Licence Appeal Tribunal / Tribunal d'appel en matière de permis
FILE: 9058/LLA
CASE NAME: 9058 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.
1817897 Ontario Inc. o/a Beta Appellant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Simon Dann, Member
APPEARANCES:
For the Appellant: Randall Barrs, Counsel
For the Respondent: Aviva Harari, Counsel
Heard in Kitchener and Toronto: April 22, 23, and 24, 2015
REASONS FOR 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 August 13, 2014, to suspend the liquor licence (“the licence”) of 1817897 Ontario Inc. o/a Beta (the “Appellant,” “Licensee” or “Beta”), for a period of 14 days.
The allegations contained in the Proposal are:
(a) contrary to subsection 45(1) of the O. Reg, the licence holder permitted ... violent or disorderly conduct to occur on the licenced premises or in the areas under the control of the licence holder.
(b) contrary to section 45.1 of Ontario Regulation 719/90 under the Act, the licence holder failed to ensure that reasonable measures were in place and reasonable efforts were made to deter disorderly conduct on property adjacent to and in the vicinity of the premises...
In her opening statement, Ms. Harari stated that on February 23, 2014, the licensee permitted disorderly behaviour and serious injury to a patron. A staff person was charged with assault and found guilty.
In the second instance, on March 14, 2014, when an unruly patron tried to go back into the establishment and was refused entry, a police officer came to assist security and the patron became violent when the police officer tried to arrest him.
The Registrar's position is that the conduct of the Licensee falls below being acceptable, and therefore the Registrar is seeking a 14 day suspension of the liquor licence.
The Appellant's Counsel, Mr. Barrs, stated that in the first incident, the Appellant's position is that the security staff conducted themselves properly and while events are admitted, the evidence will show the disorderly conduct was caused by a patron and two of his friends.
In the second incident, an intoxicated patron was asked to leave and became argumentative when he was prevented from going back into Beta. The patron was asked to leave and when he was subsequently addressed by police, he aggressively resisted arrest.
The Appellant's view is that the AGCO seems to believe that security did too much on the first incident and too little on the second.
REGISTRAR'S EVIDENCE
PL is a taxi driver in Waterloo. On March 14, 2014, about 1:00 a.m., he was parked in front of Beta waiting for customers when he saw a police officer talking to someone at the Beta front door. The person was talking loudly as the police officer gestured at the patron to leave.
PL said the patron pushed the police officer and fighting started. He did not see a “bouncer” helping the police officer though he did see that a bouncer and security were at the front.
PL had a clear unobstructed view of the scuffle and wanted to help; so he ran over and asked the police officer (later identified as PC Josh Brimble (“Brimble”) if he wanted help, to which the police officer said “yes”.
Video evidence
The Registrar's Counsel then introduced a security video of the incident (Exhibit 3) and provided a review of the video, with comments.
In addition to viewing the video during the hearing, the Tribunal later reviewed the security video in considering all of the evidence and observed that the patron in question, after exiting Beta, spent about nine minutes in various exchanges with Beta security personnel before Brimble arrived.
Throughout the exchanges, the patron appeared to maintain an appropriate distance between himself and security personnel, who did not appear to show any signs of feeling threatened.
According to the video counter, it was less than two minutes before Brimble joined in the exchange with the patron, which was when security moved away.
Brimble then appeared to be leaning in towards the patron, making hand and finger gestures. It then appeared that the patron stepped backwards with his hand out in a conversation-like movement which appeared to be followed by Brimble's grab of the patron's right arm (Exhibit 3, March 14, 2014, 12:01:08 a.m., Camera 2).
At that point (12:01:10-13 a.m., Cameras 1 and 2), the patron's left hand appeared to come up in what the Tribunal observed as a defensive manner, just as Brimble appeared to move forward, towards the patron.
The two then moved out of sight of Camera 1. As the sidewalk had a covering of snow and or ice, it was not clear what caused the patron and Brimble to fall down (Camera 2).
