2269928 Ontario Limited o/a Victory Café v. Registrar of Alcohol and Gaming, 2014 CanLII 61066

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-09-16

FILE:

8553/LLA

CASE NAME:

8553 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

2269928 Ontario Limited o/a Victory Café

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

DECISION

ADJUDICATOR:

Kenneth W. Koprowski, Vice-Chair

APPEARANCES:

For the Appellant:

Pradeep Chand, Counsel

For the Respondent:

Aviva Harari, Counsel

Heard in Toronto

August 25, 2014

DECISION

BACKGROUND

The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal (“NOP 20134”), dated November 13, 2013, which proposed to revoke the licence of 2269928 Ontario Limited o/a Victory Café (the "Appellant"). The Appellant appealed this Notice of Proposal to the Licence Appeal Tribunal.

Before the hearing of this appeal was scheduled, the Appellant filed a Motion to dismiss the Registrar’s Notice of Proposal. The submissions of the parties and the Decision of the Tribunal follow.

SUBMISSIONS

The Appellant’s Submissions

The Appellant argued three grounds in support of its Motion to dismiss NOP 20134. By Order of this Tribunal, after a Pre-hearing was held on February 26, 2014, the three grounds were summarized as follows:

1. Delay in the Registrar’s issuance of the Notice of Proposal

2. Abuse of process by the Registrar

3. Appellant’s inability to defend its case due to the unavailability of a key witness.

The Appellant has been licensed under the Act since April 1, 2011. It has had no adverse disciplinary history until NOP 20134 was issued, a fact that Counsel for the Registrar acknowledged. The sole officer and director of the Appellant is Shote Ndreka.

Before NOP 20134 had been issued, the Appellant applied to increase the seating capacity of its patio area, but, because letters of objection were sent to the Registrar, the Registrar issued Notice of Proposal 20176, dated December 19, 2013, to review the application at a public interest hearing. The Tribunal heard the matter on May 8, 2014, and did not approve the application. The Appellant argued that the conduct of the Registrar relating to Notice of Proposal 20176 was indicative of the delay that the Registrar also visited on the Appellant relating to NOP 20134. Notice of Proposal 20176 (to hold a public hearing) was issued on December 19, 2013 whereas NOP 20134 (to revoke the Appellant’s licence) was issued on November 13, 2013. The Registrar explained that issuing Notice of Proposal 20176 was delayed because, in the interim and after the Appellant filed its application for increased capacity, a Liquor Licence investigation had begun concerning the ownership of the Appellant. The result of that separate investigation led to the issuance of NOP 20134. The Appellant argued, therefore, that the issuance of Notice of proposal 20176 was an example of the Registrar’s oppressive conduct towards the Appellant because of the delay in issuing it.

NOP 20134 was issued after the Registrar sent two Letters of Incident (“LOI”) to the Appellant dated June 30, 2013, and July 23, 2013, and after an investigation into the question of the ownership of the Appellant. The earlier letter dealt with an infraction of overcrowding. The later letter dealt with the receipt of noise complaints.

As to the former letter, the Appellant argued that the disclosure relating to the incidents in that letter was insufficient to allow the Appellant to prepare a meaningful response. The Appellant further argued that, as a result, the Appellant did not know the case it had to meet in NOP 20134 and that the allegations in that Notice of Proposal had no chance of success.

As for the letter of July 23, 2013, the Appellant argued that the Registrar’s disclosure was unclear and incomplete.

In both instances, the Appellant argued that the inspector’s notes were dated after the dates of the incidents set out in the two LOI’s. In addition, the inspector was no longer available to be cross-examined at a hearing of the matter because, in the interim, she had passed away. The Registrar had already provided the Appellant’s representative with the inspector’s notes. The Appellant repeated his concern that, as a result of the insufficient disclosure, the Appellant does not know the case it has to meet and that the allegations in NOP 20134 had no prospects of success.

