Application for removal of conditions on a liquor licence under s. 14 of the Liquor Licence Act, R.S.O. 1990, c. L.19
Between:
1593036 Ontario Inc. o/a Myth
Applicant
-and-
Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996
Respondent
DECISION AND ORDER
ADJUDICATOR:
Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Applicant:
David Knight, Agent
For the Respondent:
Rena Khan, Counsel
Heard by teleconference:
September 16, 2021, with additional submissions received on September 29, 2021
BACKGROUND
[1]. 1593036 Ontario Inc. o/a Myth (the “Applicant”) is a licensed establishment in Toronto. By application received on June 9, 2021, the Applicant seeks removal of the condition on its liquor licence #LSL810944 pursuant to s. 14(2) of the Liquor Licence Act (the “Act”), on the ground that there has been a change in the circumstances. The condition states as follows:
“No amplified music or sound to emanate from within the premises or to be produced on the café at any time.”
[2]. The Applicant has been licensed at its location at 522 King Street West, Toronto since 2004. The Applicant submits that due to restriction placed on bars and restaurants because of the Covid 19 pandemic, it is required to operate with a limited capacity. It has pivoted from its previous operation as a sports bar to an upscale Greek restaurant and has made a substantial financial investment to make this change to respond to the challenges of the current business environment. The Applicant submits that a positive patio experience is crucial to its survival and that music is an integral part of the Greek dining experience. The Applicant also noted that it has no adverse disciplinary history with the Registrar.
[3]. The issue to be decided by the Tribunal on an application under s. 14(2) of the Act is whether there has been a change in circumstances that warrants removal of the conditions.
ANALYSIS
[4]. At the outset of this hearing, Mr. Knight, an employee of the Applicant, provided email communication from the president of the Applicant corporation confirming that Mr. Knight was authorized to represent it as its agent at this hearing.
[5]. Ms. Khan confirmed that the Registrar takes no position on this application. She did, however, provide background information regarding the history of the licence condition. She advised that when the Applicant applied for a liquor licence for an outdoor area (the café area on the licence condition) in 2005, 11 people living in an adjacent building(s) filed objections to the application. As a result of those public interest objections, four conditions were placed on the liquor licence, including the one in issue at this hearing. In 2014, the Applicant applied for and was granted removal of three of the licence conditions.
[6]. In advance of this hearing, the Registrar provided the Applicant with a list of the last contact information for the 11 objectors from the 2005 application. Mr. Knight stated at the hearing that he had not attempted to contact any of these individuals. In the circumstances of this case, where conditions were placed on this licence because of residents’ objections, I stated that evidence of whether these individuals were still nearby residents, and if so, their position on this current matter, may be relevant. Therefore, Mr. Knight undertook to attempt to contact these individuals and provide post hearing submissions related to his inquiries.
[7]. On September 29, 2021, Mr. Knight advised as follows. The phone number for one individual was no longer in service. Two individuals did not return his phone calls/messages to them. There was no current phone number or other contact information for six other residents. Another individual confirmed that they no longer live in the area. He was able to make contact with one individual who stated that they agreed that the Applicant had been a responsible owner for many years at that location. They did express concern about what might occur should the liquor licence be transferred to a different owner in the future and proposed that removal of the condition be linked to the current operator of the licensed establishment.
[8]. I have reviewed the application and other documents submitted by the Applicant and conclude that there has been a change in circumstances. Specifically, I note that:
This condition was placed on the licence when it was operating as a sports bar, approximately 15 years ago. The Applicant has been operating the establishment through that period with no concerns; there is no adverse regulatory history.
The Applicant has, in 2021, changed the format of the establishment to a restaurant, in large measure in response to the challenges posed by restrictions resulting from the Covid 19 pandemic, and in order to remain financially viable in the current environment.
Only one of the 11 objectors from 2005 was responsive to Mr. Knight’s inquiry. That individual indicated that the Applicant has been a responsible operator.
In terms of removal of the condition specific to the Applicant only, the condition attaches to the licence as opposed to the licence holder. Further, it is too speculative and uncertain that a transfer might occur to impose a licence condition responsive to a potential future event.
ORDER
[9]. Therefore, in accordance with the authority set out in s. 14(2) of the Act, I order that the following condition currently attached to the Applicant’s liquor licence be removed.
“No amplified music or sound to emanate from within the premises or to be produced on the café at any time.”
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
Released: October 14, 2021