Licence Appeal Tribunal / Tribunal d'appel en matière de permis
FILE: 9499/LLA
CASE NAME: 9499 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 Review an Application for a Licence
The Matador Corporation o/a The Matador Ballroom Appellant
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Registrar of Alcohol and Gaming Respondent
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City of Toronto and Dovercourt and College Area Residents Association Added Parties
AMENDED REASONS FOR DECISION AND ORDER
ADJUDICATORS:
Mary Ann Spencer, Member Gary Yee, Associate Chair
APPEARANCES:
For the Appellant:
Jerry Levitan, Counsel
For the Respondent:
Tamara Brooks, Counsel, Rena Khan, Counsel, and Faye Alipour, Student-at-Law
For the City of Toronto:
Mark Crawford, Counsel Scott Nowoselski, Counsel
For the Dovercourt and College Area Residents Association:
Ian Flett, Counsel
Heard in Toronto:
September 17, 18, 21, 24 and 25, 2015 October 27, 2015
AMENDED 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, number 20789, dated April 2, 2015, to review an application for a licence by The Matador Corporation operating or intending to operate as The Matador Ballroom (the “Appellant” or the “Matador”), on the basis that the Registrar has received one or more written objections to the application.
The Appellant applied to the Alcohol and Gaming Commission of Ontario (“AGCO”) for a liquor sales licence for indoor areas with a capacity of 804 persons at the premises located at 466 Dovercourt Road, Toronto. On September 25, 2015, the fifth day of this hearing, the Appellant advised that the application was being amended to reduce the capacity to 650 persons.
Following publication of notice of the application for the licence, the AGCO received 100 letters of objection signed by area residents, including one from the Dovercourt and College Area Residents Association (“DCARA”) on behalf of 60 resident petitioners. A copy of the letters of objection received by the AGCO was filed as Exhibit 12.
The Matador is located at 466 Dovercourt Road. The building was originally constructed in 1915. The lower level has had various commercial uses over its life time, including a dance hall, a bowling alley and a country music club. There are two residential apartments on the upper level. Immediately prior to closing and becoming vacant in 2007, it was being operated as an unlicensed after hours club. After closing, the City of Toronto moved to purchase and later to expropriate the property and turn it into a parking lot. This resulted in a grassroots “Save the Matador” campaign that was successful in saving the building. This vacant property was purchased by the Appellant in 2009.
The Matador is situated on the west side of Dovercourt Road, approximately 40 metres north of College Street. Running between Dovercourt Road and Rusholme Road to the west, and parallel to those roads is Bill Cameron Lane, which provides rear access to the properties and garages on those roads. The Matador’s property extends at the back to Bill Cameron Lane. To the immediate south of the Matador is the parking lot for a building located on the north side of College Street, which extends between Dovercourt Road and Bill Cameron Lane. This building contains commercial enterprises on the ground floor and residential units on its two upper levels. Immediately to the north of the Matador are residential buildings. The Matador faces commercial buildings, on the east side of Dovercourt Road, which extend north from College Street. The building to the immediate north of these commercial buildings is a building which is currently being converted to condominiums. Residential properties run immediately north of this building.
PRELIMINARY ISSUES
As a preliminary matter, Mr. Flett requested that DCARA, which had recently been incorporated, be named as an Added Party in place of resident objectors Heather Schramm and Jeffrey Barrett who were made Added Parties at the pre-hearing in this matter. Mr. Levitan objected, questioning whether the association represented all objectors. The Tribunal approved the change in the Added Party, noting that Ms. Schramm and Mr. Barrett, whom the objectors present at the pre-hearing had agreed to have represent them, are officers of DCARA. Further, the Tribunal surveyed the objectors present in the hearing room and all agreed they wished to be represented by DCARA.
As a further preliminary matter, Ms. Brooks advised that the Registrar was not taking a position in this matter other than with respect to the enforceability of any conditions that might be proposed by the parties.
The Tribunal is presenting the evidence of the parties in some detail below to acknowledge the many witnesses who came forward to express their views, and to establish the full context for the Tribunal’s analysis of the issue before it.
OBJECTORS’ EVIDENCE
City of Toronto
In his opening statement, Mr. Crawford advised that the City of Toronto is opposed to the issuance of a liquor licence to the Appellant, due to its size, its proposed usage and its location abutting a residential neighbourhood. He submitted that should a licence be granted, it should be subject to a set of conditions which were filed as Exhibit 4. On the final day of the hearing, Mr. Crawford submitted a revised set of conditions which were filed as Exhibit 22.
Three witnesses gave testimony in support of the City of Toronto’s objections to the Appellant’s application for a liquor licence. Their testimony is summarized below.
City of Toronto Councillor Ana Bailão represents Ward 18, where the Matador is located. Councillor Bailão brought forward the motion to have the City object to the issuance of the liquor licence (Exhibit 3, Tab 1). She explained that while she wants successful mixed use in the community and works with businesses to achieve that goal, the Matador differs from other establishments because it is not located on a major commercial street. Rather, it is in a narrow strip running parallel to and just north and south of College Street which is zoned for mixed use, and is adjacent to residentially zoned areas (Exhibit 3, Tab 3).
When Councillor Bailão first met Paul McCaughey, the principal of the Appellant, she understood that he planned for a wellness centre and restaurant. The project has since evolved and she does not know what his intentions are because he has not applied for a business licence; however, she acknowledged that he held a public meeting in January 2015 at which he presented his plans. After that meeting, her office was inundated with calls from residents concerned about noise, safety, crowd control, and litter, among other matters. The primary concern was that large crowds leaving the Matador, whether at Dovercourt Road or at Bill Cameron Lane, would cause security and safety issues for the nearby residents. She noted that many complaints were received about the former Matador Club, which she acknowledged was operating illegally, after hours, and was not run by Mr. McCaughey.
Councillor Bailão acknowledged that the City of Toronto is undertaking work to promote Toronto as a “music city”. However, she suggested that there are many ways to achieve this goal other than by opening an 800-person venue in this location. Her concerns are with the requested capacity of the Matador and its proximity to residences.
Councillor Bailão testified that there have been attempts to address the concerns, although not always directly with Mr. McCaughey. She acknowledged that Mr. McCaughey had been willing to discuss capacity but she stated that the movement on capacity was small and would not change the impact on the neighbourhood. Asked by Mr. Levitan if she attended a meeting held at the police station at 14 Division on March 11, 2015 with Mr. McCaughey and objectors, Councillor Bailão stated that she did not. Asked if she was aware that the Appellant was only proposing to have Matador patrons enter from Bill Cameron Lane because local residents had requested Dovercourt not be used, she reiterated that capacity was the issue and that 800 people could not be accommodated at either the front or the back of the building.
When referred to a notice addressed “Dear Neighbour” which asks those concerned about the Appellant’s application for a liquor licence to contact her office (Exhibit 6), Councillor Bailão stated her office did not produce it. On September 15, 2015, she sent out an e-mail (Exhibit 7) to clarify this fact.
Councillor Bailão opposes the issuance of a liquor licence. However, should a liquor licence be granted, she supports the City’s proposed condition to restrict the Matador’s hours of service from Sunday through Thursday.
Councillor Mike Layton represents Ward 19, the western boundary of which is Dovercourt Road. He testified that when he becomes aware of an application for a liquor licence, he notifies residents. If there is opposition, he encourages residents to file objections with the AGCO and will draft a motion to City Council requesting the City to file an objection and/or seek conditions. He asks objectors to consider what conditions they could accept to determine if a negotiation with the applicant would be worthwhile. In the case of the Matador, he did not host any meeting with residents and believes Councillor Bailão also did not.
Asked what he understands by “needs and wishes of the residents” as set out in the Act, Councillor Layton stated that it means the quality of life of the residents. The public interest includes both objectors and supporters of a liquor licence application; however, typically, his office does not hear from supporters. Councillor Layton believes that conditions on a liquor licence help ensure good neighbours. He supports the City’s proposed conditions with respect to hours of service because the Matador is in a residential area and is requesting a large capacity. With respect to other venues in the City, he noted that Studio Bar on Dundas Street is operating as a nightclub notwithstanding the fact it was proposed to be a restaurant. Referring to Mana Bar on College Street, he stated that he receives complaints about noise and violence on the street. He also receives some complaints about Revival Bar on College Street although these tend to be with respect to amplified sound coming from the establishment. Asked how often he receives complaints about Mana Bar and Mod Club, also on College Street, he stated “regularly” for Mana Bar, and it was weekly at one time, and not regularly for the Mod Club. Complaints were decreasing because of many meetings held with their owners and police.
Councillor Layton noted that when larger establishments close at the end of the night, the sheer volume of people exiting and going down side streets creates issues. He is concerned with how people will leave the Matador and where they will go. Vandalism, including vomiting and urinating on residential lawns, could be an issue. He said that close proximity to amplified music leads to more complaints, and there is disruption when people are leaving the premises late in the night.
Asked by Mr. Levitan if the Matador directing traffic flow towards College Street would ameliorate its impact on Dovercourt residents, Councillor Layton stated that the location of the staircase at Mana Bar had been mandated but patrons still infiltrate the nearby residential area. He also noted that the Bloor subway was an approximate 12-minute walk north on Dovercourt from College Street.
