Licence Appeal Tribunal / Tribunal d'appel en matière de permis
FILE: 7803/LLA
CASE NAME: 7803 v. 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 Revoke a Licence
Kys & Kys Inc. operating as Montreal House Applicant
-and-
Registrar of Alcohol and Gaming Respondent
DECISION AND ORDER
ADJUDICATORS: Elizabeth Sproule, Vice Chair Douglas Wallace, Vice-Chair
APPEARANCES: For the Applicants: Stuart R. MacKay, Counsel
For the Respondent: Phillip Morris, Counsel
Heard in London: May 13, 14, 30 and 31, 2013
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 November 27, 2012, which proposed to revoke a licence. Kys & Kys Inc. operating as Montreal House (the "Applicant") appealed this Notice of Proposal to the Licence Appeal Tribunal.
FACTS
The facts of this case involve a terrible tragedy which occurred on May 3, 2012, when two individuals were killed in a motor vehicle accident. One of those individuals, AR, had been consuming alcohol at the Applicant’s establishment prior to the accident. The other individual was simply an innocent motorist, going about her business. A post mortem blood test confirmed that the blood alcohol level of AR was well above the legal limit at the time of the accident, a fact that was not challenged in this proceeding.
The task of this Tribunal in these proceedings is to determine whether the Applicant violated particular sections of the Act and its regulations and whether past/present conduct of the licensee, its officers, directors, manager or operator of the business, affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty.
The evidence of the Registrar consisted of documentation and the oral evidence of seven witnesses. They included two members of the public, Constable Mark Japp, Constable Christopher Hogg, forensic scientist Ben Joseph, Kevin Tebbutt, and Kevin Holman, an inspector with the Alcohol and Gaming Commission of Ontario (AGCO).
The evidence of the Applicant consisted of documentation and the oral testimony of George Vieira, Pat Knight, Christine Geniole and Linda DeFour.
Evidence of the Registrar
The two members of the public who testified, PR and DR, both witnessed the erratic driving of the deceased AR just prior to the accident. DR, in fact, saw the vehicle driven by the AR cross the center of the road and collide with another vehicle, in his rear view mirror.
Constable Mark Japp, of the Ontario Provincial Police (OPP), Chatham division, was involved in the investigation of the motor vehicle accident on May 3, 2012. He is specially trained in collision reconstruction. He arrived on the scene at approximately 5:13 pm. Based on the evidence at the scene, he concluded that at the time of impact the vehicle driven by AR had crossed the center line. Constable Japp did not find any containers of alcohol in or around the scene. He noted that there was an odour of alcohol coming from the mouth of the deceased AR when he was removed from the vehicle. He did not notice the odour of alcohol in the vehicle once AR had been removed. In cross examination, Constable Japp indicated that he did not take an inventory of the items in the vehicle of the deceased AR, nor did he look under the seat.
Constable Christopher Hogg, of the OPP Chatham Division, testified that the first call regarding the accident was at 3:44 pm, he was dispatched a 3:45 and arrived at the scene of the accident at 3:56 p.m. Another constable was already at the scene when he arrived. The coroner attended the scene and pronounced the two persons deceased at 6:10 and 6:16 p.m. The results of the post mortem examination indicated that the deceased AR was 5’7” and weighed approximately 160 lbs. The results of a toxicology test indicated that his blood alcohol level was 224 mg/100 at the time of his death.
Approximately a week after the accident, after the vehicle of AR had been removed and taken to Chatham Towing and after the family of AR had attended to remove personal effects from the vehicle, Constable Hogg looked in the vehicle and observed two crushed beer cans in the truck. From their condition, Constable Hogg was of the opinion that the cans had been in the vehicle for quite some time and prior to the day of the collision. He did not look under the front seat nor did he go into the vehicle.
On May 8, 2012, Constable Hogg attended the Montreal House with another Detective Constable. They met with Christine Geniole, the individual who served the deceased AR five days earlier, on May 3, 2012. At the time of this interview, Linda DeFour, the owner and operator of the Applicant, was in the premise and waiting on customers. Ms. Geniole provided a statement which was digitally recorded. Constable Hogg indicated that Ms. Geniole knew the interview was being recorded. After the interview, the statement was downloaded onto a computer at the police station and then emailed to the AGCO.
