Tribunals Ontario

Licence Appeal Tribunal

Tribunaux décisionnels Ontario

Tribunal d'appel en matière de permis

Date: 2022-03-31

Appeal from a Notice of Proposal to Review an Application for a Liquor Licence under the Liquor Licence and Control Act, 2019, S.O 2019 c. C. 15, Sched 22

Between:

7-Eleven Canada Inc o/a 7 Eleven 366 Christina Street North, Sarnia

Appellant

-and-

Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019

Respondent

-and-

Jacqueline Detailleur and William Mcllwain

Objectors/Added Parties

DECISION AND ORDER

ADJUDICATOR:

Stephen Scharbach, Member

APPEARANCES:

For the Appellant:

Will Shaw, Counsel Lauren Cook, Counsel

For the Respondent:

For the Objectors/Added Parties:

Rena Khan, Counsel Lauren Pearce, Counsel

Date of Hearing:

January 13, 14, & February 8, 2022

A. OVERVIEW

7-Eleven Canada Inc. (“7-11”), applied to the Alcohol and Gaming Commission of Ontario (“AGCO”) for a liquor sales licence under the Liquor Licence Act1 (“LLA”), for a portion of the indoor area it presently operates as a convenience store on Christina St. N. in the City of Sarnia, Ontario.
The Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act (“Registrar”) received written objections to the application. The Registrar issued a Notice of Proposal to review the application and 7-11 requested a hearing before this Tribunal to determine whether granting a licence to 7-11 was not in the public interest.
Jacqueline Detailleur and William Mcllwain participated in the hearing as Added Parties. They are residents of Sarnia and two of those who raised objections to 7- 11’s application.
The AGCO also participated in the hearing. The AGCO administers the LLA and conducts inspection and enforcement activity under that Act. It took no position on whether granting the licence was not in the public interest but called evidence and made submissions concerning conditions that may be attached to any licence granted.
After considering all of the evidence presented, I have concluded that a liquor licence should be granted to 7-11 but with certain conditions attached.

B. THE LEGAL CONTEXT

On October 30, 2020, 7-11 applied for a liquor licence for its Christina St. N. Sarnia location.
The LLA required the Registrar to give notice of that application to the residents of the local municipality and invite written submissions as to whether issuing the

licence is in the public interest having regard to the needs and wishes of the residents.

The Registrar received written objections from several residents, including the Added Parties. After considering those objections, the Registrar issued a proposal dated May 13, 2021, to review the application to determine whether the licence should not be granted on the basis that it not in the public interest.
Under the LLA, once a proposal to review is issued, the applicant may request a hearing before this Tribunal. The hearing is meant to give those who object to the licence an opportunity to demonstrate why it is not in the public interest. After a hearing, the Tribunal may direct the Registrar to grant the licence, not grant the licence, or grant a licence with conditions.
In this case, 7-11 requested a hearing and after a case conference, a hearing was scheduled to start on January 13, 2022.
However, on November 29, 2021, the Liquor Licence and Control Act, 2019 (“LLCA”) replaced the LLA. The new LLCA was accompanied by regulatory transition provisions2 which deem an application for a liquor licence made under the LLA to be an application under the new LLCA, and a proposal to review issued under the LLA to be continued as a proposal to review under the LLCA.
As a result, 7-11’s liquor licence application is now to be considered under the LLCA as an application for a licence to operate liquor consumption premises. The new Act contains a provision, like the old one, which provides that a liquor licence application shall be refused if:

…issuing the licence is not on the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises to be licenced are located3.

Also like the old Act, the LLCA provides that the Tribunal may, after holding a hearing, direct the Registrar to issue the licence, refuse to issue the licence, and

2 O. Reg 762/21, made under the LLCA

3 LLCA. s. 3(6)

may impose any conditions on a licence that the Tribunal considers proper to give effect to the purposes of the Act4.

That legal context defines the specific issues to be decided in this case. They are:

(a) Have the Added Parties established on a balance of probabilities that granting the appellant’s application for a liquor consumption licence is not in the public interest having regard to the needs and wishes of the residents of the City of Sarnia?

(b) If a licence is granted should conditions be attached?

