Appeal from the Order of Immediate Suspension and Notice of Proposed Order to Revoke a Licence issued by the Registrar of Alcohol, Gaming and Racing under the Liquor Licence Act
Between:
1784476 Ontario Inc. o/a Romby’s Tavern and Smokehouse
Appellant
and
Registrar of Alcohol, Gaming and Racing
Respondent
RECONSIDERATION DECISION
Before: D. Stephen Jovanovic, member
Written Submissions By:
For the Appellant: Gustavo F. Camelino, Counsel
For the Respondent: Tamara Brooks, Counsel
Overview
1The appellant, 1784476 Ontario Inc. o/a Romby’s Tavern and Smokehouse (“Romby’s”), requests reconsideration of the Tribunal’s decision to order the Registrar of Alcohol, Gaming and Racing (the “Registrar”) to carry out its proposal to revoke Romby’s’ liquor licence.
2The facts are set out in detail in the Tribunal’s decision. In brief, a liquor licence inspector attended at Romby’s around 1:45 a.m. on October 5, 2017. The inspector observed a bus pull into the plaza where Romby’s is located and saw an individual exit the bus and enter Romby’s with a bottle of beer. The inspector observed the individual obtain a new beer from Romby’s and exit the premises. The inspector then went to speak with the bartender, who said that he did not observe the patron exit with the beer. The Tribunal heard evidence that while the inspector was speaking with another employee, Robert Wilson, who is a shareholder and the acting manager of Romby’s, walked up to the inspector, slammed his fist on the table, stood directly in front of the inspector, made aggressive motions with his arms in the inspector’s face, grabbed the inspector’s jacket in the chest area, and swore at him. At the hearing, Mr. Wilson admitted that he had touched the inspector’s jacket.
3Based on this incident, the Registrar issued a Notice of Proposal to revoke Romby’s’ liquor licence, and also ordered the immediate suspension of the licence. Romby’s appealed the Notice of Proposal to the Tribunal, and its licence remained under suspension pending the hearing.
4Following the hearing, the Tribunal made the following findings:
a. Romby’s obstructed the inspection on October 5, 2017, contrary to s. 45(1) of the Liquor Licence Act, RSO 1990, c L.19 (“LLA”);
b. Mr. Wilson assaulted the inspector on October 5, 2017;
c. Mr. Wilson had been hostile with inspectors in the past and had asked them to look the other way with respect to contraventions of the law;
d. Romby’s permitted the removal of liquor from the premises on October 5, 2017, contrary to s. 34(1) of Licences to Sell Liquor, R.R.O. 1990, Reg. 719 (the “Regulation”);
e. Romby’s permitted unlawful gambling on the premises contrary to s. 45(1) of the Regulation;
f. The totality of Romby’s’ past conduct afforded reasonable grounds for belief that Romby’s’ business will not be carried on in accordance with the law and with integrity and honesty; and
g. The appropriate sanction in the circumstances is revocation of Romby’s’ liquor licence.
5Romby’s requests reconsideration of the Tribunal’s decision on the ground in Rule 18.2(b) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”). That ground requires that the “Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made.”
6The Executive Chair has delegated to me her responsibility to decide this request for reconsideration.
7For the reasons that follow, I dismiss this request for reconsideration.
analysis
8Romby’s alleges that the Tribunal made a number of errors of fact and law in making the following findings:
a. Romby’s obstructed a person carrying out an inspection;
b. Romby’s permitted a patron to remove liquor from its premises;
c. Romby’s permitted unlawful gambling on its premises;
d. Romby’s’ conduct affords reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty; and
e. Romby’s’ liquor licence should be revoked.
9Romby’s’ submissions are set out in more detail below. The Registrar argues that the Tribunal’s decision contains no errors in law or fact and that this request for reconsideration is an attempt to re-litigate matters that have already been decided by the Tribunal. The Registrar also argues that the Tribunal is functus officio.
10With respect to the functus argument, I note that the Tribunal has the authority to reconsider a decision under the Rules and pursuant to s. 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22
11As I explain below, I am not satisfied that the test set out in Rule 18.2(b) has been met.
a. Obstruction of the inspection
12Romby’s alleges that the Tribunal erred in several ways in reaching its finding that Romby’s obstructed an inspection contrary to s. 45(1) of the LLA. That section states:
Obstruction
45 (1) No person shall obstruct a person carrying out an inspection under this Act or withhold, destroy, conceal or refuse to provide any relevant information or thing required for the purpose of the inspection.