Constable Hogg did not take notes of the interview, which was his usual practice, to avoid being in conflict with the audio recording. The recorded interview was accepted into evidence. In the recorded interview on May 8th, 2012, Ms. Geniole states the following: She did not know the deceased AR personally, she had served him a couple of times before, but she knew him to see him. They came in 12:30ish, lunch time, they left just after 3 o’clock. She served AR alcohol – a 30 ounce pitcher with his lunch, and the same for his friend, and another 30 ounce pitcher between them. It was OV draft, but she did not recall what they ordered to eat. AR was with a co-worker named Pat. She confirmed AR did not come up to the bar and order any other drinks as she was the only bartender and they could not get drinks from anyone but her and she had to bring the pitchers to the table. This followed the norm – usually the crew order a small pitcher, eat lunch and then leave. On Thursday (the 3rd), they said they were done for the day, they had been up on a roof all morning and it was too hot to keep going. They were going to head home after. She saw them leave the bar and she told AR he did not look “too good”. AR was tired looking when he first came in but then he got “real white and pale looking, real sweaty and that”, and she asked him if he was ok. He said he was fine, he was going to go home and take it easy for the rest of the day. Her boss, Ms. DeFour offered to drive him home and “he said no,no and off he went”. AR left before Pat. While serving AR, he just seemed hot, there did not seem to be anything wrong, nothing out of the ordinary. He did not seem intoxicated, just hot, as it was a hot day. He assured them he was ok. She only works on Thursday during the week: she did not see them on the weekend so assumed they were part of the regular weekday lunch crowd. She had only been working there for three months so did not know the men.
In cross-examination, Constable Hogg confirmed that the only information he had regarding the amount of alcohol consumed by AR was from Ms. Geniole. That information was that AR had consumed about a pitcher and a half, or about 45 ounces of beer.
Ben Joseph, a scientist with the Centre for Forensic Science, whose qualifications were not challenged, was qualified by the Tribunal as an expert in the area of toxicology.
Mr. Joseph prepared the toxicology report on AR dated June 14, 2012. He testified that the blood alcohol level of the deceased at the time of death and the time of analysis of the deceased’s blood sample would be the same in this case. He confirmed that the blood alcohol level of AR was found to be 224 mg/100ml and that the legal limit is 80 mg/100ml. It was Mr. Joseph’s evidence that in determining a blood alcohol level, it is best practice to use a rate of elimination of between 10mg and 20mg per hour. Although there are factors which may affect elimination rates, ‘naive drinkers’ (which the Tribunal assumed included inexperienced drinkers or those who did not drink on a regular basis) or those suffering from cirrhosis of the liver might have lower rates and heavy drinkers might have higher, the majority of the population would have elimination rates in this range. Alcohol consumed within 15 minutes of the sample being taking would not be reflected in the measurement: it takes 15 to 20 minutes to get into an individual’s system.
With respect to the blood alcohol level of AR, Mr. Joseph provided some calculations as to how much alcohol AR would have had to consume to have had a BAC of 224 mg/100ml at the time of the accident at 3:43 p.m. This was set out in a written letter to Counsel for the Registrar dated November 30, 2012. 1 Based on the BAC at the time of the incident, Mr. Joseph projected that the BAC at approximately 3:00 p.m. was 224 to 238 mg/100ml. Assuming no alcohol was consumed before 12:30 or after 3 pm, AR would had to have consumed between 119 ½ to 138 ¼ fluid ounces of beer, (4 to 4 ½ pitchers or 10 to 11.5 bottles of beer), to get within the range of the BAC at the time of his death.2 Mr. Joseph also calculated that the Blood Alcohol Concentration of AR, if it was assumed he only drank 45 ounces of beer between 12:30 and 3:00 pm, would have been between 40 to 65 mg/100ml.
Kevin Tebbutt testified that he worked with AR on May 3, 2012. He and AR were working on a roof parapet and Pat Knight, the foreman, was on the ground cutting materials. Mr. Tebbutt testified that AR was an apprentice and did what was asked. They started work at 7:30 a.m. and as far as the witness was concerned it was a normal work day. He was aware that AR drank a lot at night, but had not seen him drink at work. They worked until noon when they finished the job. He testified that he did not go to the Montreal House that day which was about a two minute drive from the work site.
The Tribunal noted that the testimony of Mr. Tebbutt was not consistent with the evidence of the AGCO inspector. Tthe written Inspection Report of Inspector Holman, indicates that Mr. Tebbutt had told him in a telephone interview on July 10, 2012, that he did go to the Montreal House on May 3, 2012, ate soup and left, leaving AR and Mr. Knight still at the table. 3 It was also inconsistent with Ms. Geniole’s evidence and the written food receipt which indicated a third individual was present and ordered soup.
Kevin Holman is an inspector with the AGCO, Windsor Regional Unit. He has been in this position for approximately the last seven and a half years. The Montreal House is included in the jurisdiction of his unit. Prior to this position, Inspector Holman was a police officer with the City of Windsor for 34 years.
