Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE : 2015-08-31

FILE: 9450/GCA

CASE NAME: 9450 v. Registrar of Alcohol and Gaming

Appeal from a Notice of Proposed Order of the Registrar of Alcohol and Gaming under the Gaming Control Act, 1992, S.O. 1992, c. 24 to Revoke Registration

Michael Zeffiro Appellant

-and-

Registrar of Alcohol and Gaming Respondent

AMENDED REASONS FOR DECISION AND ORDER

ADJUDICATOR: Richard Macklin, Vice-Chair

APPEARANCES:

For the Appellant: Fred G. Suter, Paralegal

For the Respondent: Aviva R. Harari, Counsel

Heard in Toronto: August 17, 2015

AMENDED DECISION AND ORDER

BACKGROUND

The Registrar of Alcohol and Gaming (the “Registrar”) under the Gaming Control Act, 1992, (the “Act”) issued a Notice of Proposed Order dated March 3, 2015 (the Notice of Proposal). The Notice of Proposal seeks to revoke the registration of Michael Zeffiro (the "Appellant"). The Appellant has appealed the Notice of Proposal to the Licence Appeal Tribunal.

At the hearing of the appeal, the Registrar called two witnesses: Inspector Paul Ferguson and Senior Manager Gary White. The Appellant called no in-person evidence, but relied on an affidavit he swore, dated July 14, 2015 and the transcript of a recorded interview conducted August 8, 2015.

FACTS

Michael Zeffiro has been registered under the Act, since January 21, 2004. He is currently employed as a security officer at the Ontario Lottery and Gaming Corporation (“OLG”) Slots at Mohawk Racetrack.

On April 27, 2013, the Appellant was charged with the following offences under the Criminal Code of Canada:

i) Assault with a weapon;

ii) Assault (x2); and

iii) Utter threats to cause bodily harm.

The Appellant disclosed these charges, on November 26, 2013, on the disclosure form that he submitted as part of his registration renewal.

Upon learning of the charges, the Registrar commenced an investigation under the Act. As part of the investigation, Alcohol and Gaming Commission of Ontario ("AGCO") Inspector Paul Ferguson, attended, on January 3, 2014, at the Appellant’s place of employment. Inspector Ferguson advised the Appellant that he was conducting a regulatory investigation into the events of April 27, 2013. On the advice of his lawyer, the Appellant declined to provide Insp. Ferguson with any information.

On June 9, 2014, the Appellant's charges were withdrawn at the request of the Crown and the Appellant consented to a one-year peace bond.

On February 9, 2015, Insp. Ferguson re-attended at the Appellant’s place of employment and again asked for information as to what had occurred on April 27, 2013. The Appellant declined to provide information. The basis for the refusal, in this instance, was a stated concern for others who were implicated in the events of April 27, 2013. Insp. Ferguson advised the Appellant that his unwillingness to co-operate could jeopardize his registration.

The Registrar’s next step was to issue the above-noted Notice of Proposal. Through the Licence Appeal Tribunal process, specifically a Pre-hearing order, dated June 16, 2015, the Appellant ultimately provided an affidavit in regard to the events of April 27, 2013. In addition, the Appellant attended at a private examiner’s office and was interviewed by Insp. Ferguson, with the Appellant’s paralegal also present.

With the delivery of the affidavit and participation in the interview at the examiner’s office, the Appellant has provided the AGCO with the information it sought in January of 2014 and February of 2015.

THE LAW

Section 30 of the Act states as follows:

Facilitating investigation

30. (1) It is a term of registration that every registered supplier and registered gaming assistant facilitate investigations under this Act. 1992, c. 24, s. 30.

Sections 11-13 of the Act, establish the framework for the proposed revocation in this case and the powers of the Tribunal, on appeal. Specifically:

Registration of gaming assistants

11. The Registrar shall refuse to register an applicant as a gaming assistant or to renew the registration of an applicant as a gaming assistant if,

(a) 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, having regard to the past conduct of the applicant or persons interested in the applicant; or …

Proposal to suspend or revoke a registration

12. The Registrar may propose to suspend or to revoke a registration for any reason that would disentitle the registrant to registration or renewal of registration under section 10 or 11 if the registrant were an applicant. 1992, c. 24, s. 12.