In the following three minutes, an individual ( PL) appears where the pair are on the ground. There are also two security personnel, one of whom is seen to bend over Brimble and the patron.
The Tribunal did not have a clear view of what was happening on the ground due to the camera distance, the darkness and other patrons standing in the way.
Joshua Brimble is with the Waterloo Regional Police. On March 14, 2014, he was driving by Beta when he saw security staff having an argument with someone at the Beta entrance. When he parked near the Beta entrance, he briefly observed the situation before going over to help calm the situation.
Brimble said he was advised by security that a patron ("S") was not allowed back in because he was too intoxicated. Brimble said that he detected a strong odour of alcohol as he tried to take S away from the front entrance area.
Brimble said he intervened and asked S to leave or be arrested for public intoxication as he saw S becoming more agitated and a possible safety risk. Brimble then told S that he was under arrest for public intoxication and "I put my hand on him and S knocked it away".
Brimble said his training for arresting a person is to get that person on the ground, "which I did". During that time, "S got his arm under my vest and was trying to get me underneath him".
Brimble said the struggle with S lasted "approximately four minutes" and when the taxi driver came over, "I said get the right arm and a security person grabbed the other arm". Brimble's observation was that before the taxi driver came no one else had offered help but he acknowledged he was too busy to see where anyone else was.
Brimble subsequently obtained signed witness statements from two Beta security personnel OA (Exhibit 7) and BA (Exhibit 8).
In cross-examination, Brimble said he was always on top and that he intentionally took S down using “hard physical control techniques” to get S into handcuffs. He did not recall if he told Officer DeBrusk about a security person grabbing S's other arm but thought he had.
Amy Moore ("Moore") is a detective with the Waterloo Regional Police Service and was the officer in charge of investigating the incident at Beta on February 23, 2014. She was not present that night but produced two case file reports resulting from her investigation (Exhibits 4 and 5), which included a review of security video and interviews. Based on her findings she laid charges against a patron ("MJM") and AB, a member of the Beta security staff.
In summary, MJM was first seen to be smoking a cigarette inside of Beta and was asked to step outside by security. Once outside, MJM was advised he could not return. A friend ("JR") of MJM, who was just inside the door, argued with security, asking that MJM be allowed back in as the cigarette was electronic and not real.
As both patrons became "increasingly more argumentative and belligerent, another security staff member, Usama Chaudry ("Chaudry"), reached through the open door and ejected JR. The patron, JR, then struck Chaudry and it was then that MJM "violently attacked Chaudry". As a result, MJM was charged with one count of assault on Chaudry.
Moore described the subsequent assault on MJM by AB and referred to the security video which showed MJM lying on the street, on his back, appearing limp, while being struck by AB.
Moore said that MJM was taken to the hospital. He suffered a concussion and needed stitches for some damage to his nasal area. MJM has fully recovered without any long-term effects.
Moore agreed the cause of the injury is unknown and it is possible that MJM had slipped and fallen, hitting his head on the ground. Police arrived after the assault occurred.
Moore said the continued blows by AB was when the situation went too far, and AB was charged with assault causing bodily harm. The outcome of the charge was a conditional discharge with probation.
The Registrar's Counsel then introduced a second security video, this one being of the February 23rd incident (Exhibit 6), and provided a review of the video, with her comments.
The Tribunal viewed this video both during the hearing and later on its own. Since the counsel said the events were admitted, the Tribunal does not consider it necessary to enter its observations of the assault recorded by the two cameras.
It does, however, note that the cameras captured sufficient evidence to show that patrons were the first to attack Beta security.
The videos also show:
- repeated attacks by patrons upon security personnel (Camera 1, 12:46, a patron in white hooded sweatshirt is seen repeatedly punching someone);
- at 12:47, other patrons jump into the melee;
- at 13:14, patron in the smoking area jumps fence to join in;
- at 13:21, another altercation breaks out in the background, on the road; and,
- Camera 2, between 13:28 - 13:47, shows further scuffling occurring with other security staff running to provide assistance.