Inspector Holman received the report of the accident involving AR around May 11th or 12th , 2012, and was asked to follow up. He called and set up an appointment with Linda DeFour, who the Inspector had met on many previous occasions. He met with her on May 15, 2013, in the presence of a friend, George Vieira, who happens to be a member of the Chatham Kent Police Service but who was not in attendance in any official capacity.
Mr. Holman testified as to the information he was provided with at the time of his interview of Ms. DeFour. He was advised that AR had been a regular customer for approximately 6 months and had lunched with his co-workers including Mr. Pat Knight. On May 3, 2012, Ms. DeFour was working in the kitchen when Mr. Knight entered the establishment and then was joined by AR shortly thereafter. Ms. Geniole took their orders and served the alcohol. Ms. DeFour indicated that Pat Knight always ordered a club sandwich. AR ordered French fries and there was a 3rd person, but Ms. DeFour did not recall his name. Ms. DeFour indicated she had a conversation, just small talk, with the two men and recalled AR talking about working on the roof. She returned to the kitchen to make food. The men were served their food at around 12:45 p.m. She had no further dealings with them as she was working in the kitchen. Ms. DeFour left the bar to pick up her mother from a senior’s activity centre and got back around 3:05 p.m. at which point she noticed Ms. Geniole on the patio, as well as Pat Knight and AR who appeared to be leaving.
According to Mr. Holman, Ms. DeFour told him she heard Ms. Geniole talk to AR and say something to the effect: “let me call you a cab, don’t drive, I don’t think you should drive” and that it was obvious to her that Ms. Geniole was concerned about AR. Ms. DeFour then asked Ms. Geniole what was going on and it was her understanding that Ms. Geniole thought that AR was suffering from heat stroke. Ms. DeFour indicated she then offered to drive AR home in his pick up truck, but he declined.
In the interview on May 15, 2013, Inspector Holman requested the ‘Z’ tape and it was produced. Ms. DeFour also retrieved the food receipts and picked out what she believed was the receipt for AR and Mr. Knight. She based her selection on the fact that it contained a club sandwich. The receipt did not contain any liquor. Mr. Holman took that receipt and the ‘Z” tape, he did not look through the receipts at that time. It was Mr. Holman’s evidence that he made an appointment to go back on the May 17, 2012, when Ms. Geniole was working.
Mr. Holman arrived at 4:22 p.m. on May 17, 2012, and showed the receipt Ms. DeFour had identified as the relevant receipt to Ms. Geniole and the latter indicated that it was not her writing and therefore not the correct receipt. She went through the receipts and pulled out a different receipt, No. 289684 (Exhibit 14).
Mr. Holman testified as to what he was told by Ms. Geniole on May 17. Ms. Geniole confirmed she worked from noon until 6 pm on May 3, 2012. According to the inspector Ms. Geniole stated she recalled that Mr. Knight came in between 12 and 12:30 pm and sat at the table he usually sits at and ordered a small pitcher of beer as usual. Mr. Knight was then joined by. AR between 12:10 and 12:30 p.m. A third gentleman joined him; Ms. Geniole knew him as a regular that drinks diet cola. She provided further details. She had served AR a small pitcher of beer. She took the food order to the table around 1:05, and that Mr. Knight ordered a 2nd pitcher around 1:30 p.m., AR had not finished his pitcher at this time, and no indication was given to her regarding sharing the pitcher. Someone requested the bill at 2:50 p.m., and. A.R. paid in cash at the register. Ms. Geniole then went on to the patio for a cigarette. When Mr. Knight and AR were leaving, via the patio, Ms. Geniole noted AR was pale and had flushed cheeks and she asked if he was ok. He indicated he was and was “just going home to kick up my feet and have more beers”. Ms. Geniole was not worried about sobriety but his health. AR had looked fine at the table. Ms. DeFour then joined them on the patio and talked to AR. Mr. Knight got in his vehicle and drove away.
Inspector Holman also testified that he had a conversation with Ms. DeFour about the receipts, although he had no notes of this conversation. He asked about the markings on the top right corner and was advised by both (the Tribunal assumes he was referring to Ms. DeFour and Ms. Geniole), that it was the total food and liquor – that that amount was written down and circled. He inquired why alcohol was not marked down and was told that alcohol was punched in as served and the bar tally was kept behind the bar. It was Mr. Holman’s evidence that he was told that the total cost of drinks was written on the top of the food bill prior to customers leaving. He pointed out that the bill for AR and Mr. Knight’s food did not include any such notation.
Neither Ms. DeFour nor Ms. Geniole knew what the total bill for food and alcohol was for AR and Mr. Knight. It was Mr. Holman’s evidence that he asked why their bill was torn and was told neither knew how it occurred. He further testified that Ms. DeFour found the book the receipt came from but no pieces were left in it. He asked how customers would know the amount owing and received no answer.
