Turtle Jack’s Muskoka Grill (Port Carling) Ltd. v. Registrar of Alcohol and Gaming, 2014 CanLII 79520

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE:

2014-12-29

FILE:

8680/LLA

CASE NAME:

8680 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 Refuse to Remove Conditions, as stated on Proposal

Turtle Jack’s Muskoka Grill (Port Carling) Ltd. o/a Turtle Jack’s Muskoka Grill Appellant

-and-

Registrar of Alcohol and Gaming Respondent

-and-

Dr. Eric Luks Added Party/Objector

DECISION AND ORDER

ADJUDICATOR:

Kenneth W. Koprowski, Vice-Chair

APPEARANCES:

For the Appellant:

Michael Lerner, Counsel

For the Respondent:

Aviva Harari, Counsel

For the Added Party:

Dr. Eric Luks, on his own behalf and as Agent for the Objectors

Heard in Huntsville and Bracebridge:

July 30, 31, and November 6, 7, 2014

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 March 4, 2014, which proposed to refuse to remove conditions, as stated in the Proposal. Turtle Jack’s Muskoka Grill (Port Carling) Ltd. operating as Turtle Jack’s Muskoka Grill (the "Appellant") appealed this Notice of Proposal to the Licence Appeal Tribunal.

The Appellant took over the business and premises of a previous licensee in 2009. The licence that was transferred to the Appellant from the previous licensee had terms and conditions attached to it. By written consent dated March 31, 2009 (found in Exhibit #2), the Appellant consented to the terms and conditions being attached to its licence.

In January 2014, the Appellant sought to have certain conditions removed from its licence on the grounds that there has been a change in circumstances that led to the imposition of the conditions. In response, many letters of objection were submitted to the Registrar. Pursuant to section 14(3) of the Act, this Tribunal directed the Registrar to issue a Notice of Proposal to Refuse to Remove Conditions to be dealt with at a full hearing before the Tribunal.

The Appellant applied to change the numbered conditions 1 and 3, and sought to remove condition numbered 4. Those conditions provided as follows:

1. There shall be no bands, no live or amplified music, or dancing on the outside licensed premises.

2. There shall be no outside speakers installed or placed on the outside of the licensed premises in any location.

3. The outdoor deck should be cleared by 11:30 p.m. and alcohol sales should cease in time to comply with this restriction.

The Appellant, in addition to wanting to remove condition 4, originally sought to change conditions 1 and 3 to read as follows, as stated in the Notice of Proposal (Exhibit #1):

1. Bands, live or amplified music is (sic) permitted on the outside licensed premises between the hours of 11 a.m. and 11 p.m. Volume to be limited to 85dB.

2. Speakers located or installed on the outside of the licensed premises are to be installed along the perimeter of the outdoor deck facing the premises. Volume to be limited to 85dB.

At the commencement of these proceedings, Counsel for the Appellant abandoned the request to remove condition 4 (thereby leaving it as currently worded) and amended the requested changes to conditions 1 and 3 to read as follows:

1. Amplified music is permitted on the outside licensed premises between the hours of 11 a.m. and 11 p.m.

3 Speakers located or installed on the outside of the licensed premises are to be installed along the perimeter of the outdoor deck facing the premises.

Notwithstanding the amendments to conditions 1 and 3, the Objectors still objected to the Appellant’s requests on the grounds that there has been no change in circumstances and it is not in the public interest to allow the changes.

The hearing took place in Huntsville on July 30 and 31, 2014, and continued in Bracebridge on November 6 and 7, 2014.

The Registrar took no position in this appeal but reserved the right to make submissions on the appropriateness and enforceability of any terms and conditions that this Tribunal or the parties might suggest could be applied to the Appellant’s licence. Counsel for the Registrar confirmed that the Registrar would not agree to any condition that refers to a particular decibel level nor to any distance requirement beyond which noise should not be heard. Instead, the Registrar would rely on the provisions of section 46 of Regulation 719 under the Act which states:

46. The holder of a licence that applies to outdoor premises shall not permit noise that arises directly or indirectly from entertainment on the premises or from the sale and service of liquor to disturb persons who reside near the premises.

At the commencement of the proceedings, the Agent for the Objectors brought a motion, without having given notice of it beforehand to either the Appellant or to this Tribunal, to have this Tribunal dismiss the appeal as being frivolous and vexatious. For oral reasons given at the time, the Tribunal dismissed the motion. The hearing proceeded.

ISSUES

1. Whether there is a change in circumstances so as to grant the request of the Appellant to change the conditions attached to the Appellant’s licence?

2. Whether it is in the public interest to grant the request of the Appellant to make the changes to the conditions attached to its licence?

FINDINGS

Based on the evidence provided to the Tribunal, and for the reasons that follow, the Tribunal finds as follows:

1. There is not such a change in circumstances as to grant the request of the Appellant to change the conditions attached to the Appellant’s licence.

2. It is not in the public interest to grant the request of the Appellant to make the changes to the conditions attached to its licence.

FACTS

Evidence on behalf of the Appellant

Two witnesses testified on behalf of the Appellant.

Evidence of Stuart Beeston

Mr. Beeston is the Vice-President of the corporate Appellant. He is responsible for its real estate and franchising matters, employment matters and design and construction of the premises. He stated that there were 16 Turtle Jack’s restaurants in Ontario and more were proposed.

He confirmed that the Appellant has not been involved in any disciplinary matters with the Alcohol and Gaming Commission. Although not physically present at the Appellant’s premises at all times, nevertheless, he stated that he would have known about any such problems.

He described the Appellant as a premium casual restaurant, family-friendly with quality food and service. For the children, there is a children’s menu, colouring contest and prizes, and other gifts.

He estimated that seventy per cent (70%) of the Appellant’s business is the service of food and thirty per cent (30%) of the business is the service of alcohol, the majority of which is served with food.

The Appellant operates between 11:00 a.m. and 1:00 a.m., but may close earlier during the week and later in the latter parts of the week. It is also involved in the community with such organizations as Rotary, Breast Cancer Foundation, Children’s Aid Society, hospitals and others.

As for the type of music contemplated by the Appellant’s request to change some conditions, he stated that the inside music would be the same as the outside music, to create atmosphere and not just for entertainment purposes. As for how loud the music would be, he stated that the Appellant proposed that it would be slightly louder than customers’ conversation levels, as is currently the case inside the premises.

On cross-examination, when asked if he was directly involved in the Appellant’s business at its premises, Mr. Beeston stated that he would talk to the local manager several times a month, which he estimated was anywhere from one to four times. He had limited knowledge of what happens there on a day-to-day basis.

When asked who it was that makes decisions with regard to the music that is played in the area adjacent to the Appellant’s patio, he stated that it was the other tenants of the plaza (where the Appellant’s premise are located) or their landlord. The Appellant has no control over that matter. However, he also stated that he could not be certain whether there are events in the plaza that the Appellant is not involved in.

He confirmed that the Appellant’s indoor music is somewhat louder than a conversation level, but the doors opening out onto the Appellant’s patio and are not closed all the time. He has never been at the premises when all the patio doors have been opened.

Evidence of Hazem Gidamy

With the acceptance by the Objectors’ representative of Mr. Gidamy’s credentials, Mr. Gidamy was qualified as an expert to give opinion evidence in engineering, acoustics and noise. His credentials are found in his Curriculum Vitae, filed as Exhibit #6. His report was filed as Exhibit #7. He is a principal of SS Wilson Associates of Richmond Hill, Ontario.

The solicitors for the Appellant retained SS Wilson Associates to measure, project and predict sound levels relating to the Appellant’s application for live or amplified music on its outdoor patio. Those levels were then compared to applicable guidelines, by-laws and engineering practices. Finally, recommendations were made relating to type and placement of, and attachments to, sound equipment to be placed on the Appellant’s patio to reduce noise levels.

He stated that the Appellant’s place of business is found in an area of the community designated as “Core Commercial” (see page 20, Exhibit #7). Farther to the south and east, the land is designated as “Core Commercial-Resort” and “Residential.” In the result, the area is classified as “Class 2,” being a combination of urban area (such as cities) and strictly rural areas (open country areas).

Mr. Gidamy made a one-day visit to the community on May 31, 2014 (a Saturday), during the day, in order to carry out his measurements and observations. He was there between 11:30 a.m. to approximately 3:00 p.m. which he described as “the better part of the day.”

