Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2016-05-12

FILE:

9799/LLA

CASE NAME:

9799 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 Suspend a Licence

1687774 Ontario Inc. o/a Swazzees Restaurant and Bar

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

DECISION AND ORDER

ADJUDICATOR:

Jacqueline Castel, Member

APPEARANCES:

For the Appellant:

Michael McArthur, Counsel

For the Respondent:

Phillip Morris, Counsel

Rena Khan, Counsel

Faye Alipour, Student-at-Law

Kamele Barrett, Student-at-Law

Heard in Hamilton:

March 3, 4 & 8 and April 4, 25 & 26, 2016

DECISION AND ORDER

BACKGROUND

The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act, (the “Act”) issued a Notice of Proposal (the “NOP”) (Exhibit 1), dated August 21, 2015, which proposed to suspend 1687774 Ontario Inc.’s (the “Appellant”) licence for 60 days. The NOP alleges that the Appellant, operating as Swazzees Restaurant & Bar (“Swazzees” or the “Establishment”) contravened section 29 of the Act, by permitting liquor to be sold or supplied to two customers who were or appeared intoxicated, and section 45(1) of Ontario Regulation 719/90 (the “O.Reg.”) under the Act, by permitting drunkenness on the part of two customers. The alleged contraventions occurred on February 28/March 1 and March 5, 2015.

The incident of February 28/March 1, 2015 involved a female, PD, who was found dead on the roadside, in the neighbourhood of the Establishment, the morning after she attended there. PD consumed alcohol before attending the Establishment and was served alcohol at the Establishment. When she left on foot, she is alleged to have been very intoxicated.

The incident of March 5, 2015 involved a male, KM, who was discovered unconscious in a snow bank in the neighbourhood of the Establishment. He consumed alcohol before attending the Establishment; he was served alcohol and later cut-off alcohol service at the Establishment. When he left the Establishment on foot, he is alleged to have been very intoxicated.

The Appellant appealed this NOP to the Licence Appeal Tribunal (the “Tribunal”). The Notice of Appeal (“NOA”) was filed and entered as Exhibit 2.

EVIDENCE

Incident of March 1, 2015

TB has resided in Waterford for 8 years. She called the police on March 1, 2015 because she noticed on social media that a woman was found dead in a snow bank in Waterford and she had a gut feeling that what she observed in the early morning of March 1, 2015 might be related and relevant. When driving home with her husband from a friend’s home on February 28, 2015 after 1 am, she observed a woman walking south on Thompson Road. The woman was staggering. TB observed the woman drop her purse and then pick it up and put it on her left shoulder, fall into a snow bank and then get up and stagger.

TB stated that she watched the woman to see whether she was going into a house. She observed the woman turn right on Stratford Court, and since there were no street lights, she thought she was turning up a driveway. She was no longer able to see the woman after she turned right.

TB described the woman as being slender, in good shape and wearing dark fitted pants or tights and a medium length dark jacket. She did not see her face but guessed her to be in her 30s or 40s.

TN is the daughter of PD. TN stated that her mother was 49 years of age when she died. She testified that her mother weighed about 100 lbs and was about 5 feet tall. She also indicated that her mother had lost about 50 lbs in the year before she passed away. She stated that her mother resided in Hamilton.

TN indicated that her mother worked long hours and experienced a lot of pressure and stress at work. She also testified that her mother used to drink a glass of wine every day and that she also took medication for anxiety and migraines. She stated that to her knowledge, her mother took her medication at bedtime. She indicated that she has had occasion to see her mother intoxicated. On these occasions, her mother was wobbly, would lean on things for stability and slur her words.

On February 28, 2015, TN attended her nephew’s birthday party at her sister AS’s home in Waterford. She arrived at her sister’s home at around noon to help set up for the party. Her mother was already there. Shortly after she arrived, her mother asked her to go to the liquor store. She purchased three bottles of Sania Carolina Chardonnay, a brand of wine her mother wanted to try, as well as a bottle of Girls Night Out Tropical Tango for her sister and Girls Night Out Coconut Lime for herself. TN estimated that her mother consumed about half a bottle of the Chardonnay at the party. She indicated that there were a lot of aunts, cousins and friends at the party, some of whom also consumed the Chardonnay. TN recalled that there was about 1 ½ bottles of Chardonnay left at the end of the party. According to TN, when she left the party at around 6 p.m., her mother was not intoxicated.

On cross-examination, TN acknowledged telling a police officer who interviewed her after her mother’s death that her mother was a heavy drinker.

BJR is a friend and neighbour of AS. She attended AS’s son’s birthday party on the afternoon of February 28, 2015 with her three children. She was at the birthday party from approximately 1 p.m to 5:30 or 6 p.m. She noticed that PD was drinking white wine at the party but she was not monitoring how much she was consuming. BJR consumed five or six beers at the birthday party. She indicated that she was not drunk at the party and neither was PD.

BJR invited AS to go to Swazzees with her after the party which was about a five minute walk from BJR’s residence. AS declined, but her mother, PD, said she would like to go. BJR did not have an independent friendship with PD and had never been out to a bar with her before February 28, 2015.

According to BJR, PD walked over to her house at about 7:30 or 8 p.m. They each had one alcoholic beverage before leaving. BJR consumed beer. She could not recall what PD consumed. A friend drove them to Swazzees at about 8:30 p.m. In the car, BJR showed PD the pathway they would take to get home.

At Swazzees, they met BJR’s husband and one of his friends. BJR said she was about to order a pitcher of beer for the table when PD told her to “make it two”. BJR’s husband and friend left shortly after she and PD arrived, but five or six other people joined the table. She cannot remember how much she or PD had to drink or how fast they were drinking. However, BJR acknowledged that by 11 p.m., she had consumed a lot of beer and that she was intoxicated. She does not remember whether PD was intoxicated.

