Date: 2021-05-03

File: 12858/LLA

Appeal from a Notice of Proposal to Refuse Transfer of a Licence under the Liquor Licence Act, R.S.O. 1990, c. L.19, s. 8(2)(c) and 21(1).

Between:

Elisa John o/a Blaxx Caribbean Dive Bar

Appellant

and

Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996

Respondent

AMENDED REASONS FOR DECISION & ORDER

ADJUDICATOR: Jennifer Friedland, Member

APPEARANCES:

For the Appellant: Andrew Ostrom, Counsel

For the Respondent: Aviva Harari, Counsel

Ashley Ann, Counsel

Alex Dumais, Student-at-Law

Heard by Videoconference: January 6, February 8, 9 & 23, 2021

A. Overview

1This is an appeal brought by the appellant, Elisa John, from a Notice of Proposal (“NOP”) issued by the Respondent, the Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996¹ to refuse the transfer of a licence pursuant to the Liquor Licence Act (the “Act”).² The Act is administered by the Alcohol and Gaming Commission of Ontario (“AGCO”). The application was for the premises operating as, or intending to operate as, Blaxx Caribbean Dive Bar (“Blaxx Caribbean”) located at 55A Beverly Hills Drive in Toronto, Ontario.

2Prior to the NOP being issued, Blaxx Caribbean had been operating for over a year under a temporary licence (referred to as an authorization to contract out) while Ms. John’s transfer application was under review. During that period there were no alleged breaches of the Act, however the AGCO was awaiting further information about the criminal record of WD – a person whom the appellant had incorrectly identified as being a partner in the restaurant but who was in fact only a co-signer on the lease³. The AGCO did not know, at that time, that WD had been incorrectly identified as a partner in the business and does not take the position today that WD’s criminal record would have prevented the issuance of a licence in any case. Still, the AGCO was unable to complete its review of the transfer application while the information from WD was outstanding.

3Then a shooting occurred outside the premises.

4The shooting took place on June 9, 2020, during a vigil for a young man who had himself been killed by gunfire two weeks earlier in downtown Toronto. On the day of the deceased’s funeral, his father had asked the appellant’s husband, Rayon Dixon, who is the cook at the premises, if he could hold a vigil for his son in the parking lot behind the premises after the funeral and would Mr. Dixon provide the food. Mr. Dixon agreed. The parking lot behind Blaxx Caribbean abuts Highway 401. During the vigil, a car pulled up to the side of the 401 and shot into the gathering. Some people at the gathering shot back. The crowd fled. At least two people were injured.

Basis for the Registrar’s proposal to refuse the transfer

5The Registrar claims that its Notice of Proposal – issued within weeks of the shooting – was not connected to that event, but this is clearly not the case.

6The basis for the proposal is that the past or present conduct of Ms. John and/or WD affords reasonable grounds to believe that the business will not be carried on in accordance with the law and with honesty and integrity. In support of this belief, the NOP provides 12 paragraphs of particulars. Of these, one is just background, three relate to the outstanding request for information about WD’s criminal record; and the rest pertain to the circumstances surrounding the shooting, including the allegation that Ms. John refused to cooperate with the police – an allegation which I find is not borne out by the evidence, as outlined below.

7On November 24, 2020, three months after issuing the Notice of Proposal, the Registrar served a Notice of Further Particulars alleging that two employees at the premises refused to identify themselves or cooperate with the compliance officials who served the Notice of Proposal. As outlined below, I find this allegation exaggerated based on the evidence.

8An amended Notice of Particulars was served on November 30, 2020 alleging that the appellant also failed to provide certain information that was requested during the eligibility review, including bank records. I find this allegation to be proven, but that the circumstances of the non-disclosure do not afford reasonable grounds to believe that the appellant will not operate the business with honesty, integrity or in accordance with the law.

9Ultimately, whether looked at individually or considered as a whole, I do not find that the past or present conduct of the appellant affords reasonable grounds to believe that the business will not be carried on in accordance with the law and with honesty and integrity. Nor can I reach this conclusion with respect to any of the people rightly or wrongly identified as associated with the appellant.

10While the Registrar may have been justified in having concerns at a certain point in time based on the facts as they were perceived by the Registrar at that time, the whole of the evidence satisfies me that the appellant is entitled to a licence.

B. Statutory Context and Law

11Ms. John’s application for a transfer of a licence to sell liquor is made under s. 17 (1) of the Act. Pursuant to s. 17(2) of the Act, she is presumptively entitled to the transfer of the licence except in certain circumstances, including those set out in s. 6(2)(a) through (g.1). Here the Registrar relies on s.6(2)(d), which provides that an applicant is not entitled to a licence if:

the past or present conduct of the persons referred to in subsection (3) affords reasonable grounds for belief that the applicant will not carry on business in accordance with the law and with integrity and honesty.

12The persons referred to in subsection (3) are:

1. The applicant.

2. An officer or director of the applicant.

3. A person who is interested in another person, as described in subsection 1 (2).

4. A person having responsibility for the management or operation of the business of the applicant.

13A person is deemed to be interested in another person as described in s. 1(2) of the Act, if

a) the first person has, or may have in the opinion of the Registrar based on reasonable grounds, a beneficial interest of any kind, either directly or indirectly, in the other person’s business, including but not limited to a holder, directly or indirectly, of shares or other securities;

b) the first-person exercises, or may exercise in the opinion of the Registrar based on reasonable grounds, direct or indirect control over the other person’s business; or

c) the first person has provided or may have provided in the opinion of the Registrar based on reasonable grounds, direct or indirect financing to the other person’s business.

14Here, the Registrar’s concern is with Ms. John. While it initially had a concern about WD’s lack of disclosure, the Registrar concedes that WD’s past conduct would not disentitle the appellant to a licence.

Burden of proof

15The onus is on the Registrar to prove that its proposal should be carried out.