The Appellant, therefore, argued that the Tribunal should prevent an abuse of process from occurring, relying on Section 23(1) of the Statutory Powers Procedure Act R.S.O 1990 c. S. 22. That section reads as follows:

23. (1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

Unacceptable Delay

The Appellant further argued that the Registrar’s delay in issuing Notice of Proposal 20176 and NOP 20134 was unacceptable because it was an abuse of process. Counsel relied on the Supreme Court of Canada decision in Blencoe v British Columbia (Human Rights Commission) 2000 SCC 44, [2000] 2 S.C.R 307, where, at paragraph 116, Bastarache J. states:

116 The respondent's case is that there has been an unacceptable delay in the administrative process which has caused him to be prejudiced by the stigma attached to the two Complaints to an extent that justifies the process being terminated now. Abuse of process is a common law principle invoked principally to stay proceedings where to allow them to continue would be oppressive. As stated by Brown and Evans, supra, at pp. 9-71 and 9-72:

The stringency of the requirements for showing that delay constitutes a breach of fairness would seem to be due, at least in part, to the drastic nature of the only appropriate remedy. Unlike other instances of procedural unfairness where it is open to a court to remit the matter for redetermination in a procedurally fair manner, the remedy for undue delay will usually be to prevent the tribunal from exercising its legislative authority, either by prohibiting it from proceeding with the hearing, or by quashing the resulting decision.

At paragraph 120, Bastarache J. explains what the court must be satisfied with in order to find abuse of process. He states:

120 In order to find an abuse of process, the court must be satisfied that, "the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted" (Brown and Evans, supra, at p. 9-68). According to L'Heureux-Dubé J. in Power, supra, at p. 616, "abuse of process" has been characterized in the jurisprudence as a process tainted to such a degree that it amounts to one of the clearest of cases. In my opinion, this would apply equally to abuse of process in administrative proceedings. For there to be abuse of process, the proceedings must, in the words of L'Heureux-Dubé J., be "unfair to the point that they are contrary to the interests of justice" (p. 616). "Cases of this nature will be extremely rare" (Power, supra, at p. 616). In the administrative context, there may be abuse of process where conduct is equally oppressive.

The Tribunal notes that Counsel for the Appellant quoted only that portion that is in bold print in the above portion of the Judgment.

Relying on the above statements of the law, the Appellant argued that requiring the Appellant to continue, without being given an opportunity to know the case it has to meet and being afforded a fair hearing, would be an abuse of process.

Counsel further argued that the delay must be unreasonable or inordinate. At paragraph 122 of Blencoe, Bastarache J. states:

122 The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case. As previously mentioned, the determination of whether a delay is inordinate is not based on the length of the delay alone, but on contextual factors, including the nature of the various rights at stake in the proceedings, in the attempt to determine whether the community's sense of fairness would be offended by the delay.

Further, at paragraph 115 of the decision, Bastarache J. states:

115 I would be prepared to recognize that unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised. Where inordinate delay has directly caused significant psychological harm to a person, or attached a stigma to a person's reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process. The doctrine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay. It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute. The difficult question before us is in deciding what is an "unacceptable delay" that amounts to an abuse of process.

Counsel referred the Tribunal to the portion in bold in the above quotation.

The Tribunal notes that there was no evidence presented to it on this Motion to substantiate that anyone associated with the Appellant suffered “significant psychological harm.”

Counsel for the Appellant further argued that the Appellant has had to wait over one year with respect to the application for increased capacity (Notice of Proposal 20176).

Also, the Appellant has had to wait upon the Registrar for responses to the Appellant’s enquiries about the Letters of Incident and the issuance of a Notice of Proposal in order to initiate an administrative appeal. Full particulars have not been provided, especially those relating to character, honesty and allegations that border on fraud, conspiracy and obstruction.

The Tribunal notes that those characterizations of fraud and conspiracy are those of the Appellant and appear nowhere in the Respondent’s materials.

The Appellant also argued that it has been subject to routine visits, inspections and an investigation by AGCO. Counsel alleged that 12 inspections in a three-year period were beyond what is typically the norm. However, in response to questioning from the Tribunal, Counsel admitted that he had no evidence whatsoever of what was “the norm.”

