Appeal from a Notice of Proposal by the Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996 to Refuse Licence under the Cannabis Licence Act, 2018, S.O. 2018, c.12, Sched. 2
Between:
Amir Jalilvand
Appellant
-and-
Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act
Respondent
Decision and Order
ADJUDICATOR: Kenneth Fishman, Vice-Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Aviva Harari, Counsel
Heard by Videoconference: June 29, 2022
OVERVIEW
1The Appellant is appealing the Respondent’s Amended Notice of Proposal to Refuse his application for a cannabis retail manager licence, dated June 9, 2022, under the Cannabis Licence Act, 2018 (the “Act”). The Respondent’s original Notice of Proposal to Refuse the Applicant’s application was dated February 10, 2022.
2The issues in the appeal are: (1) whether the Respondent has reasonable grounds to believe that, if licenced, the Appellant will not act as a cannabis retail manager in accordance with the law, or with integrity, honesty, or in the public interest, having regard to the past or present conduct of the Appellant; and (2) whether the Appellant made a false statement or provided false information in the application.
3The reason why the Respondent is refusing the application stems from the Appellant’s prior criminal charges and convictions as well as his failure to disclose numerous driving charges, convictions and suspensions on his application. The Appellant’s position is essentially that he cooperated in making full disclosure through the Application process and he did not purposefully fail to disclose charges and convictions.
4For the reasons that follow, I confirm the decision of the Registrar and dismiss the Appeal.
THE LAW
5Under s. 5(4)1 of the Act, an applicant is not eligible to be issued a Cannabis Retail Manager (“CRM”) licence if there are reasonable grounds to believe that the applicant will not, in acting as a CRM, act in accordance with the law, or with integrity, honesty or in the public interest, having regard to his or her past or present conduct.
6Under s. 5(4)4 of the Act, an applicant is not eligible to be issued a CRM licence if the applicant makes a false statement or provides false information in the application.
7Section 5(6) of the Act provide that the Registrar shall issue the appropriate licence if the applicant has met the application requirements and is not ineligible, or it shall issue a proposal to refuse the application. Section 11(1)(b) of the Act provides that the Registrar may propose to revoke a licence on any ground that would disentitle the holder of the issued licence if the holder was an applicant.
8If the Registrar proposes to revoke or refuse a licence, the licence holder or applicant may request a hearing by the Tribunal under s. 14(2). After a hearing, the Tribunal may confirm or set aside the proposal and direct the Registrar to take any action it considers appropriate to give effect to the purposes of the Act. The Tribunal may attach such terms to its order, or such conditions to the licence that is the subject of the hearing as it considers appropriate.
9Where the Registrar alleges that the appellant is ineligible for licensing on the basis of one of the grounds listed in s. 5(4), the onus is on the Registrar to satisfy the Tribunal that the ground(s) relied upon apply. The facts alleged as the basis for such a finding must be proven on a balance of probabilities.
10For the purposes of grounds which require proof of “reasonable grounds to believe”, the Ontario Court of Appeal in Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc., 2013 ONCA 157 described the standard of proof in the following terms:
The standard of proof….is that of “reasonable grounds for belief”. As applied to this case, s. 6(2)(d) of the Act required the Registrar simply to show that Mr. Barletta’s past or present conduct provides reasonable grounds for belief that he will not carry on business in accordance with law and integrity and honour. The Registrar does not have to go so far as to show that Mr. Barletta’s past or present conduct make it more likely than not that he will not carry on business as required.[1]
11At the same time, the “reasonable grounds to believe” must be more than “mere suspicion” and will be found to exist “where there is an objective basis for the belief which is based on compelling and credible information.”1 Further, there must be a nexus between the appellant’s past conduct and his ability to conduct business under the Act serving the interests of the public.2
EVIDENCE AND ANALYSIS
12The Respondent (the Registrar) alleges that they have reasonable grounds to believe that, if licenced, the Appellant will not act as a cannabis retail manager in accordance with the law, or with integrity, honesty, or in the public interest, having regard to the past or present conduct of the Appellant
13The Respondent called Marnie Pailey as a witness. Ms. Pailey was the officer in charge with investigating the Appellant as part of the application process.