Inspector Holman drove from the Montreal House to the scene of the accident and back. He did not know which route was taken by the deceased but testified it took approximately 15 minutes at around 11 am, by the shortest route, and estimated that given the later time of day there may have been more traffic and therefore it may have taken 5 to 6 minutes more.
In cross-examination, Inspector Holman confirmed that he could not understand the ‘Z’ tape. He stated that it was explained to him that there were 5 pitchers sold between 12 and 3 o’clock and he confirmed he had no reason to disbelieve that. He confirmed he did not look into AR’s drinking habits, whether he drank the night before, or in his truck, or any other places. He had been told that AR had not been drinking at work. To the best of his knowledge, the only alcohol AR consumed was that at the Montreal House. It is his belief that AR had a lot more alcohol to drink than anyone was saying but he did not know where. He confirmed that in his interview of Mr. Knight on May 29, 2012, Mr. Knight indicated to him that AR was not intoxicated.
Evidence of the Applicant.
George Vieira is a police officer and a friend of Ms. DeFour’s. He testified under summons. He was present during the interview of Ms. DeFour by Mr. Holman on May 15, 2012, at Ms. DeFour’s request. He testified as to what information was exchanged during this interview. Ms. DeFour provided tapes from the register and food receipts. They went through the register tapes and came up with what they believed to be the tapes for the day in question. They went through the food receipts and came up with what they thought was the one for Mr. Knight and AR. Mr. Holman left with the tapes and receipt. It was a cordial meeting. Mr. Vieira had no knowledge of what AR drank at the premises or his condition when he left.
Pat Knight is a foreman with Ravata Drywall & Acoustics Ltd. He had known AR for ten to twelve years. He described their relationship as best friends. Mr. Knight got AR his job at Ravata. On May 3, 2012, Mr. Knight, Mr. Tebbutt and AR were working at a business close to the Montreal House, framing a plywood roof parapet and side tower. He described AR as a heavy drinker. Mr. Knight indicated that AR only drank at lunch if he was with Mr. Knight and if Mr. Knight was having a drink.
On May 3rd, 2012, they had only a half-day of work. It was a hot day. Mr. Knight was on the ground cutting. He handed the cut materials up to Mr. Tebbutt, who handed it up to AR to attach them. As they were finishing up the job, Mr. Knight indicated to the two men that they would finish work before going to lunch. According to Mr. Knight, this was approximately 12:25 – 12:30 p.m.. They agreed to meet at the Montreal House. Mr. Knight took approximately five minutes to get there so arrived at around 12:35 p.m. AR showed up five to ten minutes before 1 p.m. Mr. Knight testified he had no idea where AR went or what he did in the 15 to 20 minutes longer it took him to get to the Montreal House. Mr. Knight ordered something to eat and a small pitcher of beer, which arrived at his table before AR arrived. AR ordered a pitcher of beer when he arrived. They talked, AR indicating that he had been up half the night drinking and arguing with his girlfriend. While eating, AR’s girlfriend called and indicated she was delayed and was going to be later than two o’clock, the original time AR was to pick her up. As AR now had extra time, they stayed. AR asked Mr. Knight if he wanted to split another pitcher which Mr. Knight agreed to do.
It was Mr. Knight’s evidence that it was almost 2:50 or 2:55 p.m. when they went to leave. AR paid the entire bill. Mr. Knight left and saw AR on the deck, walked by and then went to his truck. He was asked by Ms. DeFour if AR was alright as he looked pale. Mr. Knight and AR laughed, as according to Mr. Knight AR was always pale. Mr. Knight asked AR if he was ok and he said “ya” and they laughed again. Five minutes later, they left the parking lot, AR pulling out first.
In Mr. Knight’s words, AR was fine: they had had a pitcher each and split one. If he had thought AR was impaired, he would have given him a ride home as they live a couple of blocks from each other. Mr. Knight testified he has a lot of experience drinking with AR and knows what he looks like impaired. Mr. Knight also stated that AR liked to drink anything, he was not picky. After leaving the Montreal House, Mr. Knight called AR just a little after 3 p.m. to see what he was doing that night and invited him to drop by. He asked AR where he was and he said he was in town. At that point, Mr. Knight was out of town a little ways. He did not have any conversation with him as to what he was still doing in town, however, AR did indicate he was tired.
In cross-examination, Mr. Knight testified that he did not see signs of intoxication of AR while at work and there were no concerns regarding his ability to do his work. His employer does not want drinking on the job. When working close to the Montreal House, he has gone there for lunch and has had a couple of beers. Mr. Knight has been employed with Ravata for 29 years and does not ‘hear’ from his employer if he does this. He did not work often with AR. He did not know if AR was handed a receipt before paying. He never saw a receipt. He did not recall anyone else being there. It was noted that the evidence of Mr. Holman and Ms. Geniole was that Mr. Tebbutt was there for at least part of the time.