Unfair Hearing

Counsel further argued that abuse of process may also arise when the conduct of an administrative authority, which he defined as AGCO, is unfair and oppressive. In such a case the administrative authority, which he then defined as this Tribunal, should not continue so as to not tarnish the integrity of the Tribunal.

Counsel further alleged that the Registrar’s refusal to provide particulars about the LOI’s dated June 30 and July 23, 2013, is a breach of natural justice where the Appellant continued to seek information to know the case against it. Counsel alleges that NOP 20134 has no firm evidentiary basis.

Counsel alleged that the Appellant was not granted procedural fairness. The subject of an investigation or government action (such as, in this case, the revocation of a liquor licence) has a right to participate in the investigation and to have the opportunity to put forward their views and evidence and have them considered by the decision-maker. Counsel relied on the decision of the Supreme Court of Canada in Baker v Canada (Ministry of Citizenship and Immigration) 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817. Counsel argued that, in the case now before this Tribunal, the Appellant’s reputation among its colleagues suffered. The Tribunal notes that the delay in instituting the proceedings in the Baker case was two years. That delay, in the circumstances of that case, was considered to be unreasonable.

Counsel also relied on the decision of the Ontario Divisional Court in Ajao v College of Nurses of Ontario [2011] O.J. No. 5280 where, at paragraph 8, M.R. Dambrot J. states:

8 The respondent College very fairly concedes that although the ICRC [Inquiries Complaints and Reports Committee of the College of Nurses] is a screening committee and not a quasi-judicial one, it still had a disclosure obligation to the applicant, albeit a minimal one. It was obliged to provide the applicant with a notice of the Registrar's report, notice of the substance of the allegations against her and an opportunity to make submissions in respect of the allegations. In this case, the ICRC relied on interviews of several of the applicant's colleagues in reaching its decision without providing a summary of that information to the applicant or an opportunity to make submissions about that information. As a result, the College agrees that the decision should be quashed and the matter remitted to a differently constituted panel of the ICRC for fresh determination, with directions that the applicant be allowed to make submissions in respect of the seven witness statements.

Disclosure

Counsel argued that the Appellant must be afforded a fair hearing that adheres to the principles of natural justice and procedural fairness and that a right to a fair hearing includes the right to disclosure. The right to disclosure is heightened where the character of a party is in issue, relying on Section 8 of the Statutory Powers Procedure Act R.S.O. 1990 c. S. 22, which states:

8. Where the good character, propriety of conduct or competence of a party is an issue in a proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.

Counsel further argued that Rule 6.2 of the Rules of this Tribunal also provides for the same increased level of disclosure. In support, Counsel cited the following Rule:

6.2 Where the good character, propriety of conduct or competence of a party is an issue in the proceedings, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.

The above Rule has now been replaced by the current Rule 6.2, applicable to this proceeding, which states:

6.2 Where a person wishes to question the good character, conduct or competence of a party in a proceeding, the person shall provide the party with reasonable information about those allegations prior to the hearing.

The Appellant alleged that the Registrar has not furnished full and adequate particulars.

In the alternative, Counsel argued that, if the Tribunal should decide not to dismiss NOP 20134, then certain paragraphs of the Notice of Proposal should be struck. Those paragraphs are paragraphs 14, 25, 26, 28, 30, 31 and 32, on the grounds either that the allegations in those paragraphs are speculative or do not disclose the basic level of material facts to allow the Appellant to know the case it has to meet.

The Tribunal notes that the Registrar’s Counsel informed the Tribunal during the hearing of this Motion, that the Registrar had previously advised Counsel for the Appellant that the Registrar had withdrawn paragraph 32 (allegations of overcrowding) from NOP 20134.

Inability to Examine Key Witnesses

Counsel argued that NOP 20134 contains allegations that were the subject of the LOI’s, prepared by an inspector who has since passed away and would not be available for cross-examination at a hearing before this Tribunal. He emphasized the importance of cross-examination, relying on the decision of the Supreme Court of Canada in R. v Osolin, at paragraph 157. The unavailability of a key witness impedes the Appellant’s ability to make full answer and defence.

