Appeal from a Notice of Proposal to Review an Application for a Liquor Licence under the Liquor Licence Act, R.S.O. 1990 c.L.19
Between:
7-Eleven Canada Inc. o/a 7 Eleven 1260 Dundas St W, Toronto Applicant
-and-
Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996, Respondent
-and-
City of Toronto and Randy Kerr Added Parties
DECISION AND ORDER
Adjudicator: Avril A. Farlam, Vice Chair
Appearances:
For the Appellant: Jonathan Andrews and Lauren Cook, Counsel For the Respondent: Rena Khan, Counsel For the Added Party City of Toronto: Ray Kallio and Jessica Jakubowksi, Counsel, and Ally Potamianos, Student-at-Law For the Added Party Randy Kerr: No one appeared Objector: Daphne Ballon, Self-represented
HEARD by Videoconference February 23, 2022
REASONS FOR DECISION AND ORDER:
BACKGROUND
1The appellant, 7-Eleven Canada Inc. o/a 7 Eleven 1260 Dundas St. W, Toronto (the "appellant"), applied for a licence to sell alcoholic beverages pursuant to s. 6 of the Liquor Licence Act, R.S.O. 1990, c. L.19.
2The Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 (the "Registrar") gave notice of the application to residents of the municipality in which the Premises are located. The Registrar received objections from 65 persons. As a result, the Registrar issued a Notice of Proposal to Review an Application for Licence ("NOP") under s. 21 of the Liquor Licence Act. The appellant appealed the NOP to the Tribunal.
3The Tribunal's November 22, 2021 Case Conference Report and Order (the "Order") notes that although 65 individuals and the City of Toronto had objected in writing to the proposed issuance of the licence to the appellant, only seven objectors and the City of Toronto appeared or were represented at the case conference. Two objectors withdrew their objections during the case conference.
4The Tribunal's Order added the City of Toronto and Randy Kerr as parties to this proceeding at their request. Randy Kerr did not attend this hearing.
5The Tribunal's Order did not add any other objectors as parties to this proceeding although other objectors could have asked to be made parties to this proceeding at the case conference as set out in the Tribunal's Order.
6The four non-party objectors who attended the case conference and maintained their objections at the case conference were given notice of this hearing by the Tribunal in correspondence dated February 11, 2022 namely, Sabhie Qadeer, Christine Caroppo, Adam Clare and Daphne Ballon.
7Sabhie Qadeer did not attend this hearing. The hearing proceeded in Mr. Qadeer's absence after waiting 45 minutes for him to attend the hearing.
8Prior to the hearing Christine Caroppo notified the Tribunal that she withdrew her objection.
9Prior to the hearing Adam Clare notified the Tribunal that he could not attend the hearing due to work. Mr. Clare did not request an adjournment.
10Daphne Ballon attended the hearing and indicated she was observing only, did not wish to make any statements at the hearing, and would be unable to stay for the duration of the hearing.
ISSUES TO BE DECIDED
11The issues to be decided are:
Is the issuance of the licence not in the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises to be licensed are located?
What conditions, if any, should be attached to the licence should it be granted.
RESULT
12For the reasons that follow, I direct the Registrar to approve the appellant's application for a liquor licence, subject to the filing of all applications and regulatory requirements, and subject to the conditions set out below.
LAW
13The Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22 (the "Act") came into force on November 29, 2021. It repealed and replaced the Liquor Licence Act. In accordance with the transitional provisions in Ontario Regulation 767/21, the appellant's application for a licence is deemed to have been made under the Act. The NOP and this hearing are also continued under the new legislation by virtue of the transition provisions.
14Section 8(1) of the Act provides that the Registrar shall issue a licence to an applicant if the applicant, among other things, complies with the Act, the regulations and the standards and requirements established by the Registrar, and is not ineligible to be issued a licence.
15Section 3(6) states that:
The Registrar shall not issue a licence to operate a liquor consumption premises or a licence of another prescribed category or prescribed class within a category if issuing 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 to be licensed are located.