Registrar’s proposed order

13. (1) If the Registrar refuses to grant or renew a registration or proposes to suspend or revoke a registration, the Registrar shall serve notice of a proposed order, together with written reasons, on the applicant or registrant. 1992, c. 24, s. 13 (1).

Right to hearing

(2) The notice of the proposed order shall inform the applicant or registrant that the person is entitled to a hearing before the Tribunal. 1992, c. 24, s. 13 (2); 2002, c. 18, Sched. E, s. 4 (6); 2011, c. 1, Sched. 1, s. 3 (5).

Request for hearing

(3) To request a hearing, the person shall serve a written request on the Registrar and the Tribunal within fifteen days after the Registrar serves the notice of the proposed order. 1992, c. 24, s. 13 (3); 2002, c. 18, Sched. E, s. 4 (7); 2011, c. 1, Sched. 1, s. 3 (5). …

Order of Tribunal

(8) After holding a hearing, the Tribunal may by order,

(a) confirm or set aside the proposed order;

(b) direct the Registrar to take such action as the Tribunal considers the Registrar ought to take to give effect to the purposes of this Act. 1992, c. 24, s. 13 (8); 2002, c. 18, Sched. E, s. 4 (7); 2011, c. 1, Sched. 1, s. 3 (7, 8).

Discretion of Tribunal

(9) In making an order, the Tribunal may substitute its opinion for that of the Registrar. 1992, c. 24, s. 13 (9); 2002, c. 18, Sched. E, s. 4 (7); 2011, c. 1, Sched. 1, s. 3 (9).

Terms of order

(10) The Tribunal may attach such terms to its order or to the registration as it considers appropriate. 1992, c. 24, s. 13 (10); 2002, c. 18, Sched. E, s. 4 (7); 2011, c. 1, Sched. 1, s. 3 (9).

ISSUES

The following issues arise on this appeal:

1. Are there reasonable grounds to believe that the Appellant, based on past conduct, will not act in accordance with law, or with integrity, honesty, or in the public interest; and

2. If the answer to the question raised in issue 1 is yes, what is the appropriate penalty?

ISSUE #1: POSITIONS OF THE PARTIES

The Registrar asserts that based on the Appellant's past conduct there are grounds to believe the Appellant will not act in accordance with law, or with integrity, honesty, or in the public interest. In this case, the Registrar had an incomplete picture of what had occurred on April 27, 2013, and sought input from the Appellant. The allegations under investigation were certainly of a sufficiently serious nature in that they related to acts of violence. The Appellant is a security guard and thus, any propensity for violence must, the Registrar asserts, be thoroughly investigated. Yet, the Appellant, even after the criminal charges had been resolved, failed to act in accordance with s. 30 of the Act and refused to provide information to Inspector Ferguson. It was not until some time after the Registrar took the additional step of issuing a Notice of Proposal, that the Appellant, who was now represented by a paralegal, agreed to provide information to the Registrar.

Thee Appellant's response is that the Registrar had sufficient information regarding the events of April 27, 2013, by virtue of his access to the Crown brief. There was, according to the Appellant, no further investigation to facilitate and thus, a breach of s. 30 is not made out. Moreover, the Appellant asserts that it was incumbent on the Registrar to bring home to the Appellant the severity of the potential consequences that might flow from his refusal to answer Inspector Ferguson's questions. Following the refusal of February 9, 2015, it was incumbent on the Registrar, the Appellant submits, to issue a letter to the Appellant warning him of the consequences that would flow from a failure to comply with s. 30.

In any event, the Appellant asserts in closing argument (and not via in-person testimony), that he has now learned his lesson and there are no grounds to believe he will fail to act within the law, in the future.

The Appellant also asserted a more technical argument. Specifically, the Registrar's case, at the hearing of the appeal, was centred on s. 30 of the Act. The Notice of Proposal, however, makes no reference to that section. Thus, the Appellant asserts he was not given sufficient notice of the allegations and the case to meet.

ISSUE #1: FINDINGS

The Tribunal finds that, based on past conduct, there are reasonable grounds to believe that the Appellant will not act in accordance with the law. Undoubtedly, the Appellant was in a very difficult position when first approached by Insp. Ferguson. The Appellant had been charged criminally, for the first time, in relation to an alleged assault of his girlfriend. Acting reasonably, the Appellant exercised his right to not provide information to Insp. Ferguson, at that time. Indeed, on this appeal, the Registrar's witnesses agreed that not speaking with Insp. Ferguson on this occasion was not unreasonable.

