Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2016-04-27

9917/AGRPPA

9917 v. Registrar of Alcohol and Gaming

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

McNally's Irish Bar Inc. o/a McNally's Irish Bar

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

Patricia L. Cassidy, Vice-Chair

For the Appellant:

Julianna Khou, Counsel

For the Respondent:

Joyce Taylor, Counsel

Heard in Barrie:

March 1 and April 7, 2016

DECISION AND ORDER

BACKGROUND

This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of an Order of Monetary Penalty issued by the Registrar of Alcohol and Gaming, under the Alcohol and Gaming Regulation and Public Protection Act, 1996 (the “Registrar” and the “Act” respectively.) The Order dated October 26, 2015, imposed a monetary penalty on McNally’s Irish Bar Inc., operating as McNally’s Irish Bar (the “Appellant”), with respect to a contravention of subsection 45(1) of Ontario Regulation 719/90 under the Liquor Licence Act .

FACTS

The Appellant is the holder of a licence under the Liquor Licence Act for premises known as McNally’s Irish Bar.

On June 13, 2015, an AGCO inspector visited the licensed premises and determined an intoxicated patron had been permitted on the premises, contrary to subsection 45(1) of Ontario Regulation 719/90 under the Act. Consequently, pursuant to the Order dated October 26, 2015, the Registrar imposed a monetary penalty in the amount of $2,500.

The Appellant filed a Notice of Appeal of the order on November 9, 2015.

This matter came on for hearing on March 1, 2016, and continued on April 7, 2016. There was a delay with the commencement of the hearing on March 1, 2016, because, initially, two witnesses were not available, including the individual whom the Inspector determined had been intoxicated and who had been subpoenaed to attend. That individual, A.E., has cerebral palsy and asserts that the manifestations of her disease were misinterpreted by the Inspector as intoxication. The Registrar sought an adjournment in order to secure the attendance of A.E. and have the Inspector meet with her and assess her once again. Ultimately, A.E. did attend although she clearly did not want to be present. The Inspector did meet with her and determined she was standing by her original assessment that A.E. was intoxicated on June 13, 2015. Accordingly, the hearing began.

THE EVIDENCE

The Registrar’s Evidence

Stacy Link, an inspector with the Alcohol and Gaming Commission of Ontario (A.G.C.O.) testified that she has been an inspector with the AGCO. for the past 13 years. She stated she is familiar with McNally’s Irish Bar, now called The Beach Bar, and that she was present in the establishment on June 13, 2015, having arrived there at 1:45 a.m. that morning.

Inspector Link testified that the Appellant’s establishment is located in a strip mall and that, when she arrived, the doorman was dealing with a situation out front. She observed that the situation appeared to be resolved and she entered the establishment just before service was to stop for the night, at 2:00 a.m.. She stated she stood beside the bar where she observed a female patron to be unsteady on her feet and using the bar or a chair to steady herself. This patron was observed to be drinking from a clear draft glass, ¾ full of a golden liquid with foam on the top. The witness testified the patron’s eyelids were heavy and she appeared to have trouble keeping them open. She testified the patron’s eyes were red and glassy. On cross-examination, she stated she did not recall that the bar had its smoke machine on that night and that she did not know if the smoke could cause glassy or irritated eyes. She conceded A.E. might have been tired but these things, along with her other observations, indicated to her that A.E. was intoxicated.

The witness stated she saw A.E. “grab her glass of beer and quickly make her way to the dance floor” where she began dancing with other females. She testified that the A.E.’s dancing was erratic and inappropriate; that the music being played was “rock and roll country” but the A.E. danced “like she was at a rave”. She elaborated that others dancing with the A.E. were “dancing appropriately” but that she was jumping up and down, making a head banging motion with her head and a fist pumping motion with her arms.

Inspector Link testified she identified herself to the doorman, using her AGCO identification, and asked him to check the patron’s identification, which he did. The patron was identified as A.E. and, according to Inspector Link, A.E. became angry with the doorman and said she had already been asked for her identification. The witness stated A.E.’s voice was loud and the attention of other patrons was being drawn to them.

