Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9880/GCA
CASE NAME: 9880 v. Registrar of Alcohol and Gaming
Appeal from a Notice of Proposed Order of the Registrar of Alcohol and Gaming under the Gaming Control Act, 1992, S.O. 1992, c. 24 to Suspend Registration
Mark Pillay o/a Central Market Appellant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Aviva Harari, Counsel
Heard in Toronto: April 18, 2016
REASONS FOR DECISION AND ORDER
This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of a Notice of Proposed Order to Suspend Registration issued by the Deputy Registrar of Alcohol and Gaming, under the Gaming Control Act, 1992 (the “Registrar” and the “Act” respectively). The Notice, dated September 25, 2015, proposes to suspend the registration of Mark Pillay o/a Central Market, as a lottery retailer on the basis that the Registrar has reasonable grounds to believe that Mr. Pillay will not act in accordance with law, or with integrity, honesty or in the public interest.
FACTS
The Tribunal heard from four witnesses: Tracey Cribbs, a tobacco tax inspector with the Ministry of Finance; Brian Adkin, an investigator with the Alcohol and Gaming Commission of Ontario (“AGCO”); Frank Cuda, Manager of Gaming Eligibility with the AGCO; and Mr. Pillay. The essential facts are not in dispute.
Mr. Pillay has been registered as a “seller”, in the class of lottery retailer under the Act since May 2009. He sells lottery products at his convenience store. In 2013, his registration was renewed and in 2014, as is the usual practice, Mr. Pillay was sent a notice by the Registrar requesting an update to the information provided on his renewal application. The second question on that form asked whether he had “been charged, convicted or found guilty of any offence in Canada or elsewhere? (This includes all federal and provincial offences, including criminal offences)”. Mr. Pillay responded “no”.
Upon reviewing the application form, the Registrar determined that Mr. Pillay was convicted under the Highway Traffic Act (“HTA”) of using/holding a handheld communication device while driving in October 2013. The Registrar also received information from the Ministry of Finance regarding a number of assessments levied against the Appellant under the Tobacco Tax Act. The Registrar then assigned Brian Adkin to make further inquiries. Mr. Adkin met with Mr. Pillay in July 2014 as part of his investigation.
By way of explanation for his “no” response, Mr. Pillay stated in his evidence that he was not sure it was a conviction or a criminal offence; he just paid the ticket (a fine of $105) on-line on his cellphone. He was more concerned whether he would lose “points”.
Regarding the tobacco tax assessments, Ms. Cribbs stated that she inspects retail outlets to determine if they are selling unmarked cigarettes, or cigars and other tobacco products with no proof of tax paid. For example, packages of cigarettes have a yellow tear tape and a federal and Ontario stamp to show that the required taxes have been paid. For other tobacco products, a retailer must prove, by way of a receipt, that taxes have been paid. A retailer is given 30 days to provide that documentation. There were two occasions, in December 2010 and June 2012, when cigars or other tobacco products were found in the Appellant’s store and no proof of tax paid was available at the inspections; however, Mr. Pillay did subsequently, and within the prescribed time, provide proof that taxes had been paid.
Ms. Cribbs stated that during the March 15, 2011, and June 13, 2013, inspections, a significant quantity of unmarked cigarettes and/or tobacco products were found at the Appellant’s store. He was fined $5,151.64 and $10,705.00 in respect of those two inspections. Fines are levied on a progressive basis and based on the quantity of product found. The Appellant paid both fines. On March 24, 2014, the Appellant was again found to have unmarked cigarettes (two packages) in his store. He was fined $5,015.00 which he paid.
Mr. Pillay did have a right to appeal those assessments. He appealed the 2013 assessment, but that appeal was rejected. Though he did not appeal the March 2014 fine, Mr. Pillay told Mr. Adkin that the shopping bag in which the cigarettes were found was not a bag used in his store, and he therefore questioned how those cigarettes came to be in his store and where they came from.
When Mr. Adkin asked Mr. Pillay why he was selling illegal cigarettes, he responded that all the other merchants in the area were doing it, and to be competitive, he had to do so as well.
