Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2016-02-18

FILE: 9984/GCA

CASE NAME: 9984 v. Registrar of Alcohol and Gaming

Appeal from an Order of Immediate Suspension issued by the Registrar under the Gaming Control Act, 1992, S.O. 1992 c. 24

Wesley Mark Thompson Appellant

-and-

Registrar of Alcohol and Gaming Respondent

DECISION AND ORDER

ADJUDICATOR: Jacqueline Castel, Member

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Aviva R. Harari, Counsel

Heard in Toronto: February 11, 2016

DECISION AND ORDER

BACKGROUND

The Appellant is registered under the Gaming Control Act, 1992 (the “Act”) as a gaming assistant and employed by the Great Blue Heron Charity casino (“GBH”) as a dealer. The Registrar of Alcohol and Gaming (the “Registrar”) issued an Order of Immediate Suspension (the “Order”),entered as Exhibit 1, of his gaming assistant registration, dated December 24, 2015, because it was considered necessary in the public interest in light of the Appellant being charged with assault and obstructing a police officer on November 17, 2015. The Appellant filed a Notice of Appeal (Exhibit 2). He is appealing the Order because he believes he is not guilty of these offences and because he has been working without incident at the GBH both before and after the charges.

EVIDENCE

The Registrar called five witnesses, Lloyd Shaddock, Shaun Lee, Jennifer Brooks, James Renwick and Gary White. Ms Harari filed a Book of Documents on behalf of the Registrar which the Tribunal entered as Exhibit 3.

Lloyd Shaddock, Shaun Lee and Jennifer Brooks work with the Appellant at the GBH and were in Montreal with him on November 16 and 17, 2015.

Lloyd Shaddock has been a Pit Manager at GBH for 6 years. He met the Appellant two and a half years ago in dealer training and he currently supervises the Appellant. He testified that he went on a road trip to Montreal on November 15, 2015 with the Appellant and Mr. Lee. They met their friend and co-worker, Jennifer Brooks, in Montreal. They reserved two rooms at the Gouverneur Hotel in downtown Montreal, and the plan was for Mr. Shaddock and Ms Brooks to share one room, and for Mr. Lee and the Appellant to share another room. Mr Shaddock reserved and paid for both rooms using his credit card, but he acknowledged on cross-examination that the Appellant reimbursed him for his share of the accommodation expenses.

On November 16, 2015, the Appellant, Mr. Lee and Mr. Shaddock went to play poker at a Montreal poker club, attended a hockey game and went on a pub crawl, both before and after the game. Ms Brooks was with them at the hockey game but did not go on the pub crawls. They stayed at a bar until 2:30 a.m. and then walked back to the hotel. Mr. Shaddock testified that the Appellant had been drinking all day and by the end of the evening he was drunk. He stated that the Appellant can be aggressive when he gets drunk and they split up for some of the evening because Mr. Shaddock does not like being around the Appellant when he is drunk.

On the way back to the hotel, Mr. Shaddock testified that the Appellant struck up a conversation with a prostitute and wanted to bring her back to the hotel room. Mr. Shaddock and Mr. Lee refused. The Appellant walked off and did not return to the hotel room until 7 or 8 a.m. According to Mr. Shaddock, Mr. Lee came into the room shared by Ms Brooks and himself at about 7 or 8 a.m. because the Appellant had returned to the room he and Mr. Lee were sharing, with a woman.

They decided to call hotel security to have the woman removed from the room. Security attended. There was an aggressive conversation between the security person and the Appellant. The Appellant would not open the door. The security person warned the Appellant that if he did not cooperate he would have to call the police. About 30 minutes later, the police arrived. When the Appellant refused to open the door for the police, a hotel maintenance person attended to open the door. The police told Mr. Shaddock, Mr. Lee and Ms Brooks to return to their room, so they did not observe what happened inside the hotel room. The Appellant was removed from the hotel room by the police and did not return home from Montreal with Mr. Shaddock.

Mr. Shaddock acknowledged in cross-examination that he has never observed any misconduct or irregular behaviour on the part of the Appellant at work or during training, or at any time after November 17, 2015. He also admitted that he has gone on other road trips with the Appellant and there have been no problems. In addition, he acknowledged that, like the Appellant, he was drinking throughout the evening and early morning of November 16/17, 2015. Finally, he admitted that he did not attempt to resolve the problem with the Appellant before calling security.

Mr. Lee has been a dealer at the GBH for just over two years. His evidence was generally consistent with Mr. Shaddock’s concerning the activities of the evening of November 16 and early morning of November 17. He also testified that he was asleep in the room that he was sharing with the Appellant when he heard whispers coming from the bathroom. He could tell it was the Appellant and a woman, so he left and went to the room Mr. Shaddock and Ms Brooks were sharing. He admitted that he did not see the woman and could not identify her.