He referred to the community’s noise by-law. It is By-law No. 2005-83, passed on June 1, 2005. He stated that its fundamental principle was derived from the Ministry of the Environment (“MOE”) model by-law.

Although the MOE does not get involved with music levels, it provides general guidelines for persons like Mr. Gidamy to derive reasonable benchmarks. For a Class 2 area, the MOE set the objective sound levels not to be exceeded by a new facility at 50 dBA during the day and 45 dBA during the night. Mr. Gidamy used that sound level as a guide not to be exceeded by music. The sound level could be higher, depending on nearby ambient noise, such as traffic, air conditioners, wind and boat traffic in the subject area. Using those figures, Mr. Gidamy also assessed how a sound system should be designed to limit its environmental noise potential to meet the criteria for noise impact.

While on the Appellant’s patio on May 31, there were approximately 50 to 60 patrons and 8 staff. He took sound measurements on the patio. The highest sound level recorded was 76 dBA (see page 8 of Exhibit #7). The average was 64 dBA. The level that exceeded more than one per cent of the time was 70 dBA. The measured speech levels, when the patio is full, were predicted to increase by 3 dB and the vocal effort by individuals may then increase by 5 more dB. For music to be just audible or be recognized as background music, the sound level would have to be adjusted to about 3 dB above the voice levels. That meant that the previous figure of 70 dBA should be approximately 73 dBA, plus or minus. He then just examined who would be most affected by the Appellant’s application.

Those living to the north of the Appellant’s premises would not be affected, he stated, because the Appellant’s building would provide significant acoustic shielding. The Tribunal notes that there is no evidence that Mr. Gidamy actually took any sound level readings in areas to the north of the premises. He also stated that areas to the north of the patio were not as important as the cottages and residences located to the south-east and south-west, along the river shoreline. He believed that the places to the south-east, along the river, and, to a lesser extent, to the south-west, would be the most affected because noise carries more easily over water. He therefore considered the area to the south-east to be the central point. The closest receptor location that he chose is shown on the photo on page 21 of his report. It is a dock that is approximately 166 metres away from the Appellant’s patio. There is no evidence that he took any readings or carried out any predicted readings test in the area to the south-west.

When he performed his tests, there was no actual amplified music played on the Appellant’s patio. Therefore, he used certain technical procedures and assumptions. These assumptions included a seating capacity of 132 seats on the patio, four persons at a table speaking simultaneously, at 24 tables, sitting about 1.3 metres above the patio floor level, the absence of acoustical shielding, all speech communications directed to the receptor area and sound levels and propagation factors based on a sound level meter and real time frequency analyser with 1/1 and 1/3 Octave band Filters and a ½ inch condenser microphone with windscreen. The prediction, using the above assumptions and equipment, was that the sound level on the patio would be about 71 dBA. A proposed speaker system should produce a sound level of 71 to 74 dBA for background music. He also added that music should be at 70-73 dBA maximum if people want to talk to each other on the patio.

The 74 dBA was then used as the sound emission level for the background level emitted by each of the proposed five perimeter speakers that were to be mounted on the exterior perimeter of the patio, about 6 to 7 metres apart and about 2.8 metres above the patio floor and facing away from the receptor location.

In the result, the predicted sound level of the proposed speakers was 46 dBA at the receptor location. This is above the 45 dBA criterion of the MOE by 1 dBA and might result in some degree of noise audibility at the receptor location. To reduce that figure, Mr. Gidamy recommended additional noise control measures and sound system installation procedures, found on pages 15 and 16 of his report.

He also concluded that the noise from the proposed music on the outdoor patio would be of no concern to other area residents located beyond the selected receptor location at 166 metres south of the Appellant’s patio.

Finally, he concluded that, with the proposed mitigation of sound measures in place, there would be no adverse noise impact arising from the proposed background music on the patio.

Mr. Gidamy also talked briefly about By-law 2005-83 passed by the Township Council for the area in which the Appellant’s premises were located. The Appellant filed an uncertified and unsigned copy of the By-law as Exhibit #8 without objection from the other parties. Mr. Gidamy stated that the By-law was evidence of the community Council’s policy to reduce and control noise, but not, as he carefully pointed out, to eliminate noise.

Section 2 of the By-law states that no person shall emit or cause or permit the emission of sound resulting from any act listed in Schedule 1, dealing with General Prohibitions, and which sound is clearly audible at a point of reception.

Similarly, section 3 of the By-law provides that no person shall emit or cause or permit the emissions of sound resulting from any act listed in Schedule 2 (dealing with Prohibitions by Time and Space) and which is clearly audible at a point of reception located in a Zone specified in Schedule 2 and within the prohibited time shown for such zone. It is this section and Schedule 2 that are relevant to this appeal. The combination of section 3 and Schedule 2 prohibit the operation of any electronic device or group of connected devices incorporating one or more loudspeakers intended for the amplification of sound between the hours of 11:00 p.m. on one day and 7:00 a.m. of the following day. The Tribunal notes that those hours are not the hours during which the Appellant is now seeking to have amplified music on its patio. The Appellant wished to have amplified music between the hours of 11:00 a.m. and 11:00 p.m. Nevertheless, Mr. Gidamy, when questioned about this discrepancy on cross-examination, replied that the residents could try to have the By-law amended.

Mr. Gidamy made the distinction between “audible” and “clearly audible” as used in the By-law. He stated that “clearly audible” is not defined, because the By-law is based on the reasonable man standard. What is reasonable, therefore, is where sound is not “clearly audible.” If the noise level is not “clearly audible,” then there is no infraction of the By-law. According to him, that is the applicable criterion in the case of the Appellant’s application.

In general, he considered “audible’ to be a question of common sense, something that is perceptible, discernible and capable of being heard above a certain level or just able to be heard.

On the other hand, he considered “clearly audible” to refer to something that can be discerned that is intelligible, sustained and spoken loudly and clearly.

When asked how the By-law applies to the Appellant’s proposed music on its patio, Mr. Gidamy stated that, if there is due diligence regarding the purchase specifications of the speakers, installation that does not result in exceeding the sound level on the patio, a 1 dBA change is not significant except to the audience nearby. It would be noticeable if the level exceeded 5 dBA. On cross-examination, however, he confirmed that there was “a good possibility” that the sound level on the patio might increase to 78 dBA. He also stated that the level of the music should not exceed 73 dBA from all the speakers and the operator should have a limiter to keep the level at 73 dBA.

Evidence on behalf of the Objectors

Ten witnesses testified on behalf of the Objectors.

Evidence of Objector R.D.

Objector R.D. has been a resident for 21 years in the community where the Appellant carries on business. He considers himself to be quite knowledgeable about the area. From the location where the Appellant’s business is located at the head of a bay, R.D.’s residence is approximately 470 metres straight-line distance on the east shore of the river, south of the Appellant’s patio. It was R.D. who prepared the maps found at Tabs C and D of Exhibit #3.

He testified that the letters of objection found at Tab B of Exhibit #3 contain about 65 names, most of whom did not attend this hearing, although 14 objectors did attend the first days of this hearing. He commented that the letters show that the Appellant’s request to change the conditions has created “much upset,” to quote his testimony.

He emphasized that, from his residence about 470 metres away from the Appellant’s business, he could hear voices, clear words, shouts, screams and profanities even though the music came from the inside of the Appellant’s building. What he hears is objectionable. The voice levels are at odds with Mr. Gidamy’s testimony that the noise level would not be of concern to residents located beyond the selected receptor location which was 166 metres south of the Appellant’s patio. If music were to be added, R.D. believed there would be still more noise coming from the Appellant’s building.

He stated that he needs to keep his windows closed to reduce the sounds, even though he would prefer to leave them open in the summer. The noise disrupts his sleep pattern and negatively affects his work performance. He suffers from tension and nervousness because the noise occurs every day of the week. He has noticed that, when music is added to the activities, people speak louder. Combined with the music, the sound level was even higher.

R.D. also stated that the area where the Appellant’s business is located has a high density of bars in a small area. The river flowing past his residence is a corridor where there is much boat traffic late into the evening until 3:00 a.m.