The Tribunal notes that the Registrar agreed with the importance of cross-examination. Counsel for the Registrar informed the Tribunal that she had already advised Counsel for the Appellant that the Registrar withdrew the allegations of overcrowding, based on the inspector’s investigation. With regard to the allegations of noise, based on notes made by the same inspector, the Registrar would be calling the actual complainants, whom the Appellant would be able to cross-examine at a hearing, and would not have to rely on the inspector’s notes.

The Respondent’s Submissions

Counsel for the Registrar agreed that the Tribunal has jurisdiction to grant a stay of proceedings but that a stay should be granted only in appropriate circumstances. This matter was not an appropriate matter for such a stay. Counsel also acknowledged that the Appellant had been licensed since April, 2011, and that it had no adverse discipline history until NOP 20134 was issued.

The chronology of events was outlined in the Affidavit of Tamara Brooks, found at Tab 1 of the Respondent’s Motion Record.

The Appellant had applied in February, 2013, to increase the capacity of its patio. The usual procedure was followed to advertise the application, receive objections and arrange a meeting to resolve any differences between the Appellant and the Objectors. The attempts at a resolution were unsuccessful. In such cases, as happened in that case, the Registrar takes no position in the matter nor does it present any witnesses at the hearing of the matter.

In July, 2013, the Registrar sent copies of the letters of objection to Counsel for the Appellant. The Notice of Proposal (Number 20176) was issued in December, 2013 to conduct a public interest hearing concerning the application to increase capacity. Counsel for the Appellant subsequently requested disclosure. Copies of the same letters were sent to him by the Registrar’s letter dated January 8, 2014. The Registrar advised Counsel that the Registrar would not be calling any witnesses at the hearing of the matter, so that there would be no further disclosure, and that the time for the Appellant to file its Notice of Appeal was extended to January 18, 2014. A pre-hearing was held on March 18, 2014 and the hearing was held on May 8, 2014.

In the meantime, the Registrar conducted an investigation of the Appellant that eventually led to the issuance of NOP 20134 on November 13, 2013 to revoke the Appellant’s licence; that is, before the Notice of Proposal 20176 (to increase capacity) was issued in December.

The Registrar considered that it was a more efficient use of time to deal with the Proposal to revoke the Appellant’s licence because, if directed to revoke, the decision would obviate the need to hold a public interest hearing pursuant to Notice of Proposal 20176. That was the reason that NOP 20134 was issued before the Notice of Proposal 20176.

Concerning NOP 20134, the Registrar issued it as a result of the following investigation.

When the corporate Appellant was first licensed, only Shote Ndreka was shown to be involved with the Appellant. However, at a subsequent inspection on September 21, 2012, Shote Ndreka informed the inspector that Kole Ndreka was a 50 per cent shareholder in the Appellant’s corporation. Kole Ndreka was already a person of concern to the Registrar because, in 2010, a Notice of Proposal had been issued to revoke the liquor license of Kole Ndreka’s corporation. Kole Ndreka surrendered his licence before the matter proceeded to a hearing (Affidavit of Tamara Brooks, paragraph 19).

Counsel for the Appellant then provided to the inspector, at the inspector’s request, a copy of an Agreement of Purchase and Sale (“APS”) found at Tab J of the Respondent’s Motion Record. The APS named Shote Ndreka as the buyer, in trust for a company to be incorporated. The inspector then obtained a copy of the same APS from the seller, found at Tab K. The seller’s copy showed Kole Ndreka, not Shote Ndreka, to be the buyer. Since Kole Ndreka was already a person of concern, the Registrar felt he had legitimate concerns arising from the difference in the name of the purchaser in the two documents. Therefore, the inspector attempted to meet with Shote Ndreka on June 11, 2013. Counsel for the Appellant informed the inspector that Shote Ndreka would not participate in any form of recorded interview. NOP 20134 was then issued on November 13, 2013. The Registrar sent disclosure to Counsel for the Appellant by letter dated November 21, 2013, sent by courier. At the request of Counsel for the Appellant, the Registrar sent further disclosure by letter dated December 13, 2013, also by courier. Since the prescribed period of time within which to file a Notice of Appeal expired November 30, 2013, the Registrar, once again, as he had done in the matter of Notice of Proposal 20176, extended the time to file the Notice of Appeal to January 10, 2014, at the request of Counsel for the Appellant.

