Licence Appeal Tribunal
Safety, Licensing Appeals and Standards Tribunals Ontario
Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Appeal from the Notice of Proposal of the Registrar of Alcohol, Gaming and Racing under the Liquor Licence Act, R.S.O. 1990, c.L. 19, to Suspend a Licence
Between:
1146587 Ontario Ltd. o/a The Royal Oak Appellant
and
Registrar of Alcohol, Gaming and Racing Respondent
DECISION AND ORDER
Adjudicator: Evelyn Spence
Appearances: For the Appellant: Ian Carter, Counsel For the Respondent: Aviva Harari, Counsel
Heard in Ottawa: November 15 and 16, 2017
REASONS FOR DECISION AND ORDER:
A. Overview:
1On December 11, 2016, SS, a regular patron of The Royal Oak’s 1981 St. Joseph Boulevard location in Orleans (the “establishment”), attended the establishment. He was served and consumed alcohol until it became clear to staff that he was intoxicated, at which point they asked him to leave and made attempts to help him get home. SS refused the staff’s efforts and three days later, police found his dead body lying in the snow in the area near the establishment.
2Following its investigation, the Registrar of Alcohol, Gaming and Racing (the “registrar”) issued a Notice of Proposal to Suspend a Licence, dated May 17, 2017, in which it proposed to suspend the appellant’s licence for a period of 60 days. The alleged ground for the suspension is that the appellant permitted drunkenness to occur on the licensed premises on December 11, 2016 in respect of SS, contrary to subsection 45(1) of Ontario Regulation 719/90 (the “Regulation”) under the Liquor Licence Act (the “Act”).
3The appellant appealed the proposal to the Tribunal. It maintains that SS was not served an excessive amount of alcohol and, at the point where it was reasonable for its staff to know or ought to know that SS was intoxicated, they immediately took steps to cut off service and safely remove him from the premises. The Registrar submits, on the other hand, that the appellant did not meet its obligation to ensure the safe removal of SS and that the licensee’s duty extends beyond simply cutting a patron off and making limited attempts to get them home.
B. CONCLUSION:
4I find that the appellant did not breach the Act by permitting drunkenness on the premises. On the contrary, I find that once it became apparent that SS was intoxicated, the appellant took reasonable steps to ensure his safe departure from the bar. It is difficult to imagine what more, in the circumstances, the appellant could have done to comply with its obligations under the legislation.
C. ISSUE:
5The only issue to be determined in this appeal is whether the appellant permitted drunkenness to occur on the licensed premises. To establish this, the registrar bears the onus of proving, on a balance of probabilities:
i that the appellant knew, or ought to have known, that SS was drunk on the evening of December 11, 2016, when he was a patron at the establishment; and
ii that the appellant permitted such drunkenness by failing, within a reasonable period of time, to cause the individual to be removed safely from the premises.
D. LAW:
6Section 45(1) of the Regulation prohibits a licence holder from permitting drunkenness on its premises. Specifically, that section states:
45(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.
7The Divisional Court, in Horseshoe Valley Resort Ltd. v. Registrar of the Alcohol and Gaming Commission of Ontario 2005 CarswellOnt 8469 articulated the test for interpreting “permitted drunkenness” as used in section 45(1) of the Regulation as follows:
In order to properly find that the appellant permitted drunkenness with respect to Julie Strachan as alleged, the Board had to be persuaded that the appellant, through its employees, knew or should have known that Julie Strachan was drunk and that it failed, within a reasonable period of time, to take reasonable steps to effect her safe departure from the bar. The evidence before the Board showed that the appellant’s employees recognized that Julie Strachan was drunk upon her entering the bar and that steps were taken quickly to make sure that she was not served alcohol and to make sure that she was safely removed and the Board’s reasons fail to demonstrate in what respects the appellant failed to carry out its statutory duties. A finding of a violation of section 45(1) cannot be based on a draconian and unrealistic interpretation of its language that would create a violation the very moment a drunk patron entered the bar. Rather, it must be interpreted reasonably in accordance with its plain language and the practicalities of the context in which it is applied (my emphasis added).
8The Horseshoe Valley decision was cited with approval by the Court of Appeal in 1213963 Ontario Ltd. (c.o.b Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission) [2009] O.J. No. 1553.
9Following a hearing, under s. 23(11) of the Act, the Tribunal may direct the registrar not to carry out the proposal or to carry out the proposal, in whole or in part, and with any changes that it may consider appropriate.
E. EVIDENCE:
10Five witnesses were called to provide their account of the events that occurred between the evening of December 11, 2016 and December 14, 2016. They included the two members of the appellant’s staff, Ms. AM and Mr. POW, two constables with the Ottawa police service, and Stephane Godard, an inspector with the Alcohol and Gaming Commission of Ontario.
11AM and POW were working on the evening in question, and they provided evidence about SS’s level of intoxication and what steps were taken to cut him off and remove him from the premises. Additionally, upon receiving the missing person report in respect of SS, Ottawa Police Constable Dominic Paykarimah interviewed CM, the only other individual who had been in the establishment during the hours of SS’s patronage, and his oral statements were introduced through the Constable. Those statements supported the direct testimony of staff.