The witness testified that while the doorman was speaking with A.E., she observed that A.E. was having trouble expressing her thoughts and her speech seemed slurred. A second female, K.E. who is A.E.’s twin sister became involved and also said that A.E. had already been asked for her I.D. Ultimately, A.E. provided her I.D. after the witness identified herself. While speaking with A.E., this witness stated she smelled alcohol on her breath.

The manager of the bar, Nathan Hachey, approached and tried to speak with A.E. and K.E. It was this witness’ assessment that the women were “irrational”. She elaborated that they were yelling at Mr. Hachey while he tried to explain the situation to them but “they wouldn’t listen.”

The witness testified that K.E. explained that A.E. suffers from cerebral palsy and told the Inspector, “You should be ashamed of yourself.”

The witness stated the sisters left on their own and that A.E. walked out on her own.

At some point while she was speaking with A.E. on June 13, 2015, the witness asked her if she was pregnant because she had observed another patron at the bar taking her beer away from her and telling her she shouldn’t drink when she’s pregnant. The witness elaborated that she also asked the sister, K.E. if A.E. was pregnant. K.E replied that A.E. was not pregnant, she was just fat. In cross examination, the witness stated she did not have anything in her notes about this issue because it turned out that A.E. was not pregnant. The witness conceded that A.E. might have been insulted at the suggestion.

The witness stated she spoke with the manager before leaving the establishment and educated him about permitting drunkenness. She stated she left the establishment at 2:16 a.m.

The witness testified that she had the opportunity to assess A.E. again at this hearing and observed that she did not speak with any slurred speech. She observed her walk in with her sister, K.E., and she was holding onto her sister’s arm today while, in June 2015, she did not need any assistance to walk.

In cross examination, Inspector Link testified that nowhere in her notes does it say that A.E. needed help to move but she did see her stumble. She did not recall what type of footwear A.E. was wearing on June 13, 2015, and she acknowledged she does not know the extent of A.E.’s disability or how it might affect her ability to walk.

The witness stated she saw A.E. drink from a glass of beer and, although her notes do not say she observed this, she stated she has independent recall of A.E. taking a drink from a glass of beer.

The witness acknowledged that her notes do state that A.E. had dirty, unkempt hair which, she conceded doesn’t necessarily indicate intoxication but, she said, does assist her to remember the individual. She stated her notes do not mention the woman taking the beer away from A.E. because A.E. wasn’t pregnant, as it turned out and her notes are to assist her to recall relevant items. She did state, however, that a woman took a glass from A.E., put it on the bar and told her she shouldn’t drink while she is pregnant. She stated A.E. laughed at the comment, picked up the glass and left for the dance floor.

Inspector Link testified she has visited the establishment on many occasions and has found infractions on some visits. She has also done spot checks. In the fifteen months between February 1, 2014 and May1, 2015 she did “13 inspections and 5 spot checks”. She elaborated that enforcement is risk based and there is a point system. When an establishment gets to a certain amount of points, it becomes a Risk Based Establishment and it is mandated that extra visits take place.

The witness testified that, on June 13, 2015, her intention was not to go to the establishment to find further infractions. She stated they are trained to educate as well as to enforce and if there is no issue, her inspection is done and she leaves.

The Appellant’s Evidence

K. E. Is the twin sister of A.E. She is a registered nurse. She graduated from York University with Bachelor of Science in Nursing and has been working as a nurse for 2 years.

The witness testified that on June 13, 2015, she, along with her sister A.E. and 2 other friends, went to the bar. They showed their I.D.’s at the door and had been at the establishment for about 30 minutes when they started dancing. Shortly after they began dancing, a woman approached them. The witness sated the woman was not wearing I.D. and she did not show her I.D. She assumed the woman worked at the bar. When this woman asked to see A.E.’s identification, A.E. stated she had already showed her I.D. at the door. When she was asked for her I.D. again, A.E. was upset and asked why she was being asked again since she had already showed it at the door. The woman would not identify herself or say why she was asking to see the I.D. again. The witness stated A.E. was upset and confused – she was being singled out and asked to produce I.D. for a second time and was not given any reason. K.E. testified that at no time did the woman identify herself and that when K.E. asked her who she was, she would not tell her.

