable’s notes did not show that the constable recorded that C.C. had a strong odour of alcohol. Constable Sodhi’s testimony on that point was from his independent recollection. Constable Sodhi stated that he remembered the strong odour “vividly,” to quote his testimony.

Constable Sodhi also stated that N.S. had passed his cell phone to C.C. but that, when returning it, C.C. inexplicably gave it to Mr. Tassone and not to N.S.

Constable Sodhi also confirmed that neither C.C. nor N.S. told him anything about C.C.’s medical condition, including whether C.C. had diabetes.

On a very aggressive and intense cross-examination that the Tribunal considers Constable Sodhi handled well, he confirmed that he had never seen C.C. before and knew nothing about his medical condition. Counsel for the Applicant made much of the fact that Constable Sodhi’s notes did not contain any information about whether he asked C.C. if he had a medical condition and suggested that he should have done so. Counsel for the Applicant also questioned whether Constable Sodhi actually remembered that C.C. exhibited a strong odour of alcohol, when such an observation was not recorded in the constable’s notes.

The constable also confirmed that there were about thirty patrons in the room when he arrived to do the spot check and that the premises were well lit. When Counsel for the Applicant suggested that the seating capacity in the room is 180 people, constable Sodhi stated that he had no notation of that in his notes.

The constable further acknowledged that he did not know how C.C. was behaving just before the inspectors and the police arrived or what the server might have seen just before their arrival.

On the question of whether C.C. was struggling with his wallet, as Constable Sodhi observed, Counsel for the Applicant suggested that C.C. was argumentative at the time and was unwilling to give his wallet to the police. Constable Sodhi stated that he did not notice that C.C. was just being argumentative.

In response to questioning from the Tribunal on the question of whether C.C. was swaying his head in response to the music being played in the room, Constable Sodhi stated that he could not recall whether music was being played at the time he was there.

Evidence of Ryan Baird

As at the time of this hearing, Mr. Baird had been an inspector with the Alcohol and Gaming Commission for eight years. He was present at the Applicant’s premises on March 26, 2011, and made notes of his attendance there. As with Mr. Tassone, Counsel for the Applicant had no objections to Mr. Baird referring to his notes.

Mr. Baird and another inspector and a number of police officers arrived at the premises at about 1:16 a.m. He had been there before, and, in comparison with other nights, noticed that business was slow that night. He saw the male customer who was alleged to be intoxicated sitting with another person at a table, with a bottle of beer in front of him. He saw that the customer exhibited signs of intoxication, which included slurring his speech while talking to Mr. Tassone and the officers and closing his eyes from time to time. Mr. Baird was only about five to seven feet away at the time and could hear the male customer even though there was music playing “most of the time,” to quote his testimony. The music was really quiet compared to “a usual Saturday night,” to use his words.

While inspector Tassone and the police spoke to the male customer, Mr. Baird spoke to the manager, K.E., who also saw the male customer being spoken to. Mr. Baird told her that they were talking to a male patron who showed signs of intoxication. The manager made no comments to him.

From where he was standing, Mr. Baird did not see that the male customer was being argumentative. He also did not observe that the customer was affected by any medical condition.

Mr. Baird and the other inspector and the officers left the premises at 1:34 a.m.

On cross-examination, Mr. Baird acknowledged that Mr. Tassone and the officers approached the male customer shortly after they entered the premises. He had no idea how long the male customer and his friend had been there, when they arrived or how many beer they had consumed. He did not ask the male customer about his medical condition. He also did not ask the manager what she observed before the inspectors and police arrived or how much beer the male customer had been served.

Evidence on Behalf of the Applicant

Evidence of N.S.

N.S., 37 years old, has known C.C. for about 20 years, since they were 12 years of age. They grew up in the same neighbourhood. Although they did not attend the same high school, they lived on the same street during that time.

N.S. also stated that he has been at the Applicant’s licensed premises before, having eaten there many times. He has attended there regularly for five years.

As for C.C.’s medical condition, N.S. stated that C.C., who is a tiling contractor, has Type 2 diabetes, but he does not know how long he has had that condition. He thought C.C. developed diabetes in high school. That condition causes him to faint and become delirious, even when he does not drink. C.C. “takes pills” for his condition, to quote from N.S.’s testimony.

