Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7902/GCA
CASE NAME: 7902 v. Registrar of Alcohol and Gaming
Appeal from Notice of Proposed Order of the Registrar under the Gaming Control Act, 1992, S.O. 1992 c. 24 - to refuse registration
Ernest Storm Soulliere Applicant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Patricia L. Cassidy, Vice-Chair
APPEARANCES:
For the Applicant: Self represented
For the Respondent: Rena Khan, Counsel
Heard in Sudbury, Ontario: May 28, 2013
DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Gaming Control Act, 1992, (the “Act”) issued a Notice of Proposed Order dated January 24, 2013, which proposed to refuse to register the Applicant as a Gaming Assistant. Ernest Storm Soulliere, (the "Applicant") appealed this Notice of Proposed Order to the Licence Appeal Tribunal.
FACTS
The undisputed facts in this matter are as follows:
- The Applicant applied for registration as a gaming assistant in the class of category 2 gaming assistant, to be employed as a Customer Service Representative/Seller, on November 26, 2012.
- The application, completed by the Applicant and signed by him on November 26, 2012 was submitted, by his employer on his behalf, and was received by the Alcohol and Gaming Commission on December 4, 2012.
- The Applicant answered “no” to question 6(a) of the application which asks, “Have you ever been charged, convicted or found guilty of an offence in Canada or elsewhere? This includes ALL federal and provincial offences, including criminal offences and driving offences and/or suspensions. It also includes convictions and findings of guilt where a conditional discharge has been granted.”
- The Applicant had, in fact, been charged in 2010, with four separate offences, all of which were withdrawn. An investigative search conducted on behalf of the Office of the Registrar revealed the following:
Date Offence Disposition
Aug. 06/10 Fail to comply with undertaking Withdrawn
Sudbury sec. 145(3) CC
Aug. 06/10 Possession of Schedule II Cannabis Withdrawn
Sudbury sec. 4(1) CDSA
Jun. 24/10 Theft Under $5,000. Withdrawn
Sudbury sec. 322 CC
May 24/10 Mischief Over $5,000. Withdrawn
Sudbury sec. 430 CC
- The Applicant also answered “no” to question 6(b) of the application which reads: “Do you have any outstanding charges (including appearance notices and/or summons(es)) against you in Canada or elsewhere? This includes ALL federal and provincial offences, including criminal offences and driving and/or suspensions. The investigative search conducted on behalf the Registrar revealed that, on December 1, 2012, the Applicant was charged with one count each of Obstructing/Resisting a Peace Officer, contrary to section 129(a) of the Criminal Code and Assault of a Police Officer, contrary to section 270 of the Criminal Code. In fact, at the time the Applicant completed his application, these charges had not been laid and the events giving rise to these charges had not yet occurred, so the correct answer to question 6(b), on the facts, was “no”.
- On December 18, 2012, the Applicant was interviewed by AGCO Investigator, Steven Ross, and was asked about the four charges that had been laid against him in 2010. The Applicant admitted the charges had been laid and that they had all been withdrawn.
- The Applicant has worked for Dawn Marie Beange, Operations Manager at Boardwalk Gaming since late November/early December 2012. Ms. Beange had known the Applicant for about one year before he applied for employment at Boardwalk Gaming and her prior knowledge of him was why she was interested in hiring him in the first place.
- The Applicant completed the orientation program at Boardwalk Gaming and began working there after his application was submitted, while his application was being processed. Ms. Beange describes the Applicant as a very good employee that gets along well with his co-workers and is very good with the customers – he’s polite; he jokes with them.
- All staff members at Boardwalk Gaming are audited from session to session as well as daily. The employees work from an apron and sell bingo cards and “break open” tickets. While some shortages and overages are common in such transactions, there has never been an issue with the Applicant. He is seen to demonstrate honesty and integrity in his dealings with the customers of his employer.
- The Applicant advised his employer at the first opportunity – Ms. Beange described this as the first time they were both at work – following him being charged on December 1, 2012 after an altercation involving an undercover police officer. The Applicant exhibited concern and worry about the situation. His supervisor told the Applicant that he would have to sort the matter out and that it could affect his application with AGCO; that it would affect his licence if it wasn’t taken care of. The charges were ultimately withdrawn.