The witness, K.E. testified the Inspector made accusations of A.E. saying she looked like she was pregnant and that she looked “wasted”. The witness stated she and her party did not know who this woman was and asked her not to speak to A.E. like that or to upset her. She said that both she and her sister A.E. became defensive. She stated they explained that A.E. is disabled, that she has right side weakness which affects her ability to walk and that she has cerebral palsy.

The witness stated that Mr. Hachey, the bar manager, approached them and introduced himself. She stated he was very polite and explained that the woman was an inspector. He told them what her concerns were and that they would have to leave.

K.E. stated that her sister, A.E. previously required braces and that she had undergone numerous procedures to get to the stage she is at now. K.E. testified that A.E. has spasticity which makes her shaky and spastic. She stated A.E. tries to fit in the best she can, but that her posturing and her gait are very affected by cerebral palsy and that her arm is up and that affects her balance as well. A.E. was wearing high heels and they further affect her gait.

The witness stated that A.E. likes to dance and, on the night in question, they were dancing. She elaborated that her sister looks different when she dances and when she walks and even when she is just standing because she is different. She is disabled. She stated that A.E. had worked very hard to gain the confidence she had on June 13, 2015, but that she has not been out socially since that night. She stated her sister has always been self-conscious of her disability but had worked hard. She liked to dress up like other girls and, although she had difficulty walking in them, she liked to wear high heels.

K.E. stated she was “appalled” by what she described as Inspector Link’s “lack of professionalism”. She stated that every aspect of Inspector Link’s demeanor was “rude and unprofessional”. She was offended by the Inspector referring to A.E. as being “wasted” and “dirty” and “pregnant”. The witness was emphatic in stating her sister was not pregnant and that she asked the Inspector not to mention pregnancy to A.E. because it was just hurtful. K.E. stated she kept asking Inspector Link why she was questioning them but that she would not respond.

The witness stated she took issue with what Inspector Link said as well as her manner of questioning them and her refusal to tell them who she was or why she was asking the questions she was asking. She elaborated that the language she used, her tone and her body language, including rolling her eyes, were all insulting and upsetting. The witness stated that A.E. told Inspector Link about her illness and explained her signs and symptoms, but she would not accept anything she was being told nor respond to their inquiries.

In cross examination, K.E. acknowledged she was upset by the interaction with Inspector Link. She conceded she was speaking loudly in order to be heard above the music.

K.E. stated she did not know what time their group arrived at the bar but she thought it was after 10:00 p.m. and it could have midnight or later. She stated that it had been more than 8 months since the incident and they had just recently been advised they would be required to testify at this hearing; they had not reviewing the details in anticipation of having to testify. She stated the detail that stuck out was the humiliation.

The outing to the bar on June 13, 2015, was the first time she and A.E. had been to the establishment. They attended the bar with 2 other girls and met other people there. It is in their hometown and K.E. now lives and works in a different community.

A.E. was a reluctant witness. She did not want to attend this hearing and had no particular interest in the outcome. Nonetheless, she did testify and stated she didn’t remember much about June 13, 2015, except a woman asking her for her I.D. She stated she thought the woman thought she was underage because she looks young but when she realized the woman thought she was drunk she became upset. She said she explained to the woman that she has cerebral palsy and explained her issues – she walks on her tip toes, she can’t hold a cup or turn a door knob, she has gait issues which affect her posture, etc. but the woman did accept her explanation.

The witness explained that cerebral palsy affects the right side of her body. She favours her left side and tends to put all of her weight on her left side. She has spastic episodes and pain.