On the night in question, N.S. picked up C.C. at the latter’s home, by cab, and went to a restaurant at about 11:00 p.m., or, “elevenish,” to quote N.S. They each had one bottle of beer there. They stayed there for only about 45 minutes before going to the Applicant’s premises, where they each had a bottle of beer. They were in the process of consuming a second bottle each when the two inspectors and the police officers arrived, about twenty minutes after N.S. and C.C. arrived at the premises. He did not know why the police came to their table.

The two men had plans to leave and N.S. said that he thought C.C. called a cab.

N.S. stated that he tried to co-operate with the police in providing his identification, but that C.C. did not like to co-operate with them because he had “been involved” with the police before, to quote N.S. C.C. was getting agitated. Eventually, N.S. persuaded C.C. to produce his identification. The Tribunal notes that none of the evidence from the Registrar’s three witnesses made mention of N.S. having to persuade C.C. to provide his identification. Eventually, N.S. and C.C. left the Applicant’s premises by cab. One of the police officers watched them as they entered the cab. N.S. stated that they did not have problems walking to the cab.

N.S. stated that, because he had known C.C. for twenty years, he knew his character and demeanour. About C.C. that night, he stated, “I don’t think he was drunk.” The Tribunal notes that, according to the testimony of N.S., C.C. was on his third beer after N.S. picked him up at about 11:00 p.m. and had first gone to another restaurant. N.S. stated that he did not know if C.C. had been drinking before he picked him up. On cross-examination, N.S. stated that he did not know if he had told Constable Sodhi that C.C. had been drinking at home but then subsequently altered his testimony somewhat when he stated, “Maybe I said that.”

N.S. also stated that C.C. said nothing about his diabetes or blood sugar levels when the police spoke to him. N.S. said that C.C. would not say anything about that unless he needed help.

Approximately six or seven months before this hearing, C.C. had moved to a city in Northern Ontario. His move, therefore, would have taken place in January, 2012, or December, 2011. On cross-examination, N.S. stated that he was rarely in contact with C.C., although they do chat on Facebook.

As for N.S.’s relationship with the Applicant, he stated to Counsel for the Registrar that he had given one of the owners of the Applicant his cell phone number, but that he gave it only because the owner wanted him to testify at this hearing. To Counsel for the Applicant, he stated that he had given his cell number to one of the owners after this incident had occurred.

N.S. acknowledged, on cross-examination, that he had told Constable Sodhi that he had picked up C.C. at his residence about two or three hours earlier, but he denied telling him that C.C. was drunk. However, he did not tell Constable Sodhi that C.C. had diabetes.

As for telling Constable Sodhi that they had three or four bottles of beer, N.S. stated that he meant that was what they had to drink that entire evening while they were together, including at the first restaurant, and not what they had consumed only at the Applicant’s premises.

In response to questioning from the Tribunal, N.S. stated that he contacted C.C. about this hearing, but that C.C. needed more notice if he were to attend. N.S. stated that he found out about the hearing only three days before it was to commence. However, he admitted to Counsel for the Registrar that he had received a telephone call about one and a half months before this hearing about his attendance at the hearing, and a message was left, but he did not bother to return the call.

Evidence of Amil Kevin Yusef

Mr. Yusef is one of the four officers, directors and shareholders of the Applicant corporation. He is in charge of the day-to-day operations of the Applicant. He was not present at the premises at the time of this incident, so he had no personal knowledge of the events of that night. He has relied on reports that he received the following day from his manager and server, both of whom had been on duty the night of March 25, 2011, and the morning of March 26, 2011.

He testified that the Applicant now has two premises. The business at which the events of March 26, 2011 occurred employs 40 employees. He confirmed that the Applicant is open seven days a week, serving breakfast, lunch and dinner.