She testified that PD kept asking to purchase her ring, which was worth about $20, and ultimately offered to pay $120 for it. BJR declined. She remembered PD walking around from table to table. She did not recall her having any difficulties. She did not notice her slurring her words.

She remembered PD telling her at some point that she thought she was going to “take off” but then sat down like she had changed her mind and intended to stay. BJR didn’t recall seeing PD leave. BJR stated that she got home around 1:30 a.m. but has no recollection of when she left or of walking home. She indicated that she must have blacked out because she had so much to drink.

She indicated that she does not recall any of the staff of Swazzees cutting her off alcohol service or indicating that they would need to slow down alcohol service because she was drinking too fast.

BJR acknowledged sending AS a text message which read, “What’s the key to get your mom to go home?” at 10:26 p.m. She also acknowledged replying, 15 minutes later, “Not good.” She stated that she was in a “joking mood” when she sent these texts. She indicated that PD was being gregarious and clingy, but that she was not exhibiting signs of intoxication.

AS indicated that TN is her younger sister and PD was her mother. She identified BJR as her friend and neighbour. She stated that her mother lived in Hamilton and used to visit her about two times a month. According to AS, her mother was familiar with the neighbourhood. AS stated that they often walked to the Foodland, located in the same mall as Swazzees together. Her mother did not have any friends in the neighbourhood.

AS testified that her mother was a certified pharmacy technician and a department manager. She worked long hours. She stated that her mother was about 5”2 and weighed about 120 lbs.

AS described her mother as a casual drinker and estimated that she would have a glass of wine a couple of times a week. She admitted that she has seen her mother drunk and that on these occasions her mother would stagger and her speech would become slurred. She stated that her mother quit smoking about a month before she died. She also stated that her mother took medication for her migraines. She did not know the name of the medication or the dosage. She had never spoken to her mother about any side effects of the medication. She had never seen the medication cause her mother’s speech to become slurred.

AS stated that on February 28, 2015 her mother arrived at her residence at about 9:30 or 10 a.m. to help decorate and prepare for her son’s birthday party. Her mother asked her sister, Tiffany, to buy a bottle of white wine and she observed her mother drinking one or two glasses of wine at the party in the afternoon. When AS was asked to examine the receipt for the alcohol TN purchased (Exhibit 7), she stated that the three bottles of Chardonnay were for her mother and the guests, the Girls Night Out Coconut was for her sister and the Girls Night Out Tropical Tango was for herself. She estimated that there were about 20 people at the party, and that about 1 ½ bottles of Chardonnay were left over at the end of the party.

She indicated that her friend, BJR, invited her to go to Swazzees after the party. She was not able to go, but her mother went. Her mother left for BJR’s house between 7:30 and 8 p.m. and was not drunk when she left, but she acknowledged that she “had a glow” from the wine she had consumed.

AS stated that she did not keep the text messages between herself and BJR on the night of February 28, 2015 but she remembered BJR texting her something to the effect of “What can we do to get your mom to come home?” and responding to “tell her to come home”. She also acknowledged the following text message exchange between herself and BJR, starting at 10:48 p.m. on February 28, 2015:

AS: “What’s going on?”

BJR: “Not good – Oh, God.”

AS: “Sorry.”

BJR: “It’s all good baby.”

AS: “I should warn you she was half in the bag when she left.”

AS stated that she was joking when she referred to her mother being “half in the bag” and reiterated that her mother was not drunk when she left her house between 7:30 and 8 p.m.

AS read the following text message exchange between herself and her mother on February 28, 2015 (Exhibit 9):

AS: “Hey I was going to head to bed soon when do you think you’ll be home about?” (11:04 p.m.)

PD: “Bobby says soon.” (11:07 p.m.)

AS: “K I’m going to sleep text me when your home I’ll come unlock the door” (11:46 p.m.)

PD: “Unluoxih” (11:48 p.m.)

AS “Take me drunk I’m home! LOL what did you just type??? Lol” (11:49 p.m.)

PD: “Just leave the door orpper” (11:52 p.m.)

AS: “Nope I can’t go to sleep with it open with all the crap that has happened lately with Tim’s car” (11:55p.m.)

AS stated that she went to sleep with her phone in her hand and the ringer turned on loud. She woke up at around 4:30 a.m. and realized her mother still wasn’t home. At this point, she texted “Where are you???? ....”

AS identified her mother as the woman in the Plaza Video (Exhibit 5) and the Neighbour (“BS”) Video (Exhibit 6).

OPP Constable (“Const.”) Brandon Wagenaar has been a police officer since 2007. On March 5, 2015 at approximately 7:40 a.m., he received a radio call for assistance: a woman had been discovered partially covered in snow near the intersection of Stratford Ct. and Duncombe Rd.

He arrived at the scene at 7:45 a.m. and located a woman laying on her back with her head almost touching the curb. Const. Wagenaar marked the location on Exhibit 4C and also identified the location through photographs (Exhibit 18). He did a quick survey of the area, noting that it had snowed lightly overnight and there were no foot prints or impressions leading up to the body.

Const. Wagenaar checked for vital signs and attempted to find a pulse but was unable to do so. He was able to move the woman’s right arm a little bit so rigor mortis had yet to set into her body. He did not perform CPR given that her skin was cold to the touch and he could not find a pulse. There was no snow on the woman’s hands or face, but there was a light covering of snow over her clothes. The woman was wearing black pants, a red winter jacket and no hat or gloves. A black purse was in between her legs. He noticed there were scratches on the top of her nose and bruising around her neck and collar bone. Const. Wagenaar subsequently learned, from the officers who took her to the hospital, that she also had abrasions to the knees which would have been consistent with several falls.

Const. Wagenaar indicated that given the abrasions to the woman’s neck and face, he initially thought PD may have been attacked, but clarified that no police force involved in investigating her death concluded she had been attacked. He does not believe the woman fell, given the position of the purse in between her legs.