Mr. Lee testified that a security employee came to speak to them about their complaint and then warned the Appellant a number of times that the woman had to leave and that they would call the police if she did not. He indicated that when the police came and the Appellant still would not cooperate, hotel maintenance was called and had to remove the door from its hinges. On cross-examination, he admitted that he did not observe the hotel maintenance person removing the door or the door being off its hinges. He did not observe or hear what happened when the police entered the room. He also admitted that he has never had a problem with the Appellant at work.

Ms Brooks testified that she has worked at the GBH for 9 ½ hears and she is currently employed as a Table Games Inspector. Ms Brooks testified that she went to a hockey game in Montreal on the evening of November 16th with the Appellant, Mr. Shaddock and Mr. Lee. She said that you could tell the Appellant had been drinking, but he was not drunk at the game. After the game, she went to play poker while the others went out drinking. Her testimony was generally consistent with Mr. Shaddock and Mr. Lee’s concerning the early morning of November 17th, starting from when Mr. Lee knocked on the door of the room she and Mr. Shaddock were sharing. She did not make any comments about hotel maintenance taking the door off its hinges to secure access for the police. On cross-examination, she stated that because she and the Appellant are part of the same union, she does not officially supervise him. However, she admitted that she has never had a problem with the Appellant at work.

Mr. James Renwick has been a contract investigator with the Alcohol and Gaming Commission of Ontario (“AGCO”) for 15 years, and prior to this, he was an OPP officer for 32 years, retiring at the rank of Staff Sergeant. He was directed to investigate the events of the morning of November 17th which were disclosed to the Registrar by the Appellant pursuant to the terms of his gaming assistant registration.

Mr. Renwick interviewed Mr. Yves Kareh, the Security Manager of the Gouverneur Hotel, by telephone. Mr. Kareh has held this position for 8 years. Mr. Kareh told him that Mr. Shaddock contacted him on the morning of November 17 to have the Appellant removed from the room. He attended the room the Appellant was occupying, knocked on the door, and asked him to leave the room. According to Mr. Kareh, the Appellant was uncooperative and would not open the door. As a result, he warned the Appellant he would have to call the police and subsequently did so. When the police attended, they first spoke to Mr. Shaddock and asked him to sign an eviction notice, and then directed the Appellant to open the door. When the Appellant refused to open the door, hotel maintenance had to attend and open the door. According to Mr. Kareh, the Appellant was pushing on the door until the police overpowered him. Once the police entered the room, they found the Appellant standing in a combative position. As a result, they pepper sprayed him, tackled him, and handcuffed and arrested him. The Appellant was charged with assault and obstructing police. Mr. Renwick referred the Tribunal to the police report of the incident at Tab 4 of Exhibit 3.

Mr. Renwick indicated that he interviewed the Appellant, who also provided a statement after the interview, as well as Mr. Shaddock, Mr. Lee and Ms Brooks. Mr. Renwick indicated that Mr. Shaddock, Mr. Lee and Ms Brooks were not in the room when the police were present so they could not provide him with any information pertaining to what happened when the police were present. He did not interview the police officers who were involved in the arrest. He stated that he completed his report on December 21, 2015.

On cross-examination, Mr. Renwick admitted that he did not ask GBH to see the Appellant’s human resources file. He indicated that he asked Leigh Harris, the General Manager, Joe Costello, the Table Games Manager, and Trac Pham, a Shift Manager, if they knew the Appellant or have had any problems with him as an employee. These senior managers all stated that the Appellant’s name did not “ring a bell.” He also acknowledged that the Appellant informed the Deputy Registrar of the charges against him, as he is required to do under the terms of his gaming assistant registration.

Mr. Gary White is the Senior Manager of Licensing and Registration at the AGCO. He testified that when the Appellant applied for a gaming assistant registration in 2014 he disclosed that he had been found guilty and/or convicted of a number of offences between 1996 and 2003. However, because the Appellant was forthcoming in disclosing the findings of guilt and/or convictions on his application for registration and because of the amount of time which has elapsed since he was last found guilty or convicted of an offence, the Registrar was prepared to approve his gaming assistant registration with terms. He referred the Tribunal to the Terms of Registration at Tab 3 of Exhibit 3. One of the terms was that he notify the Deputy Registrar in writing within 5 days of any and all charges, convictions and findings of guilt. Mr. White acknowledged that the Appellant disclosed the November 2015 charges in accordance with the Terms of Registration.