The manager who was on duty that night, K.E., had been employed there for two years by the time of this incident. Both she and the server, A.H., had obtained their “Smart Serve” Certificates. In addition, there were security personnel on duty that night who also had obtained their Certificates. The security persons were to ensure, among other things, that no intoxicated persons entered the premises. Mr. Yusef obtained statements from both the manager and the server and sent them to the Registrar. The statement from the server was filed as Exhibit #3 and the statement from the manager was filed as Exhibit #4. The statements were not signed. The name of the person to whom the statement is attributed is only typed in. Neither person attended to testify at this hearing. Counsel for the Registrar had no opportunity to cross-examine those persons. Anything that Mr. Yusef said that both employees told him about the incident was pure hearsay. As a result, the Tribunal places no weight on the typed statements.

Counsel for the Applicant informed the Tribunal that the server who was on duty that night, and who was still employed by the Applicant, had been asked to attend at this hearing to testify; however, by the afternoon on the day of the hearing, she had not appeared. Counsel requested that the Tribunal adjourn the hearing to another day when the witness could testify. Counsel for the Registrar objected. The Tribunal ascertained that the Applicant had not issued a Summons to the witness, requiring her attendance. The request was made only orally. The Tribunal considered that the Applicant already had sufficient time to issue a Summons to each of its intended witnesses. The fact that it either failed or neglected to do so was insufficient reason, in the circumstances of this case, to delay the proceedings any longer and to cause further prejudice to the Registrar by invoking yet another delay in these proceedings. The Notice of Proposal itself was dated July 18, 2011, a date that was more than one year before this hearing was held. By Order from this Tribunal released March 27, 2012, a hearing date had been scheduled for June 11, 2012. At the Applicant’s request, that hearing was adjourned to July 24, 2012. Considering these factors, the Tribunal refused to grant the adjournment for the purpose of requiring the attendance of the wayward witness.

Moreover, Mr. Yusef stated that the server, A.H., did not know the customer, C.C. Therefore, it is unlikely that A.H. could have shed any light on C.C’s medical condition, even if she had testified.

Mr. Yusef stated that neither the manager nor the server knew the customer who had been identified as C.C. and who was the alleged intoxicated person. Although Mr. Yusef detailed the steps that both the manager and server are normally to take to ensure that customers were not intoxicated, there was no evidence whatsoever before this Tribunal to indicate that such steps were taken in this instance. He further stated that, after the “first charge,” to quote his testimony, the Applicant became more responsible. There was no evidence presented to this Tribunal as to what was involved in the “first charge” or what the disposition was of that matter.

Mr. Yusef further stated that he knew the witness, N.S., on a first-name basis. On the other hand, he did not know the customer, C.C. He confirmed that C.C. had moved to Northern Ontario and that Mr. Yusef had his e-mail address. C.C. had called and left a message on the Applicant’s voice mail to say that he had moved and that he could not attend. Mr. Yusef did not state when the message had been left. However, he still tried to contact C.C. on two occasions in the two or three months preceding this hearing, without success. Mr. Yusef stated, in response to questioning from the Tribunal, that he did not know why C.C. was not served with a subpoena or a Summons to appear as a witness in this case.

Mr. Yusef’s explanation that he could not contact C.C. after he moved up North as the reason that he could not have C.C. testify or provide medical evidence at this hearing rings hollow with the Tribunal. On cross-examination, Mr. Yusef admitted that, on June 7, 2011, the Registrar had sent to the Applicant a letter of incident, relating to the events of March 26, 2011, asking for a response to the allegations contained in it. Mr. Yusef did not provide an explanation as the Applicant had been asked to do in the letter. Instead, the Applicant retained its Counsel and proceeded with the Notice of Appeal once the Notice of Proposal in this matter had been issued. Mr. Yusef did not state, nor was he asked, why he did not try to contact C.C. in the period from June 7, 2011, until approximately January, 2012, when C.C. moved up North, to obtain information about C.C.’s medical condition. The Tribunal notes, and Counsel for the Applicant pointed out during the hearing, that the Notice of Appeal, dated August 31, 2011, implied that there was some other reason that C.C. appeared intoxicated. The Applicant suggested, even at that early date, and subsequently through its witness, N.S., that C.C. was suffering from diabetes. The Applicant had sufficient time to seek out evidence from C.C. as to his medical condition before he moved to Northern Ontario, especially considering that his medical condition was such a critical component of the Applicant’s case. There was no sufficient reason given to explain why the Applicant could not have obtained such evidence before C.C. moved. The evidence disclosed that Mr. Yusef had obtained the cell phone number from N.S. as a result of this incident, yet he took no steps to contact C.C.