The Tribunal notes, as Ms Harari had pointed out, the repeated punching of MJM while he is lying prone on the road (Camera 2, between 12:51 and 13:01, a 10-second period in which MJM is seen being dragged by someone who has grabbed his t-shirt and then being repeatedly punched until that same person gets up and moves away from MJM).
In cross-examination, Moore acknowledged MJM was first to commit assault and his friends were not cooperative, continuing with aggressive actions even after police arrived.
Moore said she reviewed the video on a frame-by-frame basis and described the situation as mayhem. The security staff personcontinued to hit MJM, when he was motionless, on his back and not fighting back.
Damon DeBrusk is with the Waterloo Regional Police and is a liaison officer with the AGCO., Beta is in his area. He has generally found the Licensee compliant and helpful.
On February 23rd, he arrived at Beta, at 12:56 am, in response to a 911 call from someone saying security was beating up their friend. On arriving at Beta, he found a male lying in a lane of traffic and a female trying to deal with him. Another male was trying to protect the area. The situation was very chaotic.
DeBrusk said he saw a pool of blood at the male’s head and called an ambulance. He also went to the hospital with the male (MJM), who was found to have a broken nose and concussion with injury above left eye.
DeBrusk said that was his last interaction with MJM and also said that “to the best of my knowledge, MJM started the altercation”.
Regarding the March 14th incident, DeBrusk said he only became involved several days after the event when he spoke with Brimble. He had no direct involvement, but reviewed the video of that night's event and conducted follow up interviews.
As a result of his own investigation, he recommended that a charge of a violation of s.45.1 of the regulation be laid.
In cross-examination, DeBrusk agreed that when security saw that police were dealing with an individual, security was supposed to stay out of the way. It was Debrusk's understanding that Brimble had not asked security for help and he agreed that he had not asked security if they were asked for help.
Regarding the February 23rd situation, Debrusk said that for the most part security did an admirable job through their involvement.
APPELLANT'S EVIDENCE
TC works full time as a self-employed contractor and part-time as a security guard. He is not currently doing any security work.
On the night of February 23rd, he was monitoring patrons at the VIP entrance when he saw a patron smoking and asked him to leave. He walked the patron to the entrance and handed him over to the security staff manager, Usama Chaudhry ("Chaudhry").
TC said he really did not see much of what happened but did see a patron “take a shot at MR” and someone on the ground who he thought looked like the patron he took out for smoking.
Kayla Fisher ("Fisher") is a licensed security guard and works part-time at Beta. On February 23rd she was doing pat-downs to check for drugs, alcohol or to check for individuals who were already intoxicated as they would not be allowed in.
The incident that night started when a patron was brought to the front door by TC. The patron was arguing with TC, saying he wasn’t smoking. When they got outside, a fight broke out, with people jumping over the smoke pit fence and joining in.
Fisher said she did not get involved and described it as “a big messy brawl on the street”. She saw a patron on the ground with blood on his face, and then her colleague, Vicky Piper ("Piper"), who has first aid training, came out to assist the person on the ground.
In cross-examination, Fisher confirmed her role was to keep guard position and not allow "random people" in.
Usama Chaudhry ("Chaudhry") currently owns a security company, but on February 23rd, he was working for Beta as head of security. His role was to check staff and procedures for monitoring patrons coming in and checks for intoxicated individuals. There were no signs of aggressive behaviour from any patrons that night and it seemed a fun night.
Chaudhry said that after TC brought the patron to him, he asked the patron to leave about four times. Chaudhry testified that after he was punched he could not remember who was doing what but that there were about six or seven security staff trying to control the area.
The entire incident might have lasted about three to four minutes, and the person he saw on the ground was not the person he had put out. He saw the person with blood on their face and Piper helping that person.
In cross-examination, Chaudhry confirmed he did not see how MJM was hurt and that AB, who resigned about a month later, was the security person charged with assault on MJM.