He located a pair of prescription glasses, with one missing arm, at the intersection of Stratford and Duncombe. He later found the missing arm in the woman’s purse. He also found the following medication in her purse:

1. Teva-Venlafaxine 150 ml

2. Auro-topiramate 100 ml

3. Auro-topiramate 25 ml

4. Mylan-bupropion 150 ml

5. Lorazlpam 1 ml

6. Inhaler – Salvent

He also located an iPhone in her purse which was password protected.

He testified that no 911 calls were made on the evening of February 28 or early morning of March 1, 2015.

OPP Detective Constable (“Det. Const.”) Derrick Harrison has been a police officer since 2003. He currently works in the Major Crime Section and was involved in the investigation of PD’s death. He attended a briefing at Simcoe Detachment with Detective Constable (“Det. Const.”) Rob Daniel at 10:44 a.m. on March 1, 2015.

Det. Const. Harrison attended Swazzees at 11:47 a.m. and met with the owner, Chris Zatylny. He described PD and what she was wearing to Mr. Zatylny. Mr. Zatylny said he did not recall her being at the Establishment but that he would speak to the staff. Mr. Zatylny subsequently advised that one of his employees, Sarah Vezseni, remembered serving her and that she would come in to speak to the police. Det. Const. Daniel interviewed Ms Vezseni.

Mr. Zatylny arranged for Det. Const. Harrison to meet with the individual (“Scott”) who hooked up the cameras and videos for the Establishment. Det. Const. Harrison was able to identify PD on the video, based on the server’s description of where she was sitting and the description given at the briefing at the detachment. She was wearing a red, three quarter length jacket and had a temporary batman tattoo on her right cheek. He saw her move from one location to another in the Establishment, and then put on her coat. After that, he did not observe her on the video again. The video was “jumpy” and it was difficult to draw any conclusions from it. Det. Harrison was not able to copy the video.

Det. Harrison checked the video at the ESSO station but there was no coverage showing PD.

Det. Harrison also met with the property manager of the plaza, who gave him access to his videos (Exhibit 5). It was possible to identify PD on some of the cameras. Camera 6 showed PD exiting the bar. Initially she travelled west, then she appeared to stumble and headed south west into the parking lot. Det. Harrison noted that this was not the shortest route to the back walkway. Camera 3 showed her approaching the south end of the plaza. Camera 2 showed PD travelling northbound behind the Establishment. She does not look like she is walking in a straight line. No one was with PD. She was carrying a large purse or bag.

On cross-examination, Const. Harrison acknowledged that Mr. Zatylny and his staff cooperated fully with him.

OPP Detective Constable (“Det. Const.”) Joel Farrell has been a police officer since 2001 and he is currently employed with the Alcohol and Gaming Commission of Ontario (“AGCO”) Casino Enforcement Unit. At the time of the incident in question, he was the Acting Detective Sergeant at the Elgin County Crime Unit. He became involved in the PD investigation at 8:50 a.m. on March 1^st when he received a call from the Communications Sergeant about the death of PD in Norfolk County and was told to liaise with Sgt Penman. At that point, he began calling in resources to assist with the investigation. His role was mainly to assign and delegate tasks.

Det. Const. Farrell listed the medication found in PD’s purse. The list was consistent with the testimony of Const. Wagenaar on this subject.

Det. Const. Farrell reviewed the video coverage of a resident in the neighbourhood (“Exhibit 6). From the video, PD can be seen walking past the camera owner’s house. She staggered a bit and veered a bit to the right.

Det. Const. Farrell indicated that he was advised by Sgt. Penner that PD had light scratches to her nose and heavy bruising to the knees.

Det. Const. Farrell informed the Tribunal that the Emergency Response Team conducted a comprehensive search of the subdivision.

Detective Constable (“Det. Const.”) Linda Milton has been a police officer since 2001. She indicated that she played a very limited role in the PD investigation. On the instructions of her supervisor, she attended Hamilton Health Sciences on March 2, 2015 and was present during the autopsy conducted by Dr. Allison Edgecombe on PD. Dr. Edgecombe advised her that bruising on PD’s knees, back and neck were consistent with falling and that the circumstances of death were not suspicious. She believed that the cause of death was hypothermia due to environmental exposure.

Christopher Zatylny is the sole owner and operator of the Establishment. He has owned the Establishment for 20 years. He testified that the Establishment is a sports bar and family-oriented. The Establishment is licensed for 177 people inside and that the seating capacity is for 100. He also testified that he is involved in the community and sponsors a number of community events and sports teams.

Mr. Zatylny stated that he was working at the Establishment on February 28/March 1, 2015. He arrived at about 10 a.m. and worked in the kitchen until about 10:30 p.m. At approximately 10:30 p.m. he stepped out to take a break and speak to customers. He testified that it was a steady, calm night, and the seating was about three-quarters full. A local bluegrass band was playing that night. No issues or concerns came to his attention. He indicated that his staff are well trained not to serve customers to the point of intoxication. He also testified that on February 28/March 1, there was one employee working behind the bar and two other employees working on the floor.

Mr. Zatylny acknowledged that he might have had one drink at the bar at about 11 p.m.

Mr. Zatylny went home at 3:55 a.m. He resides on Yin Street. He noticed a snowmobiler where Yin intersects with Thompson.

Sarah Vezseni is 30 years of age and currently employed as a supply teacher. On February 28/March 1 2015 she was employed at Swazzees as a part-time server.

Ms Vezseni worked on February 28/March 1, 2015. She started at 5 p.m. and stayed until closing time. She testified that the Establishment was “packed” but “calm” and “manageable”. She indicated that one of the hostesses did not show up for work that night. Initially, she worked in the dining room, but at around 9 or 10 p.m. she began working the bar and also helped clearing the tables.