Her evidence is that she does not recall the time they arrived at the bar, but that they weren’t there very long. They only had one drink before they were told to leave. She stated she bought a drink at the bar, walked to the dance floor, put the drink down and began dancing with her sister. While she was dancing, she was approached by a woman from behind who asked for her I.D. She gave it to her, reluctantly, and wondered why she was being asked because she had already shown it at the door. She stated she was shocked to learn the woman thought she was drunk and tried to tell her about her disability. She stated she explained her disability and then began crying at which point her sister came to her aid. The witness stated she was “devastated”.

A.E. testified the incident occurred several months ago and she does not remember all of the details but does remember the embarrassment and the upset. She stated the woman whom she now understands was an inspector kept writing notes and smirking while she tried to explain her disability but the woman would not speak with her. The witness stated she thought the woman was a bouncer.

In cross examination, it was suggested to the witness that she and her sister were asked to stand back but she denied that occurred. She stated she was not asked to stand back. She stated her sister, K.E., was speaking with the inspector and, in order to be heard over the loud music in the bar, you have to be close to the person or you need to yell, but she stated she was not part of the conversation; the woman would not speak with her.

In cross-examination, A.E. testified that the Inspector had not asked her if she was pregnant nor did she tell her she thought she was pregnant. It is A.E.’s testimony that had only been told that the Inspector inquired about whether or not she was pregnant afterwards. She elaborated Ms. Link asked her for her I.D. and said she had been drinking too much. She did not ask her any questions and A.E. thought the Inspector thought she was underage. A.E. stated the inspector would not talk to her; she just kept writing and smirking. A.E tried to explain her disability to Ms. Link but, she claims, Ms. Link would not talk to her. A.E. became upset and K.E. intervened and spoke with the Inspector. A.E. stated she was not part of their conversation.

A.E. stated she and her sister and their friends left the bar because they were told they had to leave, but elaborated they would have left anyways after what had transpired.

Nathan Hachey has been the general manager of the Beach Bar and Grill, formerly McNally’s Irish Bar, since March 2015. Prior to beginning work there, he worked about 10 years in the restaurant and bar industry.

Mr. Hachey stated that, in the bar, he assists with the sound and lighting and, after 10:00 p.m., he assists in the kitchen. He said he tries to do rounds every 15 – 20 minutes at the bar. He stated there are always two bartenders on duty as well as at least one licensed member of the security team stated they have two taxi cab companies that they call frequently. He said they are committed to getting people home safely.

The witness testified that, on the night of June 13, 2015, he left the establishment at approximately 1:30 a.m. to go across the street to Tim Horton’s to pick up coffee for staff. He was gone about five minutes and, on his return, he did a food order in the kitchen which also took about five minutes. His evidence is that when he came out of the kitchen he observed an “altercation” at the end of the dance floor. When asked what he meant by that, he explained he noticed there was shouting and displeasure on the faces of patrons and he went to check it out. He observed Ms. Link, the liquor inspector, in an altercation with two patrons. He elaborated that he knew who Ms. Link was because he has never seen another inspector as often as he has seen her. In any event, the witness stated that when he got to the group, he realized that Ms. Link was asking patrons for their I.D.’s and they were upset because the Inspector had not identified herself and insisted on seeing their ID.’s. He explained to the patrons that she was an inspector and that she was entitled to ask them for their I.D.; they understood his explanation that Ms. Link was an inspector and entitled to ask to see it again and they complied. The witness stated that Ms. Link took a picture of A.E.’s identification and that seemed to upset A.E. Mr. Hachey asked Ms. Link why she wanted to see the I.D. and she told him she believed that A.E. was intoxicated because she had seen her stumble on the dance floor.