Mr. Pillay stated that he has not sold any illegal cigarettes since April 2014. Though there was no specific evidence lead by the Registrar regarding inspections since March 2014, Mr. Pillay did state that his store is inspected regularly, the last time being four or five months ago. Ms. Cribbs’ evidence regarding the inspection dates at the Appellant’s store lends credence to this statement about regular inspections.
LAW and ANALYSIS
The Registrar’s power to suspend 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
As Mr. Cuda stated in his evidence, the Registrar is concerned by the Appellant’s failure to disclose both the HTA offence and the tobacco tax assessments on his renewal application. Ms Harari submitted that the Appellant’s repeated conduct in selling illegal cigarettes suggests a lack of integrity that requires sanction (though not so severe as a revocation), by way of a suspension, to serve both the need for individual and general deterrence; a strong message needs to be sent to others in the industry. The evidence suggests, she submitted, that Mr. Pillay has not learned his lesson, given the repeated tobacco tax assessments. She did concede that the Highway Traffic Act offence, in and of itself, would likely not call for a sanction.
The Tribunal accepts Mr. Pillay’s explanation for his failure to disclose the HTA offence. He paid a $105 fine by cellphone, and thought no further about it. While driving while using a handheld device is not to be condoned, this type of offence does not support a finding that Mr. Pillay lacks integrity or will not act with honesty or in accordance with the law.
Mr. Pillay repeated that he had stopped selling illegal cigarettes in 2014. He is not suggesting that there be no suspension, but rather, that some leniency be shown. He submits that a suspension of 30 days would make it very difficult to run his business. On that point, the Tribunal does not doubt that there are financial ramifications from a suspension of his lottery retailer registration for a period of time. However, this is part of the deterrent effect of any period of suspension.
Given the non-disclosure of the tobacco tax assessments, and the significant amount of those assessments, all of which the Appellant admitted, the Tribunal agrees that a suspension is warranted. In making its decision, the Tribunal is considering the 2011, 2013 and 2014 assessments. There was some evidence about a more dated tax assessment, but this was not cited in the Notice of Proposed Order, and so that will not be considered by the Tribunal.
The issue is the length of the suspension.
The Registrar submits that nothing less than 30 days would be appropriate: the Appellant has not learned. The Tribunal does agree that the admitted infractions cannot be overlooked by the Registrar; honesty and integrity and compliance with the law is of foundational importance to the industry as a whole. However, balanced against this,
there is no record before the Tribunal of any infractions of the Tobacco Tax Act since the spring of 2014. The Appellant admitted his wrongdoing and did pay significant fines, calculated to presumably have some deterrent effect. He may have questioned the findings of the March 2014 inspection, but he accepted responsibility and paid the fine.
Pursuant to s. 40 of the Act, the Tribunal may substitute its opinion for that of the Registrar and may attach any terms to its order that it considers proper to give effect to the purposes of the Act. Weighing the evidence as a whole, and noting that these assessments and their non-disclosure are effectively the only issues that have caused the Registrar concern since Mr. Pillay was first registered in 2009, the Tribunal finds that a 30-day suspension would be too harsh. On the other hand, this is not a situation that calls for a short suspension; this is not a case involving an isolated incident. The Tribunal has determined that an 18-day suspension is appropriate and sufficient for the purpose of achieving specific and general deterrence. The Tribunal also concludes that a condition on the Appellant’s registration requiring him to promptly report any and all charges and convictions to the Registrar is appropriate.
ORDER
Pursuant to the authority vested in the Tribunal under the Act, the Tribunal orders that the Appellant’s registration be suspended for a period of eighteen (18) consecutive days. Further, the Tribunal orders that the Appellant’s registration as a seller (lottery retailer) shall be subject to the following term:
- Mark Pillay o/a Central Market shall advise the Registrar, in writing, within 10 days, of any and all charges, convictions and findings of guilt for any offence in Canada, which includes all federal and provincial offences, including but not limited to the Criminal Code of Canada and the Highway Traffic Act.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
Released: May 9, 2016