Christine Geniole was employed by Montreal House in March of 2012 as a bartender/waitress. Her employment background includes working as a waitress for a number of years and as a bar manager. She has Smart Serve certification. On May 3, 2012, she was working 11 am to 5 pm. She was the only server working. Linda DeFour, the owner of Montreal House, was working as the cook. On Sundays, Ms. DeFour’s only day off, Ms. Geniole works on her own doing both the cooking and the serving of patrons.
Ms. Geniole testified that she uses paper receipts, from a booklet, to take food orders. The top white copy of each receipt is handed in to the kitchen, and she keeps the duplicate yellow copy. She hands in the yellow copies, with the appropriate amount of money for the total food sales, in an envelope at the end of her shift.
Drink orders are written down on a scrap pad at the bar. All drinks must be rung into the cash register before being served. If a patron wants a receipt, Ms. Geniole uses a receipt from the back of a receipt booklet and mark ‘receipt’ at the top so there is a record of what the receipt was used for, she would not give them the yellow copy. If a booklet is not finished by the end of a shift, it is put back in a drawer or left on the bar for the next server. If empty, the backs of the booklets are kept to be used as scrap for keeping track of the drink orders or bottle counts.
At the end of each shift, Ms. Geniole does an ‘X’ read of the cash register, which is a print out of the items that have been entered into the cash resigster, for the purposes of tallying up the amount of alcohol sold during her shift. The food receipts and the corresponding cash would go into one envelope and the X read and cash and debits for the alcohol total would go into another envelope and these would both be submitted to her employer.
On May 3, 2012, Ms. Geniole started work at 11 a.m. She recalled serving Mr. Knight and AR. She knew Mr. Knight to see him as he came in with work crews. It was her recollection that Mr. Knight came in first, then another gentleman, and then AR. She believed Mr. Knight came in some time after 12 noon. The first two gentlemen ordered food and indicated AR was coming. Mr. Knight ordered a small pitcher of beer and the other gentlemen, a diet pop. She rang it in at the cash register. It did not seem long to her before AR showed up. He ordered a small pitcher of beer and medium French fries. She poured the pitcher and rang it in for AR. When the third pitcher was ordered, the unnamed individual had already left. Ms. Geniole believed she served the shared pitcher sometime between 1pm and 2pm. Mr. Knight and AR stayed until around 3 o’clock. Ms. Geniole knew this was around the time they left because it coincided with Ms. DeFour returning from picking her mother up from an Alzheimer class. AR paid the whole bill at the bar.
Ms. Geniole walked out to the patio at the same time as Mr. Knight and AR were leaving. She testified that she noted that AR did not look well, he looked hot and tired. He face looked pale and his cheeks were flushed. Ms. Geniole had been made aware when they first came in that they had been working up on a roof. Ms. DeFour then came up onto the patio with her mother. She stood and chatted. Ms. DeFour and Ms. Geniole both asked AR is he was o.k., he said he was just going home to kick up his heals. According to Ms. Geniole, she asked if he should call a cab. Ms. DeFour then came up and asked AR if he was ok. AR said that he was.
Ms. Geniole testified that her concern was not about AR’s sobriety ,but that he looked tired and hot; she never thought of it being a drinking issue at that hour. He was fine when he came in and his speech was fine. Both men were articulate and walked fine. Ms. Geniole further testified that she would not have served two individuals 5 pitchers of beer. She was definite that Mr. Knight and AR each had a small pitcher and shared a third pitcher. The small pitchers hold 32 ounces. AR came to the bar and paid the amount owing in cash.
The bill for Mr. Knight and AR was confirmed on May 17, 2012, as number 289684. The top right hand corner was ripped so that the figure that was printed on the date line, and circled, was cut in half and illegible, both because of the missing section and the fact that what had been there appeared scribbled out. Ms. Geniole testified that the receipts got ripped when being taken out of the booklet. She demonstrated how she will often remove a number at a time. It was noted that a similar portion of the top right corner of bills 289681 through to 289687 is missing.4
Of the twenty receipts identified by Ms. Geniole as the receipts she wrote on May 3, 2012, five have a figure written in the top right, one of them is circled (Exhibit 14). Two have a scribbled over amount at the top right. None of them have any reference to any alcohol purchased. Eighteen have a total of the food itemized on the bill printed at the bottom right – including the bill for Mr. Knight and AR.
Of the eleven receipts completed by the server who worked after Ms. Geniole on May 3, 2012, only two have totals at the top right which appear to include more than the food total at the bottom of the receipt.