16The Registrar must prove on a balance of probabilities the facts on which it relies to support its position. However, whether those facts then afford reasonable grounds for belief that the appellant will not carry on business in accordance with the law and with integrity and honesty, does not need to be proven on a balance of probabilities (in other words, I need not be satisfied it is more likely than not that the appellant will not carry on business in accordance with the law and with integrity and honesty). Reasonable grounds for belief requires “something more than mere suspicion” and there must be an “objective basis for the belief which is based on compelling and credible information.” ⁴ Additionally, there must be a nexus between the impugned past or present conduct and the appellant’s ability to carry on business as a licensee.⁵

17One final concept that is important in this case is that a hearing before the Tribunal is a hearing de novo – a fresh hearing. This means that I do not owe deference to the Registrar’s decision, nor am I limited to consider only the information relied on by the Registrar in issuing its Notice of Proposal. This concept is particularly important in this case because the history between the parties appears to have been riddled by misunderstandings and miscommunications. What is clear to me, from the whole of the evidence, does not appear to have been apparent to the Registrar.

C. Facts & Analysis

18I heard from the following witnesses at this hearing:

For the Registrar:

• Raman Sharma – an AGCO compliance officer who met with Ms. John in person shortly after the premises were first licenced under the authorization to contract out. He also spoke to her twice by telephone following the shooting incident;

• Officer Stojic – a Toronto Police officer with the Centralized Response Shooting Unit, who spoke to Ms. John once by telephone;

• Josée McFadden – an AGCO compliance officer who served the Notice of Proposal on Blaxx Caribbean on August 13, 2020; and

• David Sookdeo – a licencing manager for the AGCO and the instructing client in this case.

For the appellant, I heard from:

• Elisa John, the appellant;

• WD, the person incorrectly identified as partner on the application;

• CJ, the father of the deceased for whom the vigil was held; and

• Rayon Dixon, the appellant’s husband and chef at Blaxx Caribbean.

Background

19The appellant, Elisa John, describes herself as a young black female entrepreneur. She has a degree in social work and a 9-5 job working for the Peel Children’s Aid Society as a front-line investigator, which is a job she has had for nine years. Previously, she was a social worker for the African Canadian Legal Clinic, helping people reintegrate after prison. Prior to that, she was a supervisor for a Boys and Girls Club in Brampton. In addition to owning and operating Blaxx Caribbean, she also owns and operates a business called Sculpt, which is a body treatment business. She has no criminal record.

20Ms. John is married to Rayon Dixon, whose nickname is “Blaxx”. He is the chef at the eponymous Blaxx Caribbean.

21Ms. John described that the couple had been looking to open a restaurant where Mr. Dixon could cook, which was his passion. Mr. Dixon was unable to work in Canada due to his immigration status, but he could be the chef at his wife’s restaurant. They found a previously licenced establishment at 55 Beverly Hills Drive in North York which was available.

22The premises required a deposit of $10,000 as well as first and last months’ rent. Ms. John testified that they could not afford the deposit. They reached out to WD, a friend of Mr. Dixon’s.

23WD is a successful businessman with a reputation for helping members of his community, particularly younger men trying to get a leg up. He had known Mr. Dixon for approximately a decade, since Mr. Dixon first came to Canada. Ms. John testified that WD treated her husband like one of his sons or like a younger brother. WD described Mr. Dixon like a family member. They were close enough that Mr. Dixon had met WD’s brothers and sisters and mother. WD described how Mr. Dixon would sometimes cook and bring meals to his mother.

24WD was aware of Ms. John and Mr. Dixon’s plans to open a restaurant and, when asked, was happy to help with the deposit for the lease. He described other examples of where he had helped people financially. He was also willing to co-sign the lease on the premises. Ms. John explained that the landlord had wanted her to have a co-signer, as he had experienced difficulties with payment of rent with the previous tenant.

25Ms. John described intending to give WD a 10% share of the profits until she had paid back the $10,000. However, WD would not take any repayment. WD also described rebuffing any attempt to pay him back.

WD’s role in the premises

26In her transfer application, Ms. John listed the applicant as “Blaxx Caribbean Dive Bar” together with her contact information. She also listed herself as the person submitting the application.

27In the section requiring “Disclosure of Associated Individuals & Entities,” Ms. John listed herself and WD and identified her relationship to WD as a business partner. In the field that asked for their respective voting and share percentages, Ms. John wrote 50% for each of them. Under the question of whether either had the “authority to bind,” she wrote “no” for both of them.

28Ms. John described that she answered in this manner because she thought she was required to do so given that WD was 50/50 on the lease.

29Ms. John did not have legal assistance filling out the application. She had called for some information from the AGCO and understood that she was filling out the application correctly, but she clearly was not. She understands now that the information she provided was in error.

30A further error on Ms. John’s application is her identification of herself, WD and the landlord as premises managers. She explained that she corrected the landlord entry after her landlord told her that he wasn’t supposed to be listed. However, she did not correct the WD entry. She understood that she was supposed to list the people who could be reached in case of emergency. She thought WD was one such person, being a co-signer of the lease.

31Another error on the form is that Ms. John answered “no” to the question of whether the premises were leased. They are leased. There is no dispute that this is an error.

32I accept the submission of Mr. Ostrom (Ms. John’s counsel) that Ms. John did not appreciate the legal distinction between the parties to the lease and the business being operated on the premises, which at the time was a sole proprietorship owned by Ms. John.

33Within a month of filling out the application, Ms. John incorporated the business and obtained a municipal licence for Blaxx Caribbean Dive Bar Inc. Ms. John is the sole shareholder and director of the corporation. The Registrar questioned the relevance of this detail. I do not find it irrelevant. It supports Ms. John’s position that listing WD as an associated person was only ever a mistake. She took this step before knowing there was or would be any issue with WD’s disclosure, and it is consistent with what she described as her intentions in opening this restaurant.

34For WD’s part, he explained that he understood from Ms. John that he was required to be listed on the application for the same erroneous reasons she provided – because he had co-signed the lease. However, WD was clear that he did not intend or want to be involved in the business other than to have co-signed the lease and provided the deposit so that the business could get off the ground. WD explained that he has a 14-year-old-son that he is raising. His wife recently passed away. He lives outside the city and has a busy schedule operating his delivery business. He does not want the responsibility of being a licensee and never intended to be named as one of the applicants.

Disclosure issues relating to WD

35The appellant’s listing of WD as a partner and as being a premises manager required her to fill out a disclosure record for him.