C. PRELIMINARY MATTER - Expert Evidence of Dr. Timothy Stockwell

The objectors sought to qualify Dr. Timothy Stockwell as an expert in the area of public and social harms connected to the sale of alcohol and public policy associated with mitigating those harms.
7-11 objected to Dr. Stockwell’s testimony and the introduction of his accompanying report on two grounds:

Dr. Stockwell’s was not impartial and advocated in favour of the Added Parties’ position.
His evidence regarding public harm created by alcohol use and mitigating social policy is not relevant to the narrower issue in this case of whether the licence is not in the public interest having regard to the needs and wishes of local residents.

After briefly reviewing Dr. Stockwell’s report and considering the parties’ submissions, I allowed Dr. Stockwell to testify as an expert, and portions of his report be considered as evidence for the following reasons.
7-11 did not object to Dr. Stockwell’s qualification as an expert. His CV was placed into evidence. Dr. Stockwell is currently a professor in the psychology department at the University of Victoria in British Columbia, a position he has held since

approximately 2004. His field of academic/professional interest includes substance use and abuse prevention policies, violence prevention, liquor licencing and alcohol and harm reduction. He has published extensively in his field and is the recipient of numerous honours and awards for his research contributions.

Rather, 7-11’s objection related to impartiality and relevance. With respect to impartiality, 7-11 argued that Dr. Stockwell has taken the objector’s side in this matter and advocates in favour of their position that the licence be denied. 7-11 points to the final page of Dr. Stockwell’s report where he responds to a question about whether granting the licence would be in the public interest or serve the needs of the residents. He essentially states his opinion that granting a licence is not in the public interest and he sets out his reasons.
I am mindful that to some extent Dr. Stockwell has provided an opinion on the issue that I must decide. However, expert evidence on the ultimate issue that the tribunal must decide does not necessarily render the evidence inadmissible. Moreover, reading his report as whole, I conclude that Dr. Stockwell has not breached his duty to be objective and non-partisan. Certain questions were posed to him, and his report contains his opinions, based on research referenced in his report.

Dr. Stockwell has spent decades researching, publishing, and teaching in his area and has a perspective derived from that. When he ultimately did give evidence, he qualified his opinions when appropriate and fairly conceded points put to him in cross-examination. In my view Dr. Stockwell’s report was presented in a balanced, objective manner and did not stray into impermissible partisanship.

With respect to relevance, I agreed with 7-11 that the first two parts of Dr. Stockwell’s report were not relevant. They contain his responses to two questions:

To what extent does alcohol cause public harm generally? What kinds of factors or policies can reduce the risk of alcohol related harms?
How does the retail sale of alcoholic corner stores relate to public harm?

The first section dealt with the type and extent of public harm related to alcohol consumption in general (including preventable deaths, hospitalisations, crime, violence), and measures to reduce alcohol related harms such as strengthening restrictions on alcohol availability, bans or restrictions on alcohol advertising, and discouraging alcohol use through pricing and taxation measures.

In my view, while this information is illuminative, it is only marginally relevant to the much narrower question before me. The public harm and social cost related to alcohol consumption are no doubt important considerations to the Legislature when formulating policy and legislation around alcohol use. However, the Legislature has made a choice, reflected in the LLA and LLCA, that any qualified applicant has a presumptive right to a liquor licence unless it can be demonstrated that it is not in the public interest having regard to the needs and wishes of the residents of the municipality. The focus of this hearing is whether the licence applied for in this specific case is not in the public’s interest having regard to the residents’ needs and wishes. In my view, the general harms associated with alcohol use and broader public policy that may mitigate those harms is not directly relevant to the central issue in this case.
The second question related to the public harm associated with the sale of alcohol in corner stores. Dr. Stockwell notes that the present application is for an on- premises consumption licence and not a permit to sell alcohol for take-away. However, he states that academic research suggests that even minor increases in alcohol outlet density is statistically related to increased alcohol consumption and increased alcohol related harms including high risk drinking among younger drivers, assaults, and public disturbances. In addition, research studies suggest that privately owned liquor stores are strongly associated with increased consumption and alcohol related hospitalisation and deaths.
Much of Dr. Stockwell’s report under the heading is concerned with the harms associated with increased outlet density and the risks inherent in allowing private retailers to sell alcohol for consumption elsewhere. Although also illuminative, in my view that evidence does not assist me in deciding the specific issue in this case – whether this application is not in the public interest having regard to the needs and wishes of the local municipality.
However, I concluded that Dr. Stockwell’s evidence with respect to the remaining 3 sections of his report were relevant and admissible. They are:

How does the on-premises consumption of alcohol in corner stores and/or fast-food restaurant relate to public harm?

