Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2015-05-08
FILE:
9072/LLA
CASE NAME:
9072 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 Suspend a Licence
2193145 Ontario Inc o/a Boston Pizza
Appellant
-and-
Registrar of Alcohol and Gaming
Respondent
ORDER
ADJUDICATOR:
D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Appellant:
Pradeep Chand, Counsel
For the Respondent:
Aviva Harari, Counsel
Phillip Morris, Counsel
Katherine Brickman, Student-at-Law
Heard in Toronto:
March 25, 26, 30 & 31, April 1 & 9, 2015
REASONS FOR DECISION AND ORDER
OVERVIEW
1The Appellant, 2193145 Ontario Inc. o/a Boston Pizza , appeals from Notice of Proposal to Suspend a Licence, number 20506, in which the Registrar of Alcohol and Gaming proposes to suspend the Appellant’s licence for a period of 60 days.
2The background facts are tragic. A patron spent the evening of November 20, 2013 drinking at the Appellant’s premises. He left to walk home around 12:30 a.m. on the morning of November 21 and was struck by a car right outside the restaurant as he crossed a busy road against the traffic light. Investigation found that he had a high blood alcohol concentration (BAC) and the Registrar alleges that the Appellant served him an excessive amount of alcohol in breach of the Liquor Licence Act, R. S. O. 1990, chap L 19 (the “Act”) and related regulations.
3The Tribunal finds that the Appellant did breach the Act by serving the Appellant when it knew or ought to have known that he was drunk, thereby permitting drunkenness and by serving a person who appeared to be intoxicated. The Tribunal finds that the Appellant did not engage in or permit practices which tended to encourage patrons to immoderate consumption.
EVIDENCE
4The Tribunal heard from several groups of witnesses: several persons who were at the bar on the evening in question and are currently employees of the Appellant; police witnesses who attended at the scene of the accident and were involved in the investigation to a greater and lesser degree, two members of the general public, one of whom was drinking in the bar with the deceased and one of whom met the deceased and shared a cigarette with him across the road from the bar about 20 minutes before the accident; and a toxicologist who testified to the range of consumption of the deceased on the night in question. In addition, the Tribunal viewed approximately 3.5 hours of surveillance tapes of the bar area covering the period from before the deceased entered the bar until the patrons remaining after he left the bar first noticed the flashing lights of the emergency vehicles responding to the accident.
5According to Dr. Marie Elliot, an expert in toxicology who testified on behalf of the Registrar, measurement of alcohol consumption is based on a standard drink. A standard drink contains the same amount of alcohol regardless of its nature. One shot of hard liquor contains the same amount of alcohol as a six ounce glass of wine or a twelve ounce bottle of beer, assuming the beer to be 5% alcohol by volume. It is the concept of a standard drink that toxicologists use in calculating alcohol consumption from blood BAC. There is a great convergence in the evidence about the number of standard drinks consumed by the deceased. The toxicology estimates broadly tally with witnesses’ recollections and with observations from the surveillance camera. The quality of surveillance footage sometimes makes it difficult