2396919 Ontario Inc. o/a Brixton Social v. Registrar of Alcohol and Gaming, 2016 CanLII 50091

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2016-05-26

9608/LLA and 9798/LLA

9608 and 9798 v. Registrar of Alcohol and Gaming

Appeals from the Notices 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

2396919 Ontario Inc. o/a Brixton Social

Appellant

-and-

Registrar of Alcohol and Gaming

Respondent

D. Gregory Flude, Vice-Chair

For the Appellant:

Pradeep Chand and Jameel Baasit, Counsel

For the Respondent:

Aviva R. Harari, Counsel

Heard in Kitchener:

December 8, 2015, March 30 and 31, 2016

Heard in Toronto:

April 26, 2016

REASONS FOR DECISION

OVERVIEW

1There are three issues before the Licence Appeal Tribunal (the “Tribunal”) arising out of two inspections carried out by the Alcohol and Gaming Commission of Ontario (“AGCO”) inspectors and Waterloo Regional Police and set out in two separate appeals to the Tribunal. The appeals were heard together but findings will be made on each appeal. The inspections were carried out on December 7, 2014 and March 1, 2015. In each case, the Registrar alleges that the Appellant committed an offence under the statutory scheme by permitting intoxicated patrons to be on the licensed premises.¹ The Registrar also alleges that the Appellant served these patrons despite their intoxication, again an offence under the statutory scheme.² The Registrar further alleges that on December 7, 2014, the number of drinks served was so excessive that it amounted to the encouragement of immoderate consumption of alcohol, also an offence.³ The Registrar called the two inspectors and the police officer as witnesses. The Appellant called the manager, Ien Kaehler, and the bartender, Allan Cayenne, who was on duty on both occasions.

2The evidence of the witnesses divides into two distinct versions of the intoxication level of the patrons. The Registrar’s witnesses all testified that the patrons in question were clearly intoxicated and were in full view of the Appellant’s staff. On each occasion, they noted that the patrons were intoxicated almost as soon as they walked in. The Appellant’s witnesses testified that they tested the sobriety of the patrons in question before serving them and found them not to be intoxicated. Nor did they show any signs thereafter. It would flow from the Appellant’s evidence, if accepted, that staff were not, nor could they have been, aware that the patrons were intoxicated. The Appellant’s awareness is part of the statutory test that must be proven on a balance of probabilities by the Registrar. The Tribunal finds that the Registrar has satisfied that onus with respect to the allegations of permitting drunkenness and serving an intoxicated person but not with respect to the promotion of immoderate consumption of alcohol.

EVIDENCE AND ANALYSIS

3The Liquor Licence Act, R.S.O. 1990, c. L.19 (the “Act”) and Ontario Regulation 719/90 place a number of duties on those who exercise the privilege of serving intoxicating liquor to the public. Among these duties is the requirement that a licensee ensure that intoxicated patrons are not served or permitted to remain on the premises.

It is not relevant that the state of intoxication came about at another establishment or at the patron’s home. The prohibition against either serving an intoxicated patron or permitting an intoxicated patron to remain addresses only the state of being intoxicated not the number of drinks a licensee may have served. Servers are trained to recognize the signs of intoxication and take appropriate steps to remove any unconsumed liquor and ensure the patron leaves the premises safely.

4In assessing whether a licensee permitted an intoxicated person to remain on the premises, it is clear that the licensee must have actual knowledge that the patron is intoxicated or be wilfully blind to the patron’s state.⁴ In dealing with the allegations regarding serving an intoxicated patron and permitting an intoxicated patron to remain on the premises, the Tribunal must adopt a two-step approach: were the