To what extent would the issuance of a licence for 7/11 to sell alcohol on premises at its location at 366 Christina Ave N., Sarnia risk public harm?
Do you have an opinion as to whether a licence permitting 7/11 to serve alcohol on premises would be in the public interest or serve the needs of the residents?

The onus is on the Added Parties to establish that the proposed licence is not in the public interest having regard to the needs and wishes of the local residents. It was anticipated that they would call resident witnesses who would explain their reasons for opposing the licence. In many previous Tribunal’s decisions, resident concerns about the negative impacts of granting a liquor licence have been discounted as speculative.5
According to the Added Parties, Dr. Stockwell’s evidence was meant to address that. It was being tendered in support of an argument that the residents’ concerns were not speculative and supported by academic research.
In my view, Dr. Stockwell’s evidence was relevant for that purpose, and I allowed the last three sections of his report and his related testimony to be admitted.

D. INVOLVEMENT OF OPSEU

7-11 argued that it has significant concerns about the bona fide nature of the Added Parties’ objections and the extent to which they may have been influenced or shaped by the role played by Ontario Public Sector Employees Union (“OPSEU”).
Both Added Parties are members of OPSEU and OPSEU has publicly expressed its opposition to 7-11’s plans and encouraged its members to file objections to the applications. However, in my view, the concerns expressed by the Added Parties and residents who testified were sincerely held expressions of their own concerns and objections. I cannot conclude that OPSEU’s role significantly impacted the weight of their testimony.

5 For example, 10702 v Registrar of Alcohol, Gaming and Racing, 2017 CanLII 50048 (ONLAT),

8124 v Registrar of Alcohol and Gaming and Racing, 2013 CanLII 69339 (ONLAT), 8590 v Registrar of Alcohol and Gaming, 2014 CanLII 79260 (ONLAT).

OPSEU represents many unionised employees of the government of Ontario including approximately 13,000 front line LCBO workers. It has publicly stated that it is opposed to the further expansion of private alcohol sales for many reasons, including the fear that onsite consumption of alcohol at convenience stores will pave the way for alcohol to be sold from convenience stores for take-away.
OPSEU is opposed to 7-11’s current plans and has made its position clear in communications sent to members. It informed its members of 7-11’s applications for liquor licences and invited them to file their objections with the AGCO. Links on OPSEU’s website allowed members to file an objection quickly and simply. For those who did object, OPSEU provided materials and support to take part in the Tribunal process.
In this case, both Added Parties are members of OPSEU. The other 3 resident witnesses who testified are not. Both Added Parties were aware of OPSEU’s opposition and echoed some of OPSEU’s concerns. Mr. McIlwain was reimbursed by OPSEU for the one day that he had to take off work to testify.
However, both Added Parties had their own concerns based on their experience as residents of Sarnia that led them to oppose 7-11’s application. For example, Mr. McIllvain is a front-line LCBO employee and provided evidence about his experience and the challenges of selling alcohol responsibly and refusing service when required. Based on his experience, he doubted whether 7-11 employees would be able to effectively meet those challenges. Although Mr. McIllvain echoed some of OPSEU’s concerns, I found his evidence to be constructive.
My task is to determine whether the application is not in the public interest having regard to the needs and wishes of the residents of Sarnia. The Added Parties and the 3 resident witnesses who testified are all Sarnia residents who appear to have their own genuinely held reasons for opposing the application. In my view, the validity of those concerns was not negatively impacted by OPSEU’s role.