Detective Sergeant Brian Kelly has been with the Toronto Police Service since 1990 and is currently in charge of the Major Crime Unit at 14 Division where the Matador is located. He has past experience with liquor enforcement at both 51 and 52 Divisions. Over 700 licensed establishments are located in 14 Division, with concentrations in the entertainment districts in the Queen/Ossington and College/Shaw areas. He oversees all investigations of those establishments and reviews all reports of any occurrences at a licensed establishment.
Detective Sergeant Kelly deals with minor assaults as well as what he described as “quality of life” issues such as noise, vandalism and public urination. Because occurrences are more frequent on weekends, more police are deployed then to the traditional entertainment areas although he noted it was a “strain to effectively police”.
Detective Sergeant Kelly indicated that he was concerned with the proposed capacity of the Matador and stated that noise, assaults, public urination, vandalism and theft from vehicles will occur. Access and egress on the sidewalk are a concern; free flow of both pedestrian and vehicular traffic is needed. He noted that entering the establishment from Bill Cameron Lane would be a problem because there might not be sufficient lighting. Parking lots, laneways and garages have lots of blind spots, and this is where pre-partying and assaults could take place. He bases his statements on his 25 years of experience as well as his familiarity with the College/Shaw area where there have been issues such as blocking the sidewalk, vandalism, mischief and public urination. He indicated “it’s chaos” at closing time as people wait for taxis or transit, noting that the flow of people is “fueled by alcohol”.
To address issues, police attempt to educate and get the cooperation of establishment owners. Cameras help to dissuade poor behaviour and assist police in apprehending offenders. Based on past experience, police try to predict where their resources should be deployed. He then noted that Dovercourt/College is currently not a priority area. Asked what bars that require intervention have in common, he stated that, for the most part, they have good operators but issues are inevitable with larger venues. He characterized the Matador’s requested capacity of 804 as large and stated its impact would be amplified by its proximity to residences.
Under cross-examination by Mr. Levitan, Detective Sergeant Kelly testified that he met with Mr. McCaughey in March, 2015. Mr. McCaughey was “respectful, polite, open and transparent” about his plans for security and valet services and those plans met expectations. He acknowledged that it will help if the operator hires security and takes other measures, but it does not always work, and good intentions may not be enough.
Mr. Levitan asked Detective Sergeant Kelly about the Mod Club, Revival Bar and Mana Bar with respective capacities of 720, 460 and 337, all of which are located on College Street and have no restrictions on their hours of service (Exhibits 8, 9 and 10). Detective Sergeant Kelly agreed that Mod Club at the corner of College and Crawford Streets was comparable to the Matador but noted its access was from College Street. He acknowledged that Revival Bar does hold special events and agreed that patrons attending a wedding or corporate event differ from those attending a concert. However, he stated that 800 people leaving a venue at the same time would create problems.
When asked if he was speculating about future problems occurring at the Matador, he stated that would not be entirely fair and explained that the police have a crime analyst who undertakes predictive analysis to try to anticipate issues. Officers are then deployed based on that analysis. Asked again if he was speculating about problems specific to the Matador, the witness stated “Am I speculating to some degree? Yes, but it’s a bit more than speculation”.
Dovercourt and College Area Residents Association (DCARA)
The evidence of the DCARA comprised a book of documents filed as Exhibit 11 and the testimony of six witnesses in support of the position that granting a liquor licence to the Appellant is not in the public interest.
Objector J.C. lives with his wife and family in a house on the east side of Dovercourt Road, less than one block north of the Matador, but not close enough to see the premises from his house. After his spouse attended the January 2015 public meeting held by Mr. McCaughey, and, after speaking to neighbours and conducting his own research, J.C. and his spouse filed a letter of objection with the AGCO (Exhibit 11, Tabs 1 and 2).
J.C. acknowledged that his research focused on the Matador’s history as an after-hours club, with parties beginning at 1:00 a.m. However, he noted its estimated capacity was 350, less than half of that requested by the Appellant. J.C.’s concerns include noise, disruption to the neighbourhood and parking. The Appellant’s plans to host weddings and special events at the Matador do not make a difference.
J.C. does not believe the Matador would be a good fit for the neighbourhood. He has concluded that it would be similar to establishments like the Mod Club at the corner of College and Crawford Streets or the Opera House on Queen Street East. The difference would be those establishments’ entrances are on busy streets, unlike the Matador’s entrance on Dovercourt, which he described as a quiet residential street. The Appellant’s requested capacity of 804 is approximately 200 more than the Mod Club which operates as a concert venue. Only the week before the hearing, J.C. saw a tour bus on Crawford Street and a large group of people “milling about”. He knows people will “mill about” near the Matador before and after events.
Asked by Ms. Brooks if a lower capacity at the Matador would be acceptable to J.C., he replied that it would have to be significantly lower. He does not want the establishment at all and is not interested in conditions.
When Mr. Levitan asked if there were a mix of residents supporting and objecting to the liquor licence application, J.C. agreed there were different views but he thought that the overwhelming majority of residents on Dovercourt Road are against this application, based on meeting with his neighbours on the street for several months.
Objector N.T. is a former resident of a house almost immediately north of the Matador on Dovercourt Road, where she lived for various periods from 1959 to 2008 and where her husband still resides. She described Dovercourt Road as a very quiet, safe and pleasant family neighbourhood that changed with the opening of the Matador Club in 1964. She testified that she could not sleep on weekend nights because the crowd would start arriving at midnight. Car doors slammed and there was consistent noise from the club. There was garbage on the street. She did not like to go home alone; patrons were young, drunk and obnoxious and there was “an atmosphere of violence”. Although her family did not call the police, she regularly saw police on the street. She noted that after the club opened, the street deteriorated as houses became rooming houses and properties were not maintained. It became quieter when the Matador went through a downturn and since it closed, the street is very pleasant again.
N.T. was not concerned when she understood that the Matador would be a wellness centre but was shocked when she learned about the Appellant’s application for a liquor licence. Because the Appellant has not applied for a business licence, she does not know what his plans are. The Appellant’s application is for a larger capacity than the 200 to 300 patrons of the former Matador Club who created such havoc. The large capacity and liquor itself are a problem in a residential area. She expects there will be people intoxicated on the street and greater safety issues. She also anticipates that line-ups in the back lane will create problems for residents wanting to access their garages. The sheer number of people outside smoking will create noise.
N.T. does not want any licence granted to the Appellant. Asked by Ms. Brooks if there were any conditions she would consider, N.T. feels conditions can be bent and that until an establishment is operating, you have no idea how it will be.
On cross-examination by Mr. Levitan, N.T. stated that the former Matador Club was operating after hours, from midnight to about 5:00 a.m., and had no security that she was aware of. She is aware that Mr. McCaughey has hired a security firm and a valet service, but did not know he had retained an expert to address patron flow. Asked if she was aware of his efforts related to sound mitigation, she stated that sound system testing had been very loud. She noted that the issues of the former Matador Club occurred outside and added that she did not expect people leaving a licensed establishment at 3:00 a.m. to be different from people leaving an unlicensed one at 5:00 a.m. She stated “it’s unpredictable when noise will happen. You can’t call police every time someone screams but you can be awakened by it”.
Witness G.R. owns three of the 11 commercial units and six of the residential units in the building located on the north side of College Street between Dovercourt Road and Bill Cameron Lane. He lives in one of the 23 apartments above the commercial units. G.R. did not submit a letter of objection to the AGCO.
G.R. believes that the Matador building should be used but opposes a liquor licence with or without conditions. He testified that the parking lot between his building and the Matador is fenced off and is generally quiet. He described the former Matador Club as a “nightmare” and a “disaster” because of noise and vandalism. He heard people talking, yelling, getting into fights, and glass breaking. The club did have some security at one point in the last seven to eight years of its operation, but then there was even more fighting. On one occasion, he witnessed two people fighting with baseball bats and vehicles were damaged. His place of business has been broken into four times since 1988. He could not park his car behind the building on weekend nights because of vandalism. He found needles, condoms and knives in the back area. He became tired of calling the police and he said that most of the time, no one would come to help.
No break-ins or vandalism have occurred since the former club closed. G.R. believes that having people in the space behind the Matador will create noise; having 800 people leave at 3:00 a.m. will be no different than having 50 to 100 people leaving at 6:00 a.m.
G.R. also described an incident which took place in November 2014 where he heard a tenant of his building yelling because someone had parked in his parking spot. G.R. saw two individuals “smoking a joint”. One of them said that he believed the parking was the Matador’s parking. G.R. stated “that’s the type of people who are there”.
G.R. said that he did not know of any landlords in this College Street building who supported this liquor licence application, and he also spoke to many residents, and none of them were supporters either.
Objector M.K. lives in a house on Dovercourt, just north of and across the street from the Matador. He testified that it was “horrible” when the former Matador Club was operating. On a regular basis, he saw fights, drunkenness and rowdiness. There was public urination and fornication. People slept on his front lawn and walked up to his front porch to the point that M.K. felt he could no longer use it. He did contact police and the local councillor but there were delays in responding. He also went to 14 Division to complain. He described a general feeling of frustration.