12Constable Jason Nadeau testified as to the information that was received through the missing person investigation, and Constable Paykarimah discussed how and where SS’s body was found; in the sloped area at the back of the establishment. Finally, Mr. Godard gave evidence concerning the information he obtained through his inspection and interviews with the licensee during the weeks and months following SS’s death.
Did the Appellant Know SS was Drunk while at the Establishment?
13Whether SS was drunk while at the establishment is a simple matter of fact, which I find to have been unequivocally established through the direct testimony of AM and POW. The evidence further suggests that staff were aware that SS was drunk; both AM and POW testified that he became intoxicated rapidly after he was served his fourth beer. Moreover, at the point when it became apparent that SS was drunk, the appellant’s staff took steps to very quickly cut him off and remove his drink.
14AM was a bartender/server at The Royal Oak, where she had worked since October 2012. She had taken the smart serve course in 2009 and had the opportunity to apply the principles she learned in the course over a period of 7 years through her work in various bars and restaurants. She was trained to look for signs of intoxication and testified that she understood what those signs were.
15AM was also aware of and recalled receiving regular training on the appellant’s various policies and procedures aimed at supervising its premises and controlling the sale and service of alcohol to patrons, in accordance with the rules and regulations under the Act.
16She said that SS was a regular patron of the establishment and that she had served him hundreds of times. She testified that SS entered the establishment at some point after the dinner rush, which would have been around 7:30 or 8:00 p.m. But for her boyfriend, CM, who was also present at the establishment at that time, SS was the only patron and she was the only server.
17AM stated that SS ordered his usual drink: a 24 oz glass of Labatt Blue. She testified that when he first arrived at the establishment, he was his “regular self.” She did not believe him to be intoxicated and his demeanour was consistent with what she had recognized over past encounters with him. Because there were no other patrons in the establishment, AM could closely monitor SS and determine, before serving each drink, whether he was showing signs of drunkenness.
18Through the course of the evening, AM served SS a total of four 24 oz beers. She stated that she did not know SS to be a particularly fast drinker, and believed that she served the drinks in approximately half hour intervals.
19At the point when she served SS the fourth drink, AM noticed that he was getting a little a bit louder, but she didn’t think much of it and believed he was just getting excited. Within 5 minutes, however, she stated that SS’s behaviour had completely changed and he began showing recognizable signs of intoxication. At that point, AM tried to take the beer from him, which he resisted. She stated SS took a few more drinks from his glass, consuming a total of about a quarter of the fourth pint, before she managed to remove the drink. AM told SS that it was time to leave and provided him with his bill.
20Mr. POW’s accounting of the events on December 11, 2016 substantiated AM’s. He was a line cook at The Royal Oak and he recalled that it had been a slow night. At a certain point, he left the kitchen to talk to AM at the bar. SS was also at the bar and they interacted for a brief time. He stated that SS’s behaviour did not seem unusual, and he didn’t appear to be intoxicated.
21SS offered to buy a drink for POW, which he accepted. He then resumed his work in the kitchen. A short time after he returned to the bar to enjoy his drink, POW observed SS’s behaviour change; he started to insult AM, calling her “stupid”. He recalled that SS repeated this several times, resulting in AM cutting him off and telling him it was time to leave the establishment.
22SS was observed to have had difficulty putting his arm into his coat and he needed help to be escorted to the door.
Did the Appellant Fail, Within a Reasonable Period of Time, to Cause SS to be Removed Safely from the Premises?
23AM, POW and CM – the three individuals who were witnesses to SS’s level of intoxication on the night of December 11, 2016 - confirmed that, at the point where it was apparent that SS was intoxicated, he was cut off from alcohol service and asked to leave. SS was resistant to leaving, however, and it took between 15 to 20 minutes before staff managed to remove him from the premises. Their attempts to safely remove SS included:
i repeatedly offering to call a taxi for SS, which he declined each time;
ii attempting to find his ID to obtain his address, which he refused, asserting that the staff were involved in a conspiracy against him; and
iii CM offering to give SS a ride home. Eventually, SS agreed but he continually refused to provide his address and said something that made CM uncomfortable, which ultimately resulted in CM retracting the offer.
24Finally, after all attempts by the staff to help SS to leave the premises and arrive home safely had failed, AM escorted SS to the door and watched him walk in the direction that she believed to be his home. She watched him fall in the parking lot and then get up and walk away. She waited until she could no longer see him, at which point, she returned to work.
25What occurred after SS left the establishment and disappeared from AM’s sight remains unknown. His body was found three days later, under the snow, in an area off a well-used path behind The Royal Oak. He was not wearing his coat, which was found approximately 20 feet from his body. Between his body and the coat was a 375 mL bottle of vodka. There was no evidence to suggest that the vodka belonged to SS or that he ingested any of it, and I was informed that there was a dumpster nearby and that the path was a short-cut used regularly by neighbouring residents.