The witness testified that A.E. and K.E. heard Ms. Link say she had seen A.E. stumble on the dance floor and they advised that A.E. had cerebral palsy. He said that A.E. and K.E. explained in calm, articulate manner that A.E. had cerebral palsy. Neither of them had slurred speech, according to him. His evidence was that K.E. elaborated that her sister A.E. was handicapped and her gait was altered. The witness testified that, at that point, Ms. Link advised him she believed A.E. was intoxicated and that she believed she was pregnant and she would writing a report to say the bar had served a pregnant woman who was intoxicated. The witness stated the situation escalated when Ms. Link added one thing after another: first she didn’t identify herself but insisted on seeing the I.D.’s, then she alleged A.E. was intoxicated; she would not accept the explanation that she was handicapped as a result of cerebral palsy and then she said that she believed A.E. was pregnant.

When told someone is intoxicated, Mr. Hachey says he makes an assessment and, in his assessment, A.E. was not intoxicated. She and her sister K.E. were upset but they did not exhibit signs of intoxication.

The witness testified that Ms. Link told him to eject both A.E. and K.E. although he did not believe either of the women were intoxicated. He did not believe either of them showed any signs of intoxication.

Mr. Hachey stated that as the General Manager, customer satisfaction is a concern for him. The women said they had spent a lot to get to the bar that night, had just purchased drinks and were asked to leave without finishing their beverages. He stated that he does not argue with the inspectors however; what the inspector says, goes. The witness said he was surprised to be told he had taken too long to have the women removed from the premises. He stated he too has the responsibility to assess the patrons and to get them out any faster than he did would have meant he could not do his job of assessing them before ejecting them. He elaborated that he wants customers to have a good experience in their establishment and, if someone is intoxicated, that affects the experience of others. Further, when an inspector tells them to do something, they comply. Mr. Hachey stated that he has a supervisor whom he reports to and he is required to assess situations; even after an inspector has assessed a situation, he still needs to assess it too. In his assessment, A.E. was not pregnant, she was not intoxicated – she was handicapped.

In cross examination, the witness stated the bar is loud and you have to speak loudly to be heard, but he did not hear any shouting on the night in question. He repeatedly stated the situation between the Inspector and A.E. and K.E. escalated unnecessarily because she first insisted on seeing their I.D.’s and not advising them who she was, then she asserted that A.E. was intoxicated and would not accept their explanation that she had cerebral palsy. Then she advised she thought A.E. was pregnant and intoxicated. When it was suggested to him that that the Inspector was calm he replied, “Definitely not” and opined the situation got heated and it shouldn’t have.

The witness testified he was aware of past infractions under the Act prior to the new ownership and prior to his employment there. He stated he understands that establishments with a history of infractions may attract more frequent visits and conceded he would expect relatively frequent visits, given the bar’s history. However, with the positive changes the new management has made, once they had been assessed and seen to be complying with all requirements he expected things to relax, but Inspector Link continues to visit frequently. He believes her frequent visits amount to harassment although he has not made a formal complaint.

THE LAW

Subsection 45(1) of Ontario Regulation 719/90 provides:

(1) The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.

Under sections 14.1(1) and (2) of the Alcohol and Gaming Regulation and Public Protection Act, , the Alcohol and Gaming Commission of Ontario (“the Commission”) may impose monetary penalties against licence holders in respect of contraventions of various legislative provisions, including s. 45(1) of the Regulation. An appeal from such an imposition lies to the Tribunal. Under s. 14.1(7) of the Act, the Tribunal’s powers on appeal are limited to confirming the monetary penalty or setting it aside.

APPLICATION OF LAW TO FACTS

Counsel for both parties made lengthy submissions which were, in the final analysis, not particularly helpful. Both relied on facts that were not in evidence to support their arguments. Counsel for the Registrar repeatedly referred to what she called A.E.’s “mild form of cerebral palsy” without any medical evidence on either the severity of A.E.’s affliction or the severity of her symptoms. There was no evidence to support a categorization of her condition as “mild”.

This is a most unfortunate set of circumstances. It is apparent there is a great deal of acrimony between the parties and the witnesses and, it appears that the events giving rise to this hearing as well as the hearing itself have had a profound effect on the witness, A.E.. She states she has not gone out socially since the night in question and she was very reluctant to testify. She was insulted and embarrassed by what transpired on June 13, 2015, and while that is very sad, it does not assist in determining the issue which this Tribunal needs to determine.

