Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2016-11-22
FILE:
10339/GCA
CASE NAME:
10339 v. Registrar of Alcohol and Gaming
Appeal from a Notice of Proposed Order of the Registrar under the Gaming Control Act, 1992, S.O. 1992 c. 24 - to Revoke Registration
2296045 Ontario Inc. o/a Hasty Market #44
Appellant
-and-
Registrar of Alcohol and Gaming
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Alex McCauley, Member
APPEARANCES:
For the Appellant:
Tan Nguyen, Agent
For the Respondent:
Rena Khan, Counsel
Heard in Ottawa:
October 28, 2016
DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Gaming Control Act, 1992, (the “Act”) issued a Notice of Proposed Order dated May 16, 2016, which proposed to revoke the registration of 2296045 Ontario Inc. o/a Hasty Market #44 (the "Appellant") as a gaming supplier in the class of seller.
The Registrar alleges that there are reasonable grounds to believe, based on the Appellant’s past conduct, that the Appellant will not act as a gaming supplier, specifically as a seller (of lottery products), in accordance with the law, or with integrity, honesty or in the public interest.
FACTS
The principal of the Appellant, Mr. Tan Nguyen completed an application for renewal of registration and submitted the signed application to the Alcohol and Gaming Commission of Ontario (“AGCO”) on August 31, 2015.
Frank Ryder, a Corporate Investigator with the Alcohol and Gaming Commission of Ontario (“AGCO”) gave evidence. He stated he was assigned this file in November 2015 and after reviewing the file, had a meeting with Mr. Nguyen on December 2, 2015.
Mr. Ryder stated there were no language barriers between Mr. Nguyen and himself.
Mr. Ryder noted several inconsistencies in the statements and documentation submitted by Mr. Nguyen.
Question 6 on the personal disclosure form filed by Mr. Nguyen with the renewal application asked whether he had ever been charged, convicted or found guilty of any offence in Canada or elsewhere and includes Provincial offences. He answered “No”.
In his interview with Mr. Ryder, Mr. Nguyen admitted to a charge and conviction under the Tobacco Tax Act, and an assessment from the Ontario Ministry of Finance concerning the sale of tobacco products.
Mr. Nguyen was asked about a legal judgment against him from Capital One Bank, in the amount of $7,202, and why he did not acknowledge this debt or the judgment. His answer at the interview was that it was a credit card debt incurred by his wife. He didn’t feel he had a duty to disclose this.
Mr. Nguyen told Mr. Ryder that he and his wife have several poorly rated accounts as disclosed in his personal credit report. He stated that they did not have the money to settle these debts.
At the interview, Mr. Nguyen admitted that he had previously been suspended by Ontario Lottery and Gaming (OLG). There were six disciplinary interactions with the OLG from 2011 until 2015; including three Pack Penalties (Selling non-activated tickets) and three NSF returned cheques.
He admitted to being charged and convicted under the Smoke Free Ontario Act for selling tobacco to an underage person and failing to examine identification.
In response to question 7(c) on his personal disclosure form, which stated: “Do you have any loans in default and/or debts that have been sent to collections and that remain outstanding?”. Mr. Nguyen answered “No”.
The AGCO checked and found this to be false: a review of the business credit report dated October 30, 2015 showed a creditor who had forwarded a debt of $1,869 owed by Hasty Market #44 to the collection agency Canada Legal Referral Inc.
Mr. Nguyen’s response at the meeting was that he didn’t know about it and he would check with his accountant.
In addition, when asked about a lien against his business by the Ontario Ministry of Finance, he stated he did not know about it.
Mr. Nguyen’s financial situation and judgments are outlined in an EQUIFAX consumer report dated the October 30, 2015.
Mr. Ryder was not cross-examined and his evidence was not challenged.
Tracy Cribbs, an investigator with Ontario Ministry of Finance testified. She conducted an inspection of Hasty Market #44 on October 23, 2013. The inspection was conducted under the Tobacco Tax Act. The inspection revealed that there were no receipts for certain products sold. Receipts are required to indicate tax paid.
This inspection resulted in an assessment in the amount of $1473.74 for illegal cigars on February 4, 2014. The assessment was not appealed. Requests for payment were ignored. The Ministry registered a lien against the Appellant. The outstanding balance was paid June 29, 2016. Ms Cribbs’ evidence was not challenged.