In cross-examination, Ms. Geniole indicated that the usual routine was for the work crew(s) to come in between 12 and 1 p.m., for a one hour lunch, and they order small pitchers. What was unusual about May 3, 2012, was that these men stayed and ordered an additional pitcher. She testified that she had no hesitation serving alcohol to AR as he showed no signs of intoxication. She confirmed that when an alcohol order is taken it is entered in the cash register at the bar before being served, but food is not rung in the cash register. She stated she did not do anything to obscure the total at the top of the receipt for Mr. Knight and AR’s order, but that it ripped being removed from the booklet.
Linda DeFour has been the owner of the Montreal House since 1989. Her roles include manager, operator, cook and all other jobs at times. In May of 2012 she had 8 staff. On May 3, 2012, there was one server working and her job included working the till and serving alcohol. The bar area in Montreal House is a servers’ bar, not a bar that customers can sit at. There is no stereo in the establishment and most evenings, it closes between 10 and 11 pm, except for Sunday when it closes at 6 pm.
Servers take beverage orders, pop and alcohol, and ring them through the cash register: Food, as in cooked meals, is not rung in the cash register. Food orders are written on the white copy of receipts and are handed into the cook (usually Ms. DeFour), in the kitchen. Once a food order has been filled by the cook, the white copy of the receipt is placed on a nail above the cook area. The next day they are taken down and discarded. On occasion, Ms. DeFour will go through the white receipts to check and make sure the staff has handed in all their yellow receipts.
The receipts used for food orders come in booklets of 50 and are numbered consecutively on the bottom left corner. Once the individual receipts are all removed there are no indications on the empty booklet covers which receipts had been contained in which booklet.
The wait staff is responsible for all the money and all sales. At the end of their shift, the server takes an ‘X’ reading off the cash register which tells the server the amount of alcohol sold for that day. These types of readings can be taken as many times a day as desired. A ‘Z’ reading however can only be taken once a day and must be kept for auditing purposes. After deducting their float, the money left over should be the server’s sales and tips. The server adds up the yellow food receipts to determine r the total amount of food sold. These yellow receipts go in an envelope with the money for the total food sales. The server then looks at the ‘X’ tape for the total owing for the alcohol sales. This goes in a separate envelope with the money/debits for the alcohol sales. These envelopes go in the bottom of the till until the end of the day when it gets locked up. Ms DeFour enters the food totals in the cash register the following day.
Ms. DeFour’s elderly mother lives in an apartment over Montreal House. During weekdays, her mother attends a program located a couple of minutes down the street from 9:30 am to 3pm. Ms. Defour strives to be there to pick up her mother at 2:45 pm as her mother does not like to be picked up late. On Saturdays, Ms. DeFour has hired help to look after her. On Sundays, she looks after her mother herself.
When Ms. DeFour returned from picking up her mother on May 3, 2012, she saw Mr. Knight, AR and Ms. Geniole on the patio. She heard Ms. Geniole say something to the effect that she had concerns regarding AR’s health, although she could not remember the specific words used. AR indicated he was fine. Ms. DeFour offered to drive him home. According to the witness, AR laughed in response and said he was fine. Mr. Knight, who Ms. DeFour knew to be a friend of AR, assured her that AR was fine.
Ms. DeFour testified that she had been on holiday with her sister when her sister had collapsed from heat stroke and her concern for AR was for that reason. She had no concern he was intoxicated. He had come in from work as usual, and the only thing unusual was he stayed a little longer than usual. The only unusual observation she made was that AR had a disposable bottle of water with him when he left, something which is not sold at the Montreal House.
When Mr. Holman attended the Montreal House on May 15, 2012, Ms. DeFour provided him with the receipts and tapes he asked for. The tape that was printed off and provided to Mr. Holman indicated the time alcohol orders were rung in to the cash register, although she explained it was an hour off as it does not automatically change when there was a time change for daylight savings time. On May 15, 2012, Ms. DeFour picked out the receipt she believed was for Mr. Knight’s table: this was in part based on her observation that people are creatures of habit and tend to order the same food and drinks. Mr. Knight usually ordered a club sandwich so that is what she went by. She also had only seen two people at Mr. Knight and AR’s table.
When Mr. Holman returned on May 17, 2012, Ms. Geniole advised him that he did not have the right food receipt. She was asked to get all the receipts and did, and Mr. Holman reviewed them. Ms. DeFour testified that Mr. Holman also went through the box of unfinished books. She was not clear what he was looking for. He appeared to be upset although he did not say why.
Ms. DeFour testified that she did not alter the receipt for Mr. Knight and AR’s order 5, she in fact thought their receipt was a different one than that identified by Ms. Geniole. She also testified that Ms. Geniole did not have access to the receipt once she submitted it at the end of her shift, nor would anyone else have access to it.
