Appeal from Order of Monetary Penalty of the Registrar of Alcohol, Gaming and Racing under the Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c 26, Sched.
Between:
Bassline Music Bar Inc. o/a Bassline Music Bar
Appellant
and
Registrar of Alcohol, Gaming and Racing
Respondent
RECONSIDERATION DECISION
Before: Linda P. Lamoureux, Executive Chair
Written Submissions By:
For the Appellant: Mike Hook, Counsel
For the Respondent: Faye Kidman, Counsel
Overview
1The appellant, Bassline Music Bar Inc. (“Bassline”), requests reconsideration of a motion decision of the Licence Appeal Tribunal (the “Tribunal”) released December 19, 2017.
2On July 5, 2016, the Registrar of Alcohol, Gaming and Racing (the “Registrar”) issued an Order of Monetary Penalty (the “Order”) to Bassline under s. 14.1 of the Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c 26, Sch. (“AGRPPA”). The Order alleged two contraventions of Regulation 719 under the Liquor Licence Act, R.S.O. 1990, c L.19 (the “LLA”) and imposed a penalty of $1,500 per alleged infraction.
3The Registrar provided a settlement offer to Bassline for $1,000 per infraction if Bassline admitted the allegations. Bassline advised the Registrar that it wished to accept the offer to settle in respect of one of the monetary penalties but not the other. The Registrar maintained that the offer was for both penalties together. Settlement discussions then broke down and Bassline appealed the penalty to the Tribunal. In its notice of appeal, Bassline denies one of the alleged violations and states that the other was a mere oversight and the penalty was overly harsh.
4Bassline also takes issue with the Registrar’s insistence on an “all-or-nothing” settlement, arguing that this created an impermissible incentive on Bassline to admit conduct that it did not commit. Bassline filed a Notice of Constitutional Question (“Notice”) and alleged, in essence, the following:
The Registrar exceeded its jurisdiction by requiring Bassline to accept or refuse an all-or-nothing settlement.
The Registrar breached the duty of procedural fairness it owed to Bassline, as insisting that the Order be settled together was contrary to Bassline’s legitimate expectations.
Requiring an all-or-nothing settlement violated s. 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) because a regulatory violation is also an offence for which an individual may be liable for a fine or imprisonment.
Based on the above, the Tribunal should issue an order setting aside the Order, or alternatively an order of mandamus, requiring the Registrar to settle one of the penalties for $1,000.
5The Registrar brought a preliminary motion arguing that the Tribunal had no jurisdiction to consider the issues raised in the Notice or order the relief sought.
6A case conference was heard on March 3, 2017 and the hearing was scheduled for March 9, 2017. In the case conference order, the Tribunal directed that the issues raised by Bassline in the Notice be dealt with as preliminary issues at the start of the hearing. The Tribunal further ordered that the Tribunal consider the issue of settlement privilege and then determine whether the same panel that considers those issues may then consider the merits of the appeal.
7At the hearing, the parties and the Tribunal agreed to hear the Registrar’s motion first and then, depending on the Tribunal’s determination on its jurisdiction, go on to consider the issues raised by Bassline in the Notice. After both parties made oral submissions on whether the Tribunal had jurisdiction to consider the issues raised by Bassline in the Notice, the Tribunal adjourned the hearing and reserved its decision on jurisdiction.
8The Tribunal decided to grant the Registrar’s motion. The Tribunal noted in its motion decision that in appropriate circumstances, it may be required to examine the administrative steps leading to the proceeding at the Tribunal. However, the Tribunal found that the settlement discussions did not trigger the Tribunal’s jurisdiction to ensure a fair hearing in this case. The Tribunal found that the Registrar’s conduct did not amount to an abuse of process, as it did not taint the proceeding before the Tribunal. The Tribunal found that the “only behaviour of the Registrar that is alleged to be improper is that he had a disagreement with [Bassline] over the terms of the settlement offer and, consequently, no settlement was reached.” With respect to the s. 7 Charter argument, the Tribunal noted the proceeding involved a monetary penalty against a corporation and did not engage the right to life, liberty or security of the person.
9The Tribunal ordered the hearing on the Order to proceed on the sole issue of the allegations set out in the Order and any defence thereto.
10Bassline requests reconsideration of this decision on the following grounds set out in Rule 18.2 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016):
(a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
(b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
11For the reasons that follow, I grant Bassline’s request for reconsideration and vary the Tribunal’s order, as set out in detail in paragraph 27 below, to provide for an in-person hearing on the allegations set out in the Order and an opportunity for Bassline to make written submissions on the issues raised in the Notice.
analysis
Error of Law
Submissions
12Bassline submits that the Tribunal erred by making its decision based on abuse of process. Bassline emphasizes in its request for reconsideration that it did not allege abuse of process. Rather, Bassline says that its argument is that the Registrar did not have jurisdiction to impose an ‘all-or-nothing’ settlement. Bassline argues that the Tribunal fettered its discretion by limiting its review of the Registrar’s actions to situations where there is an abuse of process.
13Bassline notes that the Tribunal has jurisdiction under s. 5.1(4) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G (“LAT Act”) to determine “all questions of fact or law that arise in matters before it.” Bassline argues that whether the Registrar exceeded its jurisdiction in requiring an ‘all-or-nothing’ settlement is a question of mixed fact and law that arises in the appeal. Bassline also notes that under s. 3(2) of the LAT Act, the Tribunal has “all the powers that are necessary or expedient for carrying out its duties.” Bassline submits that the legislative intent was to give the Tribunal “broad jurisdiction and powers to oversee the conduct of the Registrar”, which should not be limited to cases where there is an abuse of process.