Counsel for the Appellant requested further disclosure by letter dated December 18, 2013. The Registrar replied immediately by letter dated December 19, 2013, reciting that much of the requested disclosure had already been provided. By letter dated January 8, 2014, Counsel for the Appellant requested still further disclosure. Counsel for the Registrar replied that same day, by e-mail, stating that disclosure had been dealt with by the Registrar’s reply letter of December 19, 2013. The Notice of Appeal was then filed on January 10, 2014. A pre-hearing was held on February 26, 2014, at which time Counsel for the Appellant informed the Tribunal that he would file this Motion to dismiss NOP 20134.

Counsel for the Registrar subsequently informed Counsel for the Appellant that she was withdrawing from NOP 20134 the complaint of overcrowding (paragraph 32 of NOP 20134) because the investigator in that matter had passed away and was no longer available. As for the noise complaint (paragraph 31 of NOP 20134), although the same investigator was involved in that matter, the Registrar would call the actual complainants, so that the unavailability of the investigator would not be a factor in that matter. Copies of the e-mail complaints had already been disclosed.

Counsel for the Registrar further submitted that the Letters of Incident (June 30 and July 13, 2013) were not a statutory procedure so that, therefore, there was no requirement for actual disclosure, although it is the practice of the Registrar to provide such disclosure. It is the statutory Notice of Proposal (issued November 13, 2013) that triggers the disclosure requirement.

Counsel for the Registrar also referred the Tribunal to the decision in the Blencoe case, as had Counsel for the Appellant. The Registrar’s Counsel pointed out that, in that case, a stay of proceedings was not granted even though there had been a 30-month delay in scheduling hearings after the initial complaints were filed with the British Columbia Human Rights Tribunal.

Further, she submitted that the Blencoe case held, among other things, that delay, without more, will not warrant a stay of proceedings as an abuse of process at common law (at paragraph 121). There must be proof of significant prejudice which results from an unacceptable delay. In the instant case, there is no evidence of prejudice, notwithstanding the Appellant’s allegation. The Appellant’s licence continues to be in force during these proceedings. The Appellant can continue its business uninterrupted so that there is no prejudice to it.

In addition, there is no evidence that a stay of this proceeding should be granted on the ground that the fairness of the hearing would be compromised. The hearing has yet to be scheduled. Once scheduled, the Appellant can receive a full and complete hearing before this Tribunal. Further, there is no evidence now before this Tribunal of harm to the Appellant.

Only in the clearest of circumstances should a delay be granted. At paragraph 115 of Blencoe, Bastarache J. states:

115 …..It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute. The difficult question before us is in deciding what is an "unacceptable delay" that amounts to an abuse of process.

Further, for there to be an abuse, the proceedings must be unfair to the point that they are contrary to the interests of justice. Cases of this nature will be extremely rare (Blencoe, paragraph 120).

Counsel for the Registrar further argued that there are no time periods in the Act within which a Notice of Proposal should be issued. The Tribunal should be loath to create a limitation period where none exists in the legislation.

In support of that submission, Counsel referred the Tribunal to the decision of the Alcohol and Gaming Commission in G Way Restaurant Services Ltd. (c.o.b. Boston Pizza) [2008] O.A.G.C.D. No. 112, decided May 16, 2008. In that case, there was a nine month delay between the time that the AGCO office received the report of the investigating officer and the issuance of the Notice of Proposal to suspend the liquor licence.

The licensee brought a Motion for an order staying or withdrawing the Notice of Proposal, an order compelling the investigating officer to attend so he might be cross-examined on his affidavit and for such further and other relief as the Board of the Alcohol and Gaming Commission might deem just and proper in the circumstances. Alternatively, the Licensee sought an adjournment of the hearing in order to deal with what was alleged to be late disclosure by the Registrar in the process.

The Board denied both the allegations made by the Licensee and the relief sought.