- None of the managers at work have ever raised any issues or concerns about the Applicant’s performance. Daily and weekly reports are submitted to the Operations Manager from the managers and there have not been any issues with regard to the Applicant’s conduct on the job. The employer’s assessment of the Applicant is that he is a very good employee and they would like be able to retain him as an employee.
- The Deputy Registrar proposes to order that the Applicant’s application for registration as a category 2 gaming assistant be refused. He relies on the belief that the Applicant is not entitled to registration because reasonable grounds have been established to conclude that the Applicant will not act as a gaming assistant in accordance with law, with honesty, integrity or in the public interest as evidenced by his past conduct and “the outstanding charges against him under the Criminal Code, and the underlying conduct therein”.
THE LAW
Registration of gaming assistants
- The Registrar shall refuse to register an applicant as a gaming assistant or to renew the registration of an applicant as a gaming assistant if,
(a) there are reasonable grounds to believe that the applicant will not act as a gaming assistant in accordance with law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant or persons interested in the applicant; or
(b) the applicant is carrying on activities that are, or will be, if the applicant is registered, in contravention of this Act, the regulations, the standards and requirements established by the Registrar under section 3.8 or the terms of the registration. 1992, c. 24, s. 11; 2011, c. 9, Sched. 17, s. 10.
ANALYSIS
A primary issue in this matter, as it turned out, was that of credibility. The Applicant testified that at the time he completed the application, he had been applying for numerous employment possibilities and that the other applications he completed had asked if he had ever been charged with an offence for which he had not obtained a pardon. He testified that he had not read question 6(a) thoroughly and did not pay as much attention to it as he should have; he simply assumed it was the same question he had answered on numerous other applications and did not realize how specific the question posed at 6(a) on the application was. He elaborated that if he were to answer the question now, he would answer it differently. In response to a question from the Tribunal, the Applicant stated he does understand the issue with regard to his response and acknowledges that, although all of the charges were withdrawn and he has not been convicted of any offence, the fact is that he had been charged as outlined above. The Applicant gave his evidence in a very straightforward and credible manner. He was persuasive.
With regard to the response he gave to question 6(b) of the application, on the facts, the Applicant was being truthful when, on November 26, 2012, he responded “no” to question 6(b). The Registrar, in the Notice of Proposed Order, relies on the findings of the Investigative Search conducted upon receipt of Mr. Soulliere’s application which revealed that, on December 1, 2012, the Applicant had been charged with obstructing/resisting arrest as well as assault of a police officer as a result of an altercation with an undercover policeman at a local night club. The events which led to these charges being laid had not yet occurred and the charges had not yet been laid when the application was completed by the Applicant and submitted by his employer.
Further, the fact is that these charges were both withdrawn. Accordingly, the Registrar cannot rely on, “… the outstanding charges against him under the Criminal Code, and the underlying conduct therein”. There were no outstanding charges at the time the Applicant completed his application and those charges subsequently laid have been withdrawn.
The evidence of the Applicant’s employer was very helpful and telling. The Applicant has, on the facts, been doing the job for which he seeks registration since the end of November 2012. He has proved himself to be a reliable, honest, respectful employee whom the employer wishes to continue to employ. There have been no reported issues with the Applicant’s job performance notwithstanding daily and weekly audits.
On the facts, this Tribunal is not satisfied there are reasonable grounds to believe this Applicant has not acted, or will not continue to act, as a Gaming Assistant in accordance with the law or with integrity, honesty or in the public interest. The Tribunal accepts the explanation that this Applicant made an error in not fully understanding the question posed at number 6(a) of the Application and is satisfied, on the evidence, that there was no intent to mislead or falsify his application. As far as the response given to question 6(b), the response given by the Applicant was the correct and accurate response, on the facts, and there is no reason to believe that this Applicant is or will carry on any activities in contravention of the Act, if he is registered.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to grant the application for registration as a gaming assistant to Ernest Storm Soulliere, subject to the following term and condition on his registration:
- Ernest Storm Soulliere shall advise the Deputy Registrar, in writing, of any and all charges laid against him, of any kind (including, but not limited to the Criminal Code of Canada and the Ontario Highway Traffic Act) within 72 hours of such charges being laid.
LICENCE APPEAL TRIBUNAL
Patricia Cassidy, Vice-Chair
Released: June 20, 2013