He used to hear people yelling, shrieking and using profanity from a restaurant that is located under the label “Black Olive” on the map at Tab C and which is still farther away from his place than the Appellant’s establishment. That building used to be a bar but is now a retail store. Nevertheless, when it was still a bar, one of the conditions in its licence was to install a sound wall facing the river. But, it was ineffective because R.D. could still hear the noise from the bar.

He pointed out that the contour lines on the map at Tab C show that there are steep hills to the north, west and east of the Appellant’s business that echo the noise.

With no objection from Counsel for the Appellant, R.D. read a portion of a letter (Tab I, Exhibit #3) from one J.H., another resident, who lives about 300 feet away from the Appellant’s business. That person stated, referring to another business that used to be at the same location as the Appellant’s:

“We have already experienced issues with the previous restaurant that used to operate in the same location playing loud music on the outdoor patio, which was very disruptive to us. The noise level of the music seemed to echo a tremendous amount.”

R.D. read from another letter of objection from G.M. (Tab P, Exhibit #3) without objection from the Appellant, where, in the second paragraph, the writer states:

“Noise problems intruded on our right to peaceful enjoyment of our properties as soon as the restaurant in Brown’s Landing opened for business.

The reference to “Brown’s Landing” is a reference to the same location as the Appellant is now occupying. The writer of that letter lives approximately 168 metres north of the Appellant’s premises. R.D. pointed out that Mr. Gidamy did not perform tests in that area of the community.

On cross-examination, R.D. confirmed that there were six establishments that had outdoor patios, two were planned and one bar used to have one. Only one establishment, the local Legion, did not have an outdoor patio. He acknowledged that he goes to the Appellant’s business often and agreed somewhat that it is a family restaurant.

He also admitted that, in the first year that the Appellant operated, the noise level was improved from that of its predecessor. The Appellant is only one tenant in a large plaza that had other businesses, as well, and a “fair size” parking lot, to use his words.

He also confirmed that there are town docks near the Appellant’s premises and there is noise from the boats.

Therefore, when asked how he could differentiate where the noise came from, he responded that the Appellant had its own set of docks. But, R.D. acknowledged that some of the noise he heard came from the stereos on the boats, and not from the Appellant’s business.

When asked how he could determine from where the noise from voices came, he stated that he would drive in his vehicle to determine the source, although he admitted that he did not go to all the places. He was adamant, however, that the noise he ascertained came from the Appellant’s business. He stated that he knew this because one business closed at supper time and did not serve dinners. Another started up only late in 2014 (that is, after the period of time when he experienced the noise levels from the Appellant’s patio) and another bar closed at 10:00 p.m. Yet another establishment faced inland and not towards the open water of the river and bay on which the Appellant’s business was located.

Evidence of Objector S.D.

S.D. is the wife of the objector, R.D., whose testimony has been summarized immediately above.

She has lived in the community for 22 years. In the early years, which she defined as the early 1990’s, she experienced vandalism with people drinking in her back yard. On four occasions, she experienced people screaming at her property.

Two events occurred that reduced the vandalism. One was the municipality creating a noise by-law for the community. The other was the imposition of conditions on the licences of bar owners.

In the Appellant’s first year of operation, things appeared to be fine. In the second year, she and her husband experienced the problems to which her husband already testified. She spoke to an AGCO representative and to an AGCO inspector in August, 2010. However, because of the death of her father and her mother’s illness, she did not press on to any Court action. She did not complete any formal complaint process against the Appellant.

Counsel for the Appellant did not cross-examine S.D.

Evidence of D.McL. (letter)

At this point in the hearing, Counsel for the Appellant and the representative of the Objectors informed the Tribunal that, on consent, the letter of D.McL., found at Tab O of Exhibit #3, could be admitted into evidence.

In her letter, D.McL. complained that sound easily travelled over the water between the surrounding hills that hold it in. She complained of the loud indoor music. She eloquently and rather poetically posed the question:

“What magic can contain outside music and the noise level of many people drinking and talking, in a fixed environment where the water, the channel, and the hills conspire to hold it in and thus share it with the unwilling neighbours?”

In posing that question, she poignantly summed up the issue with which the Tribunal must wrestle in this appeal.

Evidence of Objector D.Mc.

The Tribunal heard evidence from D.Mc. whose letter of objection appears at Tab K of Exhibit #3. She lives approximately 1000 meters straight-line distance south and east of the Appellant’s premises with the nearby hills intervening between them.

She has lived in the community for 11 years but has lived in the surrounding area for 32 years. In the period of time before the Appellant started its business, there was a period of much “hooliganism” and vandalism when she felt things were “freer,” to use her terminology. There were later bar hours and “resort nights,” when busloads of people would be brought to the local bars from outside the community.

Although she candidly acknowledged that there would be only a few beer bottles on her property and that she was never directly affected by the noise at her home, nevertheless, at the business where she worked (across the street and ‘down a ways” from the Appellant, to quote her testimony), flower boxes and gardens were ruined.

Then, after restrictions on liquor licences were imposed, the problem was solved immediately. Since the time that the Appellant started up, with conditions on its licence, the situation became “infinitely better,” to quote her testimony. She emphasized that the thing that changed was the imposition of a community standard, evidenced by those restrictions.

On one occasion, in the latter part of 2013, she went to the Appellant’s place of business but stayed only one hour, because she did not find it pleasant to remain. Young men were intoxicated, yet were still being served beer. They became loud and vulgar and upended their table and chairs.

Later, she went to the Appellant’s to complain but could not talk to the manager. She left her business card, but was never contacted. Her point in relating that episode to the Tribunal was that, if the manager at the Appellant’s business felt that there were no complaints (as Mr. Beeston had testified), it was not for want of her trying to do so. She admitted, however, that she did not speak to a licence inspector, or to the police (there is no local police force in the community) and that she could not, from where she lived, hear loud voices coming from the Appellant’s.

Evidence of Objector D.M.

This Objector (whose letter of objection is found at Tab L of Exhibit #3) lives on the west shore of the river, about 300 metres straight-line distance from the Appellant’s, with no intervening physical obstructions. He commented that Mr. Gidamy performed no tests on the west side of the river.

He stated that he can hear clearly audible voices, depending on weather conditions and the direction in which the wind blows. As for the music, with the existing restrictions and noise by-law, he is not bothered as much by it although, at times, he hears it clearly on his deck and in his bedroom. He stated that he knew the noise came from the Appellant’s because the bay is like an amphitheatre where the noise travels down from the Appellant’s. He stated that having music would make the noise worse downriver because of that same amphitheatre effect.

Before the community standards were imposed on the licences, he stated that there was so much thumping of the bass music that he felt he was having a heart attack. He suffered from “sleep irritability” to quote his testimony. The By-law officers told him to record the decibel levels if he wanted them to investigate, but the officers were only on duty from 9:00 a.m. to 5:00 p.m. and not on weekends. In the late 1980’s and early 1990’s, he went to town council because the noise was taking such a toll on him. Once restrictions were imposed, he could still hear the voices but not the music.

On cross-examination, he admitted that things had improved since the Appellant started its business, with the restrictions in place on its licence. He has given up making complaints, feeling that neither the Township nor the Appellant would listen to him.

Evidence of Objector M.M.

This Objector also resides on the west side of the river, approximately 300 meters south of the Appellant’s place of business, just north of where the previous Objector that testified, D.M., lives. M.M. has been coming to the community for the last twelve years, but his wife’s family has been living there seasonally for the last 45 years.

He testified that he objects to the Appellant’s application to change some of its conditions because the current restrictions are working well and have benefited the town a lot. Since the restrictions were imposed, there was a “remarkable change on enjoyment” in town, to quote his testimony. The noise level was restricted. Planters stayed in place. Before the restrictions were imposed, it was “pretty horrible” every weekend, to use his words. It got to the point that he did not enjoy coming up to the community. He commented that it was uncanny how clearly he could hear discussions on the patio. As the night progressed, the noise would get out of hand. He has to keep his windows closed. He would be concerned if the Appellant were permitted to play music on the outdoor patio because people would have to talk still louder above the music level.

On cross-examination, he confirmed that after the by-law was passed and after restrictions were imposed on the licences of the establishments, the situation was improved. Even though the Appellant closes its patio at 11:00 p.m. and there is no music outside, he can still hear music from the inside of the premises because patrons would come out onto the patio and leave the patio doors open. There seemed to be little control of that situation by staff.