13First, Romby’s submits that the inspection could not have been obstructed because there was no evidence that the inspection was still ongoing at the time that Mr. Wilson approached the inspector. I disagree. It was clear that the inspector was speaking with a member of Romby’s’ staff when Mr. Wilson stood in front of him and engaged in aggressive conduct. The Tribunal stated that Mr. Wilson’s actions “undermine the inspector’s authority and ability to carry out the inspection, put the inspector at risk of harm from Mr. Wilson and raise a risk of public safety.” This is a sufficient basis to conclude that the inspection was obstructed.
14Second, Romby’s argues that the Tribunal erred by considering the obligation under s. 45(2) of the LLA to “facilitate” an inspection, rather than the allegation at issue that Mr. Wilson “obstructed” an inspection contrary to s. 45(1). The Tribunal considered both the prohibition against obstructing and the requirement to facilitate an inspection. Although only s. 45(1) was referenced in the Notice of Proposal, I am not satisfied that it was an error for the Tribunal to consider s. 45(2) as well. The question before the Tribunal was whether Romby’s’ past conduct afforded reasonable grounds for belief that its business would not be carried on in accordance with the law, and with integrity and honesty, as set out in s. 6(2)(d) of the LLA. In determining whether the Registrar had established that ground for revocation, the Tribunal was entitled to consider compliance with the LLA generally.
15Third, Romby’s argues that the Tribunal relied improperly on allegations of Mr. Wilson’s historical bad conduct. Romby’s argues that as these issues were raised for the first time during the hearing, Romby’s did not lead evidence to refute them. I reject this argument. In determining whether the Registrar has established the ground in s. 6(2)(d) of the LLA, the Tribunal is required to consider the evidence of Romby’s’ past conduct in its entirety: Baxter v. Registrar (REBBA), 2011 ONSC 2497 at para. 21 (Div. Ct.). That includes Mr. Wilson’s conduct with inspectors prior to October 5, 2017. If Romby’s wished to lead additional evidence in response, that request ought to have been made at the hearing.
16Fourth, Romby’s submits that the Tribunal erred in finding that Mr. Wilson assaulted the inspector on October 5, 2017. Romby’s argues that Mr. Wilson admitted only to touching the inspector’s jacket, and that the alleged assault does not appear on the video of the interchange. I am not satisfied that the Tribunal erred in making this finding. There was sufficient evidence on which the Tribunal could conclude that Mr. Wilson assaulted the inspector, including Mr. Wilson’s admission that he grabbed the inspector’s jacket, Mr. Wilson’s admission that he was frustrated, evidence of two witnesses who saw Mr. Wilson touch the inspector’s jacket and swear at him, and the inspector’s evidence that Mr. Wilson grabbed the chest area of his jacket with two hands and swore at him. The Tribunal’s finding of fact was open to it on the evidence referred to in the decision.
b. Permitting the removal of liquor
17Romby’s submits that the Tribunal made two errors in finding that Romby’s permitted the removal of liquor from the premises, contrary to s. 34(1) of the Regulation, which states:
- (1) The licence holder shall not permit a patron to remove liquor from the premises to which the licence applies.
18First, Romby’s submits that the Tribunal erred in stating that the bartender’s evidence that he did not see the patron leave the premises with a beer “corroborated” the inspector’s evidence that this occurred. I agree with Romby’s’ submission that the bartender’s evidence did not corroborate the evidence that liquor was removed. Nevertheless, the Tribunal was entitled to accept the evidence of the inspector that liquor was removed, regardless of whether or not that evidence was corroborated. Accordingly, this submission does not meet the standard for reconsideration in Rule 18.2(b).
19Second, Romby’s submits that the Tribunal erred in finding that Romby’s “permitted” the removal of liquor from the premises, as the evidence was that staff were not aware that the beer had been removed. Romby’s argues it could not have “permitted” an action that it was not aware of.
20In my view, the Tribunal was required to consider whether Romby’s knew or ought to have known that the patron removed alcohol from the premises. However, this was not an error “such that the Tribunal would likely have reached a different decision had the error not been made.”
21In 1213963 Ontario Limited (Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), 2009 ONCA 323, the Court of Appeal held at para. 4 that “permit”, within the meaning of s. 45(1) of the Regulation which deals with permitting drunkenness, does not mean simply “failing to prevent”. Rather, the court stated at para. 3 that it:
…requires proof that the licensee knew or ought to have known of the drunkenness on the premises. That determination, of course, must be made in all the circumstances and, in particular, in the context of the various obligations and duties placed on the licensee by the relevant legislation and regulations.