Ms Vezseni stated that BJR is a regular at Swazzees. She stated that when BJR and PD arrived at the Establishment, they joined BJR’s husband and his friend. BJR ordered a pitcher of beer for the table, which she shared with her husband, his friend and PD. PD ordered another pitcher of beer after the first pitcher was served. BJR’s husband and his friend left before the second pitcher of beer was served, and BJR and PD joined another table with about 8 people at it. Ms Vezseni served the second pitcher of beer at this table.

PD subsequently ordered another pitcher of beer. By the time the third pitcher of beer was served, BJR and PD had moved to a third table. Ms Vezseni brought 3 additional glasses to the table when she served the third pitcher of beer. At this table, PD also ordered a single beer, but she did not drink it. Ms Vezseni served the single beer within minutes of PD departing.

Ms Vezseni noticed that PD and BJR were seated at opposite ends of the third table and that PD was not socializing and looked bored. Ms Vezseni noticed PD put her red coat on and, at this point, she asked PD if she was ready to leave and would like to take care of her bill.

PD came to the bar area, which was about 12 feet from her table, to pay. Initially, when PD entered the tip in the POS terminal, she entered $200 instead of $2.00. (Exhibit 8) Ms Vezseni alerted PD to her mistake and PD corrected the amount. Ms Vezseni stated that the lighting in the bar areas is poor and many customers make mistakes of this nature. Ms Vezseni said that even she has made entry errors due to the poor lighting. She indicated that PD was not showing signs of intoxication.

Ms Vezseni asked PD how she would be getting home. PD told her she lived in the subdivision nearby and that she would be walking. She also asked PD if she would be ok, and PD replied “yes”. On cross-examination, Ms Vezseni stated that she did not pose these questions because she thought PD was exhibiting signs of intoxication. She was concerned about PD, as a woman, walking home alone.

From the time on the receipts (Exhibit 8), Ms Vezseni stated that PD would have left at around 12:22 p.m.

After PD left, Ms Vezseni asked BJR if PD would be ok to walk home, and BJR said she would be fine. Ms Vezseni reiterated on cross-examination that she was concerned about PD as a woman walking alone at night; she did not believe PD to be drunk or exhibiting signs of intoxication.

On the morning of March 1, 2015, at the request of Mr Zatylny, Ms Vezeni attended the Establishment to speak to a police officer about her dealings with PD, who she was told had been found dead. The police officer taped her interview. (Exhibit 26) She did not have the benefit of reviewing BJR and PD’s receipts from the night before when she attended this interview. At the interview with the police, she stated that PD was completely fine and coherent when she came in, but she wasn’t sure if other people were giving her drinks because when she went to pay she tipped her $200. She told the police that that’s when she said “you’re done for the night” and she answered, “Ya I’m done”.

On cross-examination, Ms Vezseni stated that the Establishment does not keep a log book of incidents and that she did not take notes concerning what happened on the evening of February 28/March 1. She admitted that her testimony was based on personal recollection.

Ms Vezseni acknowledged that she could not say who drank how much from the pitchers of beer BJR and PD ordered. She also acknowledged that she does not know whether another customer ordered a drink for PD.

Incident of March 5, 2015

KM is 30 years of age, 5”3 and weighs about 180 lbs. He works as a pizza chef.

March 5, 2015 was his day off. He stated that he shared a six pack of Coors Light (Tall Cans) with his friend, JL, before going to the Establishment. He drank three Coors Light and his friend drank the other three over a period of about 1.5 hours. He and JL arrived at the Establishment at about 9 or 9:30 p.m. He stated that it was a 10 or 15 minute walk from his residence to the Establishment.

When presented with a receipt from Swazzees, dated March 5, 2015, with his name on it, he indicated that he consumed the six Coors Light on the receipt and JL drank the three Budweiser. (Exhibit 11) The receipt indicates that it was opened at 9:44 p.m. He also testified that he remembers having a couple of shots of tequila at the Establishment. He does not know why the shots were not on the receipt and guessed that he may have paid cash for them.

When asked whether any other friends were at Swazzees that evening, KM stated that two other friends were there, JB and SM. He indicated that JB and SM paid for their own drinks.

He testified that he remembers waking up in a holding cell at the police station. He stated that he has no recollection of falling into a snow bank, getting into a police cruiser or taking a breathalyser test. He indicated that he must have blacked out because he was consuming alcohol too quickly. JL told him that he tried to get him to leave and he punched JL in the face. He testified that this is not his normal behaviour. He also testified that he felt very “rough” the next morning and indicated that he had a bad hangover.

On cross-examination, KM admitted that he has known Britney Campbell, a server at Swazzees, for several years and they have partied together before. He stated that he does not dispute that she cut him off alcohol service on March 5, 2015. He admitted that he has observed Ms Campbell cut customers off on other occasions and that she also cut him off on another occasion.

Brittany Campbell has been employed at Swazzees for eight years as a server. She has her Smart Serve certification.

She stated that she knew KM prior to the incident of March 5, 2015, however, she never went out with him socially.

Ms. Campbell testified that when KM came into the Establishment between 9 and 10 p.m., she was the only server working. The Establishment was not busy. There were about six regulars there. She indicated that KM was with two friends, JL and JB. She now knows JL, but she does not know JB. They were seated close to the door of the Establishment when they first came in.

Ms. Campbell stated that KM ordered the first round of drinks, JB placed the second order, and she does not recall who placed the third order. She did not have any concerns about KM showing signs of intoxication when these orders were placed or when she served them. She testified that she served three Coors Light to KM, three Coors Light to JB, and three Budweiser to JL. She stated that she had a short conversation with them when they entered and placed their orders. Ms. Campbell denied serving KM any shots of tequila.