He admitted that it would be useful if residents could know who the manager on duty was from time to time, and the manager’s telephone number and Mr. Beeston’s telephone number. He added on re-examination, however, that the telephone number of the manager had already been given, but that has not helped communication with the managers.

Evidence of Objector S.T.

This Objector lives in a neighbouring town, but has a cottage in the community where the Appellant is located. The cottage is about 800 metres north and east of the Appellant’s place of business, on the southerly shore of the river, with higher land intervening. She has used her cottage since 1974 but it has been in the family since 1888.

She described the years before restrictions were imposed on licences as “the noisy years.” She further described those years as unhappy and expensive times for cottagers and businesses. Plants were torn down. Beer bottles were found on the properties. It got so that, on weekends, she would leave her cottage and return to her home in a nearby town because of the noise, music, shouting, screaming and boat traffic. She did not want to return to that environment.

She operated a business closer to the Appellant’s place of business. She stated that, in the daytime, the music was so loud that she could not hear her own music in her store. Because of the vandalism, there arose a larger police presence, when R.I.D.E. checks (Reduced Impaired Driving Everywhere) were set up near the bar area. However, patrons would get around those checkpoints by parking their vehicles farther away and walking back to them, without having to drive through the checkpoints. It was when the patrons walked back to their vehicles that they did all the damage.

In contrast, after the restrictions were put in place, it was a “godsend,” to use her terminology. The restrictions allowed for a return to civility and peace and quiet. It was not desirable to interfere with cottagers’ enjoyment of their property such as by allowing the Appellant to play music outdoors from 11:00 a.m. to 11:00 p.m.

On cross-examination, she acknowledged that she would have to clean up her business property first thing each morning, but she did not see the activity that caused the littering. She also admitted that she did not hear noise from any bars at her cottage and admitted that much of the noise came from boaters and the people, on those boats. Notwithstanding that, since the restrictions were imposed, she can now stay at her cottage and not have to return to her home on the weekends.

On re-examination, she confirmed that, after the restrictions were put in place in 1999, vandalism and noise were reduced.

Admissibility of Newly-Disclosed Documents

At this juncture, namely, the commencement of these proceedings on November 6, 2014, the third day of this hearing (after two days of hearings had been held already, on July 30 and 31, 2014), the representative of the Objectors wished to have this Tribunal admit into evidence three documents. Disclosure of the documents was made less than ten days before the re-commencement of these proceedings. No witness would be called to testify about the contents of any of the documents.

Counsel for the Appellant objected, on the ground that disclosure was not made ten days before the commencement of this hearing, pursuant to the Rules of this Tribunal. In addition, there would be no opportunity for the Appellant to cross-examine any witness about the truth and accuracy of the proposed documents. Nor would there be any testimony from anyone to confirm what authority the authors of those documents had to prepare them.

Counsel for the Registrar neither objected to nor supported the Objectors’ request, but pointed out to the Tribunal that this was a public interest hearing, that hearsay evidence was admissible and that the Tribunal has a broad discretion to admit documents into evidence if they are relevant, subject to the weight to be placed on them.

Neither Counsel for the Appellant nor Counsel for the Registrar argued that the documents were not relevant to the subject-matter of this hearing.

All three representatives acknowledged the discretion of the Tribunal to admit evidence, pursuant to section 15 of the Statutory Powers Procedure Act, R.S.O 1990 c. S. 22, which reads as follows:

15.(1)Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,

(a) any oral testimony; and

(b) any document or other thing,

relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

After retiring to consider the matter, the Tribunal gave lengthy detailed oral reasons and ruled that the documents could be admitted into evidence as being relevant to the subject-matter of this appeal, subject to the weight to be given to them by the Tribunal.

Accordingly, the following documents were admitted into evidence and given the following Exhibit numbers:

Exhibit #9: Uncertified copy of a Resolution of the Council of the Township of Muskoka Lakes dated October 24, 2014, and signed by the Mayor of the community. The Resolution authorized Council to forward a letter to AGCO advising that the Township Council did not support the production or amplification of music on outdoor commercial space in the community at any time.

Exhibit #10: Letter of objection dated November 3, 2014, addressed to counsel for the Registrar on behalf of the Muskoka Ratepayers Association requesting that the conditions on the licence of the Appellant remain intact.

Exhibit #11: Letter dated November 5, 2014, addressed to this Tribunal on behalf of the Muskoka Lakers Association requesting that the Appellant’s application be refused.

Evidence of Objector P.D.

This Objector has lived in the community during the summer since 1957 and now has lived in a permanent residence there since 1975.

His residence is approximately 1 1/4 miles straight-line distance east of the bay area where the Appellant’s business is located, with high ground intervening. Notwithstanding that distance and high ground, he testified that the noise from the bay area was so invasive that, even in the summer, he could sleep, even after closing his windows. The windows would shake. It was difficult to sleep or sit and read. He found the situation very distressing. There was no evidence that the Appellant’s expert, Mr. Gidamy, conducted any tests in that area.

In contrast, once the restrictions on the licences were in place for all establishments across the board, prohibiting music on outdoor patios, there was a “relative period of calm,” to quote his testimony. Vandalism was only sporadic. It was more pleasant in the area.

On cross-examination, he stated that it was his belief that the same restrictions applied to all businesses in the bay area. The Tribunal notes that there was no evidence presented to it to confirm that belief.

He also confirmed that the problems existed until about 15 years ago, when the restrictions were introduced, and that the problems gradually faded thereafter.

Evidence of Objector S.M.

The Objectors’ Representative applied to have this witness qualified as an expert in sound propagation, notwithstanding that S.M. was a party to this appeal as an Objector. S.M. prepared no formal report but submitted only a letter of objection found at Tab H of Exhibit #3. Counsel for the Appellant vigorously opposed the application. Counsel for the Registrar took no position on the matter but reminded the Tribunal that this witness was one of the Objectors who, as a group, were parties to this proceeding.

After adjourning to consider the matter, the Tribunal gave lengthy oral reasons for refusing to qualify S.M. as an expert witness in sound propagation on behalf of the Objectors. The Tribunal held that S.M. could give non-opinion evidence as to his knowledge of the facts of this case from the point of view of an Objector, but could not give opinion evidence.

S.M lives on the east shore of the river, approximately 280 metres straight-line distance south of the Appellant’s premises and about half way between the Appellant’s and the residence of R.D., who was the first Objector to testify and whose testimony was the first to be summarized in this decision. S.M.’s residence is approximately six metres above the water level.

Much of his testimony, without objection from Counsel for the Appellant, was to explain how sound travelled and how Mr. Gidamy’s report was deficient in several ways. However, since the Tribunal did not qualify S.M. as an expert, such testimony will not be summarized here.

He did say that he has been disturbed by the music at the Appellant’s premises and by the motorboat traffic. Because of the noise from the Appellant’s business, he closes his windows on the side of his residence that is closest to the Appellant and opens the windows on the opposite side where he has an enclosed patio.

On cross-examination, he stated that he found no fault with Mr. Gidamy’s use of the receptor closest to the Applicant’s business. He suggested that the Appellant should construct a sound-proof structure and keep the windows closed so as not to annoy the people in the neighbourhood. He did not like having “foisted” on him, to quote his testimony, the type of music played at the Appellant’s, or any music that is not of the people’s choice.

On re-examination, he expressed concern that the readings of 41 and 46 dBA in Mr. Gidamy’s report were predicted values and not measured values.

Evidence of Objector C.L.

This Objector has lived in the community about 75 per cent of the time for the last 28 years. Her residence is about 166 metres across the bay from the Appellant’s. A building with five townhouses is being built next to her property. This is illustrated in the photograph that she filed as Exhibit #12. Her husband took the photo but it was admitted without objection from the other parties. In that photo, her boat house is shown as the circled building in the photograph.

For 25 years, she has been a community advocate and volunteer where her main focus has been on building healthy communities.

She testified that there has been a history with the bars and restaurants in the community playing loud music, to the extent that she stated that life “became intolerable.” After what she termed “hearings” with AGCO, terms and conditions were placed on liquor licences, resulting in a level of “acceptable co-existence” with them, to use her terminology.