There was considerable time taken by both parties in giving evidence around the frequency of Inspector Link’s visits to the licensee’s establishment. While it clearly is an issue between the parties, it is not an issue that this Tribunal needs to concern itself with; it is not relevant to the issue which needs to be decided in this case.

There was also considerable time devoted to eliciting evidence on the issue of how many security staff were working at the relevant time but, again, that issue is not relevant to what the Tribunal has to determine either.

Counsel for the Registrar referred the Tribunal to the case of 1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission) [2009] O.J. No.1553. At paragraph 3, the Court stated:

In our view, permitting drunkenness on the premises requires proof that the

Licensee knew or ought to have known of the drunkenness on the premises.

That determination, of course, must be made in all the circumstances and, in

particular, in the context of the various obligations and duties placed on the

licensee by the relevant legislation and regulations.

For this Tribunal to make a finding under subsection 45(1) of the Regulation, it must first be satisfied that there was drunkenness. If that first part of the test is satisfied, then the Tribunal must be satisfied that the licensee permitted the drunkenness. The Registrar must, on a balance of probabilities, establish the licence holder knew or ought to have known the patron, A.E., was drunk but permitted her to remain on the premises.

The indicia of intoxication identified by the Inspector included:

A.E. was unsteady on her feet and was seen to use a chair for support. She did not see A.E. stumble or fall or bump into anyone or anything. Her observation was that A.E. touched a chair for support when leaving the bar area, with her drink, to go to the dance floor. It is not inconceivable that an individual suffering from cerebral palsy and walks on her ti toes, has spasticity, and posture and gait issues would grab a chair as support while walking in high heels and carrying a glass.
A.E.’s eyelids seemed heavy, but the Inspector conceded that might have been because she was tired
A.E.’s eyes were red and glassy. The Inspector stated she did not recall if the bar had their smoke machine on the night in question. Nathan Hachey’s evidence was that the smoke machine often causes eye irritation and that the machine was on that night. He also testified he did not notice that A.E.’s eyes were red or glassy.
A.E. was dancing in an erratic and inappropriate manner. This Tribunal takes notice of the fact that dancing is a very personal expression of one’s interpretation and reaction to music. Unless one is participating in a contest where there are specific rules and particular moves that adjudicators look for to assess, it is very difficult to determine what is appropriate dancing and what is not. It is a very subjective standard. Without any evidence of what would constitute appropriate dancing in a bar, it is not possible to determine whether or not A.E. was dancing erratically or whether or not her dance moves were appropriate. Further, since there is no evidence that her dancing was out of her control or bothersome to other patrons, it is not clear how it could be indicia of intoxication.
A.E.’s voice was loud. The uncontroverted evidence is that the music in the bar was very loud and that to hear or to be heard, voices had to be raised to the point of yelling.
A.E.’s breath smelled of alcohol. The uncontroverted evidence is that A.E. was in the process of consuming the glass of beer she purchased at the bar that night. It is not unusual or surprising that her breath would smell of alcohol.

There were many contradictions in the evidence received in this hearing. The most relevant contradictions were:

