Date: 2020-10-06

Application to remove a condition on a licence pursuant to s. 14 (2) of the Liquor Licence Act, R.S.O. 1990, c. L.19

Between:

2589943 Ontario Ltd. o/a Bistro Ristoro

Applicant

and

Registrar, under the Alcohol, Cannabis and

Gaming Regulation and Public Protection Act, 1996

Respondent

DECISION

Adjudicator: Jennifer Friedland, Member

Appearances:

For the Applicant: Stanko Krstik, counsel

For the Respondent: Rena Khan, counsel

Place and date of hearing: By video and teleconference, August 17, 2020

OVERVIEW

1The applicant, 2589943 Ontario Ltd. o/a Bistro Ristoro, applied to the Licence Appeal Tribunal under s. 14(2) of the Liquor Licence Act, R.S.O. 1990, c. L.19 (the Act) to remove a condition of its licence.

2The condition which the applicant wished to have removed is the following:

The sale and service of alcohol shall end at 12 a.m. Mondays through Thursdays and 12:30 a.m. Fridays, Saturdays, Sundays and all Statutory holidays. The signs of service and consumption shall be removed 45 minutes after the service of liquor ends.

3Following a hearing held by video conference on August 17, 2020, I ordered the removal of the condition with reasons to follow. These are my reasons.

FACTS

4The applicant, Bistro Ristoro, is a family run restaurant in the Byward Market in Ottawa, Ontario. It is run by Lidija Ristovska and her husband, Vladimir. The Bistro offers authentic Mediterranean cuisine and premium European wines.

5The Bistro first applied for a liquor licence in 2018 but faced objection from the Lowertown Community Association (the LCA). The LCA was concerned about the already high number of licenced establishments in the Byward Market and the potential for increased crime, crowds, and related disturbances should another establishment be granted a liquor licence. While the LCA did not necessarily take issue with the proposed use of the Bistro as a licensed family run restaurant, it was concerned about its future use if the business were to be sold and turned into a bar or nightclub. To hedge against this, the LCA sought a condition that liquor would cease to be sold at 11 pm. The LCA also requested that music not be played on the patio or directed toward the patio.

6At a public meeting subsequently held by the AGCO, the applicant and the objectors agreed to the patio music condition, and to a 12:00 a.m. end to alcohol service from Monday to Thursday and 12:30 a.m. Friday, Saturday, Sunday and holidays. A licence was issued subject to those conditions on December 13, 2018.

7The applicant now seeks to have the time restriction on the licence removed. The applicant is not seeking to have the patio restriction removed.

8In support of the applicant’s request, I heard evidence from Lieutenant-Colonel (Retired), Jamie Robertson who has lived in the Byward Market for 13 years. He lives in a condominium across from the Bistro. He is a member of the LCA but did not speak in that capacity at the hearing, rather as a resident of the neighbourhood and on behalf of a number of other residents who live close to the Bistro and also support its application. Col. Robertson has supported the LCA’s objections in other licence applications but does not agree with the LCA’s concerns when it comes to the Bistro, which he regards as “the very business we want to see in the Byward Market”. He describes the Bistro as a small, family-run business providing a calm and quiet atmosphere, run by attentive and conscientious owners. He regularly patronizes the Bistro, which is also well-liked by others in the neighbourhood. He describes the Bistro as having an “impeccable” record since its opening, causing no concerns in the neighbourhood. He says he often stays up late and has not ever been disturbed by noise. Col. Robertson believes that the Bistro has become collateral damage in the LCA’s larger fight against an increased number of liquor licenses in the area and this puts the Bistro on unequal footing. He is hopeful that by lifting the restrictions on the service of alcohol, the Bistro will be able to remain competitive in a neighbourhood where other licensees do not have such restrictions and many small businesses are shutting down due to Covid-19.

9I also heard from Jane Touzel, another resident in the immediate vicinity of the Bistro who supports the removal of restrictions. She is a member of a different community organization, the Friends of the Byward Market, but was not appearing in that capacity at this hearing, only as a resident living across from the Bistro. The Friends of the Byward Market did not take a position at this hearing. Like Col. Robertson, Ms. Touzel has been active in opposing licenses for bars and nightclubs in the area and has no trouble making complaints to the City over noise or other issues when they arise. She has had no such concerns with respect to the Bistro, however, describing it as “just what we want” in the Byward Market – a “wonderful addition” with “European elegance” and “truly superb service.” Ms. Touzel testified that she has her window open at night to the street facing the Bistro and has never had any concern over noise or other disturbances.

10In addition to the above, I was provided with over a dozen and a half letters of support from other residents who live in the immediate vicinity of the Bistro. Each welcomed the continuing presence of the Bistro and hoped that by removing the time restrictions on the sale of alcohol, the Bistro would remain competitive in the Byward Market.