26Further, inspector Godard received information from RA, a retired police officer, who had been at the establishment later during the night of December 11 and reported that he might have seen SS in the parking lot between 11:30 p.m. and 12:00 a.m. He did not know SS and could not confirm that the male who approached him was SS. The male apparently commented to RA that he wasn’t allowed in the bar, or he had been removed from the bar, and asked RA if he wanted to smoke marijuana.
27The last outgoing call that had been placed on SS’s phone was before 8:00 p.m. on the evening of December 11th and after 8:38 a.m. on December 13, his phone no longer connected to any of the radio towers in the area (signalling, for example, that the phone was broken or its battery had died after that point). Upon concluding their investigation, police confirmed that the death was not suspicious and there was no evidence that any other person was involved.
F. ANALYSIS:
28The parties agree that on the evening of December 11, 2016, SS became intoxicated. There also appears to be agreement that, within a reasonable time and particularly, at the point when SS showed signs of intoxication, the appellant took steps to remove him. However, the registrar argues that subsection 45(1) of the Regulation under the Act has nevertheless been violated because SS was not removed from the premises safely. Its position is that, while efforts were made to ensure SS’s removal, they were deficient. According to the registrar, the appellant was under an obligation to do more; someone should have walked home with him, or AM could have phoned the police when SS refused the taxi.
29We learned, through Constables Nadeau and Paykarimah, that SS lived only 400 meters from the establishment, however this fact was completely unknown to the appellant’s staff on the night in question. Further, AM testified that it had started to snow on the evening of December 11th and part of the reason CM retracted his offer to drive SS was because he did not want to be driving around aimlessly in a snowstorm.
30Additionally, SS had previously been verbally abusive towards AM and at one point, he asked CM if he wanted to punch him in the face, a comment that was unprovoked. That either AM or CM would then put themselves in a position to walk with SS to an undisclosed location does not seem a reasonable proposition to me; it would require them to personally assume an unreasonable risk. And while there certainly is an obligation on a licensee to ensure the safety and protection of staff, patrons and the general public in managing its licensed establishment, I do not view s. 45(1) of the Regulation as requiring a licensee to put its own staff or patrons in danger to ensure the safe removal of another.
31I also don’t accept the registrar’s assertion that the appellant had an obligation to phone the police. The responsibility of police is to provide law enforcement services and to protect the safety and security of the communities it serves. SS had not committed an offence and AM and POW did not seem to believe there was a notable risk of harm, either for SS’s own personal safety, or to those in the community. They did not, on December 11th, record SS’s removal in the establishment’s incident report, nor did they believe the situation warranted reporting to head office in their ‘end of day’ call. Where a patron is not exhibiting violent or disorderly conduct and their safety or that of others is not in apparent or imminent danger, I do not think it is reasonable that a liquor licence holder should be required, or expected, to call police for an escort home. This would place an untenable burden on police services, and is simply not their role.
32Counsel for the registrar directed me to a number of cases where the appellant had failed to safely remove a patron, which unfortunately also resulted in dire consequences: 2193145 Ontario Inc. (c.o.b. Boston Pizza) [2015] O.L.A.T.D. No. 144 and No. 95; Ace Restaurant (Re) [1995] O.L.L.B.D. No. 124; O’Toole’s Roadhouse Restaurant; and 1750653 Ontario Inc. operating as Pub 31 [2011] O.A.G.C.D. No. 180. I find that these cases are distinguishable on the facts, however, and have little bearing on the case at bar. Particularly, in both Ace Restaurant and O’Toole’s Roadhouse Restaurant, the Board’s main findings were under section 29 of the Act, and not section 45(1) of the Regulation.
33Further, in Ace Restaurant, the Tribunal’s ultimate finding was that the licensee knew the patron was intoxicated and did not immediately and safely remove her from the premises. This is in direct conflict with the ruling that came more recently in Horseshoe Valley; that a patron is to be removed in a “reasonable period of time” and is factually very different from the case at bar, where the evidence makes it clear that service of alcohol ceased swiftly once it became apparent that SS was intoxicated, at which point staff took steps to remove him from the premises. These facts are also different from those in Boston Pizza, where the Tribunal found that the licensee continued to serve liquor to a person it knew to be intoxicated, and therefore “permitted” him to remain on the premises.
34Ultimately, the registrar has not been able to demonstrate in what respects the appellant failed to carry out its statutory duties under section 45(1) of the Regulation. I do not read the provision or understand the case law to extend the duty of a licence holder to go beyond that which the appellant’s staff did on the night of December 11, 2016, which steps I find to have been reasonable and adequate. Once the appellant’s staff became aware of SS’s level of intoxication, which the parties agree came on very quickly, they promptly took steps to remove him from the premises. That he did not arrive home safely is very unfortunate, yet s. 45(1) cannot be understood to impose an enduring obligation on the licensee to ensure this for its patrons.
G. ORDER:
35For the reasons set out above and pursuant to subsection 23(11) of the Act, I direct the registrar not to carry out its proposal to suspend the appellant’s licence.
LICENCE APPEAL TRIBUNAL
__________________________
Evelyn J. Spence, Member
Released: December 8, 2017