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 1 Eglinton Ave. E., Toronto
Appellant
-and-
Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996
Respondent
-and-
Samantha Glave, William Payne, Lindsie Green, Bruce Solitar, Humberto da Silva, Frank Rooney, Sara J. Taylor, Darian Silk, Sharon Wong, Ruta Sedlak, Emelia Vercillo and Sabhie Qadeer
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
January 17, 25, 27, 2022
Overview
17-Eleven Canada Inc. (“7-11”), applied to the Alcohol and Gaming Commission of Ontario (“AGCO”) for a liquor sales licence under the Liquor Licence Act (“LLA”), for a portion of the indoor area it presently operates as a convenience store at 1 Eglinton Ave E. in Toronto, Ontario.
2The Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act (“Registrar”) received written objections to the application and issued a Notice of Proposal to review the application. 7-11 requested a hearing before this Tribunal to determine whether granting the licence to 7-11 is not in the public interest.
3The Added Parties are residents of Toronto who, along with 60 others, provided written objections to 7-11’s application.
4The 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.
5After considering the evidence and submissions of the parties, I have concluded that the Added Parties have not established on a balance of probabilities that issuance of the licence is not in the public interest. As a result, I have directed the Registrar to issue the licence to 7-11.
A. The Legal Context
6On October 30, 2020, 7-11 applied for a liquor licence in respect of premises it currently operates as a convenience store at 1 Eglinton Ave E. in Toronto.
7The 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.
8The Registrar received e-mailed objections from 60 people including the 12 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 be granted.
9Under 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.
10In this case, 7-11 requested a hearing and after a case conference held in September 2021, a hearing was scheduled to start on January 13, 2022.
11On November 29, 2021, the Liquor Licence and Control Act, 2019 (“LLCA”) replaced the LLA. The new LLCA was accompanied by regulatory transition provisions1 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.
12As 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 (“licence”). Like the old Act, the new Act contains a provision 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 located2.
13Also 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 may impose any conditions on a licence that the Tribunal considers proper to give effect to the purposes of the Act3.
14That 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 Toronto?
(b) If a licence is granted should conditions be attached?
B. Affidavit of Humberto da Silva
15The Added Parties bear the onus of establishing that granting a licence to 7-11 in respect of its Eglinton Ave. E. location is not in the public interest having regard to the needs and wishes of the residents of the City of Toronto.
16The only evidence that the Added Parties intended to admit concerning residents’ needs and wishes was an affidavit sworn by Mr. Humberto da Silva, one of the Added Parties. Mr. da Silva was not available to attend the hearing. Instead, the Added Parties sought to introduce his affidavit in which Mr. da Silva described his concerns and objection to the licence. Four letters were attached as exhibits to his affidavit. They were from nearby residents, including a trustee of the local Catholic School Board, expressing their concerns and objections to granting a licence in this case.
177-11 objected to the introduction of that affidavit for two reasons, both related to procedural fairness. Firstly, 7-11 received the affidavit on the morning the hearing was scheduled to start and had little opportunity to fully consider it. Secondly, Mr. da Silva was unavailable for cross-examination, and it was therefore impossible to test the basis and validly of his objections, or those who signed the letters of objection attached as exhibits.
18In 7-11’s view, the affidavit should not be admitted and, since in the absence of the affidavit there was no factual evidence about the needs and wishes of the residents, there was no basis upon which the Tribunal could conclude that granting the licence was not in the public interest. As a result, the Tribunal should proceed to direct the Registrar to issue the licence.
19After considering the parties’ submissions on this point I admitted the affidavit for the following reasons.
20The Tribunal has a statutory discretion to admit the affidavit. Under the Statutory Powers Procedure Act4 this Tribunal “… may admit as evidence at a hearing whether or not given or proven under oath or affirmation … any document or other thing…relevant to the subject matter of the proceeding and may act on such evidence”.5
21The affidavit is relevant to the subject matter of this hearing and thus the Tribunal may admit it. However, in exercising that discretion, the Tribunal must be mindful to avoid prejudice or unfairness to the other parties.
22In that connection I note that that while the affidavit was provided just before the hearing, its contents are not entirely a surprise – they were described generally in a summary of witness testimony provided to 7-11’s counsel on January 7, 2022.