MR no longer works at Beta, but on February 23rd he was working there as a licensed security guard. He had a clear view of the area from the smoke pit to where Chaudhry was stationed. He saw four males arguing with Chaudhry but was not sure of what was going on.
He heard someone in the smoke pit say there was a fight going on and then someone was punching him while some others jumped on Chaudhry. The police arrived after everything was under control. MR said that even after the fight was over, there were people still trying to cause problems and fight with security.
Kimberley Victoria Piper (“Piper”) works part-time at Beta, and is a licensed security guard. On February 23rd, she was monitoring inside activities when she heard a general call about a fight and came out to watch the doors.
She saw a person on top of another person on the ground, and when the top person stood up, she saw the one on the ground appeared injured. She went to check his condition and said he initially seemed unconscious, but when she spoke to him, he answered saying his name and that his nose hurt.
At that time, there were other security staff circled around her, to protect her from the crowd but people were shoving security staff and one stumbled, falling into her. She said police were also helping to keep the crowd from interfering with her efforts to help the male sit up.
When asked why she did not get involved in the fighting, Piper said that in fairness she was not going to get between two males fighting and possibly incur injury to herself.
BA is currently a full-time student, but on March 14th, he was working at Beta, alongside another security guard (“OA”), when a patron (S) was put out for intoxication and began arguing with OA about being allowed back in.
From what BA saw and overheard, it seemed to him that OA had control of the situation and S, who was slurring his words, seemed to understand. This was going on for at least 10 minutes and there was nothing that BA saw as requiring his involvement.
BA described the next events as follows:
- the police officer (Brimble) intervened and Brimble walked S to the end of the smoke pit, O returned to his post;
- Brimble put his hand on S and S knocked it off;
- Brimble then did a “sweep” to take S down;
- Brimble was on top and seemed to have everything under control even while S was “tousling”
- when it looked like S had his arm and hand caught in Brimble’s vest, “I pulled the arm out of his vest ... so the officer could make the arrest”.
BA said he did not think the police officer was in danger at any point or he would have intervened. Regarding the cab driver, BA said, “I think the cab driver was just looking over”.
BA believes he did everything by the book and did not believe there was anything wrong with either his conduct or that of O. He agreed Beta has a policy manual for what security staff are to do, and if police are involved, they are supposed to step away.
In cross-examination, BA replied that Brimble had asked for help so "I pulled the arm out of the vest". He did not see the taxi driver provide any help.
An occurrence report was completed by BA (Exhibit 9) but does not include any reference to taking S's arm out of the police officer's vest. There was no such reference in BA's statement to Brimble on April 19, 2014. In his testimony, the witness repeatedly said that "it happened quickly".
BA had some varying recollections, and in one instance also said he had not seen the Exhibit 3 video before but then revealed he had been told about the video content by the Appellant's Counsel (the video had been reviewed during the testimony of PL).
Inderjit Dhaliwal ("Dhaliwal") is currently the security manager at Beta. On February 23rd, he was security supervisor and posted upstairs covering the VIP booths.
When he heard of the fight, he went outside where he saw people jumping the smoking pit fence and joining in. He tried to intervene and was also attacked. He said he was punched in the face even after the police arrived and became involved.
Dhaliwal saw Piper attending to a person on the ground, and he attempted to help by asking what she needed. He described the people around MJM as continuing to act aggressively towards security, and while he could hear MJM on the ground talking, he could not make out what he was saying.
Dhaliwal confirmed that security had to shield Piper and MJM on the ground because of the continuing and aggressive conduct of the people around them.
Ashley Jade Ertel ("Ertel") is the owner and operator of Beta. She took possession of the property in 2010 and opened it as a licensed established in January 2012. She described Beta as a dance club with DJs on Friday and Saturday nights. Beta caters to university students who have a tendency to pre-drink but are typically manageable. The licensed capacity is 640.
On February 23rd, there were about 400 patrons with a staff count of 20-25, 10 of whom were security. Ertel said she is licensed to operate her own in-house security. Ertel said the smoke pit is gated off and a security person is watching there at all times.