In September 2003, at 12:30 a.m., M.K. was assaulted at his home. While he was outside taking pictures, a school bus pulled up and drunken men staggered out. Two of them urinated against a building. When M.K. spoke out, one of them came up his front steps, threw M.K. down and over the front railing, breaking it and injuring him. Police were called. They found the assailant with others on the street across from the Matador. M.K. subsequently received a written apology from the assailant in which the assailant said that he had been drinking earlier and was planning to attend the Matador Club.
M.K. testified that after the Matador Club closed in 2007, the neighbourhood began to flourish. People began to come out of their houses. When M.K. saw the sign for a wellness centre on the hoarding around the Matador, he believed that a plan which included a spa, café, tai chi and music on some nights would add to and enhance the neighbourhood. However, when he found out about the application for a liquor licence, a “terror” came over him so he contacted both Councillor Bailão and Councillor Layton.
Asked by Mr. Levitan if he saw security at the former Matador Club, M.K. indicated that he saw security throwing people out of the club. They did not patrol the neighbourhood and the owner did not exercise control. People began arriving at midnight and lining up waiting for the doors to open.
Objector D.E. owns, but does not reside in, the house immediately north of the Matador. He lives about five minutes away and said he goes to this house almost daily. D.E. was familiar with the history of the Matador when he purchased the property. There are three furnished apartments in the house which he rents out on a short term basis. The rental income from the property represents a significant revenue source for him.
Feedback from his tenants has been positive, with them noting how quiet the neighbourhood is. The house has a wall that extends the length of the property and the tenants currently use the backyard.
D.E. and his spouse met with Mr. McCaughey after the January 2015 public meeting. D.E. believes that Mr. McCaughey has been dismissive of his concerns and testified he finds it insulting that Mr. McCaughey’s response was to offer to buy his property. D.E. is concerned about what an 800-person capacity nightclub would do to their property value and to the neighbourhood. Specifically, he is concerned about noise given how close the Matador is to his property’s bedrooms. D.E. noted that Dovercourt is a residential street which was not designed to accommodate large crowds. He also has concerns about increased car traffic and the potential for blocked access to his garage on Bill Cameron Lane. He is also concerned about foot traffic from 800 patrons. Line-ups at either the front or back of the Matador would be a problem, even if patrons were sober.
D.E. noted that he has had issues with the renovation at the Matador. In particular, he was concerned with the tall hoarding at the front, and he asked for details to confirm that its size and placement were permitted. The size was decreased but only a week after he raised the issue. His driveway was used inappropriately when gravel was delivered. On cross-examination by Mr. Levitan, D.E. confirmed the text messages between him and Mr. McCaughey. These texts indicated that Mr. McCaughey had responded quickly, that D.E. had input into the hoarding’s design and that it was satisfactorily moved.
Asked why he was offended that Mr. McCaughey offered to buy his property, D.E. stated that when he and his spouse met with Mr. McCaughey, they expressed concerns but did not indicate they wanted to sell. They thought the offer was made as a “buy out thing to quiet the neighbour”.
D.E. believes that Mr. McCaughey has too many ideas and that there should be a process that requires him to be specific about his plans. He is not comfortable with a liquor licence for an establishment the size of the Matador. A capacity of 100 would be approaching a reasonable size for the community. Asked if reduced hours of operation or other conditions would satisfy his concerns, D.E. stated that “conditions don’t seem to be enforceable” and he has no comfort that there are effective enforcement bodies. Asked if police would be able to address violations, he stated he did not want to run his business in a manner that required him to provide his tenants with telephone numbers to call if there were problems. He sees no need for a liquor licence at the Matador.
Witness Jeffrey Barrett lives and works from his home which is located on the east side of Dovercourt Road, about five to ten houses north of the Matador. He is president of DCARA, which was formed in response to concerns raised when the notice of the Appellant’s application for a liquor licence was posted. He noted that there had been some desire to form an association but this issue galvanized the neighbourhood.
The Association was formed in February 2015 in a meeting with about 20 people present, after Mr. McCaughey held the public meeting and objectors met to discuss their concerns. After the pre-hearing in this matter, when the objectors selected representatives to speak on their behalf, the decision was made to retain legal representation.
The Association was incorporated in June 2015. The catchment area is bounded by the streets Hepbourne to Churchill, and Rusholme to Delaware. There are now about 100 members. Mr. Barrett stated that the Association is interested in issues other than just this liquor licence application, but this is the dominant issue now.
Mr. Barrett explained that, having been provided with a list of supporters by the Appellant (Exhibit 11, Tab 6), DCARA decided to contact those who lived in DCARA’s catchment area to determine if they understood what they were supporting. Mr. Barrett explained that he personally made some of those calls, and there were one or two others who also made some calls. He introduced himself as a neighbour and a member of the Association and asked the supporters a set of questions including whether or not they were aware of the capacity the Matador was requesting. His impression was that over 90% of the 10-15 people he spoke to still supported the Matador, but did not support the requested capacity of 804. He described the calls he made as “amenable”, and stated that he was not trying to sway anyone.
Mr. Barrett then presented a video (Exhibit 16) which was made by one of the DCARA members in the neighbourhood in the spring of 2015 and which shows the activity outside of various establishments, including the Matador. He does not know what day of the week the video was shot or whether any events were taking place at the establishments at the time. Mr. Barrett observed that the area around the Matador was quiet while the other areas, including the Drake Hotel on Queen Street West and the Garrison on Dundas Street West, were noisy with people outside. He has grave concerns that the arrival and departure of the number of people at the Matador, potentially seven nights a week, would cause noise in a residential neighbourhood; 804 people gathering or exiting would cause traffic and noise. There would be more vehicles, including taxis, and people exiting would walk up Dovercourt to reach the subway station. Mr. Barrett confirmed that he was reflecting the views of DCARA.
Mr. Barrett acknowledged that there were some supporters in the Association’s catchment area. Asked by Mr. Levitan if DCARA supported any conditions on the Appellant’s liquor licence, Mr. Barrett said it would be possible but that he could not speak to any without meeting with his members. He indicated that DCARA does not support the conditions filed by the City of Toronto.
REGISTRAR’S EVIDENCE
Rebecca Castillo is the Manager of Liquor Eligibility at the AGCO and oversees 20 staff responsible for assessing applications for liquor licences. She has been with the AGCO for 15 years, including holding positions as a liquor inspector and a licensing officer.
Ms. Castillo testified that the AGCO uses a risk-based licensing approach in assessing applications for liquor licences. Factors considered include an establishment’s location, the type of business, the experience of an applicant or their commitment to hiring experienced staff, and an applicant’s past conduct, including honesty and integrity. The assessment will result in the approval of an application, its approval with risk-based licensing conditions, or the issuance of a Notice of Proposal to review or to refuse a licence.
When an application for a licence is received, the AGCO gives notice of the application and residents are given the opportunity to object. In this case, the AGCO received over 100 objections, which Ms. Castillo indicated was by far the most she had seen during her time at the AGCO. Ms. Castillo testified that the AGCO encourages dialogue between objectors and an applicant. She observed that generally people fear the worst and that dialogue gives an applicant the opportunity to resolve issues. When they cannot be resolved, the Registrar issues a Notice of Proposal to review an application.
Service of alcohol is a risk. To mitigate risk, the AGCO may place conditions on a licence. The AGCO is typically most concerned about service to minors, over-service, disorderly behaviour and drug use. Public safety is a major concern.
Conditions may include restrictions on hours of service. However, a licensee with a condition restricting hours cannot ask for the hours of service to be extended for special events. Ms. Castillo noted that the AGCO regularly receives notification of significant special events, for example, the Toronto International Film Festival (TIFF) or North by Northeast (NXNE). Capacity cannot be restricted through a condition on the licence; the AGCO establishes capacity based on the municipal compliance letters which an establishment is required to provide.
Conditions can also be attached to a licence on consent; for example, an applicant might commit to employing a specific number of security staff. An applicant may also reach an agreement with a municipality on conditions which would not be placed on the licence. The AGCO only wants conditions on the liquor licence that relate to the sale and service of alcohol and the AGCO’s mandate. It does not place conditions on a licence that relate only to the municipality’s mandate and its by-laws. Ms. Castillo is a member of a working group with representatives from the City of Toronto and Business Improvement Associations, among others, who are working together to address issues such as noise and litter.
Conditions on a licence are enforced through the inspection process. There is a progressive disciplinary process; infractions can result in a warning letter, monetary penalties, suspension, or revocation of a licence. All complaints by the public to the AGCO are investigated.
To help an applicant mitigate risk, the AGCO may also ask for a compliance or a safety and security plan before a licence is granted if an applicant has not been previously licensed.
A plan will be carefully reviewed and can be a condition on a licence. Where a plan is a condition, then any breach of the plan can be found to be a breach of a condition of the licence.
With respect to the Matador, because of the number of objections received, the Registrar will ask for a safety and security plan to help address the objectors’ concerns. Asked about Mod Club and Revival Bar, Ms. Castillo stated that they do not have safety and security plans because there is no reason for the plans if the establishments have been compliant and there are no issues.