She stated that it was extremely difficult and onerous to achieve a community balance between the residents and the bars. The relationship was tenuous. That is why the conditions on the licences are so important to the people in the community. She believes that allowing music on the Appellant’s patio would tilt the residents’ tolerance level to intolerance. She added that it would be important not to tip the balance in favour of the businesses, for that would make life intolerable for the residents. It would be important to maintain the Appellant’s current conditions.

She stated that she has had beer bottles nightly on her front garden and continues to experience that. It is also used as a latrine. There was hooting and hollering, screaming and brawling. But, once the conditions were imposed, the vandalism and disturbances gradually became tolerable. The situation was not perfect because there are still problems, but the residents can now co-exist with the establishments.

She also testified that, since the Appellant opened business, it is the only one to stay open late, from 1:00 a.m. to 3:00 a.m. When its patrons leave, there is screaming and yelling. She gets awakened on weekends and has to keep her windows closed. In the last five years, she has confirmed that the noise came from the Appellant’s business because she would drive over to investigate. On one occasion, she saw and heard someone singing and playing an acoustic guitar on the patio, in violation of the conditions. When she spoke to the manager about this, he replied that he allowed the person to play because it was such a nice day. The singer left when his set was over. She also complained of events where loud speakers were plugged into the Appellant’s premises although, technically, they were not on the patio.

She has been in the Appellant’s premises when the music was so loud that she had to shout to be heard by the waitress and had to lean over to talk into the ear of her friend. She complained that such loud music was not background music, as the Appellant wishes to provide on its patio.

From her residence, she can hear normal speaking voices from the Appellant’s patio to the extent that she could distinguish between male and female voices, as if someone was speaking in her bedroom, at times. Exhibit #13 is a photograph that shows the side and front patios of the Appellant’s building. She stated that she can hear noise from the side patio at 11:30 p.m., even though the patio is to be cleared by that time.

She stated that she does not trust the Appellant’s managers to do anything they say will do. They cannot be counted on. They have violated their conditions many times and continue to “push the envelope,” to quote her testimony. She finds it difficult to deal with them.

On cross-examination, Objector C.L was asked how she could tell that the patrons causing vandalism came from the Appellant’s place of business. She responded that the other businesses close at 10:00 p.m. or 10:30 p.m. Only the Appellant is closed later, when the vandalism occurs.

She also confirmed that she did not report violations of the terms and conditions to the Township By-law officer because the Township has difficulty in hiring and keeping one. Nor has she made a formal complaint to AGCO because the first step was to telephone the manager, as part of the conditions. It was a “tacit agreement,” to use her terminology, to telephone the manager first, before going to AGCO.

When reminded that, if there are violations, she could bring proceedings under the Township By-law or use section 46 of Regulation 719 as a basis for complaint, she responded, “Why should we have to?”

When reminded that Mr. Gidamy stated that sound on the patio could be contained, she responded that she did not believe that could happen. The reason was that another establishment built a wall to contain sound and she still heard the noise.

Counsel for the Appellant also suggested that there was no evidence that the Appellant exceeded its customer capacity. In response, C.L stated that the adjacent parking lot is often full, so that the lack of music on the patio has not negatively affected the Appellant’s business.

She conceded that the residents tolerate the Appellant in the current circumstances, as it has not been as bad as the previous operators at that location.

On re-examination, she confirmed that the Appellant voluntarily accepted the terms and conditions that were in place when they opened up except that the patio was allowed to stay open until 11:30 p.m. with no further service on the patio. Previously, it had to close at 11:00 p.m.

Evidence of Objector I.T.

This Objector retired from working for the District Municipality of Muskoka in 2004. He remains active in community interests.

His residence is located approximately 800 metres north and east of the Appellant, with high ground intervening. There have been five generations of families at that location. He has been living full time in the Township of Muskoka since 1971 and full time at the residence location since 1992.

He stated that, since the 1860’s, the core intersection of the highway and the river has had businesses located there. Both residences and businesses have been increasing there. When reminded by Counsel for the Appellant that Mr. Gidamy stated that the zoning of that location was “Core Commercial” which meant that there is a higher level of ambient noise, this Objector responded that, because there are also residences there, they are entitled to some privacy and to say otherwise would be disrespectful of the residents. Businesses should respect that.

Between 1998 and 2006, and after five hearings before AGCO, the residents negotiated with the licensed establishments so that the eventual terms and restrictions became the “norm.” They set out a list of “community standards” which included, among other things, that there was to be no amplified music on the outside patios and that the patios were to be closed by 11:30 p.m. Gradually, by 2006 to 2007, there was relative peace on the river. After 2006, I.T. testified that those restrictions were used for all licensees. By the time the Appellant arrived in the community, those restrictions were the norm. The Appellant’s restrictions were “on par” with those restrictions, according to this Objector. Of significance to this Tribunal, this Objector stated that things have been the same since 2006. Life on the river has not changed significantly since 2006. There has been no reverting back to rowdyism on the river.

He also referred to various e-mails from residents that advocated against granting the Appellant’s application to change conditions but who were not at the hearing. The e-mails that he referred to are found at Tab B of Exhibit #3, at pages 11, 16 and 20. He emphasized that people do not want a repeat of the problems that existed before the terms and conditions were imposed.

On cross-examination, I.T. acknowledged to counsel for the Appellant that his main experiences have been with another establishment and with the tenant who occupied the premises immediately before the Appellant arrived. He also added that no other businesses were open after midnight. He also acknowledged that the residents agreed to extend the Appellant’s hours to 11:30 p.m. on the patio.

When reminded that residents could use section 46 of Regulation 719 as a basis for complaint, I.T. responded that he resented the fact that a commercial interest could misbehave so badly that residents had to resort to complaining under that provision.

SUBMISSIONS

THE APPELLANT’S POSITION

Counsel for the Appellant vigorously put forward several arguments.

He referred the Tribunal to section 14(2) of the Act which states:

14 (2) The Tribunal may, on the application of a licensee, remove a condition of a licence, other than a prescribed condition or a condition attached pursuant to section 8.1, subsection 10 (4), 11 (5), 11.1 (4) or clause (1) (a), if there is a change in circumstances.

In submitting that the phrase “if there is a change in circumstances” should be interpreted broadly, he argued that a transfer of a licence is sufficient to qualify as a change in circumstances and justifies an application to remove, or, in this case, to change conditions attached to the Appellant’s licence. He cites the case Re: Lion’s Head Inn [1997] O.L.L.B.D. No. 350 (“Lion’s Head”) where the Registrar issued a Notice of Proposal to Refuse to amend a condition. At paragraph 6 of the decision, the members expressed their regret that a licensee had to prove a change in circumstances even for minor amendments.

He also argued that a change in circumstances need not be significant, relying on the decision in Re: Fox and Fiddle [2001] O.A.G.C.D. no. 415 (“Fox and Fiddle”) where, at paragraph 9, the Members state, quoting from the decision in Q Restaurant [1999] O.A.G.C.D. No. 71, at paragraph 24:

"...a change in circumstances for the purposes of section 14(2) need not be significant; however, it must be meaningful, such that the original conditions might not have been imposed or consented to had the current circumstances existed at the time."

Counsel relied on similar reasoning in the decision in Re: Troubadour Bar Inc. (c.o.b. Troubadour Bar) [2008] O.A.G.C.D. No. 295 (“Troubadour Bar”) where, at paragraph 26, the Members state:

26 The Board must decide if there was a change in circumstances. It should be noted that this change in circumstances need not be dramatic or of severe consequence. The Applicant submitted that the primary change in circumstances is how the business is being operated now, compared to how the premises was [sic] operated in the past. The Applicant, by agreement, inherited the condition which was originally imposed on the previous Licensee. Although not detailed, the evidence received by the Board was that the previous Licensee did not conduct its business to the same high degree as the Applicant. Secondly the Applicant contends that the financial impact on their business was not anticipated at the time they agreed to the condition affecting the hours for sale of alcohol on the patio.

Dealing with the issue of public interest, the Members state, at paragraph 28:

28 The Board will now deal with the second test and that is the public interest. The Board is of the opinion that there must be a balance of interests between the residents and the commercial premises in the neighborhood. The Board concedes that there is noise from the patio, but having said that, is the noise excessively loud and disruptive to the community? Mr. Kosow is of the view that the noise is excessive, and has presented a petition by area residents in support of his position. The evidence of the objectors consisted of the petition circulated by Mr. Kosow and signed by some area residents, Mr. Kosow's evidence, and the evidence of Mr. D'Angelo. Beyond that there was no substantive evidence to support the objections of Mr. Kosow. On the other hand Ms. Hollidge had letters of support from the elected representatives of her area, technical evidence to establish there was no excessive noise and several letters of support from residents. In addition, there were no complaints about the premises from the police, city by-law officials or the AGCO.

