Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-02-11
FILE:
8526/GCA
CASE NAME:
8526 v. Registrar of Alcohol and Gaming
Notice of Motion by the Applicant for an Order to extend the time to file an Appeal under the Gaming Control Act, 1992, S.O. 1992, c. 24 - in respect to a Notice of proposed Order to Revoke a Registration
Theodore Vigod
Applicant
-and-
Registrar of Alcohol and Gaming
Respondent
DECISION AND ORDER ON MOTION
ADJUDICATOR:
Terrance Sweeney, Vice-Chair
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Bryna Kaplan, Counsel
Heard in Toronto:
January 23, 2014
ORDER
BACKGROUND
This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of a Notice of Motion, filed December 23, 2013, to extend the time to allow the Applicant to appeal against a revocation of his registration as a gaming assistant under the Gaming Control Act, 1992, S.O. 1992, c. 24 (the “Act”).
On January 22, 2014, Counsel for the Registrar filed materials in support of her argument that the Tribunal lacked jurisdiction to grant the motion of the Applicant.
The Applicant has been registered as a category 2 gaming assistant since February 26, 2013. He had a number of convictions and suspensions under the Highway Traffic Act (the “HTA”). His registration was subject to terms. On February 26, 2013, he signed and consented to terms which included the following:
Theodore Kevin Vigod shall advise the Deputy Registrar in writing...of any and all charges...under any legislation…(including...the HTA).
He was charged as he left his place of employment on August 4, 2013 with “Drive While Under Suspension”, contrary to the HTA. On August 10, 2013, he was charged again with the same offence in the same circumstance. He did not inform the Deputy Registrar of either charge as he was required to do under his Terms of Registration.
DECISION
The Tribunal has considered all of the evidence, the law and submissions of the Applicant and Counsel for the Registrar. The Applicant has failed to establish that there are reasonable grounds for the extension. In the event, therefore, the issue raised by the Counsel for the Registrar regarding the Tribunal’s jurisdiction is moot. The Tribunal, therefore, declines to rule on it.
THE JURISDICTION OF THE TRIBUNAL
Counsel for the Registrar, in her submissions, argues that this Tribunal lacks jurisdiction to grant the Order sought by the Applicant.
Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, gives the Tribunal the power to extend the time to file an appeal:
...if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief...
Notwithstanding this apparently wide discretion, Ms. Kaplan argues that because of the peculiar wording in the Act and Regulation, this Tribunal is prevented from granting the relief sought for the reasons which follow:
The Registrar revoked the registration of the Applicant on December 19, 2013.
The Applicant’s employer terminated his employment on December 20, 2013.
The Applicant has been unable to obtain re-employment in the gaming industry prior to January 23, 2014.
Subsection 16(4)(a) of Ontario Regulation 78/12 under the Act provides that:
(4) The Registrar shall revive the registration of a gaming assistant that has terminated ... if,
(a) within 30 days after the termination of the registration, the registrant applies to the Registrar to have the name of the registered supplier named in the registration replaced with the name of another registered supplier;
In other words, the Registrar may only register the Applicant if he had obtained employment within 30 days of the termination. He has not. Therefore, even if the Tribunal were to grant an extension, the Registrar lacks the statutory authority now to grant him registration.
The Tribunal reserved its decision on the jurisdiction issue pending hearing evidence on the Applicant’s motion to extend.
THE MOTION FOR AN EXTENSION OF TIME TO FILE AN APPEAL
Evidence for the Applicant
The Applicant is 26 years old. He said his problems under the HTA stemmed from a rolling stop offence in 2008. He was unable to pay the fine. His licence was suspended but he continued to drive. He was stopped a number of times and convicted of driving while his licence was suspended.
He said that he telephoned the offices of the Deputy Registrar and left messages in order to report the August 4, 2013 incident. He admitted that he did not inform the Deputy Registrar of the August 10, 2013 incident.
He said that his driver’s licence has been reinstated. He owes over $5,000.00 in fines and has paid over $2,000.00. He produced receipts1 which documented payments of over $500.00 of his fines.
He said that he did not receive the Notice of Proposed Order until December 4, 2013. He called Ms. Gail Campbell at the Deputy Registrar’s office and left voice mail messages but never received a reply. He also discussed his situation with a person at the Tribunal who told him how to appeal. He was unable to file his appeal until December 23, 2013 because he did not have the $100.00 filing fee until then.
Evidence for the Registrar
Gail Campbell
Ms. Campbell is a registration officer at the Alcohol and Gaming Commission of Ontario. She is familiar with the Applicant’s file.
She testified that the Applicant did not contact her with respect to the Notice of Proposed Order. He did not contact her after the Final Order had been issued revoking his registration.
She said that she received no voice mail messages from the Applicant. If she had, she would have responded to them.
Frank Cuda
Mr. Cuda is the Deputy Registrar under the Act. He explained that his department was concerned about the driving record of the Applicant but registered the Applicant on terms to give him a chance to prove himself. A limited registration, such as that given to the Applicant, allows the Deputy Registrar to monitor his conduct to determine if he can operate with integrity and honesty and in accordance with law.
He said it is important that the public be confident that registrants in the gaming industry are honest and behave with integrity and in accordance with law.
Counsel filed a certified copy of the Applicant’s driving record under the HTA.2 It shows that he was convicted of a number of offences after 2008, including speeding in 2010 and unpaid fines in 2011.
APPLICATION OF LAW TO THE FACTS
The Ontario Court of Appeal, in Frey v. MacDonald,3 has set forth the test to be applied in determining when an extension of time is warranted. In Manuel v. Ontario (Motor Vehicle Dealers Act, 2002, Registrar),4 the Divisional Court said this Tribunal should consider four factors as constituting “reasonable grounds” to grant such an extension:
- The existence of a bona fide intention to appeal.
- The length of the delay.
- Prejudice to the other party.
- The merits of the appeal.
All four aspects of the test must be considered with no one aspect necessarily having ascendance.
Even these four factors may be superseded by the principle of “justice of the case”. The Tribunal will consider each aspect of the test.
The Tribunal accepts the testimony of the Applicant that he did not have the $100.00 filing fee before the time expired to file his appeal. He, therefore, had a bona fide intention to appeal. Further, the Tribunal finds that the delay was not long.
The Registrar would be prejudiced if an extension were to be granted. He must exercise his mandate in the public interest. The timelines are there to allow him to do so. He has already revoked the registration of the Applicant in the public interest.
There is no merit in the appeal. The Applicant has a poor record under the HTA. He is unwilling or unable to comply with the HTA. He signed terms of registration in February 2013 and breached them on two occasions in August 2013.
The “justice of the case” principle favours the public interest. There are reasonable grounds to believe that the Applicant will not act as a gaming assistant in accordance with law, or with integrity, honesty, or in the public interest.
ORDER
Therefore for the reasons given, the Applicant’s motion for an extension of time for filing an appeal is dismissed. In light of this decision, there is no need for the Tribunal to consider the argument of Counsel for the Registrar as to jurisdiction.
LICENCE APPEAL TRIBUNAL
Terrance Sweeney, Vice-Chair
Released: February 11, 2014