Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 10478/AGRPPA
CASE NAME: 10478 v. Registrar, Alcohol, Gaming & Racing
Motion for an Order to Extend the Time to File an Appeal from an Order of Monetary Penalty of the Registrar of Alcohol and Gaming under the Alcohol and Gaming Regulation and Public Protection Act, 1996, R.S.O. 1996, c. C. 26
Half Point Inc.
Appellant
-and-
Registrar of Alcohol, Gaming and Gracing
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Jacqueline Castel, Member
APPEARANCES:
For the Appellant: Jason Abrams
For the Respondent: Faye Kidman
Heard by teleconference: November 1, 2016
REASONS FOR DECISION AND ORDER
BACKGROUND
This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of a Notice of Motion, dated July 22, 2016, to extend the time to allow Half Point Inc. (the “Appellant”) to appeal against Order of Monetary Penalty #1377 (the “OMP”).
The OMP alleges that the Appellant contravened section 63.1(1) of Ontario Regulation 719/90 by failing to provide the Registrar of Alcohol, Gaming and Racing (the “Registrar”) and local police, fire, health and building departments with the following information at least 10 days in advance of a catered event: the nature of the event and the name of the sponsor; the address of the event; the dates and hours of the event; estimated attendance at the event; and boundaries of the area within which liquor will be sold and served. The OMP imposes a monetary penalty in the amount of $1,000.
At the motion, Counsel for the Respondent advised that the OMP was issued on March 31, 2015. Included in the OMP package sent by mail to the Appellant was a cover letter, the OMP, a settlement offer, a Notice of Payment Due form and a “Filing a Liquor-related Appeal” information sheet. The OMP set out a deadline of April 15, 2016 to settle the matter or appeal it to the Tribunal, before the disposition would be carried out. Neither a Notice of Appeal nor a signed agreement to settle was received by the AGCO by April 15, 2016.
On April 20, 2016, the Respondent, through its paralegal, Kate Varva, contacted Mr. Jason Abrams, an officer of the Appellant, by telephone to follow up. Mr. Abrams advised that he had not received any disposition on the Letter of Incident (“LOI”) from the Deputy Registrar. The Respondent did not receive any returned or undeliverable mail regarding this matter. Mr. Abrams provided Ms Varva with an email address and she sent him the OMP package by email on April 20, 2016. No response was received from the Appellant.
On May 24, 2016, a Final Notice of the OMP was issued by mail to the Appellant’s address and by email directly to Mr. Abrams. The Final Notice advised that the OMP had not been paid and the time period for appeal of the OMP or payment of the agreed settlement amount had expired; payment was due within 15 days after the Final Notice had been issued; and if not paid within that time period, a Notice of Proposal to Revoke the liquor licence would follow.
The Appellant made another request for all the relevant documents on or about May 31, 2016. The Appellant was provided with another copy of the LOI, inspection report and notes, Appellant’s response to the LOI and the OMP package on June 1, 2016.
A second Final Notice to pay the OMP was issued on July 4, 2016 and sent directly to Mr. Abrams by email. The email stated that the time period for an agreed settlement or appeal of the OMP had expired and that since a Notice of Appeal was not filed, payment of the OMP was due in full. No response was received from the Appellant.
The Notice of Appeal and Notice of Motion in this matter were filed on July 22, 2016. The Tribunal notified the Appellant on September 15, 2016 that the appeal filed was incomplete as the filing fee of $100 was not included.
The Respondent opposes the motion and submits that he understood, based on conversations with Ms Varva, that he had until July 22, 2016 to file the Notice of Appeal and Notice of Motion.
The Tribunal has considered the materials and submissions from the parties, and denies the relief sought for the following reasons
ANALYSIS
Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, gives the Tribunal the power to extend the time to file an appeal:
…if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, …
In exercising that power, the Tribunal is guided by the principles for consideration on motions for the extension of time set out in the decision of the Divisional Court in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492, on appeal from this Tribunal. The decision sets out the four factors to be considered in assessing a request for an extension of time, as follows:
The existence of a bona fide intention to appeal;
The length of the delay;
Prejudice to the other party; and
The merits of the appeal.
Citing Frey v. MacDonald, [1989] O.J. No. 236 (C.A.), the Court stated that the general rule is that time for an appeal is not extended unless the appellant has shown that these factors support an extension. However, the Tribunal notes that the courts have also determined that these factors are simply a guide to assist in determining the justice of the case. A weaker fact situation under one head may be balanced by stronger facts under one or more of the remaining factors.
The Tribunal will assess each of these factors in light of the material before it and the submissions of the parties.
Intention to Appeal
The OMP was issued on March 31, 2016. As such, the 15 day appeal period ended on April 15, 2016. There was no evidence of any intent to appeal the OMP during the 15 day appeal period. It is the Appellant’s position that it did not receive the OMP between March 31 and April 15, 2016, even though the Respondent did not receive any returned or undeliverable mail on this matter.