Counsel for the Applicant requested that the Tribunal admit, as evidence, print-outs that Mr. Yusef obtained from an internet website. The print-outs ostensibly dealt with the symptoms of diabetes and/or low blood sugar levels, to show that C.C. was showing symptoms of diabetes and not intoxication on the night in question. Mr. Yusef, about whom there was no evidence that he had any medical background, was the person who printed out the information. There was going to be no evidence to say who wrote the articles, or what qualifications the writer or writers had, and no evidence as to whether the material was up-dated or accepted in the medical community. In short, the Tribunal considered that the print-outs would be a perfect example of hearsay evidence and, therefore, inadmissible. Consequently, the Tribunal refused to accept into evidence such material from the internet, in the circumstances of this case.

THE LAW

Section 45(1) of Ontario Regulation 719/90 under the Act prohibits a licence holder from permitting drunkenness on its premises. That section states as follows:

45. (1) The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.

If a licence holder contravenes the above Regulation, the Registrar may issue a proposal to revoke or suspend a licence, pursuant to Section 15(1) of the Act, which states:

15. (1) The Registrar may issue a proposal to revoke or suspend a licence to sell liquor or refuse to renew such a licence for any ground under subsection 6 (2), (4) or (4.1) that would disentitle the licensee to a licence if the licensee were an applicant or if the licensee has contravened this Act, the regulations or a condition of the licence.

(Emphasis is added)

Section 21(1) of the Act provides that, if the Registrar issues a proposal to suspend or revoke a licence, the Registrar shall serve notice of the proposal, together with written reasons, on the licence holder. Pursuant to Section 21(4), the notice must inform the licence holder that the licensee is entitled to a hearing by the Tribunal upon mailing or delivering to the Tribunal a notice requiring a hearing within 15 days after the notice from the Registrar is served on the licensee. Section 21(4) states as follows:

(4) A notice of a proposal shall inform the applicant, licensee, permit holder or owner that the person is entitled to a hearing by the Tribunal if the person mails or delivers to the Tribunal and the Registrar, within 15 days after the notice is served on the person, notice in writing requiring a hearing by the Tribunal, and the person may so require such a hearing.

The Applicant was late in filing its Notice of Appeal within the required 15-day period, but the Registrar consented to proceed with this appeal despite the late filing.

The jurisdiction that the Act confers on the Tribunal after a hearing under Section 21(1) is stated in section 23(11) of the Act, as follows:

(11) Following a hearing to consider any other proposal referred to in subsection 21 (1), (2) or (3), the Tribunal may direct the Registrar not to carry out the proposal or to carry out the proposal, in whole or in part, and with any changes that the Tribunal considers appropriate, and the Tribunal may direct the Registrar to approve an application to which the proposal relates.

The Ontario Court of Appeal has confirmed that the prohibition in Section 45(1) of Regulation 719/90 has two components. In 1213963 Ontario Ltd. (c.o.b Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission) [2009] O.J. No. 1553, the Court states, at paragraph 2:

2 The prohibition in the regulation has two components. They are:

• drunkenness on the premises; and

• permitting that drunkenness.

On the question of “permitting” drunkenness, the Court held that the Registrar must prove that the licensee knew or ought to have known of the drunkenness on the premises. At paragraph 3 of the above decision, the Court states:

3 In our view, permitting drunkenness on the premises requires proof that the licensee knew or ought to have known of the drunkenness on the premises. That determination, of course, must be made in all the circumstances and, in particular, in the context of the various obligations and duties placed on the licensee by the relevant legislation and regulations: see The Queen v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299; The Queen v. Royal Canadian Legion, 1971 CanLII 372 (ON CA), [1971] 3 O.R. 552 at 559 (C.A.).

ISSUES

The issues before the Tribunal were as follows:

1. Whether the Registrar proved on a balance of probabilities that there was drunkenness on the premises of the Applicant.