Ms Campbell indicated that after JB and JL left, KM came to the bar. She estimated that JB and JL left at around 11 p.m. When KM came up to the bar shortly after his friends departed, she realized he was intoxicated. He was slurring his words and “wobbly”. She testified that as soon as she realized he was intoxicated, she cut him off. She asked him to return his third beer and she gave him a Pepsi. She testified that KM had only taken a sip of his third beer; however, in her statement to Const. Verberne on March 12, 2015, she stated that he was halfway through the third beer when she realized he was intoxicated.

Ms Campbell asked KM how he was getting home, and when he told her he would be walking, she offered him a ride. In her statement to Const. Verberne, she said, “There was no way I was going to let him walk home.” However, the key for the Establishment was missing and she was delayed in leaving. In the meantime, KM departed without telling her. The bar closed at midnight and she estimated that he left at about this time, when she went to look for the keys.

OPP Constable (“Const.”) Patrick Burns has been a police officer for 12 years. On March 6, 2015 at approximately 12:55 a.m., while conducting a general duty patrol (driving westbound to the north of the plaza where Swazzees is located), he observed a male lying in a snow bank. The temperature was approximately minus 20 degrees. He exited his vehicle and checked the male’s vital signs. It took him about 20 seconds to get the male to open his eyes. He eventually opened his eyes, but initially could not identify himself.

Const. Burns asked the male these questions and elicited the following responses:

“What is your name?” – No Answer

“Do you know where you are?” – “Not sure”

“Where did you come from?” – “Swazzees”

“How much did you have to drink?” -- “5 drinks. Not sure. Can’t remember.”

“How long were you outside?” -- “Not sure.”

“When did you leave Swazzees?” – “Not sure.”

“What were you drinking?” – “Beer”

“What is your name?” – “KM”

“What is your address?” – “Waterford”

Const. Burns testified that the male’s speech was slurred and his breath smelled of alcohol. He helped him to his feet because he could not get up on his own. He assisted him to the ESSO gas station, which he identified on Exhibit 4A, as there was equipment in the back of his cruiser. KM had difficulty maintaining his balance, and Const. Burns had to hold him so he did not fall. Const. Burns stated that KM’s lips were blue and he was drooling a bit.

Const. Burns arrested KM for being intoxicated in a public place. He explained that the reason he arrested him was that he could not provide his address, he had difficulty communicating and there was no friend or family person around who could take him home. Const. Faria transported him to the Simcoe OPP Detachment (the “Detachment”) in another cruiser. Upon arrival at the Detachment, Const. Burns located a receipt from the Establishment with the name (Appellant’s First Name) on it (Exhibit 11) in KM’s pocket. KM confirmed it was his receipt.

OPP Sergeant (“Sgt.”) Peter Penman has been a police officer for 31 years. He observed KM in his cell at the Detachment at 1:10 a.m. He described KM as being extremely intoxicated. His speech was slurred and he was unsteady on his feet. At one point, Sgt. Penman had to grab him because he was about to fall. Sgt. Penman could understand KM when he spoke, but his speech was slow and deliberate. KM admitted drinking at home and then at Swazzees for a couple of hours. Sgt. Penman seized a receipt from Swazzees, which was discovered when KM was required to empty his pockets. The receipt, with the name Kyle on it and dated March 5, 2015, showed that KM had purchased nine beers ( six Coors Light and three Budweiser) for a total of $41.67. (Exhibit 11)

Sgt. Penman reported KM’s arrest to Constable DaCosta, the liaison officer with the AGCO. Sgt. Penman was aware of the PD incident a few days earlier.

OPP Constable (“Const.”) Peter Ververne has been a police officer for 16 years. He indicated that he interviewed Mr. Zatylny, the owner of Swazzees, on March 6, 2015. He asked for the video showing the inside of the bar for the evening of March 5, 2015. Mr. Zatylny told him the video equipment was not functioning properly. He also took statements from Brittany Campbell and KM on March 12, 2015.

On cross-examination, he indicated that he was not aware of any issues, excluding the ones of February 28/March 1 and March 5, 2015, concerning the Establishment. He also acknowledged that Mr. Zatylny cooperated fully with him.

Mr. Morris referred the Tribunal to Exhibit 12, Statement of Qualified Technician for OPP Constable (“Const.”) The Tribunal qualified Const. Faria as an expert in the theory and operation of Intoxilyser 8000C.

Const. Faria indicated that in the early morning of March 6, 2015 he received a radio call from Const. Burns that he had located a male passed out in a snow bank near Swazzees and that he required transportation for the male to the Detachment. He met Const. Burns at the ESSO station near Swazzees. He testified that the male was unsteady on his feet and he needed to lean against the cruiser to stay upright. Once inside the cruiser, he could smell the high concentration of alcohol on the male’s breath. He also testified that the smell of alcohol, while they were in the cruiser, was at times overwhelming. In addition, he noticed that the male’s speech was slurred.

Const. Faria indicated that there are no other bars in the vicinity of the plaza where Swazzees is located.

Once at the Detachment, Const. Faria asked KM if he would be willing to provide a breath sample to determine the concentration of alcohol in his blood. KM agreed and provided a good sample of his breath into the Intoxilyser 8000C. The reading was 260 milligrams of alcohol per 100 milligrams of blood at 1:26 a.m., 3 times over the legal limit for driving. Const. Faria indicated that the Intoxilyser 8000C has a failsafe mechanism which will not allow you to take a sample if it is not in proper working order.

Expert Evidence on Toxicology

Elizabeth A. Hird

Mr. Morris filed a Statement of Qualifications for Elizabeth A. Hird, Forensic Scientist, Toxicology, with the Centre of Forensic Sciences, which the Tribunal entered as Exhibit 27. The Tribunal qualified Ms Hird as an expert in toxicology of alcohol and drugs.

Ms. Hird testified that femoral and heart blood samples taken during the post-mortem examination of PD were submitted to the Centre of Forensic Sciences for testing. The femoral blood contained 187 milligrams of alcohol in 100 millilitres of blood. This indicates a blood alcohol concentration (BAC) of 187 mg/100 mL at the time of death.

