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 Proposed Order of the Registrar of Alcohol, Gaming and Racing under the Gaming Control Act, 1992, S.O. 1992, Ch. 24 to Revoke Registration
Between:
W.H.H
Appellant
And
Registrar of Alcohol, Gaming and Racing
Respondent
RECONSIDERATION DECISION
Before: Jeanie Theoharis, Vice-Chair
Written Submissions By:
For the Appellant: Aneesha C.S. Lewis, Counsel
For the Respondent: Aviva R. Harari, Counsel
Overview
1The appellant, W.H.H, requests reconsideration of the Licence Appeal Tribunal’s decision dated September 27, 2018 confirming Proposed Order of the Registrar of Alcohol, Gaming and Racing (the “Registrar”) to revoke the appellant’s registration as a class 2 gaming assistant under the Gaming Control Act, 1992, S.O. 1992, c. 24 (the “GCA”).
2The appellant was registered as a gaming assistant since 2004 and was employed at [the Casino]. On the night of April 25, 2018, he found approximately $2,000 in cash on the floor at a different casino, which he took home with him. When he later attended for work, he was met at the door by police and charged with theft under $5,000. He then returned the cash to the other casino. Based on this incident, the Registrar issued a Proposed Order to revoke his registration.
3The Tribunal considered this single incident against his otherwise positive record of registration over 14 years and determined that there were reasonable grounds to believe that he will not act as a gaming assistance in accordance with the law, or with integrity, honesty, or in the public interest. Accordingly, the Tribunal confirmed the Proposed Order.
4The appellant requests reconsideration on the following grounds set out in Rule 18.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017):
(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.
5The Executive Chair has delegated to me the responsibility to decide this reconsideration request. For the reasons that follow, I dismiss the appellant’s request for reconsideration.
Analysis
Procedural fairness
6The appellant argues that the Tribunal violated the rules of natural justice and procedural fairness because the sanction was not proportionate to the appellant’s conduct.
7Procedural fairness (or natural justice) is concerned with ensuring that parties have access to a fair procedure, including the opportunity to be heard and the ability to have decisions made using a “fair, impartial and open process”: Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, at para. 28. The appellant’s procedural fairness argument does not appear to take issue with the tribunal’s procedure in any way. Rather, the appellant is arguing that the result was unfair because the sanction was not proportionate to his conduct.
8This is not a question of procedural fairness. Accordingly, I am not satisfied that the Tribunal violated the rules of procedural fairness or natural justice.
Error of law
9The appellant also argues that the decision was an error of law because the sanction imposed was not proportionate to the appellant’s conduct.
10The appellant cites McKinley v. BC Tel, 2001 SCC 38, in which the Supreme Court of Canada stated at para. 53 that “[a]n effective balance must be struck between the severity of an employee’s misconduct and the sanction imposed.” The appellant submits that this principle applies to his situation.
11McKinley is an employment law case that addressed the question of whether dishonesty is always cause for dismissal. The appellant has provided no authority for applying McKinley outside of the employment law context. The principles at play in LAT proceedings under the GCA are different. The Tribunal’s role is not to “impos[e] a fit penalty or sentence to punish proven historical acts of misconduct”: Niagara Funeral Alternatives Inc. v. Registrar, Funeral, Burial and Cremation Services Act, 2002, 2019 ONSC 4966 para. 28. Rather, the Tribunal must determine whether the grounds for revocation under s. 11(a) of the GCA are proven. This requires a forward-looking consideration of the appellant’s future conduct. Whereas McKinley was decided in the context of the employer-employee relationship, the focus of the Tribunal’s decision is protecting the public interest.
12The Tribunal weighed the appellant’s conduct in taking the money along with his 14-year history of positive conduct. The Tribunal considered the fact that the conduct occurred in the context of the gaming industry, evidence that his colleagues would not have left the casino with the money, evidence of dishonesty in other areas of his life, and the fact that he did not show remorse, accept responsibility or express that he learned anything about himself through the experience. Based on a consideration of this evidence, the Tribunal determined that the appellant’s actions provided reasonable grounds to believe he would not act as a gaming assistant in accordance with law, or with integrity, honesty, or in the public interest.
13A reconsideration request is not an opportunity to re-argue the evidence in the hope of having the tribunal reach a different decision. The Tribunal’s findings were open to it on the evidence and I am not satisfied that the Tribunal made an error of law in deciding to revoke the appellant’s registration.
ORDER
14For the reasons set out above, the reconsideration request is dismissed.
Jeanie Theoharis Vice-Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: October 18, 2019