LD Eats Inc. v. Registrar, 2019 CanLII 37556

Licence Appeal Tribunal

Date: 2019-04-25

Appeal from the Notice of Proposal of the Registrar under the Liquor Licence Act, R.S.O. 1990, c. L.19, to Review Application for Licence

Between:

LD Eats Inc.

Appellant

and

Registrar

Respondent

and

Friends of Kensington Market & City of Toronto

Added Parties

AMENDED DECISION and ORDER

Adjudicator: Stephen Scharbach, Member

APPEARANCES:

For the Appellant: Ryan MacIsaac, Counsel Sabrina Bruno, Counsel

For the Registrar: Tamara Brooks, Counsel Jordan Stewart, Counsel Valreen Sealie, Student-at-Law

For the City of Toronto: Mark Crawford, Counsel

For the Friends of Kensington Market: Julian Heller, Counsel

Heard In Toronto on: February 22, March 4, 7 and 8, 2019

OVERVIEW

1LD Eats Inc., (“appellant”), applied to the Alcohol and Gaming Commission of Ontario (“AGCO”) for a liquor sales licence under the Liquor Licence Act, R.S.O. 1990, c. L.19 (“Act”) for the indoor area of premises located at 241 Augusta Avenue (“premises”) in Toronto’s Kensington Market neighbourhood.

2The Registrar under the now Alcohol, Cannabis and Gaming Regulation and Public Protection Act (“Registrar”) received written objections to the application, including an objection from the City of Toronto (“City”) and issued a notice of proposal dated September 14, 2018, to review the application.

3The appellant requested a hearing by the Licence Appeal Tribunal (“Tribunal”) to address the Registrar’s notice of proposal.

4The City and the Friends of Kensington Market (“FKM”) - an incorporated group representing the interests of the Kensington Market community, especially its residents - were made parties and participated in the hearing.

5At the outset, the City and FKM both opposed the appellant’s application for a liquor licence mainly on the basis that it would result in noise, disturbance, and increased traffic that would negatively impact residents. However, the City withdrew its opposition when, on the second day of the hearing, the appellant amended its application to reduce its requested capacity and consented to certain licence conditions.

6After considering all of the evidence presented, I have concluded that the appellant’s application should be granted but with certain conditions attached.

THE LAW

7Section 6(2) of the Act provides that an applicant is entitled to be issued a licence to sell liquor except in specified circumstances.

8The Act specifies several such circumstances but the only one relevant to this case is set out in s. 6(2)(h) of the Act which provides that an otherwise qualified applicant is not entitled to a licence if:

9(h) the licence is not in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located.

10The Act requires the Registrar to give notice of a liquor licence application to the residents of the municipality in which the premises are located (s. 7(1)). The notice shall request written submissions from the residents as to whether issuing the licence is in the public interest having regard to their needs and wishes (s. 7(1), 7(3)).

11If the Registrar receives one or more written objections, the Registrar may issue a proposal to review the application (s. 8(4)).

12The Registrar must serve the applicant with the notice of proposal. The applicant may then request a hearing by this Tribunal to determine whether or not the licence should be issued and whether conditions should be attached (s. 21(1), 21(4)).

13In this type of hearing, the onus is on those objecting to the application to prove on a balance of probabilities that issuance of a liquor licence is not in the public interest.

14The Act provides that the Tribunal may, after holding a hearing, direct the Registrar to issue the licence or to refuse to issue the licence. The Tribunal may also attach to a licence any condition that the Tribunal considers proper to give effect to the Act (s. 23(10), 23(12)).

THE ISSUE

15Since an otherwise qualified applicant is entitled to be issued a licence unless those objecting to it establish that issuing the licence is not the public interest, the specific issues to be decided in his case are:

(a) Have the Added Parties established on a balance of probabilities that granting the appellant’s application for a liquor licence is not in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located?

(b) If a licence is granted should conditions be attached?

RESULT

16Based on the evidence presented, I cannot conclude that granting the appellant’s licence is not in the public interest and I direct the Registrar to issue a liquor licence to the appellant.

17However, FKM has raised legitimate concerns about the negative impacts that the appellant’s proposed licensed premises will have on the community, especially nearby residents.

18Those concerns are best addressed through conditions attached to the licence and, as set out below, I have directed the Registrar to issue a licence to the appellant with conditions.