According to Ms. Hird, for a female weighing 132 lbs (60 kg), a BAC of 187 mg/100 mL is associated with a beverage equivalent in the system of approximately 5 standard drinks. A standard alcoholic beverage is defined as 12 fluid ounces of beer (5% alcohol v/v), 5 fluid ounces of wine (12% alcohol v/v) or 1 ½ fluid ounces of spirits (40% alcohol v/v).

Ms. Hird stated that assuming a time of death of approximately 2 a.m., the projected BAC at approximately 12:30 a.m. would be 187 to 217 mg/100mL. She explained that this projected range is independent of gender, height, weight and age. However, she noted that the projected range is dependent on: a rate of elimination of alcohol from the blood ranging from 10 to 20 mg/100 mL per hour; allowance of a plateau of up to two hours; no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to 12:30 a.m.; and no consumption of alcoholic beverages between approximately 12:30 a.m. and 2 a.m.

Ms. Hird stated that there is no way for her to determine whether PD consumed alcohol after 12:30 a.m.

Ms. Hird also testified that if the time of death occurred later than 2 a.m., the projected BAC at 12:30 a.m. would be higher than the calculated range, provided no further alcohol was consumed during the intervening period.

Assuming PD consumed half of a 1.5 litre bottle of wine between 3 p.m. and 7:30 p.m. and a glass of wine between 7:30 and 8:30 p.m., PD’s BAC at 8:50 p.m. would have been 123-180mg/100 mL if 12% alcohol wine was consumed and 142-200 mg/100mL if 13% alcohol wine was consumed. According to Ms. Hird, PD would have likely been towards the lower end of the range and would have likely exhibited some signs of intoxication as she approached a BAC of 140. Ms. Hird also testified that if we make the same assumptions about alcohol consumption between 3 p.m. and 8:30 p.m. and also assume she did not consume alcohol after 12:30 a.m., then PD consumed at the Establishment:

• 1 ½ to 4 ½ standard drinks (likely at the higher end of the range) if the wine she consumed before arriving at the bar was 12% alcohol;

• 1 to 4 standard drinks at the bar (likely at the higher end of the range) if the wine she consumed before arriving at the bar was 13% alcohol.

With a BAC of 187 to 217 mg/100 mL when she left the Establishment, PD would likely have shown signs of intoxication if she was a regular social drinker. Ms Hird explained that, by definition, a regular social drinker may consume 1 or 2 alcoholic beverages per day and occasionally up to 6 alcoholic beverages in a given day. The more complex the task the person is performing, the more apparent the signs of intoxication become. In contrast, if the person is just sitting still, signs of intoxication may not be as evident.

Ms Hird commented on the presence of drugs in PD’s system, with reference to Exhibit 17. She indicated that the concentration of venlafaxine detected in the blood is greater than that reported for therapeutic administration but less than that associated with serious toxicity. As such, it would not have had any noticeable effect. The concentrations of lorazapam and bupropion were within or below a therapeutic range. She indicated on cross-examination that the symptoms from the alcohol would override any effects from the drugs.

With respect to KM, Ms. Hird testified that for a male weighing 180 lbs, a BAC of 260 mg/100 mL would be associated with a beverage equivalent in the system of approximately 11 ¾ standard drinks, as defined above. Given the Intoxilyzer 8000C reading of 260 mg/100 mL at 1:26 a.m., the projected BAC at approximately 12 a.m. would be 260 to 290 mg/100 mL. As noted above, the projected range is independent of gender, height, weight, and age of the individual, but would depend on: a rate of elimination of alcohol from the blood ranging from 10 to 20 mg/100 mL per hour; allowance for a plateau of up to 2 hours; no consumption of large quantities of alcoholic beverages with approximately 15 minutes prior to 12 a.m; and no consumption of alcoholic beverages during the intervening period between 12 a.m. and the time of the breath test.

Ms. Hird testified that someone with a BAC of 260 to 290 mg/100mL would have been showing signs of intoxication even if he was accustomed to consuming large quantities of alcohol.

David Rosenbloom

Mr. McArthur filed a Curriculum Vitae for Dr. David Rosenbloom, Pharm.D., a Professor at the Department of Medicine of McMaster University, which the Tribunal entered as Exhibit 32. The Tribunal qualified Dr. Rosenbloom as an expert in pharmacology.

Dr. Rosenbloom did not dispute any of the evidence or calculations presented by Ms. Hird.

He testified that it is possible that PD could have consumed alcohol after 12:30 a.m. and metabolized it by 2 a.m. or 4:30 a.m.

Dr. Rosenbloom testified that the drugs found in PD’s system would have had minimal or no effect on central nervous system depression regardless of the time consumed and the levels achieved. He noted that the anti-depressants, venlafaxine and bupropion, are known to occasionally react with alcohol to cause “rage” reactions for which the individual has no recollection afterwards. He acknowledged there was no evidence of this in the case of PD.

Dr. Rosenbloom stated that anti-depressants can cause problem drinking but acknowledged that he has no knowledge of whether this applied to PD. He also testified that “tolerant” individuals by definition require more alcohol than “naive” drinkers to show the same impairing effects.

It is medically recognized that a migraine condition can alter cerebral blood flow and can lead to disorientation particularly with alcohol use. He acknowledged that there was no evidence that PD was suffering from a migraine on the date in question. He also acknowledged on cross-examination that a female with a BAC of 187 mg/100 mL could become lost or disoriented because of the BAC level even if she was not suffering from a migraine.

Dr. Rosenbloom stated that one would have to be a very heavy drinker to achieve a BAC of 260 mg/100 mL without ending up in an emergency room. He acknowledged on cross-examination that with a BAC of 260 mg/100 mL, it would be hard to imagine someone, including a heavy drinker, not exhibiting some signs of intoxication.