In cross-examination, Ms. DeFour testified that she had no personal knowledge of how much alcohol Mr. Knight or AR were served. She testified she did see AR leave and he was not intoxicated. She did not see Mr. Tebbutt at the table. She confirmed she could not remember the specific words said by Ms. Geniole to AR but recalled she said something about ‘are you ok to drive’. She denied that the total of alcohol and food is written on the top right of the receipts.
ISSUES
The violations alleged in the Notice of Proposal can be categorized as follows.
Violations regarding inspections.
i. Did the licensee withhold, destroy, conceal or refuse to provide relevant information or things required for the purpose of an inspection under the Act contrary to subsection 45(1) of the Act?
ii. Did the licensee fail to facilitate an inspection relevant to the licence contrary to subsection 45(2) of the Act?
Violations regarding alcohol service
iii. Did the licensee permit drunkenness, 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 contrary to subsection 45(1) on Ontario Regulation 719/90 under the Act?
iv. Did the licensee engage in or permit practices which tended to encourage patrons’ immoderate consumption of liquor contrary to subsection 20(1) on Ontario Regulation 719/90 under the Act?
v. Did the licensee permit liquor to be sold or supplied to a person who was or appeared to be intoxicated contrary to section 29 of the Act?
Past/Present Conduct
vi. Does the past/present conduct of the licensee or its officers or directors or a shareholder who owns or controls 10% or more of its equity shares, or a person having a beneficial interest in the business, or a person having responsibility for the management or operation of the business afford reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty.
APPLICATION OF LAW TO FACTS
Violations Regarding Inspections
The Registrar has alleged that either Ms. DeFour, Ms. Geniole, or someone else under their direction, ripped the May 3, 2012 receipt for Mr. Knight and AR (receipt number 289684), to prevent the determination of the total amount of the alcohol and food consumed.
The receipt in question is the fifth receipt in a series of nine consecutive receipts with similar tears across the top right corner. Ms. Geniole provided a reasonable explanation as to how the receipts were torn – they were torn when being removed collectively from a booklet, as is often her practice.
The evidence before the Tribunal from Ms. Geniole and Ms. DeFour is that the yellow numbered receipts indicate food orders only and that the food total is noted on the bottom right. Specific alcohol orders are not shown on the food receipt. Montreal House operates on a ‘cash and carry’ basis: alcohol ordered is either paid for when served or a tab may be run and added to the total food order at the time of payment. It was the evidence of Ms. Geniole and Ms. DeFour that the total for both food and alcohol may or may not be written down on the food receipt before it is paid.. The 20 receipts written by Ms. Geniole, and the 9 receipts completed by the subsequent server on May 3, 2013, support this evidence.6
The Tribunal accepts the evidence of Ms. Geniole and Ms. DeFour as to how the receipt system works in Montreal House and what caused the receipt in question to be ripped: specifically, they were ripped when being removed from the booklets, that the booklets when empty are not kept but used as scrap paper and then disposed of, and that there is no indication on an empty booklet as to what numbered receipts it once contained. The Tribunal finds that there was no action taken to destroy, conceal or refuse to provide relevant information or things required for the purpose of an inspection contrary to subsection 45(1) of the Act
The evidence before the Tribunal is that Ms. DeFour and Ms. Geniole met with Mr. Holman when requested to do so and provided the documentation asked for. Although there was some contradictory evidence as to whether his inspections were pre-arranged, and what was said, there is no evidence that Ms. DeFour or Ms Geniole did not co-operate or were obstructive in any way. The Tribunal accepts the evidence of Ms. DeFour that the receipt she originally identified as that belonging to Mr. Knight and AR was as a result of her best guess given her assumption of what might have been ordered and her understanding of the number of people at the table. The Tribunal finds there is no evidence that there was a failure to facilitate an inspection contrary to subsection 45(2) of the Act.
Violations Regarding the Service of Alcohol
It was the evidence of Mr. Knight that he and his workers finished their job and headed to Montreal House arriving around 12:30 or 12:35 pm and that AR arrived approximately five or ten minutes before 1 pm. In the recorded police interview of Ms. Geniole on May 8, 2012, when asked when AR arrived, she answered “they” arrived around “12:30ish”. In her oral testimony, she indicated her recollection was that Mr. Knight came in first, then another gentleman and then AR. Based on the evidence of Mr. Knight and of Ms. Geniole’s statement given closer to the events, the Tribunal finds as a fact that Mr. Knight was the first to arrive and that was at approximately 12:30 to 12:35. The records of Montreal House, in the form of the Z tape, confirm that a small pitcher of beer was rung in at 12:44 and another one at 12:59 which the Tribunal finds supports the timeline attested to by the witnesses.