Conduct of the Appellant is also a matter to be considered. In the decision Re: Ceili Cottage Inc. (c.o.b. Ceili Cottage) [2010] O.A.G.C.D. No. 210 (“Ceili Cottage”), the Members state, at paragraph 205:

205 In determining that there was a change in circumstances and that the Application to remove condition 5 and change conditions 1 (excluding the smokers' exception), 2, 3 and 12 is in the public interest, the Board did not consider the fact that Mr. McMurray felt pressured to sign the conditions because of the impending municipal strike. Nor did the Board consider that other establishments in the neighbourhood are permitted to serve beverage alcohol on their patios until 2 a.m., as it was not clear from the evidence that this was a change from one year ago when the conditions were signed. Rather, in determining that there was a change in circumstances and that the Application is in the public interest, the Board considered the conduct of the Licensee in the last year and the fact that, because of its responsible conduct and the family-oriented nature of the establishment, the majority of residents, as well as the City Councillors of the Ward and the adjoining Ward, are now supportive of the Application.

Counsel also argued that the Tribunal should consider the fact that the Appellant was not the holder of the licence at the time the conditions were imposed. He relies on the decision in 2189516 Ontario Inc. o/a Scruffy Duck Restaurant [2013] O.L.A.T.D. No. 78 (“Scruffy Duck”) where the Member states, at paragraph 137:

137 Specific evidence which the Tribunal finds compelling is the following:

• that the Hills were not responsible for the conditions imposed on the licence as they only took ownership of the establishment in October 2008 - ownership change is a specific change in circumstances and in this case sufficient time has passed to establish the manner in which the new owners are running the establishment;

It is the Objectors who have the onus to prove, on a balance of probabilities, that the changes proposed by the Appellant are not in the public interest (see Muskoka Memories Inc. [2012] O.L.A.T.D. No. 211, paragraph 26).

A change in the development in the area has been considered to be a significant change. In the Decision Cluncrow Holdings Ltd o/a Doc Malone’s v Registrar of Alcohol and Gaming [2014] O.L.A.T.D. No. 23 (“Cluncrow Holdings”), at paragraph 11, the Member states:

11 The Tribunal is satisfied that there has been a change of circumstances. The changing development of the area is a significant change.

Counsel also argues that the municipal by-law is the will of the public having been passed by the municipal council. The Tribunal notes that he does not make reference to the Resolution of the Township Council (Exhibit #9) that specifically states that the Township in which the Appellant’s business is located does not support his application to change conditions.

Counsel also argued that the objections of the Objectors are speculative and conjecture. On the other hand, Mr. Gidamy’s findings, which are uncontradicted, are based on scientific methods. His recommendations lead to the conclusion that the residents will not be negatively affected by the music from the outdoor speakers.

In addition, most of the Objectors could not state that the noise of which they complained came from the Appellant’s business.

THE OBJECTORS’ POSITION

Dr. Luks, on behalf for the Objectors, passionately argued that the Appellant’s application should be refused because it has not proved that there has been a change in circumstances and that the proposed changes are not in the public interest having regard to the needs and wishes of the municipality in which the premise are located.

The Tribunal notes that those are the issues with which it must wrestle in this matter.

He submitted that, notwithstanding that Mr. Gidamy used scientific methods in his investigation, the findings are only as good as the input. Dr. Luks stated that Mr. Gidamy did not input local features, because Mr. Gidamy said that they were irrelevant. The witnesses who testified actually surround the Appellant’s business and each can hear sounds from the Appellant’s without amplification of any sort. Adding music would make that sound all the more disturbing. Whereas Mr. Gidamy said that one of the Objectors, P.D., could not hear sounds from where he lived, P.D.’s evidence was totally contrary.

The Objectors said that the sounds from the Appellant’s are disturbing and some stated how the sounds affected their personal lives.

Even with a proposed controlled sound system, Mr. Gidamy stated that the music will be at a higher level than the present conversational sounds.

In addition to the 10 Objectors who testified at this hearing, 79 others submitted letters or e-mails objecting to the application (Tab B, Exhibit #3) as not being in the public interest. The Resolution of the Township Council (Exhibit #9) clearly evidences the needs and wishes of the residents of the municipality where the Appellant is located.

There is overwhelming support against the application and none in favour.

The Appellant’s managers have shown in the past a disregard for the complaints of some residents and there was no evidence led that would indicate they would do otherwise if the changes were allowed. Residents should not be compelled to have to take action either under the Township By-law or section 46 of Regulation 719. It should be the Appellant who should obey and honour the conditions.

The existing conditions have created a tolerable relationship between the bar owners and the residents for several years and there has been no change in that situation in that period of time.

Dr. Luks provided to the Tribunal the decision in the case Re: Sunset Grill [1998] O.A.G.C.D. No. 148 (“Sunset Grill”). That case involved a proposal to refuse to remove conditions. That case involved a change in circumstances in that the Town Council’s position had changed and was now in favour of the application to change conditions relating to hours of operation. That was, however, not enough to persuade the Board to allow the changes. At paragraph 27, the Member states:

27 The onus at the hearing is on the applicant licensee to establish on the balance of probabilities that removal of these conditions is not contrary to the public interest having regard to the needs and wishes of the residents of the municipality. The Griffiths' have demonstrated competence and responsible management in their current operation and have met widespread community approval to date. They have the unanimous support of the Town Council for condition removal but do not have close to that of the nearby residents who are, and will continue to be, most affected by the operation of their business. This case is vexing because it pits the understandable wish of a responsible licensee to be able to take full advantage of lawful liquor sale and service against the reasonable, and to the licensee largely sympathetic, nearby neighbours who wish continued quiet and peaceful enjoyment of their properties late at night. Most of those residents lived there before this licence was granted, and these conditions which were negotiated to the Harry's licence have in fact worked very well, in that those residents appreciate the current business and respect the licensee. They co-exist today in harmony, and it is clear and this Board finds on the evidence, that the effect of these three license conditions, as well as the good management of the premises, is responsible for that state of affairs.

At paragraph 28, the Member further states:

28 The Board does not accept, on the limited evidence before it that the establishment would or could continue between 11:00 p.m. and 2:00 a.m. as a family restaurant. The licensee wishes to compete with the licensed premises on the main street of town, and that intent implies drawing some of their patrons to The Sunset Grill after 11:00 p.m. The premises sit on a special beach area with outdoor capacity of 250 persons and the Board finds that late night and early morning sale and service of liquor would, as Chief Brown thinks quite possible, draw a summer drinking crowd with consequent noise and sleep disruption to the many nearby residents. Again, as in last year's hearing, Mr. Griffiths has been unable himself or through other witnesses to provide solutions which address residents' concerns. "Trust me" is simply not sufficient.

Dr. Luks urges the Tribunal to refuse to allow the Appellant to make the proposed changes.

THE REGISTRAR’S POSITION

The Registrar took no position in this matter. However, Counsel reminded the Tribunal of the onus that the Appellant has to satisfy the Tribunal that the proposed changes result from a change in circumstances and are in the public interest.

The definition of “public interest” is broadly defined. In the cases cited to the Tribunal by the Appellant and the Objectors, there is a difference between those cases that deal with the imposition of conditions on new liquor licences and those that involve the removal of existing conditions.

Whether there is municipal support for the changes is also a significant factor.

If the Tribunal saw fit to impose conditions, then the Tribunal should be aware of the Registrar’s realistic chances of enforcing such conditions having regard to section 46 of Regulation 719.

THE LAW

Sections 14(2) and 14(3) of the Act introduce the mechanism by which this matter came before this Tribunal. Those sections state:

(2) The Tribunal may, on the application of a licensee, remove a condition of a licence, other than a prescribed condition or a condition attached pursuant to section 8.1, subsection 10 (4), 11 (5), 11.1 (4) or clause (1) (a), if there is a change in circumstances.