14Ms. Pailey testified that the Appellant did provide a copy of his criminal record to the Respondent as part of the application process. The Appellant’s criminal record had several prior criminal convictions going back almost 20 years. Some of the charges and convictions included crimes such as uttering threats, failing to appear/comply with court orders and assault.
15In 2018, the Appellant was charged with theft from a Home Depot store, a charge which was later withdrawn.
16Perhaps most troubling to the Respondent was the fact that the Appellant had over 40 convictions on his driving record and numerous driving suspensions which were discovered during the application process as opposed to being disclosed within the application. Many if not all of these charges/convictions took place in a span of 10 years (2009-2019), and some decisions with respect to these charges were outstanding as at the date of this hearing.
17The Appellant had neglected to include these driving charges/convictions with his initial application material.
18Ms. Diane Pace was called as a witness on behalf of the Respondent. Ms. Pace works for the Alcohol and Gaming Commission of Ontario as a manager within the Cannabis Eligibility Department. Her main task was to review applications to determine eligibility for licenses. Ms. Pace explained the process involved to become a manager at a Cannabis retailer. She went through the Appellant’s application. Ms. Pace specifically gave evidence with respect to the paragraph asking whether an applicant was ever charged with Federal or Provincial offences. The Appellant answered “yes” and referred to his criminal background check. In the application under the section dealing with whether there were any outstanding charges faced by the Appellant, he answered no. Finally, on the question asking whether the Appellant had any licences suspended, the Appellant answered no.
19Ms. Pace further testified that, based on the totality of the Appellant’s convictions, she was concerned about the Appellant’s responsibilities under the Act and whether he could comply. She communicated her view that because of the convictions, the Appellant had not demonstrated an ability to comply with the Act.
20The Appellant then testified at length about his background, the charges and convictions faced by him in his life and his plans for the future. He testified that he had numerous convictions largely because he pled guilty to try to limit his time in jail. He claimed to have made bad decisions and was wrong in the past and wanted to clear his name. He claimed to be actively pursuing a pardon to wipe his criminal record clean. He testified that the cannabis business was his passion and despite not having a CRM licence, he was working at his brother’s cannabis shop and intended on working there well into the future.
21The Appellant further testified that he believed his driving record to be irrelevant and he did not understand that he had to provide disclosure with respect to the record.
22During cross-examination by Ms. Harari, the Appellant was clear that while the cannabis store he worked at was owned by his brother, he was involved in the operations of the business such as the purchase of cannabis.
23There is no question that the Appellant is a successful and driven individual. It is clear that he is a very astute and sophisticated entrepreneur who is clearly passionate about the cannabis business and its operations.
24Despite his clear enthusiasm for the industry, the unfortunate reality is that the Appellant did not disclose his significant driving convictions during the application process. Furthermore, the Appellant testified that he was working at his brother’s cannabis store in a managerial capacity despite not yet having a CRM licence.
25Under Section 5(4)1 of the Act, the Respondent cannot issue a CRM licence to the Appellant if there are reasonable grounds to believe that the Applicant would not, in acting as CRM, act in accordance with the law or with integrity, honesty or in the public interest (having regard to the Appellant’s past conduct). The Respondent’s submissions are essentially that they do not believe that the Appellant will act with integrity in running a cannabis business and, on the evidence before this Tribunal, that concern cannot be ignored. The issue of the voluminous driving charges/convictions/suspensions cannot be disregarded by the Respondent or this Tribunal.
26Furthermore, under S. 5(4)4 of the Act, an Applicant is not eligible to be issued a CRM licence if the Applicant has made a false statement or provided false information in the application. By stating “no” on the application when asked specifically if he ever faced a licence suspension in the past, whether by error or omission, the Appellant provided false information.
27While neither party raised to issue of licensing on conditions, I do not think this is an appropriate case for conditions. The Appellant has failed the first test of integrity by making a false statement and not making fulsome disclosure. I am not satisfied that there are conditions that will address that failure.
CONCLUSION AND ORDER
28In all of the circumstances, this Tribunal confirms the decision of the Respondent. As such, the appeal is dismissed.
LICENCE APPEAL TRIBUNAL
Kenneth Fishman, Vice Chair
Released: November 28, 2022
Footnotes
- Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para.114
- CS v. Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONSC 1652 at para. 32