2. Whether the Registrar proved on a balance of probabilities that the Applicant permitted drunkenness on its premises in that it knew or ought to have known of the drunkenness on its premises.

APPLICATION OF LAW TO FACTS

Issue #1

Whether the Registrar proved on a balance of probabilities that there was drunkenness on the premises of the Applicant.

In determining this issue, the Tribunal was faced with conflicting evidence. On the one hand, the evidence of N.S., the sole witness called by the Applicant who actually observed C.C., stated that he did not believe that C.C. was drunk.

On the other hand, the Registrar produced three witnesses all of whom testified as having noted signs of intoxication on the part of C.C.

Upon a review of the evidence of drunkenness on the part of C.C., where there is a conflict in the evidence on behalf of the Applicant and the evidence on behalf of the Registrar, the Tribunal prefers the evidence of the Registrar for the following reasons.

N.S. was a frequent customer of the Applicant, having eaten there many times and having attended at the Applicant’s premises regularly for five years. He also knew C.C., the customer who was alleged to have been intoxicated, for twenty years, and had grown up with him, having lived in the same neighbourhood. N.S. was on a first-name basis with Mr. Yusef. On the other hand, the Registrar’s witnesses were independent witnesses, having no such close relationship either with the Applicant or with C.C.

Furthermore, even though N.S. knew C.C. well, he did not tell the inspectors or the officers that C.C. was diabetic and that he may have been exhibiting signs of diabetes that night. The evidence of Mr. Tassone and Constable Sodhi was that no one told them that C.C. had a medical condition and that the condition was diabetes. One would have expected N.S. or C.C. to immediately inform the officers that C.C. suffered from diabetes to counter the suspicion that he was intoxicated.

Moreover, N.S. stated that he did not think that C.C. was drunk when the officers and inspectors arrived. On the other hand, all three witnesses of the Registrar gave evidence that C.C. showed signs of intoxication. The terms “intoxicated” and “drunk” are synonymous (see Re: Green Dolphin Restaurant [2003] O.A.G.C.D. No. 75, at paragraph 108). Mr. Tassone stated that C.C. was swaying his head from side to side, that his eyes were closing from time to time, that his speech was slurred and that he acted disoriented. Mr. Baird testified that C.C.’s eyes were closing and that his speech was slurred. Constable Sodhi testified that C.C.’s eyes were glassy and red, he was slow in his movements, he fumbled with his wallet, he inexplicably returned a cell phone to Mr. Tassone and not to its owner, N.S., and had an odour of alcohol on his breath. Under an intense cross-examination, Constable Sodhi did not waver from his evidence and stood up well on being seriously challenged on the fact that his notes did not refer to his detecting an odour of alcohol on his breath, but stated that he remembered that fact “vividly” in his testimony. The Tribunal notes that the officer’s notes are not evidence, but his testimony is, and he was not at all discredited in his testimony.

Counsel for the Applicant argued, in his final submissions, that, because his notes made no mention of the odour of alcohol, Constable Sodhi’s testimony could not be accepted. Counsel referred to recent media accounts of police officers having been found to have misled the Court in certain other cases. The Tribunal considers that, in the absence of showing any relationship between Constable Sodhi and those other officers, such an argument, in the circumstances of this case, is totally inappropriate and of no assistance to the Tribunal.

The evidence of the Registrar’s witness, Mr. Tassone, also revealed that C.C. was unco-operative with him while he questioned him. His friend, N.S., testified that C.C. was argumentative because C.C. had been “involved” with police in the past and, consequently, did not want to co-operate with police. Constable Sodhi and the inspector, Mr. Baird, both stated that they did not observe C.C. to be argumentative. The Tribunal considers the explanation of N.S. to be illogical and unreasonable for, if C.C. had been “involved” with the police in the past, one would think that he would want to co-operate with them on this occasion to avoid any further involvement.

The Applicant did file, as Exhibit #3, the unsigned and unsworn statement of the server, A.H. The Tribunal, for reasons given earlier in these Reasons, places no weight on that statement. Moreover, the statement makes no mention of whether or not C.C. was intoxicated at the time the inspector and officers were talking to him.

