Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2017-05-30
FILE:
10349/LLA
CASE NAME:
10349 v. Registrar of Alcohol, Gaming and Racing
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 Review an Application for a Licence
Powerhouse Corporation o/a Polson Pier
Appellant
-and-
Registrar of Alcohol, Gaming and Racing
Respondent
-and-
Toronto Island Noise Committee, City of Toronto and
York Quay Neighbourhood Association
Added Parties
REASONS FOR DECISION
ADJUDICATOR:
D. Stephen Jovanovic, Member
APPEARANCES:
For the Appellant:
Richard Kulis, Counsel
For the Respondent:
Tamara Brooks, Counsel
Rena Khan, Counsel
For the Added Party City of Toronto: For the Added Party Toronto Island Noise Committee and the Queen City Yacht Club For the Added Party York Quay Neighbourhood Association:
Mark Crawford, Counsel Robert Tanner, Counsel Edward Hore, Counsel
Heard by way of written submissions
REASONS FOR DECISION
This decision deals with a motion brought by the Toronto Noise Committee and the Queen City Yacht Club (the moving parties), heard by way of written submissions, requesting an order pursuant to the Tribunal rules 9.1 and 9.3(e) that:
I) Powerhouse Corporation (the Appellant) disclose and produce to all parties a statement disclosing its corporate structure including particulars of its common ownership and management with INK Entertainment, Polson Pier Entertainment Inc. and Maya Corp. (the associated companies).
II) The Appellant disclose and produce all records from 2005 to date in respect of the Appellant, the associated companies and any other interested person as defined in section 1(2) of the Liquor Licence Act (the Act) relating to noise related complaints or to violations of the conditions of its liquor licence or of the Act, or of the City of Toronto Municipal Act, chapter 591.
III) The Registrar of the Alcohol and Gaming Commission for the Province of Ontario (the Registrar) be ordered to disclose and produce all records from 2005 to date in respect of the Appellant, the associated companies and any other interested person as defined in section 1(2) of the Act with respect to complaints or violations of the said Act or the conditions attaching to the liquor licence of any of the said parties and any proceedings related thereto.
The motion was dismissed by order of the Tribunal dated March 15, 2017 with reasons to follow. These are those reasons.
The Appellant has appealed to the Tribunal a Notice of Proposal (the NOP) issued by the Registrar on July 19, 2016 to review the application for a licence made by the Appellant. Some background to this NOP is set out in the Divisional Court decision in Powerhouse Corporation and Registrar of Alcohol and Gaming, 2016 ONSC 2549. Briefly, the Registrar initially took the position that the Appellant was required to file an application for a transfer of an existing licence with conditions to serve liquor at the Polson Pier complex. Instead, the Appellant applied for the issuance of a new licence so the Registrar refused to process the application, until ordered by the Divisional Court to do so. The Registrar’s NOP was then issued with respect to the public interest provision of the Act, section 6(2)(h), but not with respect to the past conduct of the Appellant, section 6(2)(d) or certain related classes of persons as set out in section 6(3). The Registrar subsequently received a number of objections from residents of the municipality.
Sections 6(2) and (3) of the Act read in part as follows:
(2) Subject to subsection (4) or (4.1), an applicant is entitled to be issued a licence to sell liquor if,
(d) the past or present conduct of the persons referred to in subsection (3) affords reasonable grounds for belief that the applicant will not carry on business in accordance with the law and with integrity and honesty;
(h) the licence is not in the public interest having regards to the needs and wishes of the residents of the municipality in which the premises are located;
(3) Clause 2(d) applies to the following persons:
The applicant.
An officer or director of the applicant.
A person who is interested in another person, as described in subsection 1(2).
A person having responsibility for the management or operation of the business of the applicant.
The Registrar is not taking a position before the Tribunal as to whether the Tribunal should direct the Registrar to issue the licence or refuse to issue the licence but, as does the Appellant, opposes the moving parties’ motion for disclosure. The moving parties are requesting disclosure primarily because of their concerns over the involvement of two individuals, Mr. Khabouth and Mr. Sabouth who are active in the Toronto entertainment/hospitality industry. Exhibit B to the affidavit delivered by the moving parties in support of the motion gives some information as to their involvement. The moving parties submit the past conduct of these individuals in the operation of the Appellant and the associated companies is relevant to the public interest issue before the Tribunal.
The short answer to the motion is the fact that the Registrar through the NOP did not raise the conduct of the Appellant or other related persons as the basis upon which it was issued. The Registrar is required to consider every application for a licence to sell liquor and has the authority to take various steps including issuing a proposal to review an application. The Registrar eventually did so in this matter and issued the NOP relying on section 6(2)(h) of the Act. If the position of the moving parties on the motion is correct then any person filing an objection to an application on the ground in paragraph 6(2)(h) of the Act could supplant the authority given to the Registrar to issue an NOP and then raise all of the concerns set out in the other paragraphs of subsection 6(2).
The Tribunal has a discretion under rule 9.3 to order the disclosure of “any document or thing the Tribunal considers relevant to the issues in dispute”. Given the NOP, the conduct of the related persons is not relevant to the issues in this matter. The only issue to be determined by the Tribunal is whether the licence is in the public interest having regards to the needs and wishes of the residents of the municipality in which the premises are located.
LICENCE APPEAL TRIBUNAL
D. Stephen Jovanovic, Member
Released: May 30, 2017