The Tribunal notes that, at paragraphs 52 to 54 of the decision, the Board, following Blencoe, stated:

52 Where delay has resulted in the breach of an individual's Charter protected right to a criminal trial in a reasonable time, the only remedy is a stay of proceedings (R v. Askov). However, in the administrative law context, there must be proof of significant prejudice which results from an unacceptable delay before a stay will be considered. "Staying proceedings for the mere passage of time would be tantamount to imposing a judicially created limitation period" (Blencoe v. British Columbia (Human Rights Commission), para. 101).

53 In Blencoe, the Supreme Court of Canada undertook an extensive review of the jurisprudence on delay and abuse of process in administrative proceedings. The Court held that delay justifying a stay must be found to be both inordinate and so oppressive as to taint the proceeding. Also, a stay should only be granted rarely and in the clearest of cases where:

• damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted; and

• proceedings are so unfair they are contrary to the interests of justice (Blencoe para. 120)

54 According to Blencoe, the discretionary power is not to be taken lightly, the test for the party alleging abuse of process is harsh to meet, and the burden or threshold that must be met is heavy.

(Emphasis is added)

Further, in the decision of this Tribunal in Find-A-Car Auto Sales & Brokering Inc. [2010] O.L.A.T.D. No. 280, the Vice Chair held, at paragraph 79, applying and following Blencoe:

79 Nevertheless, the Tribunal finds that delaying the process, in itself, does not give rise to an argument of abuse of process. In Blencoe, the Supreme Court of Canada, when referring to the doctrine of abuse of process, stated:

The doctrine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay. It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances, bring the human rights system into disrepute.

(Emphasis is added)

In response to the Appellant’s reliance on the Baker decision, Counsel for the Registrar pointed out to the Tribunal that, in that case, the Appellant had not even been permitted or given the opportunity to attend at an oral hearing before a decision about her deportation had been made by an immigration officer. The decision had been made based only on the results of an investigation. Similarly, in the Ontario Divisional Court decision in Ajao v College of Nurses of Ontario [2011] O.J. No. 5280, the inability to present her case before the College of Nurses of Ontario resulted in the decision of the Inquiries Complaints and Reports Committee being quashed.

In contrast, in the instant case, the Appellant will have the opportunity to present its case before the Tribunal.

Finally, Counsel for the Registrar argued that none of the paragraphs in NOP 20134 should be struck, as sought by the Appellant, because particulars of all such matters have been provided to the Appellant. Also, regarding paragraph 32 (the overcrowding complaint) the Registrar has withdrawn that allegation. Regarding paragraph 31 (the noise complaint), it is the complainants who will be called as witnesses, so that the unavailability of the inspector is not an issue.

Therefore, Counsel for the Registrar summarized her submissions by stating that the Appellant has not established that the proceedings should be stayed because of delay. Delay, in and of itself, does not give rise to a stay of proceedings. The Registrar extended the time to file the Notice of Appeal, at the Appellant’s request. Also, it is in the public’s interest to have the matter heard on the merits.

Also, the unavailability of the inspector as a witness does not affect the proceedings and does not prejudice the Appellant. The overcrowding complaint has been withdrawn. At the hearing about the noise complaints, the complainants will be called to testify, so that the unavailability of the inspector is not a factor.

Finally, the Appellant has not met the high hurdle to have the matter stayed on the ground of abuse of process.

ANALYSIS

For the reasons that follow, the Tribunal dismisses the Appellant’s Motion to stay the proceedings before this Tribunal.

No Chance of Success

The Appellant argued, among other things, that, because of the alleged non-disclosure, the Registrar has no chance of success and has no firm evidentiary basis in relation to NOP 20134, so that these proceedings should be stayed.

Surely, it is not the function or jurisdiction of this Tribunal to make that assessment at this stage of the proceedings so as to grant a stay of these proceedings. If the Registrar believes that he has a legitimate reason to issue the Notice of Proposal, he has the right to present the case to this Tribunal for adjudication, just as the Appellant has the right to defend. Only after a properly conducted hearing, where witnesses testify and are cross-examined and where admissible exhibits are filed can the Tribunal make the assessment that the Appellant now urges it to make at this stage.