She was in her office when the February 23rd commotion started, and says she has seen the video so often that it has become difficult for her to distinguish between what she saw and what is on the video.
Ertel went out and immediately saw the person on the ground and Piper trying to help while security staff were dealing with patrons.
Regarding the security staff member (AB) charged with assault, he worked a few more weeks and then resigned. AB had started with Beta at the beginning of 2012 and was always a good employee. Ertel acknowledged that she asked AB to resign.
When she and Chaudhry reviewed the video at the end of the night, they concluded they had acted properly. Beta's policy is that once police are involved it is hands off because police are in control of the situation. Ertel believes that the beginning of the situation with S seemed reasonable, until Brimble became involved and put his hand on S.
The only fighting Ertel saw was a punch on Dahliwal which she said happened in front of police as MJM’s friends remained very belligerent towards security.
Registrar's Submissions
Ms. Harari reviewed the two allegations before the Tribunal. The first occurred on February 23, 2014, during which the Licensee permitted disorderly conduct, contrary to section 45(1), and the second occurred on March 14, 2014, on which occasion the Licensee failed to take reasonable measures to prevent the incident, contrary to section 45.1 of the Regulations.
Ms. Harari submitted that the February 24th incident took place over a short time and the level of violence quickly escalated. It is alleged that the security response was insufficient and failed to prevent the assault by AB on MJM.
While it is acknowledged there is no issue that MJM and his friends started the incident, the Registrar's position is that security staff were standing around and made no effort to remove AB from MJM. Ms. Harari submitted Piper was in a position to have done something to interfere with AB's action but did not.
Ms. Harari asked that the Tribunal review the video of the incident which would confirm there is sufficient evidence that section 45 (1) was breached. She asked the Tribunal to note that it was a representative of the Licensee who was responsible for the disorderly conduct.
Regarding the March 14, 2014 incident, Ms. Harari again requested the Tribunal review the video evidence, and submitted that Brimble being on the scene and becoming involved with S was indicative of "proactive policing".
She referenced Brimble's testimony about hearing loud voices through the open window of his vehicle, which led him to park in front of Beta and watch the interaction between S and security staff. When the security person talking with S pointed towards him, in the police car, Brimble exited his vehicle and went over to where the two were talking.
Ms. Harari submitted that S was not going to be arrested without a fight. The civilian witness, PL, testified that S was struggling with Brimble and that Brimble replied "yes" when asked if he wanted help. PL said that no one else was trying to help.
Ms. Harari submitted that the Tribunal should prefer the evidence of PL and Brimble as there were inconsistencies in BA's testimony and there was no reference in BA’s ocurrence report or in his statement to the police about him pulling S's arm out from where it was caught in Brimble's vest.
Appellant's Submissions
Regarding the February 23rd incident, Mr. Barrs submitted that the issue really is whether security or the licensee permitted disorderly conduct and if the events were reasonably foreseeable?
There is also the question of whether any other security personnel were in a position to stop the occurrence. While the Respondent submitted other security personnel were standing around, they were actually trying to restrain the people crowding around.
Mr. Barrs referenced the fact that MJM did not appear as a witness, and neither did any of his friends who all started the attack. He submitted that Beta security was trying to keep the outside situation under control and that it was very chaotic. He questioned how the Licensee could anticipate AB would act in an excessive fashion after “being good as gold” for over a year and a half.
Mr. Barrs submitted that female security are not to get involved in fights between males, and Piper immediately went to MJM as soon as she saw him on the ground. She was able to talk with him, asking if anything else hurt, and his reply was only about his nose. She said security were trying to shield her from the pushing and shoving behaviour of patrons, and her behavior should not be criticized because she did what she was instructed. Staff did everything by the book and police response was positive towards security staff – only one person, AB, was excessive in his actions.
Mr. Barrs submitted that AB is not the sole representative of the Licensee, but all security are and in the majority, their conduct was correct. The conduct of this one individual was not foreseeable.