BACKGROUND

(a) LD Eats Inc.

19LD Eats Inc. is an Ontario business corporation controlled by Beats Eats and Life Inc. (“BELI”) which is jointly owned by partners Jason Joly and Raja Khanna.

20Both Mr. Joly and Mr. Khanna are entrepreneurs with an interest in media and the arts. Mr. Joly has worked for over two decades as a musician, a short film director, a software developer, and producer of independent films. Mr. Khanna is an active investor and has acted as a board member of OCAD University (formerly the Ontario College of Art and Design) and as a board member/CEO of various arts, media and technology companies.

21Mr. Joly and Mr. Khanna established BELI with a plan to open “Liquor Donuts”, a restaurant and connected programmable art space on the premises. The appellant applied for a liquor sales licence in respect of both the restaurant and the art space and local opposition led to the present hearing.

(b) The Premises at 241 Augusta Ave.

22The premises consist of a detached one-story building with exterior walls built with double concrete cinder blocks. It contains two levels - the basement and the ground or street level. The building was used as a grocery store for many years but has been essentially unused and vacant for approximately the last three years.

23The front entrance of the premises face Augusta Avenue, Kensington Market’s main north-south commercial thoroughfare. There is a back entrance leading to Littlehayes Lane, a dead-end laneway running parallel to Augusta Avenue to the east which provides access from Baldwin Street to the back of the premises as well as neighboring buildings on Augusta Avenue.

24The building is rectangular in shape. The ground floor encloses an interior space approximately 86 feet in length and 47 feet wide¹. The appellant is seeking a liquor licence in respect of that entire ground floor area.

(c) Application for a Liquor Sales Licence

25Mr. Joly testified with respect to the appellant’s proposed use of the premises. He stated that the appellant intends to create a licensed diner style restaurant across the width of the building on the west side of the premises facing Augusta Avenue. The diner would be known as “Liquor Donuts”, a tongue in cheek reference to a pair of movies produced by Mr. Joly.

26According to Mr. Joly, Liquor Donuts is intended to be a light-hearted fast-casual diner serving a chef-driven menu of breakfast, lunch and dinner to “people between ages 6 and 60.”

27The washrooms and main kitchen area are intended to be located at the eastern side of the building closest to Littlehayes Lane. The ground floor area between the kitchen/washroom area and the diner would house a “programmable cultural space” – in plain words a multi-use event/gallery space capable of being used for long and short term visual art installations, film, musical performances, literary readings, privately booked receptions and social events.

28According to Mr. Joly, space capable of accommodating artistic shows/events is scarce in Toronto and, although he intends to run a business, part of his intention is to foster and encourage artists by providing a showcase for their work.

29Mr. Joly stated that the gallery will be operated in conjunction with the diner. Patrons would be able to consume alcohol both in the proposed restaurant as well as in the gallery space. According to Mr. Joly, people expect alcohol will be available at cultural events and alcohol sales will help make both the restaurant and gallery project viable. The project as envisioned will not be financially possible without a liquor licence that applies to both the restaurant and the gallery space.

30The appellant originally applied for a liquor licence with a capacity of 612 patrons and which included both the ground floor and the basement. According to Mr. Joly, that capacity request was based on a formulaic calculation required by the AGCO’s application form and the appellant understood that the precise licensed capacity would be determined after a detailed zoning and fire code analysis. According to Mr. Joly, the appellant’s application was amended before the hearing to request a capacity of 400.

31On March 4, 2019, the second day of the hearing, the appellant announced that it had again amended its application to:

• include only the ground floor
• reduce the maximum capacity to 300
• include conditions on the licence intended to address resident concerns.

32Although that capacity may be further reduced because of zoning or fire code constraints, for the purposes of these proceedings I am assuming that if granted, a liquor sales licence will allow for a maximum capacity of 300 people and will allow for the consumption of liquor throughout both the proposed dining area as well as the gallery space on the first floor, an area of approximately 375 square meters.

(d) Location of the Premises in Kensington Market

33Much of the opposition to the appellant’s application relates to the premises’ location in the heart of the Kensington Market neighbourhood.

34According to FKM’s evidence, Kensington Market is a neighbourhood that is bordered by College Avenue and Dundas Streets to the north and south, Spadina Avenue to the east, and Leonard Avenue, Carlyle Street and Bathurst Street to the west.