22The Tribunal relied on evidence that the bartender did not see the patron remove alcohol from the premises. There was no evidence that Romby’s was aware of the removal, nor did the Tribunal consider whether the bartender – or any other employee – ought to have seen it in the circumstances. Accordingly, assuming that the test from Sin City applies, the Tribunal failed to establish that the removal of liquor was “permitted”.
23Nevertheless, I am not satisfied that the Tribunal would likely have reached a different decision had that error not been made. The Tribunal’s finding that Romby’s’ past conduct afforded reasonable grounds for belief that it will not carry on business in accordance with the law and with integrity and honesty did not turn primarily on this finding. Rather, the Tribunal took that finding into consideration along with all the others. The Tribunal stated:
I find that [the] respondent has proven that Romby’s obstructed Inspector Black in carrying out his inspection under the Act contrary to s. 45(1) of the Act, assaulted Inspector Black, has been hostile with inspectors, permitted a patron to remove liquor from the licensed premises contrary to s. 34(1) of the Regulation and permitted unlawful gambling on the licensed premises contrary to s. 45(1) of the Regulation. The totality of this past conduct of Romby’s affords reasonable grounds for belief that Romby’s’ business will not be carried on in accordance with the law and with integrity and honesty.
24With respect to the decision to revoke, the Tribunal’s primary concern was Mr. Wilson’s aggressive conduct with the inspector. Read as a whole, the focus of the decision was on that conduct. The Tribunal stated:
Mr. Wilson admitted that he grabbed Inspector Black’s jacket on October 5, 2017. This admission gives me enough concern for the safety of the public that I am of the view the licence should be revoked.
25As the finding that Mr. Wilson grabbed the inspector’s jacket was enough on its own to cause the Tribunal to be concerned for public safety, I am not satisfied that any error in determining whether s. 34(1) was contravened would likely have resulted in a different decision.
c. Permitting unlawful gambling
26Romby’s does not take issue in its request for reconsideration with the finding that unlawful gambling occurred. Rather, Romby’s submits that the amount of money that Romby’s did not pay out to the players of the football pool was de minimus and should be considered in the imposition of sanction.
27In essence, Romby’s is taking issue with how the Tribunal weighed the finding of unlawful gambling with the other factors in determining that Romby’s licence should be revoked. It is not my role on reconsideration to reweigh those factors. Based on the Tribunal’s findings of fact, revocation was one of the options available to it.
d. Carrying on business in accordance with the law and with integrity and honesty
28Romby’s submits that the evidence does not support a conclusion that there are reasonable grounds to believe Romby’s will not carry on its business according to law and with integrity and honesty. Romby’s submits that Mr. Wilson’s integrity and honesty have not been impugned in the proceeding, and that it is a leap to conclude from that Romby’s will not carry on business as required.
29Romby’s has not identified a specific error of fact or law in this submission, but rather is asking me to reweigh the evidence considered by the Tribunal. As stated above, this is not my role. Further, contrary to Romby’s’ submission, the Tribunal is not required to “conclude” that Romby’s will not carry on its business according to the law and with integrity and honesty. Rather, the standard that the Registrar must meet is “reasonable grounds for belief”: Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (Famous Flesh Gordon's), 2013 ONCA 157, at para. 19. It was open to the Tribunal on its findings of fact to find that the Registrar had met that standard.
e. Revocation of the licence
30Romby’s submits that revocation should only be imposed in the “most clear of circumstances” and submits that this case does not rise to that level. Romby’s submits that the five-month suspension pending the Tribunal’s hearing in this matter was sufficient.
31Romby’s has provided no authority for its submission that revocation should be imposed only in the clearest of circumstances, and I disagree with it. Once the Tribunal has found that one or more grounds in s. 6 of the LLA have been made out, the Tribunal’s determination as to the appropriate sanction is discretionary: 168774 Ontario Inc. v Registrar of Alcohol and Gaming, 2017 ONSC 3579, at para. 18 (Div. Ct.).
32The Tribunal’s reasons explain that revocation was imposed due to concerns for the safety of the public, based on Mr. Wilson’s aggressive actions. I see no error in the Tribunal exercising its discretion in this manner.
ORDER
33Upon consideration of the submissions of the parties, Romby’s’ request for reconsideration is dismissed.
Date of Issue: August 23, 2018
D. Stephen Jovanovic, Member