The Inspector initially testified that she had the doorman check the I.D.’s of A.E. and K.E. while the evidence of A.E., K.E and Nathan Hachey was that it was Ms. Link who asked for the I.D.’s and they would not provide them to her because they did not know who she was or why she was asking for them. It was not until Mr. Hachey intervened and advised the sisters that Ms. Link was an inspector and entitled to ask for their I.D. that they produced it. Further, they testified that she took a picture of A.E.’s identification..
The Inspector testified that once she identified herself, A.E. provided her I.D. That is consistent with the testimony of A.E. and K.E. and Mr. Hachey, but it is in contradiction with Ms. Link’s earlier evidence on the same topic when she was adamant that she asked the doorman to check A.E.’s identification and she gave it to him.
The Inspector testified that both A.E. and K.E. were irrational, that they were yelling at Nathan Hachey, that Mr. Hachey tried to explain the situation to them but they would not listen and that A.E.’s speech was slurred. Mr. Hachey testified that the sisters were calm when he was speaking with them, they were articulate and neither of them had slurred speech. It was Mr. Hachey’s evidence that the Inspector was not calm, that the situation became heated and it should not have.
The Inspector testified that she asked A.E. if she was pregnant and that she asked K.E. if A.E. was pregnant, to which K.E. responded that she just fat. That is not consistent with the evidence of K.E. who testified the Inspector asked her if her sister was pregnant and she stated she was not and pleaded with the Inspector not to ask her sister that question because she was not pregnant and it would be hurtful. Further, it was A.E.’s evidence that Ms. Link did not ask her if she was pregnant; that she didn’t know Ms. Link thought she was pregnant and she had only been told that since.

Counsel for the Registrar relies on the case of Shooters Sports Bar Inc. [2009] O.A.G.D. No.96, asserting that since the Inspector has no self-interest in the outcome of the hearing, her testimony should be favoured over that of the other witnesses. Her submissions were that K.E.’s focus was in vindicating her sister and not providing the truth and that A.E. follows her sister’s lead and will not oppose her. Mr. Hachey, she submits, has an interest in the outcome of this hearing because he would have employment issues if it was determined he permitted drunkenness in the establishment.

At paragraph 157 of the Shooters Sports Bar decision it states:

Taking into consideration the totality of the ... contradictions, inconsistencies

and omissions without reasonable explanations, the Board found the evidence

of Mr. Preddie, Ms. Preddie and Mr. Peterson to be self-serving and generally

lacking credibility. As such, where their evidence conflicted with Inspector

Joseph’s, the Board preferred Inspector Joseph’s, who had no self-interest in

the outcome of the hearing. This is not to say that the Board always found

Inspector Joseph’s evidence to be sufficiently detailed to substantiate, on a

balance of probabilities, every allegation in the NOP. However, the Board found

Inspector Joseph to be honest and candid regarding what he did and did not

observe.

In the present case, it is the Tribunal’s determination that the witnesses for the Licensee were credible. There was an Order for the exclusion of witness made at the outset of the hearing and, consequently, no other witnesses heard the testimony of Inspector Link. A.E. did not hear the testimony of her sister K.E. and it is not clear how it can be claimed she was simply following the lead of her “crusading sister”. Mr. Hachey, as the last witness, did not hear any other witness’ testimony and yet his evidence was consistent with that of both A.E. and K.E.

While it is not uncommon for one party’s witnesses to contradict another party’s witness, it is unusual for a witness to contradict herself as Inspector Link did on an issue that all witnesses were very adamant about. The assertion that the patrons did not know who she was or why she was asking for their I.D. when they had already showed it to the doorman was key to their explanation of why they were not prepared to cooperate with her demands and that they did comply once they were told, by Mr. Hachey, who she was and that she was entitled to ask to see their I.D.

The testimony of A.E. and K.E. that the Inspector would not listen to their explanations that A.E. suffered from cerebral palsy, that she minimized the relevance and extent of her affliction is consistent with the assertion by Counsel for the Registrar that A.E. has a “mild form of cerebral palsy”, absent any evidence to support that classification and absent any cross-examination on the testimony regarding the efforts A.E. has made and the success she has achieved in trying to overcome and manage her disability.

For these reasons, The Tribunal cannot find, on a balance of probabilities, that A.E. was drunk. The Registrar has not met the first part of the test set out in Sin City, therefore the Tribunal does not find a violation of s.45(1) of the Regulation.

ORDER

Pursuant to the authority vested in it under the provisions of the Act, the Tribunal sets aside the Order of Monetary Penalty dated October 26, 2015.

LICENCE APPEAL TRIBUNAL