Mr. White testified that there is a requirement for a high level of public confidence in individuals registered to work in the gaming industry, and in this case, given the nature and seriousness of the charges, the public confidence would not be met if the Appellant was allowed to remain employed at GBH while the matter was before the courts. He indicated that his positive performance at the GBH does not influence the Registrar’s position because registrants are expected to conduct themselves with a high degree of honesty and integrity outside of work, as well as at work. He indicated that he did not look at the Appellant’s performance reviews at GBH.

The Appellant called two witnesses, Carol Fatah and Mark Durwood Thompson. He also filed the following documents with the Tribunal:

• a letter of support from table games dealer, Allen Banting, dated January 28, 2016;

• a letter of reference dated January 10, 2015 from Taylor & Trevor who were the Appellant’s landlord for 10 months;

• an undated handwritten letter of support from John Beck a dealer at GBH and retired floor trader with Scotia McLeod; and,

• GBH Probationary Employee Performance Reviews dated March 21, 2014, June 7, 2014 and August 1, 2014.

Ms Harari objected to these documents being admitted as exhibits because the authors of the documents were not being called as witnesses and could not therefore be cross-examined. The Tribunal overruled the objection and admitted the documents; the fact that the authors of these documents were not present to be cross examined would go to the weight to be given to the documents. The Tribunal also noted that there were documents in the Registrar’s Book of Documents, such as the police report, the author(s) of which were not called as witnesses and subject to cross-examination by the Appellant. Accordingly, the Tribunal entered the above documents as Exhibits 4, 5, 6, and 7, respectively.

Ms Fatah testified that she has worked at GBH for 16 years and she is currently employed as a Table Games Inspector. She has known the Appellant for 2 years. She is also the Appellant’s landlady and he resides in an apartment in her home. He accesses his apartment through the front door of Ms Fatah’s home. She has never had any type of problem with the Appellant at work or as a tenant. She does not know the details of what happened in Montreal on November 17, 2015.

Mr. Mark Durwood Thompson is the Appellant’s father. He is retired but previously worked as a plumber and as the maintenance manager for a school board. He testified that his son called him, from his cell phone, on the morning of November 17, 2015 from his hotel room. He told him that the police were trying to kick him out of his room. Then he heard him scream, “Dad they pepper sprayed me. Dad they pepper sprayed me again. My eyes.” After that, he couldn’t hear what was happening and the phone shut off. He testified that his son did not sound as though he was drunk. He admitted that he has no knowledge of anything that happened before the Appellant called him.

THE LAW

The relevant provisions of the Act are as follows:

Immediate suspension

14. (1) The Registrar may by order suspend a registration without serving a proposed order under section 13 if he or she considers it to be necessary in the public interest. 1992, c. 24, s. 14 (1).

Effect of order

(2) The Registrar shall serve a copy of the order made together with written reasons for it on the registrant and it takes effect immediately on being served. 1992, c. 24, s. 14 (2).

Right to hearing

(3) Subsections 13 (2), (3), (5), (8), (9) and (10) apply to the order in the same way as to a proposed order under that section. 1992, c. 24, s. 14 (3); 1996, c. 26, s. 4 (14).

Expiry of order

(4) If the registrant requests a hearing, the order expires on the day the order of the Tribunal takes effect. 1992, c. 24, s. 14 (4); 2002, c. 18, Sched. E, s. 4 (6); 2011, c. 1, Sched. 1, s. 3 (11).

ISSUE

Is the suspension of the Appellant’s registration as a gaming assistant under the Act necessary in the public interest?

APPLICATION OF LAW TO FACTS

An immediate suspension order may be necessary in the public interest where the registrant poses a threat to public safety or where the registrant’s continued employment in the gaming industry, while his or her charges are before the courts, would risk the perception that the integrity of gaming operations or gaming is compromised. Normally, immediate suspension orders are only be used in the case of very serious charges, as these orders are, in effect, depriving the registrant of his or her livelihood in the gaming industry (for the duration of the order) when the charges have not been proven in a court of law.

In the present case, the Tribunal does not find that the facts, weighed on a balance of probabilities, support the conclusion that the suspension of the Appellant’s registration as a gaming assistant under the Act is necessary, in the public interest.

The Appellant complied fully with the terms of his registration and disclosed the charges to the Registrar on November 19, 2015. The charges, if substantiated in a court of law, may well be grounds for disciplinary action on the part of the Registrar. However, it is important to look at the evidence before the Tribunal pertaining to these charges to determine whether it is necessary, in the public interest, to suspend the Appellant’s gaming registration. In this case, the evidence pertaining to the charges before this Tribunal was limited. At the outset, there was no evidence that the Appellant was committing an offence when first hotel security and then police, directed him to leave the hotel room. However inconsiderate it was for the Appellant to return to the shared room with a woman, it may not have been an offence.