The Z tape indicates that there were a total of 4 small pitchers sold after the 12:59 pitcher and before 3 p.m.: two at 1:11 pm and two at 2:15 pm. Of course, the Z tape does not indicate who ordered the pitchers or when exactly they were delieved to the tables. There were other forms of alcohol sold during this period, including bottles of beer, glasses of draft, and one liquor drink. 7 There was no evidence to suggest AR ordered anything other than beer in a small pitcher, nor does it make sense to the Tribunal that an individual would be simultaneously ordering beer in a pitcher and in the bottle.
The toxicology report, dated June 14, 2012, was prepared by Ben Joseph, toxicologist at the Centre of Forensic Science. The report indicates that AR had a Blood Alcohol Concentration (BAC) of 224mg/100ml at the time of his death.8 At the request of Counsel for the Registrar, Mr. Joseph provided some calculations as to how much alcohol AR would have to have consumed between 12:30 and 3 pm, assuming no alcohol consumption prior to 12:30 pm or after 3 pm, to reach the blood alcohol level reported. His calculation was approximately 119 ½ to 138 ¼ fl. oz. of beer. This would mean that AR would have to have been served 4 to 5 pitchers of beer.
The Tribunal found Ms. Geniole to be a credible witness. Her evidence on all issues was consistent. Her oral evidence, as well as her recorded statement, with respect to the amount of alcohol served was supported by Mr. Knight’s evidence and was not contradicted by any other witness or the records of Montreal House Ms. Geniole, who has experience as a server and bar manager, and who is Smart Serve certified, testified that she would not have served 5 pitchers to two people, which is roughly what would have been required in order to provide sufficient alcohol to AR to reach the blood alcohol level found. It was Ms. Geniole’s evidence that she served AR a pitcher and a half, and the Tribunal accepts this to be true.
It has been alleged that the Licensee has violated subsection 45(1) of Ontario Regulation 719/90 under the Act by permitting drunkenness on its premises. The issue of “permit” has been addressed by the Court of Appeal in Sin City Bar and Eatery 2009 ONCA 323 In order to prove a violation, the Registrar must prove that the Licensee knew, or ought to have known, that the patron was drunk.
The evidence before the Tribunal is that AR worked all morning May 3, 2012, appearing normal to his co-workers Mr. Tebbutt and Mr. Knight. Ms. Geniole observed no signs of intoxication and no behaviour that would indicate AR was drunk at anytime she was serving him. Mr. Knight, who has known AR for many years, testified to the effect that AR did not show signs of intoxication at any point on May 3, 2012. Ms. Geniole’s understood that AR had come from working all morning on a roof on a hot day, that his attendance for lunch and his order of beer was part of a normal routine, and most significantly that the quantity served was not excessive and should not have lead to intoxication. These facts provide a reasonable explanation as to why the observations that were made when AR was leaving were not connected with intoxication. Based on the evidence before it, the Tribunal does not find that the Licensee knew or ought to have known that the patron was drunk or intoxicated. The Tribunal therefore must dismiss the allegation of a violation of subsection 45(1) of the O.Reg. Similarly, the Tribunal must also dismiss the allegation of violation of Section 29 of the LLA for the same reason, as there is an absence of evidence on the issue of “permit”.
Lastly, it has been alleged that licensee engaged or permitted practices which tended to encourage patrons’ immoderate consumption of liquor. The Tribunal finds that there has been no evidence provided to support this allegation and therefore it is dismissed.
This quantity of beer that the Tribunal has found to have been served to AR at Montreal House would not have resulted in AR being legally impaired or anywhere near the BAC of 224mg/100 according to the evidence of Mr. Joseph. The Tribunal is faced with an inexplicable gap between the facts that have been established on the evidence before it and the scientific fact of the BAC of AR at the time of his death. To fill the gap would simply be a matter of speculation. The Tribunal accepts the licensee’s evidence as to what was served to, and consumed by AR, at Montreal House during the period of 12:30 and 3:00 pm and based on the totality of the evidence, concludes that the licensee did not violate the Act or its Regulations. Where, when or how AR consumed additional alcohol outside of that window of time which led to his level of intoxication and the tragic accident remains unknown.
Past and Present Conduct
The allegations set out in the Notice of Proposal of November 2012 have not been proven by the Registrar. The Montreal House has been operating since 1989 and there are no facts before the Tribunal that there have been any prior violations of the Act or its Regulations by the licensee over its long history of operation. Therefore the Tribunal finds that there is no past or present conduct of the licensee, or any person as described under section 6(2)(d) of the Act that affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to not carry out the Proposal.
LICENCE APPEAL TRIBUNAL
Elizabeth Sproule, Vice-Chair
LICENCE APPEAL TRIBUNAL
Douglas Wallace, Vice-Chair
Released: July 19, 2013