16Section 7(1) of the Act requires the Registrar to give notice of a liquor licence application to the residents of the municipality in which the premises are located. If the Registrar receives written objections, it may issue a proposal to review the application and the applicant may then request a hearing before the Tribunal under s. 26 of the Act. After the hearing, the Tribunal may direct the Registrar to issue the licence or to refuse to issue the licence. If the Tribunal directs that a licence be issued, it may impose any condition on the licence that it considers proper to give effect to the purposes of the Act.
ANALYSIS:
1. Is the issuance of the licence not in the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises to be licensed are located?
17In a hearing held under s. 26 of the Act, the Tribunal must balance the needs and wishes of the residents with the appellant's desire to operate its business, bearing in mind that the appellant has a presumptive right to a licence unless it is not in the public interest. The onus is typically on any objectors to establish that issuing the licence is not in the public interest.
18As noted above, most of the objectors did not attend the case conference for this matter and even fewer attended the hearing. The only objector aside from the City of Toronto who attended the hearing indicated that they did not wish to give evidence or make submissions.
19Counsel for the City of Toronto confirmed that it had reached an agreement regarding the licence. It indicated that if the Tribunal were to approve certain licence conditions it would withdraw its objection to the licence. Counsel for the City of Toronto also confirmed that the agreed to conditions satisfied its concerns and that it was satisfied that a liquor licence with the proposed conditions was in the public interest. The Registrar's counsel confirmed that the conditions were acceptable to the Registrar.
20No other evidence was given or submission made in support of the proposition that issuing the licence would not be in the public interest within the meaning of s. 7(1) of Act.
21As a result, I find that the added parties have failed to prove, on a balance of probabilities, that it is not in the public interest to grant the appellant a liquor licence provided that the conditions sought by the City of Toronto are imposed on the appellant's liquor licence. As a result, I have decided to direct the Registrar to issue the licence in the circumstances.
2. Should conditions should be attached to the licence, if granted?
22The above-noted conditions to which the City of Toronto and appellant have agreed are as follows:
a. The licensee shall sell and serve liquor from 12:00 p.m. (noon) until 11:00 p.m. only;
b. The licensee shall ensure clearly visible signs are posted, at least 11" x 14" in dimension, near each exit of the premises requesting that patrons respect their neighbours by keeping outdoor noise to a minimum; and
c. The licensee shall provide to the Ward Councillor's office, a telephone number for residents to register concerns or complaints. The line will normally be answered by a staff member during the licensee's published hours of operation. This line will be equipped with a functioning message service for those periods when the licensee's staff is otherwise occupied or when the establishment is closed.
23The appellant has consented to the above conditions being attached to its liquor licence.
24The Registrar confirmed that the conditions are acceptable to it. I consider the conditions proper to give effect to the purposes of the Act within the meaning of s. 26(5) of the Act.
25Following submissions on the proposed conditions by all parties, the Registrar withdrew the NOP on the basis that there were no objectors at the hearing who wished to be heard and the conditions negotiated between the City of Toronto and the appellant satisfy the public interest.
26Based on the consent of both the appellant and the added party the City of Toronto, and also based on the Registrar's position that the conditions are acceptable to it, I order the agreed-to conditions to be attached to the appellant's liquor licence.
ORDER
27Pursuant to the authority of ss. 26(3) and (5) of the Act, I order the Registrar to approve the appellant's application for a licence subject to the filing of all applications and regulatory requirements and subject to the following specific conditions:
a. The licensee shall sell and serve liquor from 12:00 p.m. (noon) until 11:00 p.m. only;
b. The licensee shall ensure clearly visible signs are posted, at least 11" x 14" in dimension, near each exit of the premises, requesting that patrons respect their neighbours by keeping outdoor noise to a minimum; and
c. The licensee shall provide to the Ward Councillor's office, a telephone number for residents to register concerns or complaints. The line will normally be answered by a staff member during the licensee's published hours of operation. This line will be equipped with a functioning message service for those periods when the licensee's staff is otherwise occupied or when the establishment is closed.
LICENCE APPEAL TRIBUNAL
Avril A. Farlam, Vice Chair
Released: March 29, 2022