E. OVERVIEW OF 7-11’s APPLICATION

7-11 is based in Vancouver and operates convenience stores across Canada. It currently operates 62 locations in Ontario including the one in Sarnia. All those locations are corporately owned and are not franchises.
According to the testimony of Mr. Victor Vrsnik, 7-11’s Senior Manager for Corporate Affairs and Business Development, 7-11 wishes to expand its fresh food, hot food and beverage sales by offering in-store dining.
According to 7-11, there is a general consumer trend to consolidate and reduce the number of trips they take. Retailers are responding to that by offering a greater variety of products and services in one location. In 7-11’s case, in addition to offering convenient grocery and house-hold items, 7-11 locations now prepare and offer a variety of beverage and hot food items - breakfast sandwiches, in-store baked goods, sandwiches and subs, pizza, chicken wings, kebobs, hot dogs, fried chicken and chicken sandwiches.
7-11 wishes to further develop that part of its business by creating small (up to 10 seats) indoor dining areas where patrons can buy and consume food items with alcohol – specifically beer, wine and coolers. 7-11 intends to only allow alcohol to be purchased if a food item is purchased. In 7-11’s view, the availability of light alcohol with food on-premises would be attractive to customers, complement its expanding food menu, and ultimately increase its business.
7-11’s plans to move in this direction are not specific to Sarnia and it has made similar liquor licence applications for many (if not all) of its locations in Ontario. It has created a draft Compliance and Operational Plan (“Plan”) which sets out in detail its vision for the service of alcohol for consumption on-premises. The main features of the plan are:

seating would be created to accommodate about 10 patrons at tables and lean bars with stools in an area delineated from the retail area. That, together with the sales counter, would be the licenced area.
only beer, wine and coolers will be available for purchase, and only if accompanied by a purchase of food from placard style menus on display.

the customer would order and pay for food and an alcoholic beverage from Smart Serve trained staff behind the sales counter. If necessary, age verification would be completed at that point.
alcoholic drinks will be kept in a cooler behind the counter. Smart Serve trained staff would retrieve the beverage, open the container and give the beverage and food to the patron.
food and beverages will be consumed in the delineated dining area – no alcoholic beverages are permitted outside the licenced area.

According to Mr. Vrsnik, 7-11 currently has several programs and safeguards that are or will be put in place to ensure that 7-11 serves alcohol responsibly, in accordance with all laws, and in a way that ensures the safety of staff and patrons. The main features are:

hours of liquor service will be restricted to 12 pm to 11 pm, and alcohol will be sold only with food.
All 7-11 staff who serve alcohol will be Smart Serve trained. The Smart Serve training program is available on-line, was developed by the AGCO, and is required for anyone who serves or handles alcohol in Ontario. The program provides training about serving alcohol responsibly, legal requirements around serving alcohol, including checking ID, acceptable forms of ID, recognising and dealing with underage and intoxicated patrons, capacity limits and refusing service.
7-11 currently sells age restricted products (tobacco and lottery tickets) and has an existing training program (“ID Zone”) intended to instruct staff about their responsibility to sell those products to customers who are of age, and to check the ID of anyone who appears to be 30 years old or younger.
It also has a “mystery shopper” program that involves a person who looks under 30 attempting to purchase age restricted items. If a 7-11 staff member fails to check the mystery shopper’s ID, that staff person, as well as all staff at that location, must complete the training module again. There are repercussions for management level employees. Subsequent failures may result in dismissal.

According to 7-11, if a liquor licence is granted the ID Zone program will be adjusted to also cover alcohol related sales.
7-11 has violence prevention measures currently in place including a violence prevention training module that its staff must complete each year.
Staff are required to wear a personal safety device that allows them to push a button that alerts a monitoring company. The monitoring company then attempts to reach the store – if there is no answer the police are contacted.
The location is equipped with CCTV cameras and a time locked safe which limits the cash kept in the register.
The location is visited for 4-5 hours each week by an area manager to evaluates the store’s operation and check for compliance with 7-11’s policies and requirements.

F. OBJECTORS’ CONCERNS

The Added Parties and the three additional resident witnesses all live in Sarnia. – Three of them live within a few minutes walk from the 7-11,6 and one of them has a backyard that abuts the 7-11 property.
In addition, the Added Parties introduced into evidence letters from 9 individual residents of Sarnia expressing their objections to the licence. Most of those residents stated that they lived within close walking distance of the 7-11. They did not testify and were not cross-examined about their concerns, or whether the specifics of 7-11’s compliance plan addressed those concerns. I have taken that into account in assessing the weight of that evidence.
There was no testimony from any resident of the City of Sarnia that was in favour of the application. There was also no resolution or any other indication by the City of Sarnia in support or in opposition to 7-11’s application.
The residents’ concerns can be summarised under the following categories.