It is only at such a hearing that the Tribunal can determine the sufficiency and adequacy of the disclosure and of the evidence in support of the Registrar’s case. To require the Tribunal to do so before such a hearing is to require it to pre-judge the matter in the absence of sufficient evidence. That would result, at least, in a denial to the Registrar of fairness and natural justice for which Counsel for the Appellant is now advocating on behalf of his own client.

To suggest that the Tribunal should make such an assessment at this stage of the proceedings is premature and inappropriate, especially where, by Rule 6 of the Rules of this Tribunal, the Registrar still has time within which to make further disclosure. The Tribunal rejects that argument.

As for the noise complaints contained in the LOI dated July 23, 2013, the Appellant knows the case it has to meet. The allegations and particulars are contained in the letter. The LOI is not a statutory procedure, so that there is no statutory requirement for disclosure, although it is the Registrar’s practice to provide particulars. The Rules of this Tribunal require disclosure to be made at least 10 days before the hearing date. As yet, no hearing date has been scheduled because of the Appellant’s filing of this Motion. To request a stay based on non-disclosure on this issue is, therefore, premature. As well, the sufficiency of the disclosure is a matter to be determined by the Tribunal at a scheduled hearing, and not before the requirement for disclosure has arisen.

Delay and Abuse of Process

As for the question of delay, there is no time limit to issue a Notice of Proposal [G Way Restaurant Services Ltd. (c.o.b. Boston Pizza), at paragraph 52] so as to result in an abuse of process. There was no authority cited that requires or permits the Tribunal to impose such a limitation period. In Blencoe, at paragraph 120, the Court stated that abuse of process is a process tainted to such a degree that it amounts to the clearest of cases. Here, the Tribunal cannot conclude, on the evidence before it on this Motion, that there is anything that comes close to being an abuse of process. The Registrar issued NOP 20134 on November 13, 2013, and served it on the Appellant the next day. The Registrar then provided disclosure to the Appellant on November 21, 2013, by courier. It was Counsel for the Appellant who requested further disclosure by letter dated November 24, 2013. The Registrar responded by letter dated December 13, 2013. Appellant’s Counsel again requested further disclosure by letter dated December 18, 2013. The Registrar responded by letter dated December 19, 2013. Counsel for the Appellant requested further disclosure by letter dated January 8, 2014. Counsel for the Registrar responded by e-mail that same day. It was Counsel for the Appellant who requested an extension of time for filing a Notice of Appeal. The Registrar consented.

The pre-hearing was held in February, 2014. The only reason that a hearing was not scheduled was that the Appellant gave notice that it would be filing this Notice of Motion.

For the Appellant to ask for further disclosure and to receive prompt replies, to ask for and receive an extension of time for filing the Notice of Appeal, to ask for a delay in scheduling a hearing in order to bring this Motion and then to complain of delay on the part of the Registrar is, in those circumstances, unreasonable and illogical.

There is no basis for concluding that there was unreasonable delay in issuing NOP 20134 in the absence of any limitation period for doing so. Further, there is no evidence before this Tribunal that there has been unacceptable delay on the part of the Registrar that amounts to an abuse of process. The Tribunal notes that, in the Blencoe case, there was a delay of 30 months, yet a stay was not granted. In G Way Restaurant Services Ltd. (c.o.b. Boston Pizza) there was a delay of 9 months, yet a stay was not granted.

The Tribunal can also examine the cause of the delay. At paragraph 122 of Blencoe, Bastarache J. states:

122 The determination of whether a delay has become inordinate depends on the nature of the case and its complexity, the facts and issues, the purpose and nature of the proceedings, whether the respondent contributed to the delay or waived the delay, and other circumstances of the case.

(Emphasis is added)

From an examination of the foregoing sequence of events, it is clear that any delay in this matter after the issuance of NOP 20134 is attributable to the Appellant, not to the Registrar.

The Tribunal concludes that any perceived delay in this matter is not that of the Registrar and does not give rise to an “unreasonable, inordinate or clearly unacceptable” period of time so as to result in an abuse of process (Blencoe, at paragraphs 115 and 120). The Blencoe decision is clear that few lengthy delays will meet the threshold for inordinate delay. The delay must be clearly unacceptable and have caused significant prejudice.