35The neighbourhood contains commercial thoroughfares that consist predominately of small commercial/retail establishments at street level with residential units above. Augusta Avenue is a prime example but the same description would generally apply to Baldwin Street and Kensington Avenue.

36The subject premises are located roughly midway between College Avenue and Dundas Street. At street level the premises are surrounded by small commercial retail businesses with, in many cases, residential units above those businesses.

37There are also many streets within Kensington Market that are primarily residential, have little or no street level commercial activity, and which are lined with single family homes or homes divided into apartments. Those streets, as well as Augusta Avenue, are home to families, children, the elderly, and many people who rise early each day to go to work or school.

38As many witnesses testified, Kensington Market accommodates an eclectic diversity of uses and activities. It houses small retail businesses of many types, coffee shops, drinking and dining establishments, artists and, of course, residents.

39While that diversity of use and activity lends the neighbourhood an attractive charm, it has also led to conflict between the interests of residents and those who operate licensed establishments, and that conflict is at the heart of the present case.

(e) The Friends of Kensington Market

40FKM is a non-share corporation established in 2014 with 90 formal members and a mandate to protect and promote the interests of the Kensington Market community, especially its residents. FKM’s current president is Dominique Russell who testified on behalf of FKM at the hearing.

41Ms. Russell explained the basis of FKM’s opposition and described the various negative impacts residents have experienced in recent years as a result of the proliferation of licensed establishments along Augusta Avenue.

42FKM also called a number of residents of Kensington Market who live close to the premises ranging from next door to a few blocks away. They spoke about their personal experience of living in an area with many licensed establishments, and their concerns about granting the appellant’s application.

(f) The Basis of FKM’s Objection

43Distilled to its essentials, FKM’s objection to the application is based on the following:

• Kensington Market is a unique community with a character derived from its historical roots in the early 20th century as a market serving the surrounding Jewish community.
• Successive waves of immigration in the 20th century changed that character but its central feature – the market itself with small retail shops intermixed with residential housing - has survived to the present. It is an unusual, colourful neighbourhood of historic and current cultural significance and continues to contribute to shaping and defining the City’s character.
• Kensington Market, especially along Augusta Avenue, represents a balance between residents and an eclectic array of small retail businesses. Maintaining that balance is essential to maintaining the neighbourhoods charm and character.
• However, that balance is being threatened by the proliferation of licensed premises that have sprung up along Augusta Avenue. There are now approximately 30 licensed premises along Augusta Avenue in the 600 meters between College Avenue and Dundas Streets and several more along Baldwin Street, Kensington Avenue, and Nassau Street.
• Some of those licensed premises are small². However, others are much larger³
• According to FKM, the proliferation of licensed premises on Augusta Avenue, especially the larger ones, has resulted in conditions that disturb residents. FKM called several resident witnesses who testified about their first-hand experiences in that regard:
  • C.D. – has lived and operated a small retail food business next door to the premises for the past 28 years. She has experienced break-ins and loud music disturbing her sleep and is concerned about noise and disturbance caused by a 300-person venue next door to her residence.
  • D.S. – lives at the corner of Wales and Augusta Avenues and has experienced problems with licensed establishments nearby on Augusta Avenue. At times music from nearby dance bars has been unbearably loud within his house. He spent $14,000 on soundproofing the back of his house but his home still vibrates with the noise. He testified that on Friday and Saturday nights when the bars close he sometimes experiences 400 people walking past his property, talking, yelling, and urinating on his property and against his garage. He has called the police who sometimes respond if they have nothing more urgent. He is opposed to the appellant’s application - in his view more liquor licenses lead directly to a deterioration of his quality of life.
  • J.T. – lives at the corner of Littlehayes Lane and Baldwin Avenue. His entrance is on Littlehayes Lane and he has experienced people in the lane defecting, smoking, using drugs, having sex, and loitering. Their presence in the lane is particularly intimidating to his female partner. He has talked with owners – “an ongoing conversation” – but the problems persist. He is opposed to another licensed establishment within meters of his residence.
  • S.L. – lives on Bellevue Avenue. Although she lives one street west of Augusta Avenue, she experiences groups of people walking along Bellevue talking and behaving in a disinhibited manner that, especially late at night, is disturbing to residents, Also, Augusta Avenue is a one-way street north bound. Traffic coming from College Street to pick up passengers late at night on Augusta Avenue commonly travel south on Bellevue to access Augusta Avenue increasing vehicular traffic in the early morning hours.
  • C.R. – lives in the upper floors of a building at the corner of Littlehayes Lane and Baldwin Street. His predominant concern is noise, both that which will potentially emanate from the premises and the noise of patrons when they leave, especially late at night. He states that he experiences a lot of noise now from other nearby licensed establishments and fears that another large licensed venue will make the existing problem worse.
  • V.A. – lives on Oxford Street 4 doors west of Augusta Avenue along with her partner and two children. She has endured excessive and disturbing noise - especially from a nearby bar that has D.J. parties with loud amplified music. She also testified about the disturbance caused by patrons leaving the nearby bars, including their loud, disinhibited behavior and finding vomit and individuals passed out in her front patio.