11Lidija Ristovska, the owner of the Bistro, also testified. She described how the Bistro attracts a mature clientele and does not host events or parties. She explained that she and her husband had poured their life savings into the Bistro and that she agreed to the licence restriction at the community meeting in 2018 because she did not want to delay opening the Bistro and did not know that it would impact her business to the extent that it has.

12Ms. Ristovska believes that the nighttime restriction on service has put it at a disadvantage as against other establishments in the community that do not face such restrictions. She described losing business at the end of the night to establishments that were licenced. She further described how this unfairness has been compounded by the loss of business suffered by the restrictions imposed since the onset of the Covid-19 pandemic. Although restaurants had re-opened at the time of the hearing, the Bistro had lost much of its daytime business due to people now working primarily from home. In fact, the Bistro no longer opened at lunch due to this loss of business. She considered it unfair that she could not continue to serve alcohol as late as other licenced bars and restaurants in the market.

13The Registrar of the AGCO takes no position on the applicant’s request to remove the time restriction on its licence.

14With respect to the original objectors, Col. Robertson had solicited the position of the President of the LCA with respect to the Bistro’s request to lift the time restrictions on the licence. In their email exchange which was in evidence before me, the LCA maintains its objection to the late service of alcohol describing the problem as being “the unrestricted transferability of the licence to another owner who could easily transform the Bistro into a bar.” The LCA expressed further concern about the impact of allowing bars to be open to 2 a.m. during the pandemic. It did not think it was a good time to add any more hours for licenced seats. The president also noted that he had received one complaint about noise from the Bistro from a person who lived above it.

LAW & ANALYSIS

15Section 14 (2) of the Act allows a licensee to apply to the Tribunal to remove a condition of a licence (other than conditions attached pursuant to certain provisions that do not apply here) if there is a change in circumstances.

16If I find there has been a change of circumstances, I must still turn my mind to whether the change requested is in the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises are located.

17I am satisfied that there has been a change of circumstances in this case on the basis that the Bistro has proven unable to compete with other bars and restaurants in the area that do not face the same time restrictions on service. In 9281 v. Registrar of Alcohol and Gaming,¹ the Tribunal considered a change in “the competitive landscape in the area” to be a change in circumstances.

18A further and more obvious change of circumstances is the negative economic impact of Covid-19 on the Bistro. The Bistro suffered financial loss at the start of the pandemic when bars and restaurants were shut down. Now that they have reopened, the Bistro continues to lose business due to having lost its lunchtime clientele, as most are now working from home. This has caused the Bistro to have to close at lunch, further compounding its economic difficulties.

19With respect to whether the removal of this condition is in the public interest, I am satisfied that it is. I have before me a preponderance of evidence from immediately proximate neighbours to the Bistro who all support the removal of the condition and have zero concern that it will lead to an increase in noise, crime or other disturbances in the neighbourhood. This Tribunal has often held that the evidence of residents in the immediate, proximate area of the premises in question – i.e., those who would be most affected by the proposed change -- warrants significant consideration. See for example, The Scoop & Cup Inc. v. Registrar of Alcohol and Gaming ² and 2641477 Ontario Inc. o/a Lakeside Lodge v. Registrar under the Alcohol Cannabis and Gaming Regulation and Public Protection Act, 1996.³

20I am mindful that the LCA continues to object to the Bistro having an unrestricted licence to serve alcohol. With respect to the LCA’s reference to a noise complaint from someone who lived above the restaurant, I received no details or context regarding this complaint, and find that it is in any event outweighed by the evidence of the numerous other residents who live either across the street or very near the Bistro who have found no such cause to complain about noise.

21With respect to the LCA’s other concerns, these are speculative. They relate to the potential for the Bistro to transfer its licence to an owner who might start a bar or nightclub. The LCA also worries that additional hours of service could increase the spread of Covid-19 within the neighbourhood. As this Tribunal held in Lakeside Lodge, “solely speculative concerns of what may or may not happen if a licence is granted will not be determinative of the public interest.”

22In this case, I am guided by what the preponderance of evidence tells me is in fact the case with respect to Bistro Ristoro; namely that it is a small, family-run restaurant, well-loved in the community, causing no significant issues in terms of noise, drunkenness, crime or other disturbances; and one which is disadvantaged as against neighbouring establishments that do not have any time restrictions on their licences. I find that the change in the economic landscape – particularly since Covid-19 – constitutes a change in circumstances and that to grant the applicant’s request to remove the condition restricting the sale of liquor past a certain time is in keeping with the public interest.

Conclusion

23For the reasons stated above, following the hearing of this matter I ordered the Registrar to remove the condition on the applicant’s licence which imposed a time restriction on the service of alcohol. The other condition, regarding music not playing on the patio or being pointed toward the patio, was not part of the applicant’s request and remains in place.

Footnotes

1. 12015 CanLII 38752 (ON LAT) (“North of Brooklyn Pizza”)
2. 22015 CanLII 72224 (ONLAT) (“Scoop & Cup)
3. 32019 CanLII 101606 (ONLAT) (“Lakeside Lodge”)