36Ms. John described telephoning WD for that information. With respect to his criminal convictions, she had not been aware that he had any. WD explained that very few people knew of his criminal record and he was concerned that it was now being exposed. He told Ms. John only of his trafficking conviction in 1996 and she recorded this on the form. It turns out he had another conviction for trafficking in 1995, as well as a conviction in 1992 for possession of a credit card obtained by crime, and a conviction in 1988 for possession of property obtained by crime.

37WD explained that his conviction in 1988 for possession of property was supposed to be a joke, that he and some others had taken some sheets from a hotel. He described the credit card conviction as arising because someone gave him a credit card and he tried to use it and was caught. He was embarrassed by those convictions that took place over a quarter of a century ago.

38With respect to the trafficking convictions, these were clearly a source of deep remorse and shame for WD. He described having just had a baby and opting for a way to make quick cash by dealing drugs. He was sentenced to jail time, released on parole after 6 months and then “never looked back.” He described how someone gave him a chance when he came out of jail and, more than 25 years later, he is still with the same company. He feels very strongly about helping other young men from his community to stay on a positive path.

39Despite the disclosure of only one of WD’s convictions on the initial application, the others were known to the AGCO and did not impact the issuing of the temporary licence under the contracting out authorization. The eligibility officer (a person named Michelle Chan, who was not called as a witness) did, however, request further information about those other convictions and the reason for not disclosing them. She sent a letter to WD by email on July 25, 2019 asking for this information. She re-sent the request in a follow up letter on May 17, 2020.

40According to Mr. Sookdeo, the licensing manager for the AGCO, Ms. Chan did not receive a reply.

41Although Ms. Chan was not called as a witness, she was present throughout the hearing as an observer. I queried why the Registrar was calling hearsay evidence from Mr. Sookdeo about steps Ms. Chan had purportedly taken (and later, why she had taken them) when Ms. Chan was clearly available; but I never received a satisfactory answer for this.

42Both Ms. John and WD testified that neither of Ms. Chan’s email requests came to their attention at the time that they were made. I accept this evidence. The requests were sent to WD only. Ms. John was not copied. Once she learned of the request, she advised WD who found one of the requests in his junk mail folder.⁶ The email correspondence between Ms. Chan and Ms. John reflects Ms. John’s surprise and frustration that there was an outstanding disclosure request that had not been brought to her attention.

43Ms. John and WD promptly responded to the AGCO’s request for further information, faxing WD’s response to Ms. Chan’s attention. The Registrar takes the position that this disclosure was never sent. The evidence satisfies me that it was sent, though it appears it was not received by Ms. Chan.

44Mr. Sookdeo acknowledged that during the Covid-19 pandemic, people were working from home and not in the office where the fax machines were. While he nonetheless maintained that if the letter had actually been sent by fax, someone would have collected it from the fax machine and passed it on to Ms. Chan who would have uploaded it to the system, I find Mr. Sookdeo’s hypothetical evidence of what would have been done by people not called as witnesses to be of little weight compared to Ms. John and WD’s testimony on this topic which was forthright, consistent and makes sense.

45Ms. John described how WD had sent her a draft email with his response which she proofread, addressed and printed for WD’s signature. She then met WD at a Staples store for him to sign it. They faxed it to Ms. Chan’s attention at the fax number included in Ms. Chan’s email correspondence.

46Ms. John’s Notice of Appeal refers to WD’s response being sent on or about July 3, 2020. She also included the draft unsigned copy of the letter in her disclosure. She expressed surprised to learn from Mr. Sookdeo’s testimony that the AGCO was saying it had not been received.

47In response to the Registrar’s position that the document would have been received if it were truly sent, Ms. John produced a screenshot of the fax confirmation sheet and later retrieved the whole of her file showing the Staples cover sheet and attached letter. This was made an exhibit at the hearing. The Registrar initially objected to the “sudden appearance” of these documents, but in light of the Registrar’s position that the appellant was lying about this detail and Ms. John’s evident surprise that the Registrar was taking this position, I allowed it.

48In my view, this fax confirmation and the attached documents puts to rest any doubt that the response was not sent. It clearly shows that the signed letter was sent by fax on July 3, 2020 from Staples to the fax number that is listed on Ms. Chan’s emails.

49I find that the disclosure request was faxed by Ms. John and WD to the AGCO but not received by Ms. Chan or uploaded onto the AGCO’s system.

50This is but the first of many miscommunications between the parties that have led to these proceedings. I will turn now to the next.

The vigil – its location – and who organized it

51As noted above, Blaxx Caribbean, had been operating under its temporary licence without incident and without any alleged violations of the Act since July 2019.

52Ms. John described how the business operated. She oversaw the purchase of alcohol while her husband, Rayon Dixon, ran the kitchen. She hired servers and ensured they had their Smart Serve certifications. She hired security on the weekends.

53When the Covid-19 pandemic hit, the restaurant continued to operate, providing catering services and take-out only. Ms. John described that if there were catering requests valued over $2000, then she would expect her husband to notify her and arrangements would be made for a deposit. She explained that smaller requests were handled by Mr. Dixon. The request to prepare food for the vigil was one such smaller request.

54The only witnesses who were at the scene on the night of the shooting or had any information about how the vigil came to take place were Mr. Dixon and CJ, the father of the deceased. Both testified at the hearing.

55CJ knew Mr. Dixon from a restaurant where Mr. Dixon had previously worked. They were acquaintances only. CJ’s son was considered a rising star in the Toronto rap scene. He was 21 years old. He had been shot and killed in downtown Toronto approximately two weeks earlier.

56CJ called Mr. Dixon on the day of his son’s funeral and asked if he could hold a vigil after the funeral in the parking area behind the premises. He asked if Mr. Dixon could provide food for the vigil. Mr. Dixon agreed.

57According to both Mr. Dixon and CJ, Mr. Dixon told CJ that alcohol could not be served and that only 10-15 people could gather due to Covid-19 restrictions.⁷

58There is no allegation that Mr. Dixon provided any alcohol to the guests at CJ’s son’s vigil. It does appear, however, that some of the attendees brought their own alcohol. CJ describes that people came in groups of 10-15 at a time. He was cross-examined on who paid for the food, whether there was a written contract and who was invited. CJ described that he invited some people while others arrived on their own, having heard that a vigil was being held for the deceased. CJ paid for the food. There was no contract.