44FKM is particularly concerned about the location and size of the appellant’s proposed venue. According to Ms. Russell, the larger problematic establishments on Augusta Avenue are located either north of Oxford Street close to College Street, or south of Wales Avenue close to Dundas Street. When patrons leave those establishments, often at 2:00 a.m. or later, many migrate either north to nearby College Street or south to nearby Dundas Street to access public transportation or get a taxi or UBER.

45The appellant’s proposed location is roughly midway between College Avenue and Dundas Streets and, according to FKM, will potentially place 300 patrons in the heart of Kensington Market in the early morning hours increasing late night pedestrian and vehicle traffic on Augusta Avenue as well as nearby streets and inevitably disturbing residents.

(g) The Appellant’s Response

46The appellant’s position is that FKM has not established that granting the application is not in the public interest and points to the following:

• FKM does not speak for all residents in the neighbourhood and not all of them are opposed to the granting of a licence. The appellant called three witnesses who are in favor, two of whom are residents of Kensington Market:
• L.V. is an installation artist associated with Mondo Forma – an artist collective whose work the appellant intends to display in its gallery space. L.V.’s work is “immersive” “interactive” and “experiential”. It takes up a lot of space and is not easily accommodated in conventional galleries. According to L.V., gallery space suitable for her art is scarce and the appellant’s project will create an opportunity to pursue her art commercially. L.V. is not a resident of the Kensington Market neighbourhood although her partner lives at Augusta Avenue and Baldwin Street and she regards it as her second home.
• D.F. – lives on Bellevue Avenue, approximately 200-300 meters from the premises. According to D.F., he has not personally experienced any significant negative impacts from the neighbourhood licensed premises and says that his home is quiet at night. According to DF, the appellant’s premises are now unused and covered in graffiti. The proposed use of the premises will create needed cultural and creative space and will be an improvement.
• J.P. – lives on Baldwin Avenue about 200 meters from the premises. He testified that the premises are in a prominent location on Augusta Avenue but are currently a graffiti covered eyesore. He stated that contrary to his expectations, Kensington Market is generally quiet at night. He is in support of granting the licence because it would create an artistic event space currently lacking in the area.
• The appellant’s business plan is to open a restaurant welcome to the young and old, together with a programmable cultural space that will allow for a diversity of uses focusing on artistic events and shows. Unlike a rock and roll bar or a dance club, the appellant’s proposal is less likely to attract patrons that will disturb the neighbourhood.
• The principals of the appellant (Mr. Joly and Mr. Khanna) have a commitment to the arts as demonstrated by their significant track record in business activities focusing on the arts.
• The evidence of the impact of the neighbourhood of the existing licensed establishments is mixed. Some of the FKM witnesses testified that certain licensed establishments create noise and disturbance and fail to effectively address resident concerns. However, some witnesses also testified that other establishments respect surrounding residents and are responsive to their concerns. According to the appellant, it intends to be a good neighbour. Mr. Joly is sensitive to the concerns of the residents and from the outset of the application process has attempted to initiate and maintain a dialogue in an effort to cooperatively find ways of identifying and minimizing sources of conflict.

47The residents’ main concern is noise potentially emanating from inside the premises as well as noise and disturbance caused by patrons departing from the premises, especially late at night. According to the appellant, it has always been conscious of suppressing noise and is sensitive to the concerns of neighbours. The appellant’s proposed layout for the licensed first floor places the cultural space in the middle of the premises and was intended to help keep noise from reaching the street. The building is detached and the exterior walls are made of double cinder blocks which should help mute noise from the interior.