Regarding the March 14th incident, it was Brimble’s evidence that he was always in control and it was one of the security people who helped him by taking S’s arm out of his vest.
The video shows security personnel were handling the situation and there was no disorderly conduct. Mr. Barrs submitted that it was Brimble’s intervention, by putting his hand on S’s shoulder, which caused the disturbance.
Mr. Barrs submitted that when Brimble took S down there were two security staff who went over to where Brimble and S were on the ground. He noted the information DeBrusk put forward did not include Brimble's evidence about one of the security staff pulling S's arm from his vest.
Mr. Barrs submitted that security personnel are reluctant to become involved in police action, but they did run over to see what was happening. The bottom line is that Brimble testified he was in control. Neither of the two allegations have been proven.
Analysis and Reasons
The Tribunal has carefully considered the evidence of each witness and found the security video evidence very compelling in arriving at its findings.
February 23, 2014 incident – s. 45(1) of O. Reg 719/90, under the Liquor Licence Act
With respect to this allegation, the Tribunal must, based on the jurisprudence, determine whether there was ‘violent or disorderly conduct’ and whether the Licensee permitted that conduct.
The events as they unfolded on February 23rd were described by witnesses as ‘mayhem’ and ‘chaotic’. The Tribunal accepts that they were indeed intense. It was a melee, with patrons throwing the first blows. At that point, the Licensee was aware of the fact that it had a potentially explosive situation to deal with. AB responded violently. Mr. Barrs does not dispute that. The attack on MJM was excessive. The Tribunal concludes that disorderly and violent conduct occurred.
The second inquiry is whether the Licensee permitted such conduct. It must be noted that it is not the ‘violent or disorderly conduct’ of the patrons that is in issue here. DeBrusk, in his evidence, stated that security staff managed to do "an admirable job” in dealing with the situation. The Licensee did have policies and measures in place to properly deal with and contain the incident provoked by its patrons. What is concerning is the fact that AB, in his response to the situation, repeatedly struck MJM until he was motionless; he initially appeared unconscious to Piper, another security person. The Licensee’s security personnel were aware that a volatile situation had erupted, but they appeared to do little to intervene as the violent attack on MJM by AB ensued.
The Licensee cannot deflect its obligations under the Act by placing responsibility on a ‘rogue’ security person. Indeed, and commendably, Ms. Ertel by her action in requesting AB’s resignation (though several weeks after the incident), appears to have acknowledged that responsibility. The Licensee in its training of security to deal with the situations that may arise in its establishment (and the events of February 23rd, immediately before the assault while perhaps not commonplace, in light of the size and nature of the establishment, would not be unforeseeable) is required to ensure that security’s response are measured and appropriate. AB’s were neither. In light of the violent and disorderly conduct by Licensee’s staff, the Tribunal, on the evidence before it, concludes that the Licensee permitted that conduct and is therefore in breach of s. 45(1) of the Regulation.
March 14, 2014 incident s. 45.1 of O. Reg. 719/90 under the Liquor Licence Act
The allegation is that the Licensee "failed to ensure reasonable measures and efforts were in effect to deter disorderly conduct in the area adjacent to or near the licensed premises”.
In summary, the Appellant's position is that security was handling the situation, and Officer Brimble's testimony confirmed that he was always in control. The Registrar’s submission is that the patron, S, was not going to be arrested without a fight, and that security at the scene, (specifically, BA) did too little and too late.
In the Tribunal’s review of the security video (from March 13-14, 2014), confirms that at the time S exited Beta, there was no indication that the exchange between S and security staff would become disorderly or violent.
The Camera 1 timeframe shown on the video, starting at about 11:49:14 p.m., until the moment when Brimble exits his vehicle and walks over to where S has been engaged with security, is just under 10 minutes. In that time, the interaction between S and security has not changed and there is no indication of any disorderly conduct.