59It is worth pausing here to describe the location of where this vigil was held vis-à-vis the premises. This is important because the evidence led by the Registrar left the impression that the event was at the “rear of the establishment” as if it was held on property attached to or part of Blaxx Caribbean Dive Bar. The Registrar led specific evidence to establish that this part of the premises was unlicensed. It also led evidence about guests not being allowed to bring alcohol to a licensed establishment as well as the need for a special occasion permit to hold an event with alcohol on unlicensed premises. In short, the picture painted by the AGCO witnesses (and possibly perceived by them to be the case) was that the vigil was held at the establishment on its premises.

60Toward the tail end of the evidence, it became clear that the location of the vigil was not on premises belonging to Blaxx Caribbean. Rather, the gathering was in a parking lot that was common to all of the tenants of the building. This parking lot was shared by a hairdresser, two churches and the landlord’s own business, which was also a catering business, located at the rear of the building. I asked Mr. Dixon where the people would gather if it had been the landlord’s company providing the food for this vigil instead of Blaxx Caribbean. The answer was the same parking lot at the rear of the building. He further described that this would be the same parking lot where people attending the church would park. I note that even the lease, which was in evidence, establishes that parking is on a first come first served basis at the building.

61Given the evidence about the location of this vigil, combined with the evidence of Mr. Dixon and CJ about how it came to take place in the back parking lot outside of Blaxx Caribbean, I cannot agree with the Registrar’s characterization that the event was “hosted” by Blaxx Caribbean. I find that the event was “booked” with Blaxx Caribbean only in the loosest sense of the word. The vigil was outside in the parking lot – a parking lot common to and shared by all the tenants in the building. It was the food that was booked through Mr. Dixon.

62The Registrar alleges in its Notice of Proposal, that the vigil was “organized by Dane Dixon [sic], manager of the establishment.” It states as one of its grounds that Ms. John was not aware that the event was taking place.

63I will review below how Mr. Sharma – or someone at the AGCO who was never called as a witness – was clearly under an erroneous understanding of who Mr. Dixon was. He is “Rayon” Dixon, not “Dane” Dixon. He was not the manager of the premises. And, as set out above, the event was not “organized” by him. It is evident that the AGCO did not even appreciate that Mr. Dixon was married to Ms. John and was merely the cook at the premises.

64I am not alarmed that Ms. John was not aware of the event, as it was in keeping with her husband’s role that he could take food orders of this size. I may have found otherwise were the event actually held on the premises, but this is not the case.

The shooting

65The vigil commenced at about 6 pm. Mr. Dixon described that he was working alone that day. He prepared food in the kitchen and brought it out through the back door of the restaurant to those attending the vigil. He did not notice that anyone was drinking and could not say how many people were gathered. CJ described that people came in batches and that they knew that Covid-19 restrictions meant they were not supposed to have a large gathering.

66Mr. Dixon described that he was in the kitchen when the shooting started. He took cover on the ground behind the counter. He described that people ran through the restaurant and out the front door. He lay on the floor crying. He was still lying on the floor when the police came. They told him to put his hands in the air. Then they searched him. They asked him where he was when the shooting started. He said he was in the kitchen. They asked if he knew who was involved in the shooting. He said he did not know. Mr. Dixon said the police did not ask him for a formal statement. Officer Stojic, who was the lead investigator, acknowledged the police never sought a statement from Mr. Dixon.

67Mr. Dixon was cross-examined on his failure to have called the police himself once the shooting started. He explained that he was still on the ground when they arrived. He said he did not see anyone with a gun when he was serving food. He said if he had, he would have called the police. He was asked in cross examination why he didn’t conduct a pat down of the guests when they arrived. He responded that they did not come through the restaurant (Ms. John’s evidence on that point was that when the bar was open previously, they did conduct pat downs upon entry of the men, and the women’s purses were checked).

Ms. John’s alleged non-cooperation with the police

68Ms. John described learning about the shooting from the landlord’s sister, who called just after it happened. She explained that she was getting in her car to come to the scene when the police called her. She spoke to an officer who said it would be helpful if she would consent to letting the police search the premises without having to get a warrant. She provided her consent and the officer said he would meet her the following day at 5pm for the search.

69The following day, sometime prior to the time the police had arranged to meet Ms. John, the landlord’s sister called Ms. John to tell her that the police had already been there and had conducted the search. Ms. John arrived and learned that in addition to conducting the search in her absence and without telling her, the police had also released video surveillance footage of the shooting to the media. The footage was taken from the landlord’s camera at the back of the premises. Ms. John described how she was confronted by the media on the scene with such questions as, “how do you feel now about defunding the police?”

70Ms. John expressed that she was extraordinarily upset with the conduct of the police in conducting the search before she arrived and without telling her. She was also extremely upset that a video of the shooting had been released. She felt she had been open and cooperative with the police and was not dealt with fairly in return. She felt she was being treated with suspicion instead of as the owner of a business impacted by violence. She acknowledged that the surveillance camera was the landlord’s property, but she thought as a courtesy she ought to have been told it was going to be released so that she could also release a statement and get in front of the reputational damage that the release would have on her business. She was very concerned about the impact of the video on her business which was already suffering losses due to Covid-19.

71Ms. John sought the name of the supervisor of the officer who had conducted the search in her absence and released the video. She remained livid that the video had been released to the media.

72This is the context when, on the following day, Officer Stojic telephoned Ms. John for further information. It is this exchange which the Registrar relies on to allege that Ms. John refused to cooperate with the police.

73Officer Stojic was the lead investigator of the shooting. He was a member of the Toronto Police Centralized Response Shooting Unit, which, as its name suggests, is the unit that responds to gun violence in the city. He is not a member of 31 Division which was the police unit initially responding to the shooting and he was not a part of the initial investigation. He was assigned the case two days after the event. He did not ever attend the scene. He said he reviewed information from the initial police investigation but did not speak to any of the officers involved.

