File Number: 12442/LLA
Motion for an Order to extend the time to file an Appeal under the Liquor Licence Act, R.S.O. 1990, c. L.19
Between
1919664 Ontario Inc. o/a Play Bar Burlington
Appellant
and
Registrar of Alcohol and Gaming
Respondent
MOTION DECISION AND ORDER
Adjudicator: Patricia McQuaid, Vice-Chair
Appearances:
For the Appellant: Joseph Irving, Counsel
For the Respondent: Valreen Sealie, Counsel
Hearing by teleconference: December 2, 2019
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant seeks to appeal a Notice of Proposal to suspend its liquor licence (the “NOP”), issued by the Registrar on May 16, 2019. The appeal period is 15 days, but in this matter, after a period of discussion between the parties, followed by numerous delays, the Registrar gave a deadline of November 12, 2019 for the filing of the appeal. This motion for an extension of time to file the appeal was submitted on November 15^th^ and the Notice of Appeal was filed on November 21^st^. The Registrar opposes the motion.
2Based on a review of the Notice of Motion filed as well as the respondent’s motion record, and after hearing submissions from counsel, I find that the appellant has not established reasonable grounds for an extension of time to file an appeal. The motion is denied.
ISSUE
3The issue before the Tribunal is whether the appellant has established reasonable grounds for an extension of time.
LAW
4Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, gives the Tribunal the power to extend the time to file an appeal if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief.
5In exercising that power, the Tribunal is guided by the principles for consideration on motions for the extension of time set out in the decision of the Divisional Court in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492, on appeal from this Tribunal. The decision sets out the four factors to be considered in assessing a request for an extension of time, as follows:
- The existence of a bona fide intention to appeal;
- The length of the delay;
- Prejudice to the other party; and
- The merits of the appeal.
6The Court of Appeal in Frey v. MacDonald, [1989] O.J. No. 236 (C.A.), stated that the general rule is that time for an appeal is not extended unless the appellant has shown that these factors support an extension. The onus is on the appellant to provide evidence that can support one or more of these factors. Courts have also determined that these factors are simply a guide to assist in determining the justice of the case. A weaker fact situation under one head may be balanced by stronger facts under one or more of the remaining factors
ANALYSIS
7I will assess each of the factors in light of the material before me and the submissions of the parties. The facts as set out in the respondent’s motion record are especially important because of the protracted history of this matter, particularly in the context of the first two factors.
Bona fide intention to appeal and length of delay
8I will consider these two factors together as the factual background is relevant to both.
9As noted above, the NOP was issued on May 16, 2019. It relates to alleged infractions on June 9 and August 11, 2018. The Registrar advised the appellant, in writing, of possible disciplinary action on September 18, 2018. In that letter, the Registrar stated that he required a response by September 28, 2018. On October 3, 2018 Mr. Irving, the appellant’s counsel, wrote to the Registrar indicating that he had just been retained and requesting an extension to file a response to November 6, 2018. That extension was granted, and counsel then delivered a three-page letter on November 22, 2018, setting out his client’s response to the allegations. A settlement was not reached, leading to issuance of the NOP.
10There is a 15-day appeal period after issuance of an NOP, that is, 15 days to request a hearing before the Tribunal. In the May 16, 2019 letter to Mr. Irving, enclosing the NOP, the Registrar also proposed a settlement and asked for a response by June 5, 2019. There was no response from the appellant – no appeal was filed and no reply to the Registrar’s proposal. As a result, the Registrar sent a letter dated June 28, 2019 to Mr. Irving enclosing an Order to carry out the proposal to suspend the liquor licence for 14 days. The suspension was to start on August 25, 2019.
11Neither the appellant nor its counsel responded to this letter and so, on August 25, 2019 the suspension period started. The appellant contacted Registrar’s counsel, Ms Sealie, on August 27^th^ about the licence suspension that was then underway. Mr. Araujo, who appears to be the principal of the appellant, advised Ms Sealie that they were no longer being represented by Mr. Irving. As a result of discussions, the Registrar issued an order to rescind the suspension giving the appellant the opportunity to appeal the NOP once again. On August 29, 2019, Ms Sealie sent a copy of the NOP to Mr. Araujo as well as all material sent to Mr. Irving previously and Mr. Irving’s letter of November 22, 2018. She also included the appeal form and requested a response by September 19^th^.
12Mr. Araujo responded on September 16^th^, stating that they intended to appeal but by October 7^th^ with still no notice of appeal, Ms Sealie emailed Mr. Araujo stating that they would be in a position to enforce the order if there was no appeal by October 10^th^. On October 9^th^, Mr. Araujo asked for another extension, queried about the appeal process and indicated that the appellant was looking to retain counsel. On the same day, Ms Sealie responded, again enclosing the information sheet about filing an appeal. Documents included in the respondent’s motion record reveal that the appellant made a settlement offer on October 25^th^ which was rejected by the Registrar on November 7^th^. When communicating that information, Ms Sealie once again stated that the Registrar would consent to the late filing of an appeal, up to the end of the business day on November 12^th^.