48According to the appellant, its proposal is in keeping with the character of the immediate neighbourhood and especially Augusta Avenue, an already active street. Augusta Avenue leads directly to Dundas and College Streets allowing patrons to readily exit the neighbourhood. According to the appellant, some licensed establishments on Augusta Avenue have recently closed or in the process of closing and the appellant’s proposal will not make existing conditions worse.

ANALYSIS

Issue (a) – Have the Added Parties established on a balance of probabilities that granting the appellant’s application for a liquor licence is not in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located?

49Pursuant to s. 6(2) of the Act, an applicant is entitled to be issued a licence to sell liquor except in certain circumstances which include those where granting the licence is not in the public interest having regard to the needs and wishes of the residents.

50The legitimate concerns of the residents in the immediate area of the premises who are the most affected will be given greater consideration compared to those who are less directory affected. In determining whether the needs and wishes of the residents should prevail over the applicant’s presumptive entitlement to a licence, the Tribunal will look to the totality of the evidence to determine whether the residents’ subjective concerns are supported on a valid, objective basis.

51After carefully considering all of the evidence presented, I cannot conclude on a balance of probabilities that granting the appellant’s application in its amended form is not in the public interest for the following reasons.

52Firstly, the appellant is not proposing just another loud dance club or live music venue likely to attract overindulging patrons that are likely to cause disturbance. The appellant’s proposal features a restaurant/diner and a gallery space that will occupy the bulk of the proposed licensed area.

53Mr. Joly and some of the other witnesses stated, and I agree, that the appellant’s business model is less likely to attract the type of reveler that has in the past caused problems for neighbouring residents.

54Secondly, in determining the public interest, I must have regard to the needs and wishes of the residents of the municipality.

55In this case, there is certainly opposition to the application by residents, including some who live very close to the premises. That opposition is understandable given their past experiences with certain licensed establishments. However, the evidence indicates that not every establishment creates a nuisance and some licensees try to minimize disturbance and respond to resident concerns. I am not prepared to assume that the appellant’s proposed use of the premises will result in the same type or level of disturbance that the residents have experienced from the worst of the presently existing licensed establishments.

56I also note that there are residents who are in favour of granting the application, especially those who welcome additional artistic event space which is apparently scarce. I conclude that the appellant’s proposal has the potential to improve the immediate area. If successful, it will change an unused graffiti covered building in the heart of Kensington Market into a venue for artists to showcase their work. In other words, the proposal includes an element of public benefit that would be absent if it was merely for another bar or live music venue.

57FKM argues that even assuming the appellant’s plan is sincere and well-meaning, that plan could change for a myriad of reasons or the licence may be transferred to a new operator less interested in encouraging art and more interested in maximizing alcohol sales.

58While that may be true, I must focus on the present application and not judge it on speculation and worst-case scenarios. Both Mr. Joly and Mr. Khanna have a demonstrated, decades-long track record of engaging in business activities focusing on art of various kinds. Having heard Mr. Joly’s evidence, I consider him to be sincere in his testimony that he and his partner are seeking a liquor sales licence as part of a business project focusing on showcasing artistic work of various kinds.

59Thirdly, FKM is primarily concerned about the size (capacity of 300) and location of the proposed premises in the heart of Kensington Market. FKM is essentially asking that I disallow the appellant’s proposed use even though that use may be allowed under a City zoning bylaw specific to Kensington Market that was passed to address the same concerns that FKM expressed in the present hearing.

60As set out below, that bylaw limits the size of certain uses (including restaurants, places of amusement, and taverns) along Augusta Avenue in an effort to minimize potential conflicts and strike a balance between residents and commercial interests. It was passed by City Council after a detailed planning review which included public consultations. In my view, the bylaw represents a compromise between residential and commercial interests and, in the particular circumstances of this case, I do not consider it appropriate to disturb that balance by making a site-specific exception in this case.

61In 1991, the City of Toronto passed a bylaw (No. 414-91) that restricts to 200 square meters the size of certain uses (among others, clubs, places of amusement, restaurants, taverns) of properties adjacent to Augusta Avenue and requires that only one of those uses is allowed in a structure or building.