Brimble is then seen joining S and security at about 11:59:19 p.m. and by 12:00:04 a.m. Brimble was engaged in conversation with S.
By about 12:00:59 a.m., Brimble can be seen leaning in towards S, gesturing in an authoritative fashion. The exchange continues for about 10 seconds, and at about 12:01:09 a.m., S has stepped backward and does not appear to be acting in a threatening or aggressive fashion.
Within the next second (according to the video time stamp counter), Brimble has grabbed S's hand or wrist, and S's other hand has come up in what the Tribunal interprets as being more of a defensive reflex rather than an action to strike.
In the next second, the two have moved out of view of Camera 1 and into view on Camera 2, which shows some of the action but it is difficult to see whether S is stepping backwards and being pushed or if he is simply backing up and then, the two go down. Brimble testified that he deliberately took S down.
In the timeframe from about 12:02:52 a.m. to about 12:03:42 a.m., the witness PL can be seen walking into the scene, as well as one or two security personnel. By the end of that timeframe, one security person can be seen repeatedly bending over, leaning into the struggling pair on the ground.
In general, it should be said that due to the distance and lack of light, it was difficult to clearly make out what was taking place, but the three people are certainly visible.
The Tribunal accepts Brimble's testimony that he was always on top of S, and when the witness PL came over, he said, "... get the right arm and a security person grabbed the other arm". Brimble also stated he could not recall if he told Debrusk about a security person helping out, but thought he had done so.
The witness BA testified about his own observations and involvement that night, but the Tribunal is reluctant to rely on his evidence due to the fact that BA learned about the contents of the video from the Appellant's Counsel the morning of the hearing. Therefore, the Tribunal cannot be certain about what influence that information may or may not have had on his testimony.
At no time during the first 10 minutes of interaction between S and security did there appear to be any threatening conduct. Security appeared to simply ignore S, presumably replying to his questions but taking no action to incite S to any disorderly conduct.
The Tribunal further accepts the evidence provided by Ertel that Beta's policy is that once police are involved, Beta security should be hands-off as the police are in control of the situation. The Tribunal finds this coincides with Brimble's evidence that he was always in control and intentionally took S down using "hard physical control techniques".
Section 45.1 speaks to ‘reasonableness’. The alleged violation must be viewed in the context of the particular facts. Up until the point when Brimble grabs at S, there was little to suggest conduct by the patron that should have raised further concern to the security personnel. The issue seemed to have resolved. In a matter of seconds, after the action by Brimble, the altercation occurred.
Ms Harari cited 1499532 Ontario Inc (Nikki’s Sports Gallery)(Re) 2011 CanLII 10873 (ON AGC), 2011CanLII 10873 (ON AGC) to the Tribunal regarding the alleged breach of s. 45.1. Unlike the facts in that case, the evidence here does not support a conclusion that the Licensee, immediately prior to the point when Brimble grabbed S, knew or ought to have known that disorderly conduct by S would follow. Furthermore, on the facts before the Tribunal, there was no evidence that the police officer was overwhelmed or had lost control of the situation. A very different situation was at play in the Nikki’s decision. Indeed Brimble’s evidence was that he was taking physical control of S.
Therefore, on a balance of probabilities, and considering of all the evidence, the Tribunal finds the licensee's security staff acted reasonably and did not breach s. 45.1 of O. Reg. 719.
Decision
For the reasons stated above, the Tribunal finds that 1817897 Ontario Inc. o/a Beta, to be in breach of s. 45(1) of O. Reg. 719/90, under the Liquor Licence Act in respect of the incident on February 23, 2014, and not in breach of section 45.1 in respect of the incident on March 14, 2014.
In regard to sanction, the Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision and the Licensee’s representative shall have seven (7) days after receiving those submissions to serve and file a written response. The Registrar’s representative may serve and file a reply within three (3) days of the receipt of the licensee’s response. All submissions are also to be filed with the Tribunal.
LICENCE APPEAL TRIBUNAL
Simon Dann, Member
Released: August 31, 2015