74When Officer Stojic called Ms. John on June 11, 2020, she responded that she would not speak to him until she had spoken to the supervisor of the officer who had released the video surveillance to the media and searched the premises without her in attendance as agreed. Officer Stojic acknowledged in testimony that Ms. John was very frustrated at the release of the video. He said she was not hostile to him, just “extremely upset” about the video. His characterization of the conversation was that she said in no uncertain terms that she would not cooperate with the police investigation. He sent an email to Ms. John providing his supervisor’s information as she had requested and stating he was available anytime she wanted to get a hold of him.

75Other than responding to a letter from Ms. John’s first lawyer sent to Officer Stojic’s supervisor about a month after the shooting, Officer Stojic had no further contact with Ms. John and acknowledged that he made no effort to contact her. As stated above, he also never once attended the premises. He further made no effort to speak to Mr. Dixon or anyone else from Blaxx Caribbean.

76Ms. John testified that she was never contacted by the supervisor of the officer against whom she had made this complaint.

77Officer Stojic was asked in cross-examination whether he was aware that Ms. John had consented to the police searching the premises without a warrant. He testified that he did not think they would have sought her consent because the premises were part of a crime scene. He suggested that a warrant would not have been required.

78The Registrar relied on Officer Stojic’s suggestion that Ms. John’s consent was not required for a search to suggest that she was never in fact asked for that cooperation, as she testified. It is noted however that the Registrar had the opportunity to rebut Ms. John’s evidence and chose not to. In closing submissions, the Registrar took the position that there was no way of knowing which officer might have spoken to Ms. John because there would have been many officers in attendance that night. The Registrar further complained that Ms. John had not mentioned the search in her will-say statement, the inference being that the Registrar could not have known that she would now make this claim to have initially cooperated by consenting to a search.

79The will-say statement was read out during closing. The search was mentioned in her will-say statement.

80More importantly, a review of Ms. John’s Notice of Appeal shows it also mentioned her initial cooperation. Paragraph 15 of the Notice of Appeal states:

Ms. John was not present at the time of the shooting but was contacted by the Toronto Police as part of the police response and investigation. Ms. John’s consent was requested, and promptly granted, for a police search of the Restaurant.

81Ms. John’s Notice of Appeal is dated August 25, 2020. This hearing starting in January 2021. The Registrar had months to confirm that Ms. John was in fact initially cooperative with the police. Even if the Registrar inadvertently missed this point in Ms. John’s Notice of Appeal and will-say; during her testimony, Ms. John provided the name of the officer who had contacted her, as best as she could recollect it. The Registrar had the opportunity to call that officer in reply but did not.

82I accept Ms. John’s testimony about what she was asked and the consent she provided on the night of the shooting. I find that she was more than willing to cooperate with the police but was not treated fairly in return. She had an arranged time to meet the police, yet the police attended without her and without notifying her. Combined with the release of the video to the media at the same time, but without Ms. John being given notice so that she could issue her own statement and manage the negative press that the video brought upon her business – I find this clearly answered for why she was not prepared to speak to Officer Stojic until she had spoken to the supervisor of the initial investigating officer. She was never contacted by that supervisor.

83The Registrar’s position is that even if I accept that Ms. John initially cooperated with the police, this does not justify her refusal to speak to Officer Stojic. As described above, I find that it does justify this refusal. Given this finding, I cannot conclude that Ms. John was uncooperative with the police in the manner alleged in the Notice of Proposal. Even if she was technically non-cooperative with Officer Stojic the one time he endeavoured to speak to her, this would not contribute to a finding that she would not operate her business in accordance with the law or with integrity or honesty as a licensee. In my view, it was a reasonable response for Ms. John to refuse to engage further with the police until she had spoken to the supervisor of the initial investigating officer.

Ms. John’s cooperation and responsiveness to the AGCO

84Although Ms. John was frustrated with the police response, as set out above, she was responsive and respectful to the AGCO compliance officer, Mr. Sharma, when contacted by him after the shooting.

85Mr. Sharma gave evidence about his previous engagement with Ms. John prior to the shooting. He had met with her in the summer of 2019 shortly after the authorization to contract out was first issued. He described that it is his practice to meet with new applicants to discuss the requirements of a licensee. He found Ms. John cooperative and receptive to his recommendations. Ms. John recalled that, at that time, Mr. Sharma was introduced to her husband as the cook, and the “Blaxx” in the name of the restaurant. However, as shall be outlined below, he evidently forgot this detail.

86Mr. Sharma testified that he learned about the shooting through an officer in an unrelated case. On June 16, 2020, he conducted his own investigation of the premises, surveilling the premises for an hour and a half. He noted no non-compliances with the Act. He then telephoned Ms. John and asked her about the shooting. He wanted to know what steps Ms. John was taking to prevent or mitigate the chances of a future similar event. He acknowledges that Ms. John was receptive to his suggestions. In fact, she had herself already ordered surveillance cameras to be installed inside the premises, which was one of his recommendations.

87Mr. Sharma testified about what Ms. John told him about the shooting and the vigil that was interrupted by that event. It is apparent that he came away from this conversation with an incorrect understanding of Mr. Dixon’s role at the restaurant. He testified that he was told Mr. Dixon ran the restaurant and that Ms. John was rarely there. He characterized the vigil as an event “hosted by Mr. Dixon.” It is apparent he had no idea that Mr. Dixon was Ms. John’s husband and was only in charge of the kitchen.

88From Ms. John’s perspective, she thought Mr. Sharma would already have known that Mr. Dixon was her husband, having been introduced to him as such the previous summer. As I shall further outline below, the lack of communication over what was or was not a concern to the AGCO is part of what escalated this matter to a Notice of Proposal and onward to this hearing.

89For example, Mr. Sharma also testified that it was “key” in his opinion that when Ms. John shared with him what she had learned about the event, she did not tell him that people from the vigil had returned gunfire when the shooting broke out. He said it was “shocking” that she did not share that “individuals at her establishment” had shot back.

90It is difficult to escape the inference. Though the AGCO has taken pains to claim that its concerns did not relate to the shooting, it is apparent that suspicion was, in fact, being turned toward Ms. John and her establishment at this time.