The evidence of N.S., a long-time friend of C.C., was that C.C. would not have said anything about his diabetes unless he needed help. From the absence of any evidence that C.C. said anything about needing help, the Tribunal draws the inference that C.C. was not experiencing difficulties arising from his diabetes that night.

Considering all the above factors, this Tribunal concludes that the Registrar’s evidence of drunkenness on the part of C.C. is more credible than that of the Applicant’s witness.

In addition to having concluded that the Registrar’s evidence is to be preferred for the above reasons, the Tribunal also notes that there is yet another factor that weighs heavily in favour of the Registrar’s case. That factor is that the most crucial witness in this matter, C.C., did not testify and there was no credible explanation as to why he did not testify or why, at least, he did not provide any sworn statement or medical report to support the Applicant’s allegation that C.C. was a diabetic and was exhibiting signs of diabetes on the night in question. It was C.C. who could have provided evidence of his condition. It was he who could have provided a medical report about his condition. It was C.C. who could have explained his behaviour and state of mind on that night.

The Tribunal notes that, as early as August 31, 2011, when the Applicant filed its Notice of Appeal, the Applicant put forward its position that C.C. was not intoxicated by alcohol on the night in question. Despite this, for the period between August 31, 2011, and either December, 2011, or January, 2012 (when the evidence disclosed that C.C. moved to Northern Ontario), there is no evidence that the Applicant attempted to obtain any statement from C.C. or any medical report about his condition.

Mr. Yusef admitted that he did not know why C.C. was not summoned to appear at this hearing. Both Mr. Yusef and N.S. stated that they were in communication with C.C., yet N.S. contacted C.C. only three days before the hearing about his attendance. Mr. Yusef stated that he had C.C.’s e-mail address and tried to contact him two or three months before the hearing. The Applicant knew, by June 7, 2011, when he received the incident letter from the Registrar, that he had to respond with an explanation, but failed to do so. There was no evidence that, from that early date, the Applicant attempted to obtain any supportive evidence from C.C. before he moved away. The Applicant also knew, by March 27, 2012, that a hearing was scheduled to take place on June 11, 2012, subsequently adjourned to July 24, 2012, yet there was no evidence that the Applicant took any steps to have C.C. attend at the hearing or at least provide a statement and medical report.

The Tribunal finds that there was no adequate explanation given as to why C.C. did not testify or provide a statement or medical report to support the Applicant’s case.

Consequently, from the failure of C.C. to testify or to provide any other evidence by any other means, the Tribunal draws an adverse inference that his evidence would be contrary to the evidence of the Applicant’s witnesses or at least would not support their testimony.

In so concluding, the Tribunal relies on the statement of the law in the text, “The Law of Evidence in Canada”, third Edition (2009), by Sopinka, Lederman and Bryant, published by Lexis Nexis Canada Inc. At paragraph 6.449 of the text, the learned authors state as follows:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify,…or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party. In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.

(Emphasis is added)

The authors referred to several authorities, one of which was Levesque v Comeau, a decision of the Supreme Court of Canada found at 1970 CanLII 4 (SCC), [1970] S.C.R. 1010; 16 D.L.R. (3d) 425, at 432; [1970] S.C.J. No. 55. The case was an appeal from the Supreme Court of New Brunswick Appeal Division.

Quoting from the headnote, the facts in that case were as follows:

The appellants' claim for damages in respect of injuries allegedly sustained by the female appellant as a result of a motor vehicle collision which occurred when she was a passenger in her husband's car while it was stationary at a street intersection and was struck in the rear by a motor vehicle owned by the male respondent and operated by the female respondent was dismissed at trial. An appeal from the trial judgment was dismissed by the Court of Appeal.

The negligence of the respondent driver was admitted and the only question was whether the female appellant suffered the injuries complained of as a result of the collision and particularly whether it had been shown to be more probable than not that the accident was the cause of the serious impairment of her hearing.

The only issue on appeal was whether the evidence adduced by the appellant Lola Levesque was sufficient to prove that the deafness she suffered from was the result of the automobile accident in which she was injured.