6 Dr. Robert Dickieson, Shannon Parcy and Paul Stevens

(i) Alcohol should not be sold for on-premises consumption at a convenience store.

All of the residents expressed their view that making alcohol available in a convenience store such as this was inappropriate and against their wishes. Three reasons were cited.
Firstly, by design convenience stores are places customers go to pick up something quickly and conveniently. It is not an environment that encourages lingering and instead encourages fast consumption. Offering alcohol in that atmosphere invites patrons who are often in a hurry to grab a quick alcoholic drink (albeit with food) and go, potentially encouraging immoderate consumption and drinking and driving.
This concern was marginally supported by Dr. Stockwell’s evidence. According to his report there are few studies concerning on-premises consumption of alcohol in convenience stores because the idea is unusual. However, there is substantial literature which suggests that there is a general relationship between the number of alcohol outlets and rates of alcohol consumption and related harm. The thrust of his evidence was that per capita consumption and related alcohol harms increase as the density of alcohol outlets increase.
The residents’ second concern with convenience stores is that they attract children who purchase candy and child-targeted products. Many residents felt it was inappropriate for 7-11 to attract children to their premises where they are exposed to alcohol advertising, adults who are drinking, and potentially adults under the influence. This concern was also supported somewhat by Dr. Stockwell. His report states that there is strong evidence that youth exposure to alcohol marketing and advertising is predictive of earlier alcohol use and an increased risk of alcohol related problems as adults.
The third concern, shared by some of the residents, was that they doubted that 7-11 staff would be capable of selling and serving alcohol responsibly, appropriately and in conformity with the law. In their view, granting a licence would increase the risk of alcohol being sold to underage and intoxicated customers. Some testified that 7-11 staff seemed presently incapable of dealing with its more difficult customers. Also,

They reported that on occasion customers have been seen shoplifting, but staff seemed unable respond - likely to avoid a confrontation. Given that, they doubted that staff would refuse service to an intoxicated person if there was risk of a confrontation.

Dr. Stockwell shared that concern. He pointed out in his report that the “likely young, low paid and poorly trained staff” of 7-11 could be placed in jeopardy if required to refuse service to an intoxicated person. Refusal of alcohol service is well recognized in the literature as a potential trigger for violent incidents.

(ii) Alcohol should not be sold at this location because it has gas pumps.

This 7-11 location has self-serve gas pumps. Customers can either pay at the pump or inside the store. Several residents felt that alcohol should not be made available at this location because it essentially invites motorists who stop to buy gas to have a drink (albeit with food) before getting back in their car and driving away. In the residents’ view, this conflicts with the public interest of discouraging drinking and driving.
Dr. Stockwell shared that concern. He states in his report that it seems unlikely that people would want to linger and enjoy a meal in a convenience store setting but rather would take the opportunity to have a quick drink before getting back on the road. It would also increase the risk of drinking and driving by making alcohol readily and conveniently available to drivers with alcohol use disorders who are there primarily to buy gas.

(iii) Existing problems of disturbance, garbage, petty crime related to 7-11’s present operation will all be exacerbated by the availability of alcohol at this location.

This was a concern that was shared by all the residents who testified or wrote letters of objection.
The 7-11 is located on Christina St. N. at the intersection of London Rd. - a few blocks from downtown Sarnia. Both London Rd. and Christine St. N. in that area appear to be busy, mainly commercial thoroughfares. However, south and east of the intersection is a grid pattern of small residential streets containing mainly older,

single family residential homes. Two of the residents who testified, and several of those who wrote letters of objection live in that residential area.