14The Registrar submits that Bassline is attempting to re-litigate the issues determined at the motion. The Registrar submits that the Tribunal does not have jurisdiction to review the conduct of the Registrar in negotiating settlements of Orders, which are properly within the discretion of the Registrar and are subject to settlement privilege. The Registrar submits that the Tribunal’s broad jurisdiction in s. 5.1(4) of the LAT Act does not extend to settlement discussions, which are privileged and not part of the Order. The Registrar states that if Bassline wishes to challenge the Registrar’s exercise of discretion in negotiation, it may apply for judicial review. The Registrar notes that s. 15(2) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 does not allow a Tribunal to admit evidence that is privileged.
Discussion
15I am satisfied that the Tribunal erred by finding it had no jurisdiction to consider the issues raised by Bassline in the Notice, and that this error was such that the Tribunal would likely have reached a different decision on the motion.
16I agree with the Registrar that the Tribunal has no authority to make an order of mandamus, as requested by Bassline. That remedy is clearly outside the Tribunal’s jurisdiction.
17However, Bassline also requested that the Order be set aside based on the arguments raised in the Notice. The Tribunal has jurisdiction under s. 14.1(7) of AGRPPA to confirm or set aside a monetary penalty. The question is not the jurisdiction to grant the requested remedy, but rather whether the Tribunal may consider the conduct of the Registrar in determining whether to grant that remedy.
18AGRPPA does not restrict the matters that the Tribunal may take into consideration in determining whether to confirm or set aside a monetary penalty. Subsections 14.1(1)-(2) of AGRPPA state that the Registrar “may” impose a monetary penalty set out in the applicable schedule for contravention of a statute or regulation. Section 14.1(7) states that after holding a hearing, the Tribunal “may” confirm the monetary penalty or set it aside. AGRPPA appears to leave open the possibility for the Tribunal to set aside a monetary penalty even if a contravention is established. Therefore, the Tribunal’s inquiry is not necessarily limited to considering only whether the applicable contravention occurred. As AGRPPA does not limit what the Tribunal may take into consideration, it is inaccurate to state that the Tribunal lacks jurisdiction to consider the Registrar’s conduct.
19The Tribunal’s decision acknowledged that the Tribunal may at times “examine administrative steps taken to bring a matter before it to determine if there has been an abuse of process”. However, the Tribunal found that its jurisdiction was not “triggered” because the conduct of the Registrar raised “no concern that the proceeding before this Tribunal is impugned in any manner”. This conflates the Tribunal’s jurisdiction to consider an argument with the merits of that argument. Given that Bassline was not permitted to present the merits of its argument, it was not possible for the Tribunal to make a determination on the merits.
20Therefore, I am satisfied that the Tribunal erred by determining that it had no jurisdiction to consider the issues raised in the Notice. The decision on the motion would likely have been different had this error not been made, in that Bassline would have been permitted to put its arguments before the panel hearing the appeal on its merits.
Procedural Fairness
21Bassline argues that the Tribunal violated the rules of procedural fairness and natural justice by failing to provide adequate reasons for its decision. Bassline argues that the Tribunal failed to cite any of the applicable legislation or case law in reaching its decision. Bassline also submits that the Charter issue was not actually heard, pending resolution of the jurisdiction question.
22The Registrar submitted that the rules of procedural fairness were not violated.
23With respect to the sufficiency of reasons, I am not satisfied that a breach of procedural fairness occurred. The “adequacy” of reasons is not a stand-alone basis for quashing a decision.1 Rather, the reasons are to be read together with the outcome to determine whether the decision is reasonable. In any event, I find that the Tribunal’s reasons were sufficient to allow for review of the decision.
24With respect to Bassline’s opportunity to make its Charter argument, the Tribunal advised the parties that depending on its decision on the Registrar’s jurisdiction motion, it would then go on to hear the issues raised in the Notice. Because the Tribunal granted the Registrar’s motion, Bassline was not given the opportunity to make submissions on the Charter beyond what was contained in the Notice. In my view, and based on the legal error identified above, Bassline ought to have been given an opportunity to be heard on the issues raised in the Notice.
Result
25Although Bassline is entitled to make its case to the panel who will determine the merits of this appeal, there is no requirement for Bassline to make those arguments orally. In order to move this matter on expeditiously, I order that Bassline’s evidence and submissions on the issues raised in the Notice be made in writing if the Tribunal finds that regulatory violations occurred.
26I also note that although I have found that the Tribunal erred in finding that it lacked jurisdiction to consider Bassline’s arguments, this does not address the Registrar’s concern regarding settlement privilege. Some or all of the evidence that Bassline wishes to rely on in making its arguments in the Notice may be subject to settlement privilege. Therefore, I order that written submissions on the issues raised in the Notice be made following the Tribunal’s determination on whether the regulatory violations occurred. The parties’ written submissions may also address the question of settlement privilege.
ORDER
27Upon consideration of the submissions of the parties, I grant Bassline’s request for reconsideration and vary the Tribunal’s order to read as follows:
a) An in-person hearing shall be scheduled to take place prior to October 31, 2018 before a different member or panel of the Tribunal. The in-person hearing shall address only the allegations set out in the Order.
b) The Tribunal shall then release a decision on whether the alleged regulatory violations occurred.
c) If the Tribunal finds that the regulatory violations occurred, the parties shall then be invited to make written submissions on the issues raised in the Notice within a timeline to be specified by the panel.
d) Upon considering the written submissions, the Tribunal will then release a final decision in this matter.
Date of Issue: August 1, 2018
Linda P. Lamoureux, Executive Chair
Footnotes
- Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 14.