1818648 Ontario Ltd. o/a The Dugout v. Registrar of Alcohol, Gaming and Racing, 2019 CanLII 37553

Licence Appeal Tribunal

Date: 2019-04-23

An application for removal of condition 1(c) of Liquor Sales Licence issued to the applicant on December 19, 2016

Between:

1818648 Ontario Ltd. o/a The Dugout Applicant

and

Registrar of Alcohol, Gaming and Racing Respondent

DECISION

Adjudicator: Katherine Livingstone, Member

Appearances:

For the Applicant: Nicolas Puim, owner

For the Respondent: Tamara Brooks, counsel

Heard by teleconference on: April 3, 2019

INTRODUCTION

1The applicant is 1818648 Ontario Ltd., operating as The Dugout, a licenced establishment in Windsor, Ontario. Mr. Nicolas Puim is the owner of the numbered company. By written application dated December 5, 2018, the applicant requests the removal of condition 1(c) of its liquor licence #802770, pursuant to section 14(2) of the Liquor Licence Act, (the Act), on the grounds there has been a change in circumstances that led to the imposition of the conditions.

2The establishment was granted a liquor licence on December 19, 2016, after a hearing before the Licence Appeal Tribunal. The decision¹ of the Tribunal imposed the following condition on the licence:

1. Neither Douglas Hogan nor Daniel Hogan:

a. may have a beneficial interest of any kind, either directly or indirectly, in the licensee, including but not limited to being a holder, directly or indirectly, of shares or other securities:

b. may exercise direct or indirect control over the licensee including acting as manager, employee or bookkeeper of the licensee

c. may be permitted in the licensed premises or

d. may provide direct or indirect financing to the licensee.

3The applicant seeks to have condition 1(c) removed.

4At the time the Tribunal imposed the conditions banning the Hogans from the applicant’s establishment, the Tribunal was concerned about the Hogan’s prior criminal conviction for bookmaking. The Tribunal concluded some of the illegal bookmaking activity that was the subject of their convictions took place in a licenced establishment previously owned by the Hogans. The Hogans were originally going to be part of the ownership team of the Dugout. The Tribunal was concerned about their honesty and integrity. As a result, the Tribunal prohibited the Hogans from having any direct or indirect involvement in the Dugout and also prohibited them from attending on the premises.

ISSUE

5The issue is whether there has been a change in circumstances that warrants the removal of condition 1(c) imposed by the Tribunal.

ANALYSIS

6This matter first came before me for a case conference on January 8, 2019. Up to this point the applicant had not provided an evidentiary foundation for seeking the removal of the condition on the basis of a change of circumstances. Given the paucity of information, the respondent could not take a position with respect to the application.

7The matter was adjourned to allow the applicant time to provide information that would demonstrate a change in circumstances. When the case conference reconvened on February 21, 2019 the applicant was able to expand on his reasons behind his request for the removal of the condition that prohibited the Hogan brothers from entering his establishment.

8The applicant’s advised that since the ruling in 2016, circumstances have changed and the condition is now impacting on his ability to interact with members of the community when the Hogans are part of that interaction. He explained he and the Hogans are jointly involved in fundraising and coaching activities within the community and none of the planning for these events can take place at his establishment because of the ban.

9He advised he did not believe the Hogans have been in any further difficulty with the criminal justice system since their conviction several years ago and that they deeply regretted their prior actions. He said the Hogans continue to carry on their father’s printing business and have assisted in raising hundreds of thousands of dollars for the community through charitable efforts.

10The applicant explained the Hogans are not involved in his business in any way. He simply wants them to be able to visit the Dugout in a social context.

11The applicant was prepared to provide statements to the respondent and myself outlining this additional information. A further case conference was scheduled for March 13, 2019, at which time the matter was further adjourned to April 3, 2019 to allow both the applicant to file affidavits, and the respondent counsel to obtain instructions.

12On April 3, 2019 I was provided with an affidavit of Mr. Puim, dated February 18, 2019 as well as affidavits from both Hogan brothers, dated April 1, 2019. The affidavits confirmed neither Hogan’s have been in any further difficulty with the criminal justice system and further that if the ban was lifted they would be able to hold luncheon meetings for their charity work at the establishment.

13During the case conference the respondent advised they were not opposed to the removal of condition 1(c) however they were requesting the remainder of condition 1 remain intact.

14Both the applicant and the respondent consented to me, as the case conference adjudicator, making the decision on whether there had been a change in circumstances.

15I have reviewed the application and other documentation, including the aforementioned affidavits submitted by the applicant as well as the material filed by the respondent. Additionally, I have reviewed the prior 2016 decision of the Licence Appeal Tribunal relating to this establishment, which resulted in the condition in question.

16I conclude there has been a change in circumstances in that:

a. The Hogan brothers have not been involved in any further difficulties with the criminal justice system since their guilty plea for bookmaking on September 7, 2010.

b. The Hogan brothers have ongoing fundraising, coaching and social relationships with the applicant owner, requiring organization that would be facilitated by their attendance at the establishment.

c. The Registrar is not opposed to the removal of the condition banning the Hogan brothers from the establishment as long as the other conditions remain in force. Further, the Registrar has not advised me of any adverse disciplinary history with respect to the applicant

Consequently, in accordance with my authority set out in s 14(2) of the Act, I order:

17The following condition currently attached to the applicant’s liquor licence be removed:

1. Neither Douglas Hogan nor Daniel Hogan:

c. may be permitted in the premises

18Condition 1 will now read:

1. Neither Douglas Hogan nor Daniel Hogan:

a. may have a beneficial interest of any kind, either directly or indirectly, in the licensee, including but not limited to being a holder, directly or indirectly, of shares or other securities:

b. may exercise direct or indirect control over the licensee including acting as manager, employee or bookkeeper of the licensee

c. may provide direct or indirect financing to the licensee.

Footnotes

1. 18574 v. Registrar of Alcohol and Gaming, 2014 Can LII 36464 (ON LAT)