According to the residents, a homeless shelter recently opened nearby and there are a number of agencies in the vicinity that provide services to those suffering from homelessness, poverty, psychiatric and social issues, as well as alcohol and drug dependencies.
According to the residents, the 7-11 and the vacant lot it beside it have become a hang-out. Residents reported problematic and often alarming behaviour from some who loiter around the 7-11 such as yelling, profanity, loud arguments and drug use. There was evidence of one occasion where a used needle was found adjacent to the 7-11. According to one resident, the problematic behaviour gets worse later in the evening. According to some of the residents, petty crime in the neighborhood - a shed and cars broken into – has increased and is thought to be related to the nearby 7-11.
Residents testified that 7-11’s dumpster, which is not locked, attracts people who search inside it for food. This was confirmed in part by Ms. Erickson, 7-11’s field consultant (or area manager) for this location since April 2021. She testified that 7- 11 doesn’t lock the dumpster anymore because in the past the locks have been cut off. According to the residents the result is that garbage, food scraps, broken glass and waste-paper wind up on the street and get blown around the neighborhood.
Ms. Erickson attends at the store on a weekly basis for 4-5 hours, supervises the location, conducts checks, and makes sure that the operation is running in accordance with 7-11’s requirements and policies. She testified that she was made aware of the problems described above when she took over the location in April 2021 and took steps to reduce loitering including reducing Wi-Fi availability outside the store, locking the bathrooms, cutting the power to an outside electrical outlet that was being used to charge phones, and removal of a pay phone.
According to Ms Erickson, those efforts helped to reduce loitering. However, the residents say they have observed no improvement and the problems they describe are on-going.

According to the residents, they are living with the problems caused by 7-11’s operation now and making alcohol available at that location will only make things worse. Many of those who loiter around the 7-11 are already suffering from alcohol, drug, and/or psychiatric issues and the ready availability of alcohol will likely amplify the existing problems.

G. DECISION AND ANALYSIS

The primary issue is whether issuance of a liquor consumption permit to 7-11 in this case is not in the public interest having regard to the needs and wishes of the people in Sarnia. In making that determination, the following principles, derived from previous Tribunal decisions dealing with the same issue, are relevant7.
Under the LLCA, an otherwise qualified applicant has a presumptive right to a liquor licence and therefore the onus is on the objectors to establish that issuance of the licence is not in the public interest. The Tribunal must consider the totality of the evidence to determine whether the concerns of the objectors are bona fide and supported on a valid and objective basis.
The Tribunal must balance such concerns against an applicant’s presumptive right to a licence and determine whether the public interest requires refusal of the licence, granting the licence, or granting the licence with conditions. In some cases the public interest element justifies refusal of the licence. In other cases, the public interest concerns are valid but can be adequately addressed through conditions.
Bearing those principles in mind, my analysis with respect to the concerns of the Added Parties and objectors is set out below.

(i) Alcohol should not be sold for on-premises consumption at a convenience store.

I conclude that although the residents’ concerns under this category are legitimate and sincerely held, when analysed in the wider context of this case they do not outweigh 7-11’s presumptive right to a licence.

⁷ For example, Powerhouse Corporation v. Registrar, 2018, 79631 (ON LAT), 11643 v Registrar, 2019 CanLII 37556, (ON LAT)

I acknowledge Dr. Stockwell’s evidence that increased outlet density is statistically related to increased alcohol consumption and related harms. However, in Ontario, the LLCA does not restrict liquor licences based on outlet density. Applicants have a presumptive right to a liquor licence and the market determines which ones are successful and continue.
7-11’s plan involves a significant change to its current business model. It has built an apparently successful business by selling grocery and household items conveniently and during extended hours. However, it plans to become more than a convenience store. It intends to also be a destination for quick service dining on- premises and its liquor licence application is meant to complement that.
I am therefore not convinced that 7-11’s present business model as a convenience store is an accurate predictor of problematic alcohol consumption, especially since 7-11’s compliance plan contains features intended to address that risk including small capacity (up to 10), shorter service hours, requiring food to be purchased with any alcoholic beverage, staff training to recognise signs of intoxication and to refuse service, as well as the mystery shopper program aimed at ensuring compliance.
The residents raised a concern that 7-11 sells candy and soft drinks that attract children, and it is not in the public interest to expose them to alcohol advertising, alcohol consumption and possibly customers under the influence of alcohol.
I note that 7-11 is attempting to become a destination for quick service dining with alcohol. It is not intending to operate a bar. Customers will have to purchase food along with an alcoholic drink. Servers are required by law to refuse service to anyone underage or intoxicated. In my view, these features will mitigate the risk of children being exposed to intoxication.
Also, there is no requirement that licenced premises be restricted to those above drinking age. In the absence of a legislative requirement prohibiting children to enter licenced premises, I am reluctant to conclude that allowing alcohol consumption in a small, delineated area within this location offends the public interest on that basis.
Nevertheless, if 7-11 begins serving alcohol, parents may well conclude that 7-11 is no longer an appropriate destination for their children. However, in my view, given

the safeguards inherent in the features described above, I cannot conclude that this concern creates a significant risk to the public interest.