None of the Appellant’s allegations of delay, abuse of process and prejudice were supported by any form of relevant evidence other than a self-serving affidavit of an officer of the Appellant who did not substantiate those allegations.

The Appellant also argues that it is not in the public interest to proceed with this hearing because of the alleged delays. In addition to this Tribunal’s finding that there is no such inordinate delay, the Tribunal also recognizes that the Act gives specific authority to the Registrar to oversee licensed establishments and, among other things, to take action that is deemed necessary to protect the public. The Registrar discovered facts based on which, if proved, he seeks to revoke the Appellant’s licence. It is, therefore, totally within the public interest for this case to proceed to a hearing.

Contrary to the allegations of the Appellant, there is no evidence before this Tribunal of any psychological harm to the Appellant’s owner or stigma to the owner’s reputation (as in the Blencoe case) so as to result in an abuse of process.

In addition, while this appeal is outstanding, the Appellant’s licence is still in full force and effect so that the Appellant can continue to carry on its business. There is, therefore, no prejudice to the Appellant’s business.

Also, contrary to the allegations in the Appellant’s submissions, there is nothing in NOP 20134 that accuses the Appellant of fraud or conspiracy.

Although the Appellant argued that the number of inspections of the Appellant’s premises were beyond what is typically the norm, Counsel for the Appellant admitted that he had no evidence to substantiate that allegation. Simply making a bold statement to that effect, in the absence of any supporting evidence, does not make it so.

The Tribunal also rejects the Appellant’s allegation that the integrity of the Tribunal would be tarnished if it were to continue with a hearing in this matter.

On the contrary, the Tribunal is authorized by statute to proceed with a hearing in these circumstances and to make a decision based on the merits of the case. There is a far greater risk that the integrity of the Tribunal would be tainted if it did not proceed with a full and complete hearing on the merits and if it did not assess the evidence and arguments of both parties.

The Tribunal agrees with the submission of Counsel for the Appellant that, to promote procedural fairness, the Appellant should have the opportunity to put forward its views and evidence and have them considered by the Tribunal. What that argument ignores is that the Registrar is entitled to the same right. The Baker and Ajao cases that the Appellant relied on involved circumstances where the Applicant in each case was not permitted to appear in person in front of the decision-making body before it made its decision. In the instant case, the Appellant will have such an opportunity to present its case before the Tribunal. To suggest that there would be procedural unfairness if the Tribunal proceeded with this appeal is at best, speculative, at worst, disingenuous.

There is nothing in section 8 of the Statutory Powers Procedure Act or in Rule 6.2 of the Rules of this Tribunal that require a “heightened disclosure” in this case, as Counsel for the Appellant argued. There is no basis for reading those words into those provisions. The Appellant offered no statutory or other authority to support that argument.

The Tribunal also rejects the Appellant’s arguments to strike the impugned paragraphs in NOP 20134. It is for the Tribunal to hear this matter and make its decision on the merits. To pre-judge the paragraphs would deny to the Registrar the same right to procedural fairness for which Counsel for the Appellant advocates on behalf of his own client.

Inability to Examine Key Witnesses

As for the unavailability to cross-examine a key witness, the Tribunal rejects that argument as being a non-issue. The allegation of overcrowding, investigated by that witness, has been withdrawn. The Registrar intends to call the actual complainants to prove the allegation of noise complaints, so that the absence of the same investigator will have no negative effect on Counsel for the Appellant to cross-examine those witnesses on that issue. There is no prejudice to the Appellant.

CONCLUSION

For the foregoing reasons, the Tribunal concludes that the Appellant has not met the heavy threshold for establishing abuse of process (G Way Restaurant Services Ltd.) There is no evidence before this Tribunal of “significant prejudice” resulting from an unacceptable delay (G Way Restaurant Services Ltd.).

ORDER

The Tribunal dismisses the Appellant’s Motion to dismiss or stay Notice of Proposal 20134.

LICENCE APPEAL TRIBUNAL

_________________________

Kenneth W. Koprowski

Vice-Chair

Released: September 16, 2014