Ms. John’s mounting frustration at being “investigated” because of the shooting and the misunderstanding at the heart of the AGCO’s concerns

91After speaking to Mr. Sharma, Ms. John wrote to Ms. Chan, the AGCO eligibility officer, to inquire about the status of her application. She was concerned that the authorization to contract out was set to expire on July 17, 2020.

92A series of emails between Ms. John and Ms. Chan exchanged between June 24 and June 29, 2020 were in evidence before me. It was during these exchanges of emails, that Ms. John learned that the AGCO had sent a request for information to WD that was still outstanding. She promptly attended to this, as outlined above.

93It is clear from this correspondence and from Ms. John’s testimony that initially she did not expect that the shooting would affect her entitlement to a licence. As stated above, she was not aware of the suspicions and false conclusions that were germinating with the AGCO at that time. However, Ms. Chan then referenced the shooting incident in one of her replies. Ms. John advised that she understood the incident had been addressed with Mr. Sharma, and that she had been receptive to his suggestions. She then wrote, “If the incident is to be a determining factor of if the renewal will take place, please be sure to advise.” Ms. Chan did not respond. Ms. John followed up on this question on June 29, 2020. Again, Ms. Chan did not respond.

94Then on July 6, 2020, Ms. John received a call from an OPP Officer, Sue Devine. Officer Devine told her that the AGCO had escalated her application to the OPP’s attention and that both she and WD were now under further investigation. She was asked to produce five years’ worth of financial information.

Alleged failure to produce financial disclosure

95One of the Registrar’s grounds for proposing to refuse Ms. John’s transfer application is that the disclosure requested by the OPP was never provided. Yet for reasons that remain inexplicable to me, Officer Devine was not called as a witness; nor was whoever it was who made the decision to escalate the review to her attention.

96Instead, I received hearsay evidence about this decision from Mr. Sookdeo. He described how a decision would have been made to conduct a “full due diligence” of the application. He was not part of this decision-making process, but testified that he would have become aware of it as one of many requests that come across his desk requiring his approval to escalate an application to the OPP. He surmised that Ms. Chan would have been the one to have made the decision to send the application to the OPP for further investigation.

97Mr. Sookdeo’s understanding of why the application was referred to the OPP was that information had come to light to the licensing department that raised a concern about ownership. He could not articulate the concern other than to say that a name had come up during Mr. Sharma’s inspections that was not on the application. In Mr. Sookdeo’s opinion, it was therefore proper for the AGCO to ask, “Who is this person? What are they doing there? Are they an owner?”

98Why those questions were not simply asked of Ms. John is unclear. As outlined above, it appears plain from the evidence of Mr. Sharma and from the Notice of Proposal itself, that the AGCO was not aware that Mr. Dixon was Ms. John’s husband and was simply the cook at the restaurant. However, presumably a handful of questions may have allowed the AGCO to confirm this role and establish that he was not, in fact, “Dane Dixon, manager at the establishment” as alleged in the Notice of Proposal.

99Ms. John testified that she was alarmed to suddenly be under investigation by the OPP. She felt she had been cooperative and receptive to what the AGCO had suggested following the shooting and was not expecting that event to impact her application. She had herself already taken steps to install video surveillance. She had responded promptly to the outstanding disclosure request regarding WD’s historical convictions once the request came to her attention. She was already agitated about how she had been treated by the police during the initial investigation and was still upset about the release of the video footage. Now she was told she was under investigation by the OPP and was required to produce five years’ worth of banking records, which she found intrusive. She asked the OPP officer if such an investigation was conducted on all applicants. She was told it was not. Mr. Sookdeo confirmed that financial disclosure is not sought from all applicants.

100In response to the call from the OPP officer, Ms. John requested Ms. Chan’s supervisor’s name and then hired counsel (who was not counsel at the hearing). It is unnecessary to review the correspondence sent by this lawyer on Ms. John’s behalf in much detail. Suffice to say his efforts were aggressive, ill-informed, and likely did little to help Ms. John’s cause. For example, he sent a letter to Officer Stojic’s supervisor alleging that the police had subjected Ms. John and Mr. Dixon to “constant harassment and intimidation” – which must have been a reference to the newly instigated OPP investigation because there was no evidence that the police had any contact with Ms. John after Officer Stojic’s call to her on June 11, 2020, and no officer had tried to speak to Mr. Dixon. In another letter, this lawyer wrote to the AGCO (to no one’s attention) demanding that the licence be immediately issued, or he would obtain a writ of mandamus from the Court compelling the AGCO to issue it.

101Ms. John also directed her lawyer to respond to Mr. Sharma, who had requested confirmation that her video cameras were installed. This was a positive communication, which Mr. Sharma agreed was satisfactory in terms of showing that she had followed through with this precaution. The lawyer then sent a letter to Mr. Sookdeo to advise that he had provided this information to Mr. Sharma and to again request that the licence be issued. The concern expressed by Ms. John’s counsel was that the temporary licence was due to expire on July 17, 2020.

102Mr. Sookdeo responded on July 16, 2020 by email advising that the temporary licence, under which the contracting out authorization had been issued, had been extended until January 2021. He provided further details of the licensing process and described that the AGCO was still awaiting disclosure from WD and now the additional information requested from the OPP. He indicated that the review could not be completed until these items were received. Mr. Sookdeo claimed in this email that the investigation being undertaken by the OPP was not related to the incident that took place outside the establishment but was rather part of the AGCO’s due diligence “and is based on some information that came to light to the licensing department.” He explained that “an investigation was therefore initiated to verify if there are any other parties involved in operations of the location besides the two partners, Ms. John and [WD].”

103In this email, Mr. Sookdeo did not provide any timeline by which the AGCO was expecting the requested disclosure. Nor did he indicate that if it was not provided in a specific amount of time, a Notice of Proposal would be issued that would terminate the authorization to contract out. In fact, the only timeframe noted in Mr. Sookdeo’s letter is the date to which the temporary licence was now extended, namely January 16, 2021.

104Nonetheless, within weeks of that letter, and before Ms. John had the opportunity to respond, the Registrar issued its Notice of Proposal to refuse the license, terminating the authorization to contract out and effectively shutting down the licenced side of Ms. John’s business.