(3) If the Tribunal, on considering an application for the removal of a condition, decides not to remove the condition, the Tribunal shall direct that a proposal be issued to refuse to remove the condition.

Once a Notice of Proposal is to be issued pursuant to section 14(3), notice must be given to the licensee that applied for the removal or change, pursuant to section 21(1), paragraph 8, which provides:

21. (1) If the Registrar issues a proposal with respect to any of the following matters, the Registrar shall serve notice of the proposal together with written reasons on the applicant or licensee:

22. Refuse to remove a condition of a licence.

The powers of this Tribunal on the hearing of an appeal from the Registrar’s Notice of Proposal to refuse to remove a condition are set out in section 23(11):

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

ANALYSIS

Appellant’s Counsel acknowledged that the decisions that he cited to this Tribunal, being other AGCO Board or this Tribunal’s decisions, are not binding on this Tribunal but can be persuasive and can allow for some consistency in decision-making. Whereas the Tribunal does not disagree with that submission, it is, nevertheless, worthwhile to consider the facts giving rise to those decisions to determine the decisions’ applicability to the matter now before this Tribunal.

In the Lion’s Head decision, the original conditions on the licence related to (1) a restriction in the hours of operation on the patio, (2) the number of persons who were permitted on the patio at any one time, and (3) the prohibition of amplified music on the patio. The licensee sought to remove only conditions (1) and (2).The local Town Council originally objected to the licensee’s application and then retracted its objection and supported the application.

A significant factor in the Council’s retraction of its objection and in the Board allowing the change was that the calculations by the fire department and Chief building official showed that more people could be permitted on the patio than was originally provided for in the conditions. The Board Members held that, therefore, the capacity of the patio was not increased by the licensee’s application and such a difference in the knowledge of the capacity of the patio was a “change in circumstances.”

In the instant case, there is no evidence of mistake or misunderstanding. There is no evidence that the Appellant was unaware of the conditions when the liquor licence was transferred to it. There is no evidence that the Appellant was forced to accept the conditions or that he was misled by their content. Quite the contrary, the documentation in Exhibit #2 indicates that the Appellant agreed to the conditions and signed its assent voluntarily.

The Board, in Lion’s Head, also found that it was only conjecture by the objectors in that case that the change in conditions would impact negatively on the immediate surrounding area.

That is different from the evidence in the case now before this Tribunal. Notwithstanding Counsel for the Appellant’s argument that the Objectors’ evidence was speculation and conjecture, the Tribunal considers that the evidence of the Objectors in the present case is based on their years of experience with the problems in the area and on their lengthy negotiations with the liquor establishments and with the local Township Council. It is also based on years of having to put up with vandalism and other problems, whereas they now enjoy an improved peaceful co-existence because of the imposition of the restrictions. Those witnesses who testified lived through those experiences. They experienced the problems. They realized the improvement in conditions once the restrictions were put in place in 1999. Far from conjecture, their consistent testimony was based on proven history and fact.

Finally, in the Lion’s Head decision, the Board held, as others have held, that it had to consider the public good. In that case, based on the original mistake in seating capacity and on acknowledging the approval of the Town Council, the Board held that it would not be in the public good to deny the licensee’s application. The facts in the case now before this Tribunal (as given through the testimony of the Objectors and the Resolution of the Township Council opposing the application) persuade it to conclude that it would not be in the public interest to allow the Appellant’s requested changes.

It is also noteworthy that the Board in the Lion’s Head case did not have to consider the removal of the condition prohibiting amplified music on the patio, as this Tribunal must contend with in the instant case.

Counsel argued that a change in circumstances need not be significant, relying on the decisions in the Fox and Fiddle and Troubadour Bar decisions.

In the Fox and Fiddle decision which allowed the licensee’s application to change the hours of operation, there was no resolution from the municipality supporting the continuation of the condition in the restriction of hours (paragraph 35). This is to be contrasted with the very strong resolution of the Township Council in the instant case (Exhibit #9) strongly opposing the Appellant’s application for a change in conditions.

As well, in the Fox and Fiddle decision, the Board found that there were substantial changes to the area since the restrictions were imposed 20 years earlier and those changes were supportive of a restaurant business. Such is not the evidence in the case now before the Tribunal. Not only is there no evidence of substantial changes in the area but there is very strong and vocal evidence from the Objectors not to make any changes to the current restrictions. There was no evidence that the community supported the application of the Appellant in the instant case.

In the Cluncrow Holdings decision, although the Tribunal also held that the changing development of the area was a significant change, it is significant that, in that case, there were only two objections filed and no objector attended the pre-hearing or the hearing itself. That is in direct contrast to the instant case, where opposition has been expressed and attendances at proceedings have been made by the Objectors from the beginning of the Appellant’s application.

In the Troubadour Bar decision, it is noteworthy that the Board in that case held that there must be a balance of interests between the residents and the commercial premises in the neighbourhood, where, at paragraph 28, the panel states:

28 The Board will now deal with the second test and that is the public interest. The Board is of the opinion that there must be a balance of interests between the residents and the commercial premises in the neighborhood…

(Emphasis is added)

In the case now before this Tribunal, there has been ample evidence from the Objectors who have been long-time residents of the community that there has been, at least since 1999, when restrictions were imposed on licences, a balance between the interests of the residents and the local bars. The Tribunal has heard no evidence that would compel it to conclude that that such a balance should be undone or circumscribed in any way.

In coming to that conclusion, the Tribunal relies on the testimony of the Objectors in this case that had a common theme of matters having improved after the restrictions were put in place.

Objector S.D. testified that the vandalism was reduced when conditions and restrictions were imposed on liquor licences. Objector D.Mc. testified that, after the restrictions were put in place, hooliganism and vandalism ended. What changed was the imposition of community standards, evidenced by the restrictions on the liquor licences. Objector M.M stated that the current restrictions are working well and have benefited the community by allowing residents a remarkable change in enjoyment.

Objector S.T. testified that, before the restrictions were put in place, the residents went through the “noisy years.” The subsequent restrictions were a “godsend” after 1999.

Objector P.D. stated that, after the restrictions were in place prohibiting music on outdoor patios, there began a “relative period of calm” when the problems gradually faded. Before then, the noise was “invasive.”

Objector C.L. confirmed that, after the restrictions were imposed, there has been an “acceptable co-existence” with the licensed establishments. The situation is not perfect but instances of vandalism and disturbances have become tolerable.

Objector I.T. testified that the restrictions were the “norm” by the time the Appellant came on the scene and that there has been no change since about 2006. He did not want to see a repeat of the pre-2006 problems.

From the foregoing evidence, the Tribunal concludes that there is, now, already a balance between the establishments and the residents, as suggested in the Troubadour Bar decision. The Tribunal can find no justification for altering that balance.

Counsel for the Appellant further argued that conduct of the Appellant should be considered in deciding whether to grant its application, citing the decision in Ceili Cottage. In that case, the panel allowed the application for change in conditions. However, in that case, the majority of residents and the City Council were supportive of the licensee’s application to change conditions. That can hardly be said to be the case in the matter now before the Tribunal, inasmuch as there has been no evidence whatsoever of support for the Appellant. The residents who testified at this hearing and those who sent in written objections and the Township Council all opposed the Appellant’s application.

Counsel further argued that the Tribunal should consider the fact that the Appellant was not the holder of the licence at the time the conditions were imposed. Also, that the Appellant has operated his establishment without complaint to the police, AGCO or to the Township. He relies on the decision in the Scruffy Duck case. In that decision, the Tribunal allowed the licensee to change some of its conditions attached to the licence. The Tribunal, however, did not allow the licensee to remove the condition that there was to be no live music or amplified music on the patio. One of the factors that influenced the Tribunal was that, when the licence was transferred to the licensee, the licensee believed that there were no conditions attached to the licence, but discovered later that there were. At paragraph 139 of the decision, the Member stated:

139 Particularly noteworthy is the copy of the liquor licence dated November 12, 2008. This does not list any conditions. Then, the November 27, 2008 cover notice from the AGCO advises the licensee that "Due to a technical error, the previous licence did not include the establishment's conditions".

This is in contrast to the transfer of the licence to the Appellant in the instant case. The Appellant knew of the conditions and voluntarily signed to accept them.