Frank Cuda, the Manager of Gaming Eligibility and Assistant Registrar under the Act, gave evidence. He has many responsibilities, one of which is to review applications for renewal. He reviewed the file for Hasty Market #44 and was concerned. Mr. Cuda’s assessment was that Mr. Nguyen had been blatantly dishonest in his answers on the application for renewal. In addition, he was openly deceptive on some answers, attempting to deflect blame for debt to his wife. In addition, the Appellant has been disciplined by the OLG, and convicted under the Smoke Free Ontario Act.
Mr. Cuda stressed that the legislation which governs the conduct of registrants under the Act, is consumer protection legislation. The legislation is required in order to maintain public confidence that those in the business of selling lottery products operate at the highest level of honesty and integrity. Furthermore, Mr. Cuda stated that selling lottery tickets is a cash intensive business, and the Registrar must be always vigilant to ensure the utmost honesty and integrity among registrants.
Mr. Cuda stated that it is the Registrar’s position that Mr. Nguyen has not met the required standard. He has been dishonest in his reports to the Registrar and he continues to battle increasing debt. Judgment debts are of great concern to the Registrar; it can invariably lead to far more serious consequences.
As well, Mr. Nguyen has been convicted of offences related to the operating of his business. He has been disciplined on several occasions by the OLG, and this is a red flag to the Registrar.
There was no cross-examination of Mr. Cuda.
Mr. Nguyen did not wish to give evidence. He did not deny the allegations of the Registrar. He advised that he is trying to sell his business and would like to remain registered until that happens.
In summary, the Registrar is seeking the revocation of the registration of 2296045 Ontario Inc. o/a Hasty Market #44 as it has been demonstrated by the evidence of the Appellant’s conduct that there are reasonable grounds to believe that it will not act as a gaming supplier, specifically as a seller, in accordance with the law, or with integrity, honesty or in the public interest, based on the Registrant’s conduct.
Further, the Registrar submits that this particular case does not lend itself to conditions to monitor the Appellant. The Appellant’s situation has deteriorated to the point that the registration cannot be salvaged. There is still a large amount of debt outstanding and there has been no indication of there is any plan to address this. All of the concerns of the Registrar remain.
THE LAW
The power to revoke a registration is set out in sections 10 and 12 of the Act:
- The Registrar shall refuse to register an applicant as a supplier or to renew the registration of an applicant as a supplier if,
(b) there are reasonable grounds to believe that the applicant will not act as a supplier in accordance with law, or with integrity, honesty, or in the public interest, having regard to the past conduct of,
(i) the applicant or persons interested in the applicant,
(ii) the officers, directors or partners of the applicant, or persons interested in those officers, directors or partners, in the case of an applicant that is a corporation or partnership
12.(1) The Registrar may propose to suspend or to revoke a registration for any reason that would disentitle the registrant to registration or renewal of registration under section 10 or 11 if the registrant were an applicant
APPLICATION OF LAW TO FACTS
The allegations in the Proposed Order to revoke the registration are admitted by the Appellant. Mr. Nguyen was not honest and forthright on the Appellant’s application for renewal. The extent of the nondisclosure was such that it could not be considered inadvertent nor an isolated incident. The failure to disclose the various charges, convictions and judgment debt is significant. Mr. Nguyen acknowledged the debt, but has offered no plan as to how he might address the outstanding debts.
As noted by Mr. Cuda, the lottery business is cash-intensive. Lottery retailers are spread out over thousands of retail outlets throughout the province. As such, lottery retailers cannot be monitored by AGCO inspectors on a daily or even weekly basis. To ensure public confidence in the honesty and integrity of lottery retail operations, it is therefore imperative that lottery retailers meet very high standards of honesty and integrity. Given the Appellant’s nondisclosure, and the record of non-compliance with the law, on numerous occasions, the Tribunal finds that the past conduct of the Appellant affords reasonable grounds for the belief that it will not act as a gaming supplier in accordance with the law and with integrity and honesty.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to carry out the Proposed Order.
LICENCE APPEAL TRIBUNAL
Alex McCauley Vice-Chair/Member
Released: November 22, 2016