THE LAW

Section 29 of the Act provides:

No person shall sell or supply liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated.

Section 45(1) of the O.Reg. provides:

The licence holder shall not permit drunkenness … to occur in the Establishment or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.

ISSUES

Were PD and KM sold or supplied liquor when they were or appeared to be intoxicated?

Did the Appellant permit drunkenness in the establishment on the part of PD and KM?

APPLICATION OF LAW TO FACTS

PD

Based on the evidence of TN and AS, PD consumed between two glasses and half a bottle of Chardonnay at the birthday party in the afternoon of February 28, 2015. According to AS’s testimony, PD had a “glow” from the alcohol when she left for BJR’s house between 7:30 and 8 p.m. According to AS’s text message to BJR on the evening of February 28^th, her mother was “half in the bag” when she left her house for BJR’s; however, on cross-examination, AS stated she was only joking when she sent this text message. Based on the evidence of BJR, she consumed another alcoholic beverage at between 7:30 and 8:30 p.m. before attending the Establishment.

According to Ms. Hird’s calculations, which were based on the assumption that PD consumed half a bottle of wine between 3 p.m. and 7:30 p.m. and 1 glass of wine between 7:30 and 8:30 p.m., PD was likely exhibiting some signs of intoxication when she arrived at the Establishment if she was a social drinker.

TN and AS testified that their mother was a social drinker, although TN acknowledged telling the police when interviewed that her mother was a heavy drinker. TN and AS both admitted to having seen their mother drunk on other occasions and indicated that on these occasions she would be wobbly, lean on things, stagger and slur her words.

BJR testified that PD was drinking at the Establishment, but that she was not monitoring the amount or pace of consumption. The Tribunal did not put any weight on BJR’s evidence that PD was not exhibiting signs of intoxication such as staggering or slurred speech, because BJR admitted to being very intoxicated that night. BJR testified that she had 5 or 6 beers at the party in the afternoon, another beer at her home before attending the Establishment and several more beers at the Establishment.

PD’s text messages to AS from the Establishment between 11:07 and 11:52 p.m. and her entry of a $200 tip in the POS machine (probably instead of $2.00), on a purchase of $27.18, suggests that her small motor skills were impaired, in the context of the other evidence including the amount of alcohol she had consumed that day and the videos of her leaving the Establishment and in the neighbourhood. Although there was no evidence on PD’s text messages when sober, AS’s reaction to the text messages from her mother (“Take me drunk I’m home! LOL, what did you just type??? Lol”) suggests that her text messages were more comprehensible when she was sober. The Tribunal considered Ms. Vezseni’s testimony that the lighting in the bar was poor and many customers make errors when entering numbers in the POS machine, but in the circumstances, the Tribunal finds it unlikely that the tip error was solely a result of poor lighting at the bar.

On the morning of March 1, 2015, Ms. Vezseni told the police that PD was fine and coherent when she arrived at the bar, but admitted that she didn’t know whether other people were giving her drinks because when she left, she tipped her $200. She told the police that, at this point, she said to PD, “You’re done for the night.” And PD replied, “Oh ya I’m done.” Ms. Vezseni made no mention of the poor lighting issue to the police and acknowledged that she was not monitoring PD throughout the night, when she said that she didn’t know if other people were giving her drinks.

Ms Vezseni was worried about PD when she cashed out and was leaving. She asked her how she was getting home and then asked BJR if she was going home with PD and if PD would be ok. Ms. Vezseni stated at the hearing that she was worried about PD as a woman walking home alone at night, but when all the evidence is considered, the Tribunal finds it very unlikely that this was the only reason Ms Vezseni was worried about PD. Based on the totality of evidence, it is a reasonable inference that Ms Vezseni was also worried about PD because she was drunk.

The video evidence of PD after leaving the Establishment shows that she was not walking straight and on one occasion lost her balance and appeared to stagger (Exhibit 5). The video evidence of the private property owner showed her staggering and veering a bit to the right while walking past the owner’s house (Exhibit 6). This video also shows her heading away from her daughter’s home. She was confused and disoriented, notwithstanding AS’s evidence that she visited her a couple of times a month, was familiar with the neighbourhood and often walked from AS’s home to the FoodLand in the mall where the Establishment was located.

TB testified to observing someone, whose description matched PD’s, fall into a snow bank and get up and stagger a bit more on Thompson Road (turning right on Stratford Court) shortly after 1 a.m.

Ms. Hird testified that if a time of death of 2 a.m. is assumed, and also assuming PD consumed no alcohol after she left the Establishment, her BAC would have been in the range of 187 to 217 mg/100 mL when she left Swazzees. At this range, she would have likely shown signs of intoxication. In addition, Ms. Hird testified that if the time of death was later, her BAC when she left the Establishment would have been higher. Dr. Rosenbloom agreed with Ms. Hird’s evidence and calculations.

We do not know PD’s precise time of death. However, Const. Wagenaar testified that at 7:45 a.m. when he located PD laying on her back on the road, he was not able to find a pulse but he was able to move her right arm a bit, so rigor mortis had yet to set into her body. He also testified that there was no snow on her hands or face, but a light layer of snow covered her clothes. In light of this evidence, it is unlikely that the time of death was 2 a.m. or thereabouts. It is more likely that the time of death was within a couple of hours of Const. Wagenaar arriving at the scene. As such, her BAC when she left Swazzees would have been higher than the 187 to 217 range, which was based on a 2 a.m. time of death, and the signs of intoxication would have likely been more pronounced when she was at the Establishment.