62That bylaw was passed in response to the same concerns that FKM raised in this case. According to an April 23, 1991 report of the Commissioner of Planning and Development that preceded City Council’s adoption of the bylaw:

The proliferation of entertainment and food service uses in the Market has affected the quality of life of the residential life. The residents of the area have expressed concern over the late night activities on the Market streets spilling out from several establishments classified as places of amusement and eating establishments. Specifically, these establishments generate late night pedestrian and car traffic in the market streets as well as noise from patrons. These impacts extend to the residential streets adjacent to the Market. An increase in the number or size of these establishments would further aggravate the situation.

63The Commissioner’s staff held several meetings with Kensington Market stakeholders and summarized the concerns/views that were expressed including:

• The proliferation of restaurants and the future development of large entertainment facilities needs to be addressed through land use restrictions.
• The concern that the Augusta Ave area could experience future negative impacts of larger entertainment and food service establishments
• Noise, drugs, vandalism and rowdiness related concerns caused by patrons leaving at late hours from entertainment facilities and from liquor licensed food establishments
• Concern that vacant buildings could re-open as large restaurants and entertainment facilities and intensify current problems.

64To address those concerns, the Commissioner recommended that a size restriction be imposed on certain uses on the properties adjacent to Augusta Avenue, Baldwin Street. and Kensington Avenue:

The combined effect of the growing number of establishments, the potential for larger restaurants and, therefore, the increased seating capacities of these facilities necessitates the implementation of a size restriction to allow for both controlled and balanced future growth in the Kensington Market area. I would recommend applying a size limitation of 200 square meters.

This would discourage new larger establishments from establishing in the Market. The cumulative impact of these facilities in the constrained Market environment is not desirable.

65Bylaw No 414-91 was passed on July 9, 1991. It is still in force and applies to the subject premises. Essentially, it provides that no person shall use a building for the purpose of “a bake-shop, a club, a place of amusement, a place of assembly, a public house, a restaurant, a take-out restaurant or a tavern”, unless the gross floor area for such purpose does not exceed 200 square meters and not more than one of the listed uses is located in the building at one time.

66At this point it is unclear whether the appellant’s proposal conforms with the bylaw. I was informed by counsel for the Registrar and counsel for the City that if the Tribunal directs the Registrar to issue a licence, the appellant’s proposal will then be subjected to a detailed City zoning bylaw and Building Code analysis from which the precise capacity, use, and area of use, will be determined.

67However, for my purposes it is important to note that the bylaw was passed by the City to address the very same concerns about location and size that FKM has about the appellant’s proposal.

68In light of the fact that City considered the same concerns that FKM expressed in these proceedings and responded with a land use bylaw setting out detailed rules pertaining to location and size of uses along Augusta Ave, I do not consider it appropriate in the circumstances of this case to prohibit the appellant’s proposal on a “one off” basis. In my view, that would disturb the balance between residential and commercial interests that the bylaw was designed to achieve and would not be in the public interest.

Issue (b) – Conditions

69The concerns of the residents are legitimate and are founded upon their firsthand experience with existing licensed establishments. However, in my view, those concerns can be addressed through conditions placed on the appellant’s liquor licence.

70During the course of the hearing, the appellant reduced its proposed capacity to 300 and consented to four conditions intended to address FKM’s concerns. Those proposed conditions would require that:

• The sale and service of alcohol end at 11:00 pm Sunday to Wednesday (excluding New Year’s Eve, the day before a statutory holiday or other designated days as approved)
• The appellant post a prominent sign at exits reminding patrons to be considerate of the surrounding community
• The appellant provide a telephone number for residents to register concerns or complaints
• The appellant ensure that lighting is installed and used across the full width of the rear of the exterior of the premises while the premises are open.

71In view of those changes, the City withdrew its opposition to the application. The Registrar took no position on specific conditions that should be imposed but presented evidence that established that any condition must be clear, enforceable by the AGCO’s compliance staff, and be connected to the Registrar’s regulatory mandate. According to the Registrar’s witness, the appellant’s proposed conditions meet those criteria.

72FKM is of the view that the appellant’s proposed conditions are inadequate and proposed its own list of 12 conditions.