Asked what conclusions the AGCO had reached with respect to the Matador’s principal, Mr. McCaughey, Ms. Castillo testified that a CPIC check had been conducted and the AGCO had no concerns about him.
The AGCO is agreeable to attaching the type of conditions proposed by the City of Toronto (Exhibit 4) to the Matador’s licence, although it takes no position on the specific hours of operation.
APPELLANT’S EVIDENCE
The Appellant’s evidence comprised two books of documents filed as Exhibit 17 and the testimony of 14 individuals who wrote letters of support (at Exhibit 17, Tab 37 unless otherwise noted); four individuals who have been retained by the Appellant in various capacities; and the principal of the Appellant, Paul McCaughey.
Witness J.M. lives on the west side of Dovercourt Road, approximately a block and a half north of the Matador. J.M. signed a letter of support for the Appellant’s application for a licence and understands that the capacity requested is 804. She believes that the Matador is a “remarkable” space and that it is important that it be used.
Witness P.E. lives on Lansdowne Street, approximately a 20-minute walk from the Matador. When he signed a letter of support, he was aware he was supporting an application for a liquor licence and he now understands the requested capacity. He owns two restaurants and believes that restricting the Matador’s hours would be a competitive disadvantage.
Witness L.S. lives on Dufferin Street, approximately a 5-minute walk from the Matador. He owns a restaurant on College Street and belongs to the College West Business Improvement Association. He supports the application because he believes that venues like the Matador are vital to the city and create vibrant neighbourhoods. He believes that Mr. McCaughey’s approach has been sensitive and responsible and, although he understands the neighbours’ concerns, believes a workable solution could be found.
Witness T.F. lives on Heydon Park Road, southwest of College and Dovercourt. He believes the Matador will have a positive effect on the neighbourhood which will become safer and more alive. He is familiar with the former Matador Club, which he frequented on occasion, and he did not see any negative impact. He believes the objectors are objecting based on its former use. T.F. was one of the individuals who participated in the “Save the Matador” campaign because he believes the building is historically significant.
Witness N.W. lives on Rusholme Road just north of College Street. The backyard of her home backs onto Bill Cameron Lane, north of the Matador. N.W. supports the application for a liquor licence without conditions although she has some concern about the lane being used for line ups. She understands that a capacity of 804 was requested, and she would object if there were 800 people at the Matador every night, but she thinks that it would be at full capacity only infrequently. She knows Mr. McCaughey and she trusts him to not operate a rowdy bar. She thinks the Matador has been lovingly restored, and it will be a community hub. She does not characterize the location of the Matador as residential because she considers Dovercourt to be a major thoroughfare, noting that there is lots of traffic and its commercial use south of the Matador to College Street.
N.W. is a member of the “Dufferin Grove Listserv”, which is an e-mail listing used to communicate with the neighbourhood. After she received a copy of the flyer asking those who objected to the liquor licence to contact Councillor Bailão’s office, she posted an e-mail on the Listserv. After receiving several supporting e-mails and speaking to her neighbours, she believes there is neighbourhood support for this application.
Witness A.N. lives with his family approximately two blocks west and north of the Matador. He submitted a letter of support for the Matador (Exhibit 17, Tab 48) because he believes the licence would be in the public interest. The space is “remarkable” and should “resonate with music”. He is excited by the plans that he was shown. He knows Mr. McCaughey and he has faith that he will run the establishment properly.
Witness B.O. lives with his partner in one of the apartments in the commercial building on College Street just south of the Matador, and he supports the application. His rental unit does not directly face the Matador but he notes he could potentially be affected by patrons arriving at, and leaving, the establishment. He has some safety concerns because there is currently a problem in the lane with people coming from the Smiling Buddha bar. When he gets home from his job at midnight, he sometimes encounters a group of people in Bill Cameron Lane who are smoking “dope” or drinking beer. Sometimes he has to clean up vomit and glass at the back of the café that he and his partner operate. He believes that if the lane were busier and if Mr. McCaughey implements his plans, he may not have as many safety or parking issues, and the increased traffic could mean less loitering. Success at the Matador would benefit local businesses, including one run by his partner, although he noted he has some conflict because some objectors are his partner’s customers.
Witness A.K. owns a building on the north side of College Street, west of Dovercourt Road, where he works and where his daughter lives in one of three apartments. He acknowledged that his entrance and units do not face the Matador. He supports the Appellant’s application without conditions. He testified that the area was derelict when they moved in and has been improving. He thinks the Matador will be a well-run establishment and will boost the neighbourhood and the city.
Witness G.M. lives on the west side of Dovercourt Road, just a few houses north of the Matador. He supports the application for a liquor licence although he did not appreciate that the Appellant was requesting a capacity of 804 when he signed his letter of support. He believes the planned programming for classes and music is interesting. He had some concerns with the potential for noise when the sound testing was loud, but is satisfied that Mr. McCaughey is exercising due diligence to address issues. He does not think that any of the other 12 people living in his house signed support or objection letters.
Erella Ganon lives three blocks west of the Matador, and she strongly supports the issuance of a liquor licence to the Appellant at its requested capacity, with no conditions. Ms. Ganon acknowledged that she would not hear the establishment from her home. She believes that a new music venue would both benefit the city and help revitalize the neighbourhood. She is not concerned about noise or potential traffic congestion because “we live in a city” and she believes that Mr. McCaughey has “gone above and beyond” to address issues. She noted that the Matador had existed long before objectors bought houses, although she acknowledged it had not been operating for the last ten years. She described the location of the Matador as not being on a side street, and noted that there were businesses on Dovercourt, at least on the parts near College and Bloor Streets. She also said that Dovercourt was a busy street with lots of traffic.
Ms. Ganon, who is the former music critic for Now Magazine, knew the owner of the former Matador Club. She stated that the Club had only one security staff member and acknowledged there were problems on occasion. Ms. Ganon spearheaded the “Save the Matador” campaign when the building was to be expropriated.
Currently, Ms. Ganon moderates the Dufferin Grove Listserv with 996 subscribers. The only discussion on that site with respect to the Matador’s application was the posting by N.W. Ms. Ganon does not believe that DCARA is reflective of the neighbourhood opinion. She noted that there are over 1,000 letters of support, which she helped to obtain, but she also acknowledged there are objectors. She noted that her sister, who also signed a letter of support, received an e-mail after an objector was given access to one of the local school’s mailing lists, and she thought that this was improper (Exhibit 21).
Ms. Ganon established a “Friends of the Matador” site on Facebook which now has 1,894 supporters. She noted that Mr. McCaughey did not ask her to canvass for support. She also noted that she has been asked to do interviews with respect to the Matador but has refused because Mr. McCaughey told her that he does not want “a media circus”.
Richard Flohil is a publicist and promoter who has worked in the music industry for over 50 years. Mr. Flohil testified that the Matador is legendary because of the Canadian artists who performed there. He believes granting a licence to the Matador is in the public interest; he noted that Mayor Tory has established a music office to promote Toronto as a live music centre. Music venues have a positive impact on local communities; for example, condominiums have been built and businesses have opened in the areas around the Drake and Gladstone hotels. Mr. Flohil stated that he might try to book the Matador but that most of the artists he works with could not fill an 800-person venue.
Mr. Flohil works with venues such as Mod Club and Revival Bar, and noted they would not be in business if their hours were restricted. If the hours at the Matador were restricted, promoters would book other venues. He also noted that Thursdays, Fridays and Saturdays are preferred nights for bookings because people tend to go out on those nights, although an artist with a reputation could sell out any night of the week. He added that the goal of a venue would be to sell out every night but that is not realistic. He also noted that audiences expect to be served liquor, and that door charges alone do not generate enough revenue.
Asked by Mr. Flett if line ups at the Mod Club are noisy, Mr. Flohil stated that they appear orderly to him. He also cannot recall seeing a lot of post-show disturbance with the possible exception of the El Mocambo, and he noted that sports events can cause more rowdiness outside bars. He stated music is “critical” in giving a city cachet, and while the music business in Toronto is healthy, an increase in the number of venues would help it. He acknowledged that music patrons can be disruptive and neighbours can complain about noise, but stated “the greater good is Toronto as a vibrant arts, cultural city. I am convinced the effect of a successful music venue is positive”.
John Goddard is one of the authors of the book “Rock and Roll Toronto” and a former music columnist at the Toronto Star. Mr. Goddard supports the application for a liquor licence (Exhibit 17, Tab 45). He is familiar with the former Matador Club. When the building was under threat of expropriation, Mr. Goddard wrote an article about it, knowing it would generate interest (Exhibit 11, Tab 2). He supports the application for a liquor licence because live music has been recognized as an economic generator for the city.
Paul Oberst is an architect and member of the Canadian Association of Heritage Professionals. Mr. Oberst supports the Matador’s application both as an architect and as a neighbor who lives one street west of the establishment (Exhibit 17, Tab 46). The Tribunal qualified him as an expert on architecture and heritage. Mr. Oberst noted the neighbourhood has become livelier with more economic activity in recent years. There is more street activity, new businesses have opened and condominiums are being built. Having more people around makes it safer. Mr. Oberst believes medium-sized entertainment facilities are part of a vital urban mix. He acknowledged that he had not undertaken an economic development study but was speaking from his own experience.