I also note that advertising of alcohol is already regulated and advertising that appeals to those under the legal drinking age is prohibited. The AGCO has issued liquor advertising guidelines that prohibit, among other things,

liquor advertising that appeals directly or indirectly anyone under the legal drinking age,
advertising that uses children’s songs, fictional characters, or any songs which have a specific appeal to people under the drinking age,
advertising placed in areas specifically targeted at persons under the legal drinking age

The AGCO currently prohibits advertising that appeals to children and 7-11 will need to comply with those guidelines or its liquor licence will be in jeopardy. The guidelines apply generally and help to create a clear, level competitive playing field. In my view they are sufficient to address the concern about children being exposed to alcohol advertising.
Some of the residents also doubted that 7-11 staff would be capable of selling and serving alcohol responsibly, appropriately and in conformity with the law. However, 7-11’s evidence on this point was detailed and persuasive. Each of its servers will be Smart Served trained. Service to minors or intoxicated customers are both grounds for suspension or revocation of a licence. 7-11 has a long track record of selling age restricted products and there is no evidence of any contravention. It has policies in place to train and assist staff and management systems in place to monitor compliance. It has developed a draft compliance plan which Mr. Vrsnik testified will include similar training around alcohol sales as has been developed for other age restricted products.
Taking all of those factors into account, I cannot conclude that the concerns expressed about granting a licence to a convenience store out-weigh 7-11’s right to conduct and evolve its business within the present parameters defined by law.

(ii) Alcohol should not be sold at this location because it has gas pumps

The objectors’ second category of concern is that an alcohol consumption licence is inappropriate at this location because it also sells gas and thus provides a convenient temptation to motorists who are stopping to get gas to also have a drink.
This concern appears to be a general policy issue within the purview of the provincial government to address. As far as I am aware, Ontario has not prohibited businesses that sell gas from also operating licenced premises. The general approach has been to prohibit impaired driving under the Criminal Code and impose severe criminal and regulatory sanctions on those who do. Drivers are expected to obey that law and those who serve alcohol are required by law not to serve intoxicated persons.
Discouraging drinking and driving is in the public interest. However, to the extent that 7-11’s proposed licence does create an additional risk, 7-11’s compliance plan mitigates that risk – it does not intend to sell spirits, will only sell alcohol for in-store consumption with the purchase of food, and its staff will be Smart Serve trained to recognise the signs of intoxication and refuse service as appropriate.

(iii) Existing problems of disturbance, garbage, petty crime related to 7/11’s present operation will all be exacerbated by the availability of alcohol at this location.

The evidence indicates that there is an ongoing problem of loitering, disturbance and petty crime in the immediate vicinity of the 7-11. The 7-11 location, the open dumpster, and the vacant lot beside it, attract people suffering from psychiatric conditions and in some cases drug and alcohol dependencies. The concern is that convenient access to alcohol at the 7-11 will result in more alcohol consumption around the 7-11 and will result in more alcohol related problems and disturbance for the local community.
I note that these problems are on-going and present without the liquor licence. Both the residents and 7-11 are trying to manage in less-than-ideal circumstances. The question is whether the availability of alcohol at this location will exacerbate the existing problems to the point where the licence should not be granted.

In my view, the features of 7-11’s plan, the legal requirements already in place to deter disorderly conduct, and the conditions discussed below adequately mitigate any additional risk that may be created by granting a licence.
Features of 7-11’s plan - including the modest capacity, its intention to not sell spirits, requiring food to be purchased with any alcoholic beverage, stopping service at 11 pm, and 7-11’s staff training (described above) should all contribute to minimising the risk of problem consumption.
I also note that if 7-11 is granted a licence it will be required by law to:

not permit intoxication, drug use or disorderly conduct to occur on the licenced premises or in adjacent areas under the licensee’s exclusive control8.
ensure that measures are in place and reasonable efforts are made to deter disorderly conduct on property adjacent to or in the vicinity of the licenced premises9.

It appears that if granted a licence, there will be a positive obligation on 7-11 to make efforts to deter disorderly conduct in the areas adjacent to or in the vicinity its premises. Any contravention of those requirements will place the licence in jeopardy

– clearly a significant motivation for 7-11 to deter disorderly conduct.

