2193145 Ontario Inc. o/a Boston Pizza v. Registrar of Alcohol and Gaming, 2015 CanLII 50477

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE: 2015-07-09

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 ON SANCTION

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

ORDER ON SANCTION

1Following six days of hearing, the Tribunal found that the Appellant had breached s. 29 (1) of the Liquor Licence Act (the “Act”) by selling liquor to a person who was or appeared to be intoxicated. Further, the Appellant breached s. 45(1) of O/Reg 719/90 by permitting drunkenness on its premises. The Appellant did not breach s. 20(1) of that Regulation. The Tribunal invited the Parties to make written submissions with respect to the appropriate sanction. The submissions having now been received, this is the Tribunal’s decision regarding the appropriate sanction.

2The Registrar submits that the consequences of the Appellant’s failure to comply with its regulatory duties resulted in the death of a patron. In the view of the Registrar, the breach was egregious with tragic results and should attract a severe penalty. In this case, the Registrar is seeking a suspension of 55 to 58 days. In the view of the Appellant, a suspension of ten to fourteen days is appropriate.

3Both parties are in agreement that the following factors should be considered in determining the appropriate sanction:

(i) Protection of the public;

(ii) Maintenance of the reputation of both the industry and the regulator;

(iii) General deterrence;

(iv) Specific deterrence; and

(v) Rehabilitation of the licensee.

As with many legal tests, the Tribunal is of the view that the various factors do not operate as a checklist to be followed in a mechanical way. The factors are to be weighed as whole to arrive at an appropriate sanction.

4Both the Registrar and the Appellant supported their submissions with extensive case law. In all of the Registrar’s cases, a patron had died in an accident on the way home from the bar following over-service. Penalties ranged from a 45 day suspension to immediate revocation of the licence. None of the cases put forward by the Appellant covered fact situations where the patron had died in an accident on the way home. In one case, a known alcoholic had fallen from his balcony sometime after leaving an establishment where he had been served alcohol while intoxicated the evening before his demise.

5It is clear that the legislative scheme places strict duties on licensees. On the one hand, they are permitted to sell alcohol. They stand to benefit financially from high levels of consumption. On the other hand, they are in the best position to monitor consumption and are under a duty to do so. The Appellant in this case totally failed in that duty. In accordance with the various decisions proffered by the Parties, the factors outlined above suggest that both specific and general deterrence call for a suspension well in excess of the period suggested by the Appellant. Specific deterrence calls for a higher suspension because the licensee failed to have any controls in place to ensure that the Appellant got home safely, and general deterrence calls for a higher suspension because it must be made clear to the industry as a whole that over-service must be controlled, and if, and undoubtedly when, it occurs, steps must be taken to ensure that the issue is dealt with in a responsible manner.

6The Appellant argues that it attempted to protect the deceased from the consequences of over-service by calling a taxi for him. This was not done on the initiative of the Appellant, but rather, was done at the request of the deceased patron. Thereafter, the Appellant made no effort to monitor the deceased to make sure he did not do anything untoward. He was left standing unattended and ignored until he decided to walk home - the fatal decision. No credit can accrue to the Appellant because a taxi was, in fact, called.

7The Tribunal recognizes that the Appellant has no previous history of infractions. It is also cognizant of the fact that no evidence was put before it to demonstrate that the Appellant had undertaken remedial measures to protect against such a tragedy happening in the future. The measures outlined by the Appellant to address overconsumption - hiring Smart Serve certified servers (which is a regulatory requirement), twice yearly training and discussions of service limits at meetings to launch new menu items - clearly have been ineffective. In the absence of evidence of further efforts, the Tribunal must conclude that the Appellant has done little to ensure that that such an event will not occur again.

ORDER

8Having weighed all of the factors set out above, the Tribunal is of the view that the appropriate sanction in this matter is 55 consecutive days, dates to be set by the Registrar.