Mr. Oberst testified that finding a use for old buildings is good policy and that retaining a building with its historical use is even better. He suggested that preserving old venues and turning them into music venues is a Toronto tradition, citing the Danforth Music Hall, the Opera House and Lee’s Palace as examples. He noted that it would be hard to find a venue more associated with Canadian music than the Matador, which hosted performances by Leonard Cohen and Joni Mitchell, among others. In his personal and professional opinion, preserving the Matador would be an economic, cultural and historical benefit to the city.
Robert Bowman is a professor of music at York University who has consulted with Harbourfront, the Ontario Arts Council, and the Toronto Arts Council. Professor Bowman was qualified as an expert with respect to the music industry and music scene both in Canada and internationally and with expertise with respect to Toronto.
Professor Bowman noted that Mayor John Tory is promoting initiatives to grow the city as a music centre by partnering with Austin, Texas. As a music city, recording studios, artists, performance venues, agents and managers are all needed. Venues of all sizes are needed. In his opinion, there are only two decent venues the size of the Matador in the city.
Professor Bowman testified that most live acts tend to finish by 12:30 or 1:00 a.m., and therefore restricted hours would be detrimental to the Matador. Everyone would empty out from a concert within about 20 minutes. He noted that it is essential that establishments be well run, adding that he lives two blocks from Hugh’s Room, which he considers well run, and he does not hear anything from that establishment. If the Matador were well run, it would benefit local businesses in the neighbourhood. He noted that the former Matador Club was an illegal “booze can” which is very different from a properly operated establishment.
Andrew Morrison has been a licensed architect for over 20 years and is a member of the Ontario Association of Architects (Exhibit 17, Tab 40). He was retained by the Appellant at the end of 2009, and in 2010, he conducted a feasibility study with respect to renovations and alterations at the Matador. He was asked to design a unique space which emphasized the building’s history and maintained its character.
His mandate was to design an entertainment facility with multiple uses, including banquets, education, weddings and special events.
Referring to drawings at Exhibit 17, Tab 2, and renderings at Exhibit 17, Tab 40, Mr. Morrison explained the design of the renovated premises. The vestibule entrance has been designed to help control crowds. Beyond the entrance area is a standing bar/sitting space. The balance of the ground floor comprises a large “dancehall / restaurant / performance space / nightclub / dinner theatre” space which he described as beautiful with good acoustics, noting even the walls have acoustic attenuation. At the back of the building, running approximately half its width, is an existing workshop/storage area. No kitchen is planned. This workshop area would be used as a catering space for banquets. The existing second floor and a proposed third floor will be residential apartments.
With respect to noise mitigation, Mr. Morrison testified that the building must meet the minimum sound transmission class (STC) standards set out in the Ontario Building Code (“OBC”), which permits the use of assemblies pre-tested for sound transmission. In the case of the Matador, the standards have been exceeded. He also noted that no windows are on the north side of the building because of its proximity to the lot line. Also, the building was initially designed as an “acoustic alley” with three courses of brickwork. Acoustic work has also been done on the ceiling to ensure standards have been exceeded.
Jon Winton is the Vice President of Code Engineering at LRI Engineering Inc., a firm which provides consulting services on the OBC and life safety requirements. Among the projects he has worked on are Pearson Airport’s Terminal 1 and the TIFF Bell Lightbox where he looked at the flow of people, particularly with how people could be evacuated. Mr. Winton was qualified as an expert in the OBC and Fire Code as it related to life safety and the flow of people.
LRI Engineering Inc. was retained by Andrew Morrison to address the flow of patrons at the Matador and provided a report on August 13, 2015 (Exhibit 17, Tab 41). Mr. Winton explained that he toured the building and discussed its intended operation. His mandate was to look at how to control the queue of people entering a live music venue from the Bill Cameron Lane, so that they would be contained to that area. His approach was “fairly conservative”, assuming that 750 people would be entering from the back. A number of VIPs, up to 10 percent of the attendees, would enter from Dovercourt Road. He noted that arrival characteristics would be different for a concert as opposed to a wedding because a concert might have ticketing and security requirements.
Mr. Winton based his conclusions on the assumption that doors to a concert would open an hour in advance. He then estimated how long a security scan would take and developed an estimated flow rate of persons per minute, using 15 minute intervals. He noted that the number of patrons arriving escalates as the event time approaches.
He used a formula and concluded that eight persons scanning and conducting security checks would result in arriving patrons being contained within the Appellant’s open space at the west of the building, and their arrival managed in a way that would not negatively impact the neighbourhood. Only in the quarter hour immediately preceding the concert would the line-up extend to Bill Cameron Lane. With respect to clearing the building, Mr. Winton assumed it would take an hour, basing this on the expectation that some people would linger. However, he noted the building could be cleared in a matter of minutes if needed.
On cross-examination, Mr. Winton stated that he used a variety of sources to develop the rate of arrival he used in his calculations. He tested the rate with sources such as Roy Thomson Hall, Ed Mirvish Theatre and Massey Hall. With respect to the ticketing/security processing rate, he used industry sources as well as his own expertise. He noted that there is no accepted standard available. Asked why there are line-ups in front of some venues, Mr. Winton noted that a factor would be whether or not tickets had been pre-sold. In the case of the Matador, he relied on estimates provided by Mr. McCaughey in this regard. Asked if the sidewalk on Bill Cameron Lane is wide enough to accommodate a line-up, Mr. Winton indicated it was and noted that the queue would be at the back of the Matador building with any overflow on the lane’s sidewalk.
Amir Shah has been the owner of Quanta Security for four years and has 14 years’ experience in the security field. Quanta Security is responsible for crowd control, customer safety and monitoring liquor consumption. Mr. Shah was qualified as an expert with respect to security for licensed establishments.
Quanta Security was retained by the Appellant to propose security protocols for the Matador. The mandate was to minimize noise and disturbances to the neighbourhood. Referring to the report prepared for the Matador (Exhibit 17, Tab 42), Mr. Shah explained that they are recommending that the Matador employ two to three security guards per 100 guests rather than the usual standard of one, to enable faster processing of patrons entering the establishment. The normal procedure would be to direct arriving patrons to the line, check ID and ensure patrons are not intoxicated, and perform a security check to ensure patrons are not bringing drugs, alcohol or weapons into an establishment. Mr. Shah is proposing two security guards at the Matador entrance checking ID; three to four performing the security pat down; one to two controlling the line-up and ensuring patrons do not head north of the Matador into the residential area; and two conducting building perimeter checks. His report stated that in addition, there would be one security guard for every 70 patrons, but stated that he had recently amended that to one for every 50 patrons. All security guards are trained and have Smart Serve certification.
Asked how security would deal with problem patrons outside, Mr. Shah stated that they would first try to defuse the situation, then would move the patrons towards College Street and, as a final measure, call police. Asked if he expected patrons to smoke outside the establishment, Mr. Shah stated that they would be located at the back end of the property and that security would control how many patrons could be there. Asked what authority security would have if a rowdy crowd was outside after a concert, Mr. Shah indicated that security would be responsible for the area in front of the establishment. He agreed that he would have no more authority to control a crowd than anyone else, but noted that in his experience, people respond well 70 to 80% of the time. He added that a crowd attending a concert is different from one at a nightclub where people go to party and drink. He does not anticipate this type of problem at a concert hall. People would clear out from a concert quickly, in contrast to nightclubs.
Maksym Orzhekhovsky is the owner of Adagio Valet which was retained by the Appellant and prepared a report dated August 2015 (Exhibit 17, Tab 43). Adagio Valet provides valet parking services for large events such as galas and weddings, and for shopping centres. Since 2011, they have parked over 100,000 vehicles at over 1,000 events. He was qualified as an expert on valet parking in Toronto.
Mr. Orzhekhovsky explained that he visited the Matador and researched the vicinity to determine where cars could be parked. Before any event, the service makes arrangements with different locations to park the cars there. When a guest arrives, the service parks their vehicle. If the parking lot is too far away, Adagio uses a shuttle to bring the drivers back to the venue. The ratio of guests to cars varies by type of event. He noted, for example, that for a wedding, the ratio is lower. Because of the access to public transit near the Matador, he expects fewer patrons to use their vehicles. He ensures that sufficient staff is engaged to manage arriving patrons and gave the example of parking 275 cars in less than 30 minutes at the Toronto Convention Centre.
At the Matador, valet staff might be located on both sides of Dovercourt to serve patrons arriving from both the north and south. Mr. Orzhekhovsky noted there are options, for example, directing patrons towards the Matador by placing a sign at College Street. He also noted there is legal space available on Dovercourt, south of the Matador to accommodate one to two vehicles. No double-parking will be needed. He suggested that the valet service is more relevant for events such as weddings, where 70 vehicles per 300 people might be expected, versus 15 to 20 vehicles expected per 300 people at a concert.
Paul McCaughey is the CEO and President of the Matador Corporation. He is registered with the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario. He lives in the Annex, where he operates an acupuncture clinic with his spouse. He is a tai chi master and has worked in the wellness industry for 35 years. He also has five years’ experience working in various capacities in the hospitality industry, including positions as a bartender, waiter and floor manager. He recently obtained his Smart Serve certification.