105The Registrar now submits that Ms. John’s purported failure to have provided that disclosure provides reasonable grounds to believe that her business will not be carried out in accordance with the law and with honesty and integrity.

106The Registrar further submits that even if I disagree with that conclusion, I cannot order that the licence be transferred while that disclosure is outstanding. The Registrar takes this position regardless of any conclusion I might reach with respect to Ms. John's alleged past or present conduct.

107The Registrar relies on s. 6.1 of the Act which provides that:

The Registrar may make such inquiries and conduct such investigations into the character, financial history and competence of an applicant for any licence under this Act, or a renewal of a licence, the holder of a licence, or persons interested in the holder of the licence or interested in the premises to which the licence relates, or a director, officer or shareholder of any such person, as are necessary to determine whether the applicant or licensee meets the requirements of this Act and the regulations.

108The Registrar submits that the AGCO is entitled to that disclosure and that I do not have the jurisdiction to go behind that request.

109I do not agree. It was the Registrar’s decision to issue the Notice of Proposal before acquiring the requested information and the matter is now before me to look at all of the evidence anew.

110I find that the Registrar has failed to satisfy me that this disclosure is necessary.

111Moreover, the Registrar has not even proven what documents were requested.

112In addition to not calling Officer Devine, or the eligibility officer who made the decision that the request was necessary, the AGCO also did not produce evidence of what was even requested. All that is in the record about Officer Devine’s request is one email sent on July 6, 2020 to Ms. John thanking her for returning her call so quickly that day and apparently attaching a request for information and a consent form. However, neither document was attached. Thus, apart from Ms. John’s description that she was asked for “5-years of banking records” I have no evidence of what the AGCO/OPP actually requested.

113Nor can I hold it against the appellant that she did not answer the request for this disclosure given that the Notice of Proposal was issued before she had been given the opportunity to do so.

114I appreciate that, at a point in time based on lack of information on the part of Mr. Sharma and/or Ms. Chan, there was a suspicion that one “Dane Dixon was managing the premises.” However, based on Ms. John’s testimony, as well as Mr. Dixon’s and WD’s testimony, I am satisfied that this is Ms. John’s business. Mr. Rayon Dixon is her husband and is in charge of the kitchen. WD is co-signor on the lease. I find no basis on the evidence to suspect otherwise.

Alleged refusal of staff to identify themselves and cooperate with compliance officials serving the Notice of Proposal

115The final basis for the Registrar’s position that the appellant will not carry on its business in accordance with the law and with honesty and integrity relates to the alleged behaviour of Mr. Dixon and a friend the AGCO took to be a staff member on the day the Notice of Proposal was served.

116The AGCO inspector Josée McFadden, who served this document, testified at the hearing. Her report of the event was also in evidence. Mr. Dixon and Ms. John also gave evidence about this encounter. What I find based on all of the evidence is the following:

• On August 13, 2020, Mr. Dixon was cleaning up toward the end of the day. A friend was with him helping him to close up.

• Ms. McFadden and her colleague entered the premises, identified themselves as compliance officers with the AGCO and asked to speak to the owner. She explained that they were there to serve documents and that the establishment had to stop serving alcohol.

• Mr. Dixon said he would get the owner on the phone.

• Ms. McFadden asked Mr. Dixon for identification in order to be able to leave the documents with him.

• Ms. McFadden testified that she explained to both gentlemen that they needed to provide identification upon request to an AGCO officer. She described that the second gentleman, who was mopping the floor, asked her to repeat what she said, and then told her to shut up and that he did not have to tell her anything.

• Mr. Dixon said he did not have any identification on him and could sign for anything. He got his wife, Ms. John, on the phone.

• Ms. John asked to speak to the compliance officer, but Ms. McFadden refused to speak to her. Mr. Dixon put Ms. John on speaker phone but Officer McFadden persisted in refusing to speak to her.

• Ms. McFadden explained that she refused to speak to the person on the phone because she would be unable to confirm who she was speaking to. She left the documents on the counter and left the building.

• On the way out the door, the person with the mop attempted to show her his ID but she did not look at it.

117I am asked to rely on this exchange as providing reasonable grounds to believe that Ms. John’s business will not be carried out in accordance with the law and with honesty and integrity. I decline to do so.

118While Mr. Dixon ought to have identification available to show an AGCO inspector upon request, he did not have his identification on him, explained that he was not authorized to sign for any documents and promptly offered to get the owner on the phone, which he did. While Mr. Dixon’s friend did not help matters by being rude, the evidence of Ms. John and Mr. Dixon is that Ms. McFadden was equally rude. Further I find it was the AGCO officer who acted unreasonably in refusing to speak to the person identified by Mr. Dixon as the owner – if only for the limited purpose of informing her of the documents she was serving on the premises.

Evidence to suggest the opposite of what the Registrar contends

119During the course of this hearing, I heard evidence that satisfies me of the following:

a) Ms. John was receptive to Mr. Sharma’s suggestions when they first met about the licence in the summer of 2019.

b) The premises operated without complaint or any alleged non-compliances with the Liquor Licence Act until the authorization to contract out was terminated on August 13, 2020 with the Notice of Proposal.

c) Ms. John was cooperative with the police immediately after the shooting and was prepared to meet with Officer Stojic after she had spoken to the supervisor to complain about the first investigating officer’s behaviour.

d) Ms. John responded promptly after the shooting – and of her own initiative – to install surveillance cameras inside the establishment.

e) Ms. John was aware of the need for security inside the premises and provided such security on the weekends when the premises were previously open.

f) Ms. John hired security guards who conducted pat downs of the men and searches of the women’s purses. She was open to implementing a wand or metal detector in the future.

g) Ms. John responded promptly when she learned that WD’s disclosure was outstanding.

h) Ms. John has also now hired a manager to oversee all employees including her husband. This person did not have a Smart Serve certification. She undertook that she would ensure this manager obtained her Smart Serve certification if the licence is transferred.

D. Conclusion

120The benefit of a hearing de novo is that all of the evidence can be considered.

121This is particularly important in a case such as this – where miscommunication and misunderstandings pervaded both parties’ perspectives.