The police officers involved in the arrest were not called as witnesses, nor were they interviewed by Mr. Renwick. The police report (Exhibit 3) was vague and nonspecific on when the alleged assault occurred and on the particulars of it. None of the witnesses were present when the police were inside the room or testified to witnessing an assault. It is clear from the evidence of the witnesses that the Appellant did not cooperate with the police in opening the door. Whether this amounts to obstructing a police officer, in the circumstances of this case, is a matter for the courts to determine.

Furthermore, if it was truly necessary in the public interest to suspend the Appellant’s registration, because of the nature or type of charges involved, one would have reasonably expected that the Order would have been issued in closer proximity to the incident. The investigation was completed on December 21st and the Order was issued on Christmas Eve, 37 days after the charges were laid. This was not a complicated or extensive investigation. It appears to have involved interviewing the Appellant, three employees of GBH, a security manager of the Gouverneur Hotel (by telephone), and obtaining a police report. The investigation should have been prioritized and completed in a more timely fashion, if the nature of the charges were such that the Registrar believed a public interest was at stake, should the registrant be permitted to work in the industry while the matter is before the courts. During this 37 day time period, the Appellant continued to work without any incident or concern. The Tribunal fails to see how the public interest was in any way compromised. The Registrar made the Appellant’s post-charges conduct relevant by waiting over a month to issue the Order.

Ms Harari argued that the letters of reference and performance reviews should be given no weight given that she did not have an opportunity to cross-examine the authors of these documents. The Tribunal put significantly less weight on these documents than on the viva voce evidence which was tested on cross-examiantion. Nevertheless, it is noteworthy that the reference letters and performance reviews corroborated what the witnesses, including the witnesses for the Registrar, said about the Appellant’s work performance: he is a good employee and they are not aware of any performance or behavioural issues on the part of the Appellant at work. The letter from Taylor and Trevor was consistent with Ms Fatah’s testimony: that the Appellant is a responsible tenant and has not caused any problem.

Ms Harari submitted a number of cases where the Board or Tribunal confirmed the Registrar’s immediate suspension order. However, the facts of these cases were all distinguishable from the present case.

In Carlini (Re) [2007] O.A.G.C.D. No 70, the registrant was charged under s. 172.1(1) of the Criminal Code with computer sex crimes, which involved sending nude photos of his genitals to a person who he believed was a female under the age of 14. The charging of the registrant was the subject of a press conference of the Windsor City Police. The charges in Carlini were much more serious than the charges in the present case. There was no evidence before the Tribunal that the charges received any type of media attention and these charges were not of a nature to attract public scrutiny.

In De Sousa (Re) [2009] O.A.G.C.D. No. 185, the registrant was charged with assaulting someone he was dating and supervising at work. As such, the alleged assault had the potential to impact the place of employment. In addition, De Sousa failed to report the charge to the AGCO in accordance with the terms of his registration. The present case did not have as its alleged victim an employee at the Appellant’s workplace. In addition, in the present case, the Appellant fully disclosed the charges to the AGCO in compliance with the terms of his registration.

In Mancuso (Re) [2011] O.A.G.C.D. No. 51, the registrant was charged with 10 counts under the Criminal Code ranging from sexual assault to possession and making child pornography. The charges were more numerous and significantly more serious than the charges against the Appellant.

In Do (Re) [2014] O.L.A.T.D. No. 4, at the time of execution of a police warrant, the registrant’s property was found to contain extensive marijuana plants and other material consistent with an organised system for sales of the illegal drug. As such, the alleged criminal conduct was ongoing for a period of time. The registrant also failed to provide full disclosure on numerous forms mandated under the Act. The present case did not involve ongoing alleged violations of the law, but was a single incident and, as noted above, the Appellant was forthright and complied with all disclosure requirements.

In summary, on the balance of probabilities, the Registrar has failed to establish that the Order is necessary in the public interest. While not minimizing the charges against the Appellant, the charges, based on the evidence before this Tribunal, are not as serious as the charges were in those cases cited by the Registrar where an immediate suspension order was confirmed. Based on the evidence before the Tribunal, the Tribunal cannot conclude that the Appellant poses any type of physical threat to public safety; the Tribunal also cannot conclude that allowing the Appellant to continue to work in the industry, while the charges are before the courts, would give rise to the perception by the public that the integrity of gaming or gaming operations is somehow compromised or threatened.

ORDER

Therefore, pursuant to the authority vested in it under the provisions of the Act, the Tribunal directs the Registrar to set aside the Order of Immediate Suspension.

LICENCE APPEAL TRIBUNAL

Jacqueline Castel, Member

Released: February 18, 2016