At the Matador, Mr. McCaughey described his job as providing business oversight and noted that he will hire an experienced general manager to run the Matador’s day to day business.
Mr. McCaughey purchased the Matador in 2009 through Wellspace Inc. He had been looking for a property that could house a multi-purpose venue and could combine his work in the wellness industry with his interest in culture. Wellspace Inc. owns the Matador Corporation. He noted that the Wellspace Inc. name and the fact that the press focused on the wellness aspect of his plans has led people to believe that the Matador would be only a wellness space. He described his vision on a broader basis, with the Matador being a community space and a vital resource. Mr. McCaughey’s sense of wellness is a broad one, not limited to tai chi or yoga.
The building at 466 Dovercourt Road was purchased for $1,535,000 and an additional $1,500,000 has been subsequently invested. A further $1,000,000 to $2,000,000 will be needed to complete the building. Mr. McCaughey estimates that the total annual cost to run the Matador, including costs such as utilities, taxes, staff and marketing, would be at least $400,000.
Mr. McCaughey’s goal is to create a multi-use venue. The Matador will host weddings, special events and music events that target an older audience. He has no intention of holding events that charge a cover at the door. He plans daytime uses such as tai chi, martial arts and dance classes. In the summer of 2014, at the cost of approximately $100,000, Mr. McCaughey undertook a branding exercise to determine if the Matador brand was worthwhile sustaining. He testified that, while the Matador has an “extraordinary music pedigree”, he did not want an association with its history as a “speakeasy”. He has no association whatsoever with the previous owner who operated the Matador Club. He learned that the Matador brand is worthwhile, and could still reflect his planned multi-uses. This would involve weddings, special events and music.
With respect to renovations, Mr. McCaughey explained that he aspires to a “brand experience”. The establishment will not look like a nightclub. He described the premises as “an absolute disaster” when he first saw it. He has restored the original ballroom to its 1916 look. He noted that it is a large open space which would look empty if it were not at full capacity. This would be a deterrent to promoters who want full houses for their artists. The lobby area at the building entrance has been opened up. Washrooms are being added to the basement and an elevator is being added for accessibility. Vestibule type entrances with two sets of doors at both the front and the rear of the building are designed to mitigate noise. The second floor apartments are designed to be sound insulated and his plans are to rent them on a short term basis; for example, to families coming for weddings. Asked about noise testing, Mr. McCaughey testified that sound technicians tested the sound system at high volume in January 2015 to determine if there were any sound bleeds which needed to be addressed. The volume will be controlled at the sound panel when the system is in use.
Mr. McCaughey testified that a licence condition reducing hours of service would “kill” his business because he would not be able to compete in the special event and wedding markets. His market research has indicated a trend towards weekday and Sunday weddings which are less expensive, but which people still wish to run until 2:00 a.m. Special events such as the Toronto International Film Festival (TIFF) or North by Northeast (NXNE) all run over the course of a week or more, and their afterhours parties require an extension of hours which he could not apply for if there was a condition on his licence restricting hours. He also noted that, with respect to music events, promoters do not want to book a venue encumbered in any way.
Asked if he expected to be at full capacity every night, he stated that he did not. He noted that if he accepted the City of Toronto’s proposed conditions, he would have to optimize his income on Friday and Saturday nights, stating “I’ll become a nightclub”, which he does not want to do, and which he does not know would be financially viable. If the application for a liquor licence is denied, he would have to sell the building and would lose everything he has invested in branding.
On the fifth day of this six-day hearing, on September 25, 2015, Mr. McCaughey voluntarily amended his licence application to reduce the Matador’s capacity to 650 (Exhibit 19). Having listened to the testimony of the objectors and having lived in the community, he is aware of the concerns and he described this as a goodwill gesture. The reduction places him in direct competition with the Mod Club, which has an indoor capacity of 620 and no restriction on its hours. He believes he can be competitive because of the strength of the Matador brand and the beauty of its space. But he said that this reduction of 20% will reduce his profit margin substantially, and he cannot be sure he can make it work.
Mr. McCaughey described himself as a community builder, and referred to the public meeting he held on January 27, 2015, which he held to seek community input before he applied for the licence, and the March 11, 2015 meeting held with Detective Sergeant Kelly. The January 27, 2015 meeting was attended by close to 100 people, with both objectors and supporters. He saw an intractable position from the objectors whom he believes are consumed by the pain caused by the past Matador. He was moved by community concerns and he wanted to be a healer and community builder. He could not compromise on the hours, but he could reduce his capacity to the minimum possible from a business perspective.
Asked if he had been approached by DCARA to discuss concerns, Mr. McCaughey stated he had not been, but he is willing to talk to them.
Mr. McCaughey stated he was surprised by Councillor’s Bailão’s February 20, 2015 letter to the AGCO in which she noted she was working with him and the City’s legal department on a set of conditions to ensure the liquor licence operates in a restaurant setting (Exhibit 17, Tab 3). He had met her on both February 5 and 9, 2015, and this had not been raised.
In April 2015, Councillor Bailão requested that Toronto and East York Community Council ask the City to evaluate the Matador for potential heritage designation (Exhibit 17, Tab 6). Mr. McCaughey noted that no one contacted either him or his architect with respect to a potential heritage designation; rather, he learned about it when someone else called him after the fact. He stated he felt this was the “final blow”.
With respect to security, Mr. McCaughey plans to have what he described as state of the art security. He wants people to move in and out of the building safely. After hearing concerns from neighbours about potential crowds on Dovercourt, he asked Quanta Security if it would be possible to have patrons enter and exit from the back where there is an outdoor space. He described it as a big concession to not use the main entrance. He noted that at the March 11, 2015 meeting, he believed Detective Sergeant Kelly was satisfied with his plans. He was told he was doing all the right things and Detective Sergeant Kelley expressed no concerns other than with the capacity.
Mr. McCaughey then testified to a number of documents, including an extensive report entitled “The Mastering of a Music City” from Music Canada, which set out the components and benefits of a Music City initiative (Exhibit 17, Tabs 8 through 12). Asked if Mike Tanner, the City of Toronto’s Music Sector Development Officer, had spoken to him about his plans, Mr. McCaughey testified that Mr. Tanner had indicated he was supportive. Mr. McCaughey also referred to two articles related to Mayor Tory’s support for making Toronto a world class music destination (Exhibit 17, Tabs 14 and 20).
Mr. McCaughey described the support he has received as “extraordinary”. After Ms. Ganon began to solicit support for the Matador’s liquor licence application, he received 1,052 letters, 195 of which were sent from the neighbourhood surrounding the establishment, including 47 from residents of Dovercourt Road, 29 from College Street and 13 from residents of Rusholme Road (Exhibit 17, Tab 38). A letter from Nicholas Jennings, music journalist and former music critic for Maclean’s magazine, sets out the Matador’s history as a performance venue and his support for Mr. McCaughey’s application for a liquor licence (Tab 17, Tab 39).
Mr. McCaughey stated that he was indignant when a letter was distributed through one of the local school’s mailing list indicating that children might find “detritus”, including needles, in school yards (Exhibit 21). He has felt “shunned” because objectors did not approach him to speak to him directly. He then repeated that he was still open to discussions with the objectors, and stated that it makes no sense not to get along with my neighbours; a business bad for the neighbourhood is not good for the business either. He lowered his capacity as an olive branch.
Asked in cross-examination by Mr. Flett if he had held an event on November 6, 2014, when there was an incident of marijuana smoking in the parking lot south of the Matador, Mr. McCaughey stated he had held an event related to branding.
Asked if he had taken measures to control the event, Mr. McCaughey indicated he had staff on hand. He testified that he learned about the parking lot incident from G.R. after the event and does not know if the individuals were from the event.
Mr. McCaughey indicated that he wishes to attract a sophisticated crowd, with an older demographic such as 30-plus. He acknowledged that he would earn his income from the sale of alcohol at music events where the event promoter would earn income from ticket sales.
As part of his cross-examination, Mr. Crawford informed the Tribunal that he had approval to change the conditions that the City was seeking, and he asked Mr. McCaughey about his position regarding these changes. The most significant change was to enable the licensee to apply for approval to extend the hours of service beyond 11:00 p.m. on Sunday to Thursday. Ms. Brooks indicated that the AGCO was agreeable to the change.
ANALYSIS
The issue to be addressed in this hearing is whether or not the granting of a licence to the Appellant is in the public interest. The Act recognizes the impact that the establishment of licensed premises may have on a community: section 6(2)(h) states that an applicant is entitled to be issued a licence to sell liquor except if “the licence is not in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located”.
In determining whether or not a licence is in the public interest, the Tribunal must balance the interests of all of the community residents and those of the Appellant. The Appellant has a qualified right to a licence, and therefore the onus is on the objectors to establish, on a balance of probabilities, that the issuance of a licence is not in the public interest. In assessing the needs and wishes of the residents, the Tribunal must consider the totality of the evidence to determine if their concerns are bona fide, which includes determining whether these concerns are supported on a valid and objective basis.