The Respondent emailed the OMP to Mr. Abrams on April 20, 2016, over one month before issuing a Final Notice to Pay the OMP on May 24, 2016. There was also no evidence of any intent to appeal the OMP between April 20, 2016 and the issuance of the Final Notice of the OMP on May 24, 2016.
The Respondent took the unusual step of issuing a second Final Notice to Pay on July 4, 2016. The email from Ms Varva accompanying this notice stated that the time period for an agreed settlement or appeal of the OMP had expired.
Mr. Abrams submitted that based on conversations with Ms Varva, he believed his deadline for filing the NOA was July 22, 2016. He was vague about the specifics of his phone conversations with Ms Varva. He also did not produce any written evidence to substantiate that Ms Varva gave him a deadline of July 22, 2016, and this alleged deadline is contradicted by Ms Varva’s correspondence and the wording of the Final Notice, which states in capital letters and bold-face print:
AN ORDER OF MONETARY PENALTY IS A LEGAL ORDER. IF ORDER OF MONETARY PENALTY 000001377 IS NOT PAID WITHIN 15 DAYS AFTER THIS NOTICE HAS BEEN ISSUED, A NOTICE OF PROPOSAL TO REVOKE LIQUOR LICENCE 200047 WILL BE ISSUED UNDER THE LIQUOR LICENCE ACT, R.S.O. 1990 c. L.19.
There was no ambiguity in the wording of Ms Varva’s email or the Final Notice.
The Tribunal concludes that there was no intention to appeal until after the second Final Notice to Pay was issued.
Length of the delay
The delay in filing the Notice of Appeal was over three months. Even if the Tribunal accepts that the Appellant did not receive the OMP package until April 20, 2016, Mr. Abrams’ only excuse for failing to file the NOA between April 20, 2016 and May 24, 2016, was that he was busy running his business. There is nothing unique or extenuating about running one’s business. All licensees have to run their businesses. One of the responsibilities of running one’s business in a regulated industry is addressing correspondence and legal documents from the regulator in accordance with the specified time lines. As such, the Tribunal considers the delay to be excessive, in the circumstances.
Prejudice to the Other Party
The Tribunal is required to consider the prejudice to the Registrar as a result of the delay that would result from an extension of the appeal period. Ms Kidman submitted that the discipline process relies on timelines for consistency and that by dragging out the process, there is prejudice to the Registrar.
The Registrar is mandated to protect the public and maintain the confidence of the public in the regulation of the liquor industry. Ms Kidman did not provide any specific details of prejudice that the Registrar would suffer if the appeal was permitted. As such, The Tribunal concludes that there would be no significant prejudice to the Registrar if the late appeal was allowed to go ahead in this case.
The Merits of the Appeal
It is up to an appellant on a motion for an extension of time to demonstrate some merit to his case.
Mr. Abrams argued that someone fraudulently used his caterer’s endorsement for the event in question, but acknowledged that he would have difficulty proving this at a hearing. He indicated that he was interviewed by an AGCO inspector, a fraud inspector and a police officer with 11 Division, but does not recall whether he filed a formal fraud complaint. He also did not know the outcome of any investigations which may have been initiated into this matter.
Ms Kidman submitted it is the Registrar’s position that Mr. Abrams knew the individual, CP, who used the Appellant’s caterer’s endorsement for the event, and Mr. Abrams acknowledged knowing him. Ms Kidman indicated that the Registrar believes that it can prove, on a balance of probabilities, that the Appellant was complicit in the use of its caterer’s endorsement by CP.
It is possible that a Tribunal member hearing an appeal of this matter might find that the Registrar did not prove its case on a balance of probabilities. Nevertheless, as stated in the Manuel decision, an appellant must be able to demonstrate some merit to the case by offering some clear and specific evidence that he would put forward at a hearing to support his position; Mr. Abrams offered no evidence that he would put forward at a hearing. In light of this, the Tribunal could not weigh this factor in the Appellant’s favour.
Justice of the Case
As has been stated in the jurisprudence, the “justice of the case” is the overriding consideration. The other factors considered above may properly be understood to be factors to assist in assessing whether the justice of the case requires that the extension be granted. The Appellant was given plenty of latitude to file a Notice of Appeal after the original deadline of April 15, 2016 expired. He has not provided an explanation for failing to do so other than that he was busy trying to run his business. As noted above, the Tribunal does not consider this to be an extenuating circumstance for failure to file the appeal before May 24, 2016, when the first Final Notice to Pay the OMP was issued. This factor weighs heavily against the Appellant, and the other factors are not enough in the circumstances of this case to tip this balance back in favour of the Appellant. Therefore, the Tribunal does not find that the justice of the case requires that an extension be granted.
Given the foregoing, the extension of time for the filing of the appeal is denied.
LICENCE APPEAL TRIBUNAL
Jacqueline Castel, Member
Released: November 4, 2016