(iv) Summary

In summary I conclude that the objectors’ concerns about granting a liquor consumption permit to 7-11 in this case are legitimate and supported in part by the evidence. My task is to weigh those concerns cumulatively against 7-11’s presumptive right to a licence and determine whether the licence is not in the public interest.
In my view, while the objectors’ cumulative concerns are valid, they are mitigated to a significant degree by the features of 7-11’s compliance plan as outlined above. In

8 O. Reg. 746/21, s. 43

⁹ O. Reg. 746/21, s. 44

addition, I have concluded that certain conditions should be attached to the licence (discussed below) which should further mitigate the risks.

As a result, I cannot conclude that 7-11’s application is not in the public and, as set out below, I have directed the Registrar to issue the licence subject to conditions.

H. CONDITIONS

The Added Parties were clear that in their view 7/11’s application should be denied. However, if a licence was to be granted, they proposed that the following conditions be attached.
The licensee shall post a prominent sign at the exit reminding patrons to be considerate and respectful of the neighbors.
The licensee shall not market or otherwise advertise alcohol on its exterior walls or windows.
The licensee shall ensure that the dumpster on its premises is locked when not in use.
The licensee shall ensure that its external premises are clean and free of litter, refuse, and other debris at all times.
The licensee shall provide 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 answering service for those periods when the establishment is closed.
With respect to conditions 1 and 5, 7-11 does not oppose them and the AGCO agrees that they are enforceable. I have decided to impose those two conditions with a minor modification to condition 5.
With respect to condition 2 relating to advertising visible on the exterior, I agree with 7-11’s submission that permissible alcohol advertising has been addressed by the AGCO’s advertising guidelines which appear to be prescriptive and comprehensive. Any alcohol related advertising will need to comply with those guidelines. I decline to impose this condition.

With respect to proposed condition 3 (locking the dumpster) the AGCO argues that this condition is inappropriate and outside of the AGCO’s mandate of regulating the sale and service of alcohol. According to it, the condition is meant to address a problem that exists presently but is unconnected to the sale and service of alcohol. It is more appropriately dealt with by municipal by-law enforcement. I agree with that position and decline to impose this condition.
However, as an observation, I found 7-11’s evidence that it has essentially given up trying to lock its dumpster to be surprising. It may be that this concern was raised late in the proceedings and 7-11 did not have time to fully consider and address it. But based on the evidence presented, keeping the dumpster locked when not in use seems to be easily achievable and necessary to reduce friction between 7-11 and residents of the nearby community.
The AGCO argued that condition 4 (cleaning up debris and litter outside the premises) is also meant to address a problem that exists presently, is unconnected to the sale and service of alcohol, and it is more appropriately dealt with by municipal by-law enforcement. I agree and decline to impose that condition.
However, I have imposed an additional condition that will restrict 7-11 to selling alcohol from 12 pm to 11 pm daily.
Neither 7-11 nor the Added Parties suggested that condition, but the Added Parties agreed that it would be appropriate. AGCO agreed that such a condition is enforceable, within its mandate, and is not uncommon.
7-11 did not endorse or agree to that condition but throughout the hearing 7-11 re- iterated its intention to restrict the sale of alcohol to those hours. I found above that some of the objectors’ sincerely held concerns would be mitigated by 7-11’s plan, which included reduced service hours. In light of that, I find that this condition is appropriate and gives effect to the Act’s purposes. The condition is meant to provide the residents with some additional assurance that the risk of disturbance created by the sale of alcohol will be limited, not just by 7-11’s plans which are subject to change, but under the terms of its licence.

I. ORDER

Pursuant to s. 26 of the Liquor Licence and Control Act, 2019, I direct the Registrar to issue a licence to operate liquor consumption premises to 7-11 Canada o/a 7-11 366 Christina St. N, Sarnia with the following conditions:
The Licensee shall post a prominent sign at the exit reminding patrons to be considerate and respectful to the neighbours.
The Licensee shall post a prominent sign, visible on the outside of the premises, containing a phone 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 and equipped with a functioning answering service for those periods when the establishment is closed.
The Licencee shall sell and serve liquor only from 12 pm to 11 pm.

LICENCE APPEAL TRIBUNAL