The needs and wishes of residents in closest proximity to an establishment merit close consideration because those residents would be most impacted by the issuance of a liquor licence. In this case, there are both objectors and supporters among the residents in the area surrounding the Matador. For example, by the Tribunal’s count, 59 objections were received from addresses on Dovercourt Road. Mr. McCaughey testified that 47 letters of support were also from residents living on Dovercourt Road. While the level of community opposition or support for an application is a factor in the Tribunal’s analysis, the Tribunal cannot make its decision based on the number of objectors and supporters. The public interest is not determined by numbers alone, and furthermore, each resident is in a different position with respect to how close they live to the premises and how much they would be affected.
There was much testimony in this hearing with respect to how objections and support for the application were obtained and, by inference, their legitimacy. The Tribunal does not find it necessary to make any specific findings about any of these concerns. It is sufficient to say that the Tribunal does not question that both the letters of objection and support were submitted in good faith.
Mr. Flett stated that the operation of a 650-person concert hall in this location will cause so much friction that it cannot be allowed to sell alcohol. He submitted that the Appellant’s right to earn a profit from selling liquor was outweighed by the needs and wishes of the neighbours. There were 100 letters of objection submitted to the AGCO, including one from DCARA on behalf of 60 resident petitioners. Residents are objecting because the Matador is located on a quiet residential street and its proposed capacity is too large for the neighbourhood to support. Among the specific concerns cited are parking, increased traffic congestion and foot traffic, noise, disruption, loitering, vandalism and garbage. The objectors are the residents who would be most adversely affected by the Matador and it being licensed. In contrast to supporters who can choose when they will be exposed to noise and other negative impacts, the objectors cannot choose and instead would be “forced to attend” all concerts held there.
Mr. Flett further submitted that the impact on the neighbourhood of granting a liquor licence to the Matador could not be mitigated. In this regard, he noted that there was an altercation in the parking lot on November 5, 2014, while the Appellant was sponsoring an event. The Tribunal does not find that there is enough evidence to link this incident to the Matador, and the persons involved in this altercation could have been from any of the nearby establishments on College Street.
Mr. Crawford objects to the issuance of a liquor licence because of concerns about the proposed use and large capacity at a location adjacent to a residential area. In the alternative, should the Tribunal approve the licence, the City proposed a condition that the sale and service of alcohol stop at 11:00 p.m. from Sunday to Thursday. This would limit the impact on the neighbourhood.
Mr. Levitan referred to the 1,054 letters of support the Appellant received, 195 of which are from residents living near the Matador. These letters note the historical significance of the Matador and state that it will be operated by responsible management which will be responsive to community concerns through its security and crowd control plans. There were also a number of witnesses who testified that a music venue would revitalize the neighbourhood and was consistent with the City of Toronto’s “music city” initiative. Mr. Levitan also submitted that the 195 letters of support are from residents who live no farther away from the Matador than many of the objectors.
Mr. Levitan submitted that the objections to the Matador’s application were not bona fide because the objectors were not interested in negotiating any conditions, and they simply did not want any liquor licence at this location. Referring the Tribunal to the July 27, 2007 decision of the AGCO in Arena Entertainment Inc. (Circa) (Re) 2007 CanLII 37848 (ON AGC) (“Circa”), he argued that a licence prohibition cannot be requested as a disguised attempt to enact an interim control by-law. Paragraph 128 reads:
The Board finds the Residents’ Association did not give sufficient consideration to this particular Application for its objections to be considered bona fide. It did not negotiate or even meet with the Applicant and made no attempt to review the operational plans of the club and to propose conditions. Instead, it seeks a blanket prohibition of any new nightclubs in the area. The Board considers this unreasonable and places any Applicant in an untenable position with no recourse to a possible resolution. Furthermore, no other resident witnesses, letters of objection, or petitions were presented to the Board opposing this proposal, leaving strong doubt as to the extent of bona fide community objection to the particular proposal made by this Applicant.
The Tribunal does not accept Mr. Levitan’s argument. In Circa, the objection was to any additional nightclub capacity in Toronto’s entertainment district based on oversaturation in the area. In the case of the Matador, the objections are specific to this one location. While some objectors, including Councillor Bailão, suggested that they were unsure of Mr. McCaughey’s plans because the Appellant had not yet applied for a business licence, the evidence is that many objectors either attended or sent representatives to the public meeting hosted by Mr. McCaughey before the application for a liquor licence was filed. The letters sent later by resident objectors very clearly relate specifically to the Matador and the potential impact of its capacity on their neighbourhood; most make reference to experience with the former Matador Club. And, while there may have been opportunities for discussion or negotiation that DCARA or Councillor Bailão did not take full advantage of, that is insufficient reason for the Tribunal to find the objections not to be bona fide.
The Tribunal must assess whether the objectors’ concerns are supported on a valid and objective basis. The main focus of their concerns is the potential for noise, disruption and vandalism that could result from the volume of patrons arriving at and leaving the Matador. A large part of the evidence was from witnesses who talked about the former Matador Club. The majority of the individual letters submitted to the AGCO were in the format of a personalized form letter which includes the following:
I am especially concerned about late night loitering, loud voices, high evening foot traffic and additional litter to the neighbourhood. In the past, when the Matador was operating, neighbours found used condoms, syringes, cigarette butts, used panties and other disagreeable garbage in their yards or surrounding common areas. Further there were problems with patrons urinating or defecating on neighbourhood lawns and often the police were called in to break up altercations.
Similarly, the petition submitted to the AGCO by DCARA states:
The proposed establishment, with its 3 am closing time, would significantly increase the risk of late night noise and loitering, including the possibility of unruly, destructive and dangerous activity resulting from alcohol and drug use. Historically, these were common occurrences with the previous “Matador Club” that were a constant nuisance and danger to the residents of the community.
Mr. Flett submitted that while the former Matador Club earned its reputation operating as an afterhours club, “violence, humiliation and noise” are inevitable under any banner. The impact of the Appellant’s establishment operating to 2:45 a.m. would not be dissimilar to that of the former operation operating until 4:00 or 5:00 a.m. He further submitted that it is “not even a question” that the evidence of issues with the former operation provides an objective basis for the objectors’ concerns. Mr. Levitan submitted that the operation of an “unregulated, unlawful, unlicensed” establishment in the past should not be a basis for denying a licence now to an unrelated establishment.
The Tribunal appreciates that the objectors’ past negative experiences with the former Matador Club have significantly contributed to their current concerns. As Ms. Castillo testified, objectors “generally fear the worst”. N.T., G.R. and M.K. testified about their negative experiences, which included break-ins and assaults, when the former Matador Club was in operation. J.C. testified that he had conducted his own research into the Matador’s history before reaching his conclusions about the Appellant’s application. The underlying assumption of this testimony appears to be that the Matador will operate in a similar manner and create the same issues as did the former club. However, the Tribunal does not make this finding.
Based on the testimony, the Tribunal does not doubt that the former Matador Club caused issues for its neighbours. However, the former operation, described by witnesses at this hearing as an “afterhours club”, a “booze can” and a “speakeasy”, was unlicensed and unregulated. No one is alleging that the current Appellant is in any way linked to the operators of the former Matador Club. There is ample evidence that Mr. McCaughey is very mindful of the concerns of the residents. The Tribunal accepts the sincerity of his testimony that he wishes to be a community builder. He has retained experts and planned measures that will mitigate noise, traffic flow and safety concerns. These actions demonstrate that this Appellant will be operating with a very different approach than the former Matador Club.
While the Tribunal acknowledges that some of the residents who live very close to the Matador are concerned about potentially hundreds of people going in and out of the establishment, particularly late at night, DCARA’s concerns about a high level of noise, disruption and vandalism are largely based on the neighbourhood’s past experience with the former unlicensed Matador Club. As such, the magnitude of DCARA’s concerns is not based on objective evidence, and it is overly speculative with respect to the Appellant’s proposed operations.
Councillor Layton and Detective Sergeant Kelly testified about some of the complaints and problems that occur in relation to current licensed establishments nearby on College Street. But they also referred to partially successful efforts to address these problems by having meetings between owners and the police. When Detective Sergeant Kelly was asked if he knew problems would occur at the Matador, he stated that the police undertake predictive analysis to try to anticipate issues, but while he was speculating to some degree, it was a bit more than speculation. The Tribunal finds that this evidence from Councillor Layton and Detective Sergeant Kelly is useful, but it does not provide a strong enough basis to deny the Appellant a liquor licence.
Mr. Crawford cited two cases in support of the City’s opposition to this liquor licence application. In P.T. Edward Trading Post v. Ontario Alcohol and Gaming Commission, [1999] O.A.G.C.D. No. 225, the Board denied the application for a liquor sales licence for 366 persons based on its location at the “transition between residential and commercial”. Paragraph 7 states:
Although public interest is not necessarily a “number’s game”, nonetheless the evidence which proceeded to be adduced by a series of objector witnesses did appear to greatly support the view that, by an overwhelming margin, the local residents neither needed or wished this liquor licence application to be granted.
Similarly, paragraph 57 states:
The local residents consistently and passionately testified that they did not want a bar on their street, and in the virtual absence of any local support whatsoever for this application, the Board is prepared to listen to, and indeed to act on those concerns.
