UFO KTV Inc. v. Registrar of Alcohol, Gaming and Racing, 2018 CanLII 54776

Date: 2018-03-23

Appeal from Notices of Proposal by the Registrar of Alcohol, Gaming and Racing under the Liquor Licence Act to Refuse to Renew a Liquor Sales Licence and to Refuse to Transfer a Liquor Sales Licence

Between:

UFO KTV Inc. o/a UFO KTV (KTV)

2544335 Ontario Inc. o/a MYST KTV (MYST)

Appellants

-and-

Registrar of Alcohol, Gaming and Racing

Respondent

DECISION ON MOTION

Adjudicator: Zahra Dhanani, Member

Appearances:

For the Appellant: Mr. Jian Hong Guan, Legal Representative

For the Respondent: Rena Khan, Counsel

Place and date of hearing: Toronto, Ontario March 19, 2018

REASONS FOR DECISION ON MOTION

OVERVIEW:

1KTV and MYST (the appellants) are separate business owners in the midst of a sale/transfer of a karaoke bar from KTV to MYST. They have both received notice of refusals on their requests to renew the existing licence and to transfer the licence over to the new owner. KTV and MYST appeal these notices. There are several issues to be determined at the hearing with over 20 infractions to be proven.

2On January 26, 2018, a case conference was held, and a case conference order was issued on March 15, 2018. According to the case conference order the hearing was scheduled to proceed on March 26, April 12, 17, 18 and 19, 2018. This however was an error in the order, the hearing was actually scheduled only for April 12, 17, 18 and 19. The existing order will be amended to reflect that.

3It was agreed at the case conference that by March 23, 2018, the parties shall serve each other and file with the Tribunal all documents or material to be relied on at the hearing.

4The appellants have brought a motion to request an adjournment of the hearing. The respondent opposes this request and argued that the hearing should proceed as scheduled.

5I deny the appellants’ request to adjourn the hearing. The hearing will proceed on the dates that it has been scheduled for with the date for disclosure being moved up to April 3rd, 2018.

ISSUE:

6The issue to be decided is whether there are sufficient and compelling reasons to provide an adjournment from the existing hearing dates.

ANALYSIS:

7Adjournments are a discretionary matter. Relevant factors to making a decision on an adjournment request, include but are not limited to: a) prejudice to the parties, b) consent of the other party, c) length of the adjournment request, d) previous delays, e) the public interest, and f) fair, efficient and timely conduct of proceedings. In weighing those factors, I will consider the evidence and submissions provided in support and in opposition to the request.

8Rules 15 and 16 of The Licence Appeal Tribunal Rules of Practice and Procedure, Version 1 (April 1, 2016) (the Rules) state that the motion must provide a statutory and evidentiary basis and reasons for the adjournment request.

9The materials for the appellants’ lacked any legal or substantial material that would support their request. The appellant’s main argument was that they needed more time and should not be forced to rush their preparation for this hearing. The appellant’s did not present a date or time frame within which they would like the hearing rescheduled. When pressed several times for a proposed date, they said sometime in June would be preferable.

10The appellants filed their appeal on the notices they received in October 2017. That is six months prior to the hearing date.

11There was a case conference conducted in this matter on January 26, 2018. At this case conference it was repeated several times the importance of getting a lawyer that was skilled in this area of law and the importance of preparing their case for the hearing. This case conference was conducted two and a half months prior to the hearing dates that were agreed upon by all of the parties.

12Counsel for the respondent had undertaken to provide the appellants full disclosure by February 3, 2018. This was so that the appellants would have a full two months to prepare their case in response to all of the allegations. The respondent complied with this undertaking and provided full disclosure on February 3, 2018.

13The appellants retained a legal representative on February 6, 2018. This was two months before the hearing date.

14At the motion hearing the appellants’ legal representative kept repeating that there was not enough time to prepare their case for the hearing. When asked what preparation had been done to date, other than meeting with his clients, Mr. Guan could not provide any details.

15Appellants’ legal representative stated that they have over 11 witnesses to prepare for the hearing. However, when I asked for the names of the witnesses, the appellants’ legal representative could not provide names, nor was he able to provide clarity as to whether any of the witnesses had actually even been contacted.

16The appellants could not provide any reasonable explanation as to why they could not prepare their case in the two months, even though they had retained someone to represent them.

17The appellants’ legal representative stated that this was a serious matter for the appellants, a matter of “life and death”, and yet when pressed to share what actions the appellants had taken to prepare for the hearing, they could not point to any concrete action other than meeting with their legal representative.

18Mr. Guan, is a paralegal who has never represented a client before the Tribunal. At the hearing of this motion, he used legal terminology and references that had no relevance to the current proceedings. When asked how he would know the length of time it actually takes to prepare a case before the Tribunal he could not answer.

19Mr. Guan argued that the owner of the company that has bought the business (MYST) has spent over $450,000.00 to redecorate the karaoke bar. Yet, Mr. Guan also mentioned that they could not afford counsel or a legal representative that was experienced in this area of the law.

20Mr. Guan mentioned that the respondents had provided too much material to respond to in two months. The respondent provided the appellant with one bound volume of materials. There is more than enough time to review and respond to one bound volume of materials in two months.

21I find all of the reasons and arguments made by the appellants to be unsubstantiated and without merit. Had they been diligent in preparing their case from the time they filed their intention to appeal, or even from the time they had retained someone to represent them, they would have had enough time to prepare.

22What I found was that they had not prepared a case and that is not sufficient reason to grant an adjournment request.

23Furthermore, I find that the respondent would be seriously prejudiced if we granted an adjournment at this time.

24The respondent has prepared for the hearing and submitted all of her disclosure to the appellants by February 3, 2018. She submitted that she had contacted all 11 of her witnesses and have put them on notice for the hearing dates, some of those witnesses are police officers who are extremely difficult to canvas dates with and yet she was able to get confirmation from all of them that they will attend and be available for the currently scheduled hearing dates.

25More importantly the main witness for the respondent’s case is a liquor license inspector who had been present at over five of the dates where violations were observed at the appellants’ business. After April 2018 this key witness will be on leave until 2020. Without the testimony of this witness the respondent will not be able to fully present their case.

26I find that to delay this matter beyond the April 2018 dates, as already scheduled, would seriously prejudice the respondent.

27The respondent agreed that these are very serious allegations that need to be addressed and as a result further argued that it would not be in the public interest to delay this case. In particular a delay would impact the respondent’s ability to present their case due to a key witness not being available.

28I agree with the respondent. In taking all the factors into consideration, and upon hearing the submissions of the parties, I do not find any reason or substantial basis upon which to grant an adjournment.

29The respondent conceded at the hearing that she would agree to receive disclosure at the latest by April 3, 2018 as this would only give her 7 business days to prepare her response to the disclosure, but still she would make sure to get it completed for the hearing.

CONCLUSION:

30The appellants’ adjournment request is denied. However, I agree that disclosure can be provided at the later date conceded to by the respondent which is April 3, 2018.

31I order that the case conference order dated March 15, 2018, be varied such that the date for providing full disclosure has been moved back to April 3, 2018 instead of March 23, 2018. The order will also be varied to reflect the correct hearing dates which are April 12, 17, 18 and 19, 2018.