122Here the AGCO received an application with two people named as partners in the business seeking the licence. One of those people had a criminal record. From the AGCO’s perspective, further information was requested about that criminal record but not provided. Ultimately it was provided but evidently not received by Ms. Chan, having been sent by fax during the pandemic. The AGCO was not aware that WD was mistakenly listed on the application, nor that WD had not received the AGCO’s requests for further information. The AGCO only knew that he had failed to answer questions about his criminal past and while that information was outstanding, a shooting occurred at what the AGCO understood to be the appellant’s premises.

123The AGCO then learned that Ms. John had allegedly refused to cooperate with the police but did not know that she had in fact fully cooperated at first.

124Into this context came Mr. Sharma who perceived that Ms. John had kept “key” information from him because she did not inform him that people at the vigil had apparently returned fire. He also formed the impression that someone was managing the bar without Ms. John’s knowledge. He seemed to have no understanding that Mr. Dixon is Ms. John’s husband. He portrayed the vigil as having been organized by Mr. Dixon and “hosted” at the premises instead of what it was, essentially a catering request. While the Registrar claims that the escalation of its concerns had nothing to do with the shooting, it is apparent that this is not the case. Even Mr. Sharma’s concern about Ms. John’s need to mitigate against a future such incident is based on the AGCO’s misperception that this event took place on the premises of Blaxx Caribbean Dive Bar.

125Certainly, the impression left with Ms. John was that she was suddenly being treated with suspicion. From her perspective, she had been cooperative. She had been compliant. And she had been operating for over a year without issue. She had taken immediate steps to provide the disclosure from WD when she learned it was outstanding. She had taken immediate steps to mitigate and prevent violence in or around her premises right after the shooting by obtaining surveillance cameras. In response to these efforts, she found herself treated without consideration by the police and with suspicion by the AGCO. This culminated in her understanding that she was suddenly under investigation by the OPP at the AGCO’s behest but for unknown reasons. Those reasons hardly became more apparent at this hearing.

126I am satisfied, on the evidence, that Ms. John is entitled to a licence. The evidence, in my view, does not afford reasonable grounds for belief that she will not operate her business with honesty and integrity and in accordance with the law. I do not even have the merest suspicion that this would be the case. In fact, I find the opposite.

127With respect to WD, I am satisfied that WD has no financial or management involvement with Blaxx Caribbean Dive Bar other than having provided the $10,000 deposit on Mr. John’s behalf and being a co-signer on the lease. This might mean he is an “interested person” within the definition of s. 1(2) of the Act, but even so, the Registrar concedes that his past or present conduct does not afford reasonable grounds for belief that the appellant will not carry on business in accordance with the law and with integrity and honesty.

128I further find that WD was incorrectly named as a partner in Blaxx Caribbean. The licence should not be issued in his name.

129The Registrar takes the position that I do not have the jurisdiction to remove WD from the application which is before me.

130I disagree. The Tribunal’s powers after a hearing are broad. Pursuant to s. 23(11) of the Act, the Tribunal may direct the Registrar not to carry out the proposal or to carry out the proposal, in whole or in part, and with any changes that the Tribunal considers appropriate and the Tribunal may direct the Registrar to approve an application to which the proposal relates.

131The application before me names Blaxx Caribbean Dive Bar as the applicant and Ms. John as the contact and the person submitting the application. The naming of WD as a partner is a factual error. That error will effectively be corrected by my ordering the licence to be transferred to Ms. John only.

132I do not find it necessary to impose conditions on the licence relating to imposing additional safety measures. The Registrar suggested various conditions, including signage saying “gang colours not to be worn,” retaining video surveillance for 30 days, plus wanding and pat downs at all times.

133In my view, Ms. John is capable of making the appropriate decisions necessary to protect the public at her premises. She and her husband have themselves now been victims of gun violence. I have no doubt that Ms. John will take appropriate measures to ensure that patrons of her establishment do not enter bearing arms.

134The Registrar did raise a concern that with WD on the lease, Ms. John would not have exclusive control over the premises. Other cases have regarded exclusive control to be a precondition of holding a valid license⁸, I will therefore order as a condition to her licence that Ms. John provide proof that WD has released any right to possession and/or control of the premises that might arise from his interest in the lease of 55A Beverly Hills Drive in Toronto and that he acknowledges that Ms. John has exclusive possession of the premises. The parties will be free to agree in writing to some other form of proof to satisfy this condition, if they wish.

E. Order

135Pursuant to my authority under s. 23(11) of the Liquor Licence Act, I direct the Registrar not to carry out its proposal to refuse the transfer of the licence.

136I direct the Registrar to approve the application of Elisa John for the transfer of the licence for 55A Beverly Hills Drive in Toronto, Ontario to the premises operating as or intending to operate as Blaxx Caribbean Dive Bar.

137Unless otherwise agreed to by the parties in writing, Ms. John shall, within 10 days of the transfer, provide to the Registrar sworn or affirmed confirmation that WD has released any right to possession of the premises that might arise from his interest in the lease of 55A Beverly Hills Drive in Toronto and acknowledging that Ms. John has exclusive possession of the premises.

LICENCE APPEAL TRIBUNAL

________________________

Jennifer Friedland,

Member

Footnotes

1. 1S.O. 1996, c.26, Sched.
2. 2R.S.O. 1990, c. L.19
3. 3I am initializing WD’s name as it is apparent from the evidence that he was incorrectly named on the application and according to his testimony has tried hard, for the past 26 years, to keep his prior criminal record a secret. It is unnecessary to publish his name in this decision. It is available on the record for those who wish to discover it.
4. 4Ontario (Alcohol and Gaming Commission) v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157 (“751809”) at para. 18 and citing Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para. 114
5. 5See CS v. Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONSC 1652 at para 32
6. 6I note further that the emails sent by Ms. Chan to WD were to a Gmail address whereas when Ms. John copied WD, it was to Hotmail address.
7. 7It turns out this was incorrect, the capacity at that time was only five people outdoors, but the Registrar concedes it is not raising this as an issue.
8. 8See for example, Registrar, Alcohol and Gaming Commission Ontario v. 6161251 Canada Inc. o/a Shot House Pub, 2007 CanLII 58245 (ON AGC) at para 51.