The majority of the five panel Court, Martland and Ritchie JJ. dissenting, dismissed the appeal. Pigeon J., writing for the majority, Fauteux and Judson JJ. concurring, states the principle as follows:

This is not all. Appellant Lola Levesque's expert examined her for the first time more than a year after the accident, and after she had consulted several doctors and undergone different examinations in the meantime. She alone could bring before the Court the evidence of those facts and she failed to do it. In my opinion, the rule to be applied in such circumstances is that a Court must presume that such evidence would adversely affect her case. The fact that those witnesses all live in Montreal does not make the rule any less applicable. Appellant Lola Levesque should, if necessary, have applied for a rogatory commission. Under the circumstances, her testimony and that of her husband respecting her good state of health before the accident could properly be considered insufficient evidence for the purpose of excluding the other possible causes of the deafness.

(Emphasis is added)

This Tribunal adopts the reasoning in the Levesque case and the statement of the law in the above text as applicable to the case now before it. From the fact that the Applicant, without adequate explanation, produced no evidence from or on behalf of C.C., a person that the Tribunal considers to be a material witness, the Tribunal draws the inference that the evidence of C.C. would be contrary to the Applicant’s evidence or at least would not support it.

It is noteworthy that, in Levesque, the majority in the Supreme Court of Canada did not consider the above rule less applicable just because the plaintiff was in New Brunswick and the witnesses were in Montreal, in the neighbouring province. In the case before the Tribunal, although C.C. moved, he still remained within the same province in which the Applicant carried on business. The Tribunal, therefore, does not consider C.C.’s relocation to another part of the same province to be a significant or insurmountable impediment to the Applicant obtaining the necessary evidence from C.C. to support its case.

There was no evidence to suggest that the Registrar knew the whereabouts of C.C.

Therefore, considering all the above factors, the Tribunal concludes that the Registrar has proved, on a balance of probabilities, that there was drunkenness at the Applicant’s premises on March 26, 2011.

Issue #2

Whether the Registrar proved on a balance of probabilities that the Applicant permitted drunkenness on its premises in that it knew or ought to have known of the drunkenness on its premises.

The evidence disclosed that the room in which this matter took place was “wide open,” according to the evidence of the inspector, Mr. Tassone. He also stated that the room was well lit and that it was not busy, with only about twenty or thirty patrons present. There was no evidence that the server was unable to adequately serve that number of patrons or that the customer, C.C., was in any way concealed from the view of the manager and server.

In addition, Constable Sodhi stated that he noticed the intoxicated person within about thirty seconds after entering the room. Mr. Tassone noticed the customer within two or three minutes after he entered with the officers. If the customer’s condition was noticed that quickly by someone who just entered the room, then the customer’s condition should have been noticed by the server and manager, both of whom were working in the room that evening. Counsel for the Applicant, through his questioning, raised the possibility that the customer’s condition may have suddenly come upon him immediately before the inspectors and officers arrived. Although Mr. Tassone, in cross-examination, acknowledged that such could have been the case, there was no evidence to substantiate that suggestion. The Tribunal considers that the suggestion was only speculation, at best. There was no supporting evidence from N.S., who was with C.C. for over two hours before the inspectors and officers arrived, that the symptoms exhibited by C.C. had begun only just before they arrived.

The Tribunal also considers as speculation, in the absence of any corroborating evidence, the suggestion on behalf of the Applicant that C.C.’s head was swaying because of the music that was being played at the time the inspectors and officers entered the room.

Considering all the above, the Tribunal concludes that the server or manager, or both, knew, or ought to have known of the drunkenness on the premises.

CONCLUSION

Upon a review of the evidence provided to the Tribunal, and for the reasons given, the Tribunal concludes that the Applicant was in violation of Section 45(1) of Regulation 719/90 on March 26, 2011. No submissions were made to alter the proposed period of suspension of 14 days. There is nothing in the evidence that would persuade the Tribunal to interfere with the proposed period of suspension.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to carry out the Proposal.

LICENCE APPEAL TRIBUNAL

Kenneth Koprowski, Vice Chair

Released: August 9. 2012