Upon the criminal charges being resolved on June 9, 2014, however, the complexion of the Appellant's duties changed. At that point, the bona fide request from the Appellant's regulator, that he be interviewed, ought to have been heeded. The Appellant should have submitted to the interview requested by Insp. Ferguson, on, or very shortly after February 9, 2015. It was not for the Appellant to do as he did and determine that the Registrar already had sufficient information. Section 30 is quite clear in terms of a registrant's duty to facilitate, as opposed to hinder, an investigation. In this case, the Appellant hindered a bona fide investigation into his conduct, when that conduct had, on April 27, 2013, raised reasonable grounds for an arrest and criminal charges in relation to crimes of violence.

Furthermore, the Tribunal does not accept that the Appellant has learned his lesson, such that there are no concerns for the future, based on his past conduct. As noted above, the Appellant did not testify. Thus the Tribunal does not have a sufficient record to determine that a lesson has been learned. By refusing to be interviewed by Inspector Ferguson, on or shortly after February 9, 2015, the Appellant signalled a fundamental lack of insight into his role as a registrant in the highly regulated gaming industry.

As noted above, the Appellant also asserts that he had insufficient notice of the allegations surrounding s. 30 of the Act. Indeed, s. 30 is not mentioned in the Notice of Proposal. Nonetheless, there is ample reference in the Notice of Proposal in regard to the Appellant's case to meet, particularly in respect of his failure to facilitate the investigation (see Section "C", paragraphs 4, 6-8). The Appellant had ample notice of the allegations and his objection on this ground is dismissed.

ISSUE #2- POSITIONS OF THE PARTIES

The Registrar asserts that the Appellant's registration should be revoked. A message of specific and general deterrence, it is submitted, needs to be sent out in this case. The Registrar does not have the resources to take each case like this to a hearing, solely to accomplish that which the Act makes clearly mandatory under s. 30. The Registrar concedes that the Tribunal has jurisdiction to impose a lighter penalty, but states that the Divisional Court judgment in Registrar (AGCO) v. Northwest Protection Services Ltd. (Unreported: April 14, 2008) (Ont.Div.Ct.), supports revocation in this case. If a lesser penalty is to be imposed, the Registrar submitted that a 21-30 day suspension was appropriate.

The Appellant points to his otherwise unblemished record of nearly 12 years as a licensee. He further points out that he dutifully disclosed the criminal charges in question on his renewal. Thus, he says, this is not a case where governability concerns rise to a level where revocation would be a reasonable penalty. In addition, by providing the information sought, albeit late, the Appellant has "purged" his non-compliance- again pointing to the appropriateness of a penalty less harsh than revocation. The Appellant's suggested suspension duration, if a suspension is to be ordered, is 1-2 days.

ISSUE #2 – FINDINGS

The Tribunal does not accept that revocation is the appropriate penalty. The Appellant has an otherwise unblemished record, did disclose the charges and did ultimately comply. Nonetheless, in the interests of specific and general deterrence, the duty to facilitate investigations, which is a condition of registration under s. 30 of the Act, must be brought home to the Appellant and other registrants. A suspension of some duration is appropriate.

In the Tribunal's view, a suspension of ten days will bring home to the Appellant his obligations under s. 30. He already understands his duty to disclose criminal charges. He has also, ultimately, provided the information requested. A ten day suspension should alert him and others that the Appellant had to provide the information, when requested, in February of 2015.

The judgment in Northwest Protection Services Ltd. is not binding on the Tribunal in this appeal. As noted by the Court in that case, the dismissal of the appeal was driven by the findings of fact at first instance (see paragraph 1 of the Reasons for Decision). In that case, a refusal of renewal was upheld on appeal, based on a breach of s. 30 of the Act. However, the facts in that case involved the registrant attempting to deceive the Commission. As noted above, the Appellant was misguided in terms of his understanding of his obligations to facilitate investigations. He was not, however, engaged in an attempt to deceive the Commission.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to not carry out the Proposal to revoke. The Tribunal orders that the Appellant’s registration be suspended for a period of ten consecutive days.

LICENCE APPEAL TRIBUNAL

Richard Macklin, Vice-Chair

Released: August 31, 2015