13On November 15^th^, Mr. Irving advised that he was appellant’s counsel and filed this motion for an extension of time to file an appeal. On November 21^st^, the Notice of Appeal was filed with the Tribunal.
14While on its face, this appeal might be considered only a few days late, that is, less than 10 days after the last deadline of November 12^th^, the history of this matter as set out in detail above, suggests a lengthy delay, with many extensions granted by the Registrar. There was no response from the appellant after the NOP was issued on May 16^th^ – no intention to appeal was articulated during the 15-day appeal period or even shortly thereafter. The fact that almost two months’ notice was given prior to carrying out the order, a serious consequence for the appellant, yet still no contact was made with the Registrar, does not support a bona fide intention to appeal. Even after being granted a reprieve by the Registrar on August 27^th^, when the suspension was underway, the appellant did not act with any degree of urgency. Indulgences of time were granted by the Registrar again and again, but still the appellant did not take the required action. The length of the delay is in fact 5 ½ months.
15When considering both factors- whether there was a bona fide intention to appeal and the length of the delay -in light of the facts, I find these do not support the relief sought by the appellant.
Prejudice to the other party
16The third factor is the prejudice to the respondent. In this instance, the alleged incidents took place 18 months ago. Should this matter proceed to a hearing, witness’ memories may be weak after this length of time, if witnesses are even still available. While that is a risk- or prejudice- to both parties, the Registrar does bear the onus of proof at a hearing and therefore it faces the greater risk. The Registrar has granted many extensions to the appellant, and significant relief by its order rescinding the suspension in August, all to the appellant’s benefit while at the same time increasing the likelihood of challenges to advancing its own case at a hearing. In addition, I note that the Liquor Licence Act (the “Act”) is a public protection statute and as such there is also a broader public interest which is prejudiced by a failure to act expeditiously. I find that this factor also does not favour the relief sought by the appellant.
The merits of the appeal
17The fourth factor I must consider is whether the proposed appeal has merit. It is up to an appellant on a motion to extend time to demonstrate some merit to its case. On the Notice of Appeal, the appellant states that it disputes the allegations and takes the position that the Registrar failed to properly consider the evidence and submissions in concluding that the offences had been committed, and further that the Registrar preferred the evidence of inspectors over that of the appellant and failed to give reason for doing so. These statements are bald statements lacking any particularity on which I can assess whether there may be merit to the appeal. At the motion hearing, Mr. Irving submitted that these are important natural justice issues which must be addressed. There may be process issues which the appellant wants to address in terms of how the Registrar exercises his discretion to pursue disciplinary action against a licensee, but at a hearing in this matter, the Tribunal would be called upon to decide issues as framed in the NOP. Specifically, the issues are whether the appellant failed to inspect a piece of identification of a person under the age of 19 prior to selling and serving liquor to that person and whether it permitted a person under the age of 19 to have or consume alcohol on the premises, contrary to the Act and its regulations, on June 9 and August 11, 2018. The Tribunal is not the forum in which to address the Registrar’s exercise of his decision-making powers.
18Given the lack of information given by the appellant regarding this factor, I cannot weigh this in favour of the appellant.
Justice of the case
19The jurisprudence states that the ‘justice of the case” is the overriding consideration. Mr. Irving has urged upon me that there was a reasonable excuse for the failure to meet the November 12^th^ deadline: he was unable to file the appeal on November 11^th^ because the Tribunal offices were closed that day and he was in Court out of town on November 12^th^ and in Court in Toronto on November 13 and 14^th^. That might have been persuasive if this was the first deadline missed, but it was not, as the history of this matter reveals. Nor is it persuasive that the appellant did not have a legal representative between August 27^th^ and early November 2019. Mr. Araujo was given the information sheets about how to appeal by Ms Sealie on several occasions and she told him that parties can represent themselves before the Tribunal. It is no excuse to say he did not know how to appeal and here, where the Registrar rescinded the suspension order so that the appellant could pursue an appeal, it was reasonable to expect that Mr. Araujo would inform himself and act quickly. He did not.
20What is consistent through this matter, from September 2018 to now, is delay and inattention on the part of the appellant, as well as an apparently continuing expectation that yet another extension of time will be granted to it by the Registrar or the Tribunal. The facts suggest this is a pattern of conduct with little heed of the time and resources expended by the Registrar. When considering all of the factors noted above, I find that the justice of the case would not be served by granting the extension of time in this instance.
CONCLUSION and ORDER
21In assessing the overall justice of the case, based on the law and the statutory provisions, I find that the factors supporting an extension have not been established.
22Therefore, for the reasons set out above, the Tribunal orders:
- The appellant has failed to establish reasonable grounds for an extension of time to file the appeal and the motion is dismissed.
LICENCE APPEAL TRIBUNAL
_______________________
Patricia McQuaid, Vice-Chair
Released: December 11, 2019