Operating the business in a proper way does not, in and of itself, guarantee that the restrictions can be removed or changed on the ground that there has been a change in circumstances. The licensee in the Sunset Grill case also operated the business in a proper manner, but the application for change in conditions was, nevertheless, refused.

The facts of the Sunset Grill case are most closely akin to those in the present case. The business was located in a small resort community, Port Elgin, on the shore of Lake Huron. The licensee assumed conditions that had been imposed on the previous licence holder. The licensee even had the support of the local Town Council, which support is entirely lacking in the instant case. The business had been run in a responsible manner, as Counsel urges this Tribunal to find in the current case. The restaurant was a family restaurant. Its predecessor was reviled by the neighbours.

Notwithstanding all that, at paragraph 27 of the decision, the Member writes:

27 The onus at the hearing is on the applicant licensee to establish on the balance of probabilities that removal of these conditions is not contrary to the public interest having regard to the needs and wishes of the residents of the municipality. The Griffiths' have demonstrated competence and responsible management in their current operation and have met widespread community approval to date. They have the unanimous support of the Town Council for condition removal but do not have close to that of the nearby residents who are, and will continue to be, most affected by the operation of their business. This case is vexing because it pits the understandable wish of a responsible licensee to be able to take full advantage of lawful liquor sale and service against the reasonable, and to the licensee largely sympathetic, nearby neighbours who wish continued quiet and peaceful enjoyment of their properties late at night. Most of those residents lived there before this licence was granted, and these conditions which were negotiated to the Harry's licence have in fact worked very well, in that those residents appreciate the current business and respect the licensee. They co-exist today in harmony, and it is clear and this Board finds on the evidence, that the effect of these three license conditions, as well as the good management of the premises, is responsible for that state of affairs.

(Emphasis is added)

Similarly, in the case now before the Tribunal, the evidence reveals that, although, the Appellant may be operating its business in a proper manner, such a circumstance is a result of the conditions imposed on the licence. The fact that it is being operated in a proper manner does not necessarily, in and of itself and in the absence of other compelling evidence, justify an argument of change in circumstances. On the contrary, the proper operation of the business is evidence that the conditions are working and are being effective. There is nothing before this Tribunal that would persuade it to change those conditions. As was held in the Sunset Grill case, the effect of the restrictions is responsible for that state of harmony between the business and the residents “who are most affected by the operation” of the Appellant’s business. The argument that things were better after the Appellant arrived compared to its predecessor, only points to the conclusion, again, that the restrictions are working and that compliance with them maintains the harmony and balance that the Sunset Grill decision relied on.

The Tribunal adopts the reasoning in the Sunset Grill decision as applicable to case now before this Tribunal.

The fact that the Township Council passed a Resolution specifically opposing the change in conditions (Exhibit #9) is a factor that the Tribunal cannot ignore. Section 7.1 (1) of Regulation 719 under the Act states as follows:

7.1 (1) In the absence of evidence to the contrary, the Registrar shall consider a resolution of the council of the municipality, in which are located the premises for which a person makes an application to sell liquor or holds a licence to sell liquor, as proof of the needs and wishes of the residents of the municipality for the purposes of clause 6 (2) (h) of the Act.

The Tribunal recognizes that this section is found in the section of the Regulation dealing with applications for a licence. In the case of an application for a licence, consideration must be given to whether granting such a licence would be in the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises are located, as required in section 6(2)(h) of the Act.

Nevertheless, an application to remove or change conditions must also consider the public interest. The consideration of public interest applies to both types of applications. The Appellant is a licensee who “holds a licence to sell liquor” in the words of section 7.1(1). The Tribunal considers, therefore, that it would be unreasonable to place weight on a resolution of council in considering whether to grant a licence, but not in considering whether to remove or change conditions attached to an existing licence. The needs and wishes of the community are to be considered in each type of application. A resolution of Council should be proof of such needs and wishes in both matters. The Tribunal considers that it would be reasonable and logical to place significant weight on such a resolution in a case such as this.

The argument that the Appellant is operating its business in a proper manner is tempered somewhat by the evidence that causes some doubt that the Appellant is doing all that it can to maintain this harmony with the residents. The Objectors D.Mc., M.M, and C.L. all testified that they have had no positive response from the managers at the Appellant’s place of business even after trying to register their complaints. The managers either do not return calls or justify their breaches of the conditions complained of. Objector S.D. testified that, in the first year after the Appellant started its business, things were fine, but problems developed afterwards.

It would have been helpful if one or more of the managers testified at this hearing so that the Tribunal could hear their side of the story. Mr. Beeston did not have enough day-to-day knowledge of the operation to be able to clarify those complaints. His evidence was not helpful on that issue. As it is, the evidence of the Objectors relating to the lack of consideration by the managers remains uncontradicted. There was no explanation as to why no manager was called to testify on behalf of the Appellant.

As for Mr. Gidamy’s testimony, the Tribunal recognizes his credentials. They are commendable. However, although his testing may have been scientific, his results were still theoretical. In performing his tests over a period of 3 ½ hours on May 31, 2014, he did not measure the loudness of actual amplified music because there was none. He made assumptions for his calculations. As scientifically sound as those assumptions may have been, the results are still, nevertheless, theoretical. As well, he performed no testing in the areas south-west and north of the Appellant’s premises. The Tribunal heard complaints of noise from residents of those areas, yet those areas were ignored in Mr. Gidamy’s testing. Nor was there evidence that he was in the community over an entire weekend or even during the week or in the evening hours when the residents complained that the noise became worse.

On the other hand, the Tribunal has before it evidence from several residents who have actually experienced the noise and problems. The time that Mr. Gidamy spent in the community can be measured in hours. In contrast, the time that the Objector witnesses have spent in the community can be measured in decades. R.D. has resided in the community 21 years; S.D., 22 years; D.Mc, 11 years; M.M., 12 years; S.T., since 1974; P.D., since 1975; C.L. 28 years; I.T., since 1992.

R.D. testified that he lives 300 metres south of the Appellant’s business, on the east side of the river. That distance is farther from the Appellant’s patio than the receptor location from which Mr. Gidamy performed his test, which was 166 metres from the Appellant’s patio. Yet, despite the greater distance from the patio, R.D. stated that he could still hear clear words, shouts, screams and profanities, even though the music was inside the premises but where the patrons opened the doors and did not close them. C.L. testified to the same concern. This testimony is at variance with Mr. Gidamy’s testimony, but is based, not on testing based on assumptions, but on actual, real-life experience. The noise was “clearly audible” which would be in violation of By-law 2005-83.

R.D. and C.L. also testified that a previous business had put up a wall to eliminate the noise, but that did not resolve the noise problem.

D.M., who lives 300 meters south of the Appellant, on the west side of the river, can hear clearly audible voices, depending on weather and wind direction.

M.M, who lived approximately 300 metres south and west of the Appellant, testified that it was uncanny how clearly he could hear voices. Noise increased as the night wore on. The Tribunal notes that Mr. Gidamy did his testing during the day, not at night.

There was no evidence that Mr. Gidamy performed any tests on the west side of the river, south of the Appellant.

C.L., living 166 meters from the Appellant, testified that she can hear normal speaking voices to the extent that she can distinguish between male and female voices.

The foregoing evidence belies the conclusions cited by Mr. Gidamy, who the Tribunal considers did not remain in the community long enough to experience the actual concerns or at the times of the day of which the long-time residents complained.

If the residents can hear voices now, at a level that does not require the patrons to be heard over music, their concerns are that the noise from those speaking over the level of the music would be even louder. The Tribunal considers those concerns to be reasonable and legitimate, considering the facts and the evidence presented.

In light of all that evidence, where the conclusions of Mr. Gidamy differ from the actual experiences of the residents over the years, this Tribunal places more weight on the testimony of the Objector residents.

CONCLUSION

For the foregoing reasons, the Tribunal concludes that the Appellant has not satisfied its onus to prove, on a balance of probabilities, that there is such a change in circumstances as to warrant changing the conditions as requested.

Nor is the Tribunal satisfied that such a change would be in the public interest, given the facts of this case and the evidence of the Objectors, the Resolution of the Township Council and the many letters of objection filed. Quite the contrary, the Tribunal finds that it would not be in the public interest to allow the requested changes to be made.

ORDER

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

LICENCE APPEAL TRIBUNAL

Kenneth W. Koprowski Vice-Chair

Released: December 29, 2014