This case can be distinguished from the one currently before the Tribunal because there is significant local support for the Appellant’s application.
Mr. Crawford also submitted Junction (The) v. Ontario Alcohol and Gaming Commission, [2001] O.A.G.C.D. No 3. In that case, the applicant had applied for a licence for 810 persons for an establishment with residential homes bordering its parking lot. The Board denied the application based on its size, format and proximity to the residential area. The Tribunal notes that the distinguishing factor in this decision relates to format. The establishment was a children’s and family entertainment centre, and the Board expressed its concern that the applicant had not presented any policies or procedures to address how it would deal with the presence of minors.
Mr. Flett referred the Tribunal to the January 28, 1997 decision of the Liquor Licence Board of Ontario in Exodus, [1997] O.L.L.B.D. No. 41. In that case, the Board rejected the application for a licence as not being in the public interest, and noted the following:
Although the applicants demonstrated their willingness to do whatever they could to minimize the impact on the surrounding residents, the Board finds that it is simply not in their power to sufficiently address many of the residents’ concerns.
The applicant in Exodus was seeking a licence for an “upscale nightclub” with a capacity of 646. The Board found that the patrons would be young Americans who “have often shown flagrant disregard for the laws and citizens of this province”.
There is evidence before the Tribunal that the Appellant has implemented, or plans to implement, measures to mitigate the impact of the Matador on the surrounding residents. The Appellant has addressed issues such as management of the flow of patrons into the establishment, sound mitigation in the building, security and parking.
One of the issues raised by Detective Sergeant Kelly was the use of Bill Cameron Lane for line-ups. The Tribunal notes that this was proposed by Mr. McCaughey to address concerns expressed by residents at the January 27, 2015 public meeting with respect to the use of the front entrance on Dovercourt Road. Jon Winton testified that, by using the back entrance of the Matador and hiring an appropriate number of security personnel, the arrival of patrons could be managed in a way that would not negatively impact the neighbourhood.
Mr. Winton’s evidence assumed a higher capacity than that now requested by the Appellant. The Tribunal notes that both Mr. Flett and Mr. Crawford submitted that the Tribunal should not give any weight to the Appellant’s amendment of his requested capacity from 804 to 650. However, the Tribunal notes that Mr. Winton’s analysis is quantitative and was based on processing 750 arriving patrons. In the Tribunal’s assessment, the processing of patrons is one area where the Appellant’s 19% reduction in capacity could have a demonstrable effect.
Amir Shah testified with respect to the security protocols he was retained to prepare. His report (Exhibit 17, Tab 42) estimates there would be a total of 15 security guards for a concert of 650 patrons and 8 security guards for a wedding with 250 guests. He testified that the Matador will have a higher ratio of security guards to patrons than required by municipal by-law. Security guards will conduct perimeter checks to ensure patrons arriving at Bill Cameron Lane do not migrate north to the residential areas. The Tribunal notes these plans provide for significantly more extensive security than the one security guard that witnesses N.T., M.K. and Ms. Ganon testified they saw, or were aware of, at the former Matador Club.
Finally, Maksym Orzhekhovsky testified about the Matador’s plans to provide valet parking. He indicated that this would be more relevant at weddings than at concerts, noting that 70 vehicles per 300 people might be expected at a wedding versus 15 to 20 vehicles expected per 300 people at a concert. The Tribunal notes that issues relating to parking are outside of its jurisdiction. However, this testimony does suggest that the parking issue may not be as severe as the objectors anticipate, and it is evidence of the Matador’s efforts to address the residents’ concerns.
The Tribunal finds that the objectors’ depiction of serious problems that would potentially occur as a result of a liquor licence at the Matador is not objectively supported by the evidence.
The Tribunal also places weight on the fact that the Appellant has undertaken measures to mitigate the impact of the Matador on the neighbourhood; and that there is substantial local support for the Appellant. Therefore, the Tribunal finds that the objectors have not, on a balance of probabilities, established that the issuance of a liquor licence to the Matador is not in the public interest. However, as noted below, the Tribunal finds that some conditions on the licence are warranted.
The Tribunal does note that it heard from a number of supporters, including John Oberst and Paul Goddard, who believed the Matador would contribute to the area’s economy and growth. This evidence was mostly speculative in nature, and in assessing the public interest, the Tribunal has not proceeded on the basis that the Matador will revitalize the neighbourhood. Similarly, the Tribunal, in assessing public interest, gave little weight to the Appellant’s evidence regarding its potential contribution to the City’s “music city” initiative.
On the issue of conditions, s. 23(12) of the Act states, “Following a hearing, the Tribunal may attach to a licence or permit any condition that the Tribunal considers proper to give effect to the purposes of this Act”.
Mr. Levitan submitted that the Appellant’s licence should be approved without conditions, especially with respect to hours of service. In particular, he compared the Matador to the Mod Club. He argued that the Mod Club has no hours of service conditions on its licence and it is similar to the Matador; the Mod Club has an interior capacity of 620 and is on the corner of College Street and Crawford Street, the latter of which is residential.
Mr. Flett submitted that the greatest disruption to local residents would occur when patrons leave the Matador. In this regard, Mr. Winton testified that his assumption was that Matador patrons would leave over the course of an hour. Both Councillor Layton and Detective Sergeant Kelly testified about noise and other issues that arise when licensed College Street establishments close.
The Tribunal notes that, unlike the Mod Club with its entrance on a major thoroughfare such as College Street, the entrances to the Matador would be from Dovercourt Road or Bill Cameron Lane. Residential homes are directly north of the Matador. Given its proximity to these residences, conditions on the Appellant’s licence responsive to this reality are appropriate.
The Tribunal agrees with the conditions proposed by the City of Toronto with respect to security cameras and lighting at the back of the Matador premises. These conditions are consistent with the Appellant’s own commitment to security and will contribute to maintaining a safe environment, particularly with respect to the laneway, which was reinforced by Detective Sergeant Kelly’s evidence that these types of measures are helpful in addressing safety issues. Similarly, the Tribunal also agrees with the proposed conditions with respect to signage and the maintenance of a contact telephone number which are designed to foster good community relations.
The most contentious condition at the hearing was the City’s proposed condition to restrict the hours of service of alcohol to 11:00 p.m. from Sunday to Thursday. On the last day of the hearing, Mr. Crawford submitted a revised set of conditions with the most significant change being the addition of the ability of the Appellant to apply for approval to extend the hours of service for events of significance such as TIFF. The Tribunal acknowledges that Mr. McCaughey intends to run different types of events. However, much of the testimony at this hearing centred on the disruption that concert events could cause. Mr. McCaughey testified that he had no expectation to be fully booked each night. Both Professor Bowman and Mr. Flohil testified that restricting the Appellant’s hours of service would be detrimental to its competitiveness. Mr. McCaughey was more definitive, in saying that an 11:00 p.m. cut-off for alcohol service would “kill” his business, and he could not compete for weddings, corporate events or special events.
Weighing all of the evidence, and balancing the parties’ respective interests, the Tribunal has concluded that some restriction on hours of service is appropriate to mitigate the impact of closing time on nearby residents. The Tribunal has considered the evidence that the Appellant is proposing to operate as a multi-purpose facility which will also host weddings and special events. Some of these weddings or events may be on a weeknight, for which an 11:00 p.m. cut-off for alcohol service may not be reasonable or practical. The evidence also indicates that concerts generally end no later than 1:00 a.m., and are held primarily on Thursdays through Saturdays. In assessing all of these factors, the Tribunal finds that Thursday nights should not be included in the days with restricted hours; a 12:00 a.m. cut off would be more appropriate, with the possibility of an application to extend the hours in certain situations. Because the Matador will be an event space, the Tribunal is also adding New Year’s Eve as an exception to the days with restricted hours.
ORDER
The Tribunal directs the Registrar to approve the application for a liquor licence made by The Matador Corporation o/a The Matador Ballroom for indoor areas at the premises at 466 Dovercourt Road, Toronto, subject to the filing of all usual and required municipal clearance letters and application requirements and subject to the following conditions which shall attach to the licence:
The sale and service of alcohol shall end at midnight Sunday through Wednesday with the exception of days when the licensee receives approval for extended hours of sale and service for an event of provincial, national or international significance, or an event designated by the municipal council as an event of municipal significance and, with the exception of New Year’s Eve.
The licensee shall post a prominent sign at each exit that reminds and/or encourages departing patrons to be considerate of the surrounding community.
The licensee shall provide a telephone number to the local Councillor for residents to register concerns or complaints. This line will normally be answered by a staff member during the licensee’s published hours of operation and will be equipped with a functioning message service for those periods when the licensee’s staff is otherwise occupied and when the premises are closed.
At all times while the premises are open, the licensee shall ensure that there are clearly visible and functioning security cameras located at each entrance and exit door and positioned to provide full video surveillance of the exterior open area at the southwest corner of the property. All digital video shall be retained for 60 days after the date of recording and shall be made available immediately on demand by AGCO inspectors and/or police.
At all times while the premises are open, the licensee shall ensure that fully operational lighting is installed across the full width of the rear of the property.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
Gary Yee, Associate Chair
Released: December 21, 2015