73Six of those conditions relate to noise. In summary, FKM suggests conditions that:

• Require no noise from the appellant’s business be audible beyond the lot line of the property
• The appellant shall provide FKM with a sound attenuation plan completed by an engineer,
• FKM shall approve the plan before any liquor licence is issued. If there is any disagreement between FKM and the appellant with respect to the plan or sufficiency of the sound attenuation work completed according to the plan, either party may request a re-attendance before this Tribunal to determine if there has been compliance.
• The appellant shall pay FKM up to $50,000 plus HST to pay for sound engineers to act on its behalf.

74I do not consider FKM’s suggested noise conditions to be workable.

75Firstly, as indicated by the AGCO’s witness, they are not readily enforceable by the AGCO’s compliance staff.

76Secondly, noise outside licensed premises is regulated by municipal noise by-laws and is not within the AGCO’s mandate.

77Thirdly, it is questionable whether this Tribunal, which only has the power and jurisdiction specifically conferred by statute, has authority to arbitrate noise disputes or compliance with a noise attenuation plan.

78Some of FKM’s other proposed conditions⁴ also do not meet the AGCO criteria that conditions on a licence be clear, enforceable by AGCO compliance staff and relate to the Registrar’s mandate and I decline to impose them.

79FKM’s remaining condition deals with hours of operation. AGCO’s counsel agreed that conditions on a liquor licence relating to hours in which liquor may be served and consumed are conditions that are clear, can be readily enforced by AGCO compliance staff, and are within the Registrar’s mandate.

80FKM suggests a condition requiring that sale and service of alcohol shall stop at 10 p.m. Sunday to Thursday, and 12 a.m. on Friday and Saturday.

81The appellant’s proposed hours of service condition would require alcohol service to stop at 11 p.m. Sunday to Wednesday. The normal 2:00 a.m. closing time would apply to Thursday, Friday and Saturday.

82Based on the evidence presented I conclude that a condition restricting hours of service would be appropriate. The premises are located in a mixed-use area that includes residences including at least one next door and others on Baldwin Street within meters of the premises.

83Any such condition is an attempt to strike a balance and, in my view, the appropriate balance lies in a condition that requires the appellant to end the sale and service of liquor at 11 p.m. Sunday to Thursday and at 12 a.m. on Friday and Saturday.

DECISION

84Pursuant to s. 23(10) and 23(12) of the Act, I direct the Registrar to issue a liquor licence to the appellant with the following conditions attached:

1. The sale and service of alcohol shall end at 11 p.m. Sunday to Thursday and 12 a.m. Friday and Saturday with the exception of: a. New Year’s Eve; b. The day before a statutory holiday; and c. Days when the licensee receives approval for extended hours of sale and service until 2:00 a.m. for an event designated by the municipal council or the Registrar as an event of municipal, provincial, national or international significance.

2. The licensee shall post a prominent sign at each exit that reminds and/or encourages departing patrons to be considerate of the surrounding community when departing the premises.

3. The licensee shall provide a telephone number for residents to register their concerns or complaints. This line will normally be answered by a staff member during the licensee’s published hours of operation. This line shall be equipped with a functioning message service for those periods when the licensee’s staff are otherwise occupied and when the premises are closed.

4. At all times when the premises are open, the licensee shall ensure that lighting is installed and is fully operational across the full width of the licensee’s premises.

COSTS

85At the conclusion of the hearing the appellant requested that the Tribunal make an order with respect to costs pursuant to Rule 19 of the Tribunal’s Common Rules of Practice and Procedure.

86I declined to consider that request since in my view any such submissions would be more appropriate after the parties received my decision on the main issues.

87If any party wishes to request costs, that party shall do so by way of written submissions submitted to the Tribunal’s case management officer and all other parties within 10 calendar days of the date of this decision.

88If such a request is made, any party that wishes to respond shall do so by way of written submissions submitted to the Tribunal’s case management officer and all other parties within 10 calendar days of receiving the requestor’s written submissions.

Footnotes

1. 186 ft x 47 ft converts to 26.2 meters x 14.3 meters, or just under 375 square meters
2. 2For example, Kensington Brewing Company – capacity 40, Hibiscus – capacity 20, Krepeze Café – capacity 46.
3. 3For example, Supermarket Restaurant and Bar – capacity 348, Coalition House – capacity 178, Round Venue – 198.
4. 4For example, the appellant shall hold a City business licence to operate a “restaurant”, no dance floor, seats available for majority of approved capacity during all hours of operation.