Ms. Vezseni’s evidence that PD was not exhibiting signs of intoxication while at the Establishment was not credible, given the amount of alcohol she had consumed (starting in the afternoon and continuing at Swazzees), her text messages to AS, the $200 tip, Ms. Vezseni’s admissions to the police the next morning, the video evidence which shows her staggering, not walking straight and losing her balance when she left the Establishment and was in the neighbourhood (Exhibits 5 & 6), as well as TB’s observations of someone matching PD’s description shortly after 1 a.m. Ms. Vezseni also failed to recognize that BJR was drunk that evening. Although there was no allegation in the NOP relating to BJR, and the Tribunal makes no finding respecting her, BJR testified that she was very intoxicated at the Establishment that evening.

Mr McArthur argued that there was no evidence that PD exhibited all of the indicia of intoxication, such as slurred speech. However, it is not necessary to prove that an individual exhibits all of the indicia of intoxication, for a finding that the Appellant permitted drunkenness or sold or supplied liquor to someone who was or appeared to be intoxicated. PD exhibited sufficient indicia of intoxication, including impaired small motor skills, staggering, inability to walk in a straight line and disorientation.

Mr McArthur also argued that there are a lot of unknowns regarding what happened after PD left Swazzees and suggested that she could have consumed alcohol after leaving. The Tribunal finds it extremely unlikely that PD consumed alcohol after leaving the Establishment. There were no other licensed premises in the neighbourhood and PD did not have friends in the neighbourhood. The police did an exhaustive search of the area and found no liquor cans or bottles and no evidence of foul play.

Dr. Rosenbloom testified that migraines can cause disorientation, but acknowledged that there was no evidence that PD was suffering from a migraine on the evening in question and readily admitted that a BAC in the range of PD’s could also cause disorientation.

The Tribunal finds that there is insufficient evidence to determine whether PD was drunk or showing signs of intoxication when she arrived at the Establishment. However,

the Tribunal finds that by the end of the evening, when she was texting AS, and certainly by the time Ms. Vezseni served the last beer (i.e., shortly before she departed), PD was drunk and appeared intoxicated. Ms. Vezseni knew or ought to have known PD was drunk, taking into account the Appellant’s responsibilities for monitoring patrons for signs of intoxication under the Act, when she served PD the last beer. In failing to monitor PD for signs of intoxication, the Appellant permitted drunkenness, in contravention of s. 45(1) of the O.Reg. The Appellant also contravened s.29 of the Act when she served the last beer to PD, as by this time PD was, and appeared to be, intoxicated.

KM

According to KM’s evidence, he consumed three beers before attending the

Establishment and then six beers and a couple of shots of tequilla at the Establishment. Ms. Campbell testified that she served him three beers and he consumed two of them. She also testified that she cut him off when he was just starting his third beer. In her March 2015 statement to police, she said that he had consumed half of the third beer when she cut him off. Ms Campbell also acknowledged that her interaction with KM was minimal before he came up to the bar at the end of the evening.

It is not necessary for the Tribunal to make a finding on precisely how much alcohol KM consumed that evening or at the Establishment. Ms. Campbell acknowledged that KM was intoxicated when she cut him off; in fact, he was so intoxicated she was concerned about him walking home on his own and offered to give him a ride.

When Const. Burns found him lying in a snow bank near Swazzees at 12:55 a.m., he was exhibiting signs of being very intoxicated. He initially could not identify himself, his speech was slurred, he could not stand up or walk on his own without losing his balance, and he could not identify his address (except for the City). Const. Faria testified that in the police cruiser, the smell of alcohol on his breath was at times overwhelming. Sgt. Penman, who observed him at the Detachment, described him as ”extremely intoxicated” When a breathalyser test was administered by Const. Faria at the Detachment, he registered three times above the legal limit for operating a motor vehicle.

Based on the breathalyser reading and KM’s weight, Ms. Hird testified that the projected BAC at approximately 12 a.m. would be 260 to 290 mg/100 mL., assuming he consumed no alcohol after leaving the Establishment. Dr. Rosenboom agreed with Ms. Hird’s calculations and testified that it would be hard to imagine someone, including a heavy drinker, not exhibiting some signs of intoxication with a BAC in this range.

There were no other licensed premises in the vicinity that KM could have frequented after departing the Establishment at around midnight, and he was located close to the Establishment. It is not credible that KM only began exhibiting signs of intoxication when Ms Campbell cut him off after 11 p.m. and before midnight when the bar closed, as she acknowledged that he was so intoxicated by this point she was worried about him walking home alone. Based on his advanced level of intoxication when discovered by Const. Burns, and at the Detachment, as well as Ms Campbell’s evidence about his level of intoxication when she cut him off, KM must have exhibited signs of intoxication for quite some time before he was cut off, yet he continued to be served. Ms. Campbell should have been monitoring KM throughout the evening and ought to have known he was drunk and exhibiting signs of intoxication before he came up to the bar at the end of the evening in an advanced state of intoxication.

The Tribunal finds that Ms Campbell served KM liquor when he was or appeared to be intoxicated (prior to cutting him off) and that she permitted drunkenness in the Establishment on the part of KM, in contravention of s. 29 of the Act and s. 45(1) of the O.Reg..

DECISION

For the above reasons, the Tribunal finds that the Appellant contravened section 29 of the Act and subsection 45(1) of the O.Reg on February 28/March 1 and March 5, 2015.

The Tribunal invites written submissions on penalty from the parties. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision. The Appellant’s representative shall have five (5) days after receipt of the Registrar’s submissions to serve and file a written response. The Registrar’s representative may serve and file a reply within two (2) days of receipt of the Appellant’s response.

The parties may file their submission with the Tribunal by mail to 20 Dundas Street West, Suite 530, Toronto, ON M5G 2C2, by fax at 416-314-4270 or by email to LATCorrespondence@ontario.ca. If the Tribunal does not receive the written submissions within the aforementioned time frames, it will proceed to make a decision on sanction without any further input from the parties.

LICENCE APPEAL TRIBUNAL

_________________________

Jacqueline Castel, Member

Released: May 12, 2016