23What is more concerning is that Mr. da Silva is not available for cross-examination. By way of background, this hearing was originally scheduled to start on January 17, 2022. It had to be unexpectedly rescheduled due to illness of the Added Parties’ counsel. Mr. da Silva was present and available to testify on the original hearing date but, as it turns out, was not available for the re-scheduled dates.
24Although Mr. da Silva was not available, the Added Parties did not request an adjournment. They instead wished to proceed and rely on Mr. da Silva’s affidavit as the only evidence concerning the needs and wishes of the residents that the Added Parties intended to call.
25If admission of the affidavit was refused, the Added Parties would be left with no direct evidence about the needs and wishes of the residents of the community. In effect, although 60 people provided written objections to the licence, there would be no evidence available about residents’ concerns that would inform the Tribunal’s decision as to whether the licence is not in the public interest.
26However, if the affidavit was admitted, 7-11 would be deprived of an opportunity to cross-examine Mr. da Silva to clarify and test the basis of his concerns, particularly whether those concerns are addressed or mitigated by features of 7-11’s compliance plan.
27In balancing the interests of the parties, I concluded that the harm to the Added Parties by not admitting the affidavit outweighed the prejudice to 7-11 by admitting it. In my view, justice was best served by admitting the affidavit so that the concerns of the Added Parties could be considered and addressed by the Tribunal. Although 7-11 would not have an opportunity to cross-examine Mr. Da Silva, l took that into account when assessing the weight and probative value of Mr. da Silva’s evidence.
C. Evidence of Dr. Timothy Stockwell
28The Added Parties intended to qualify Dr. Timothy Stockwell as an expert and call him to provide expert testimony in the area of public and social harms connected to the sale of alcohol and public policy associated with mitigating those harms.
29Dr. Stockwell has written a report in which he provided his opinion on 5 questions related to 7-11’s application. The Added Parties intended to introduce that report into evidence and have Dr. Stockwell provide testimony confirming and elaborating on its contents.
307-11 objected to the admission of that report and Dr. Stockwell’s related testimony on the grounds that some of it was irrelevant to the narrower issue in this case, and some of it was advocacy in support of the Added Parties’ position that the licence should be denied.
31Ultimately, I concluded that the first two sections of Dr. Stockwell’s report contained opinions that were not relevant to the specific issue before the Tribunal. However, I determined that the remaining three sections of Dr. Stockwell’s report were relevant and admissible.
32By way of background, 7-11 has made other similar liquor licence applications in respect of many (if not all) of its 62 Ontario locations as part of a corporate initiative to create indoor licenced dining areas within its convenience stores.
33Several of those applications resulted in public objections that have been referred to this Tribunal for a hearing.
34In a very recent Tribunal public hearing involving a similar 7-11 application and involving the same counsel (the “Sarnia case”6), 7-11 also sought to introduce Dr Stockwell’s expert evidence and report.
35Dr. Stockwell’s report in the Sarnia case was very similar to his report in the present case. His reports acknowledged local circumstances but, in both cases, he was asked his opinion on the same 5 questions, and he provided essentially the same opinion in both reports.
36In the Sarnia case, 7-11 objected to Dr. Stockwell’s report based on impartiality and relevance.
37With respect to impartiality, I concluded that Dr. Stockwell’s report and testimony did not stray into impermissible partisanship.
38With respect to relevance, I concluded that the first two sections of Dr. Stockwell’s report contained opinions that were not relevant, and I excluded them and Dr. Stockwell’s related testimony. However, I concluded that Dr. Stockwell’s evidence with respect to the remaining 3 sections of his report were relevant and admissible for the purpose supporting an argument that the residents’ concerns were not speculative but were supported by academic research and an expert’s opinion.
39In this case, since the central issue, the questions asked of Dr. Stockwell, and the opinions expressed in his report are essentially the same, it was my opinion that the same analysis regarding admissibility applies.
40As a result, in present case, I qualified Dr. Stockwell as an expert in public and social harms connected with the sale of alcohol and public policy associated with mitigating those harms and allowed the portion of his report related to questions 3, 4 and 5 to be admitted along with Dr. Stockwell’s related testimony.
D. Overview of 7-11’s Application
417-11 is based in Vancouver and operates 636 convenience stores across Canada. It currently operates 62 locations in Ontario, including the Eglinton location. All those locations are corporately owned and are not franchises.
42According to 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.
43According 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 household items, 7-11 locations now prepare and offer a variety of beverage and fresh and hot food items – for example, breakfast sandwiches, in-store baked goods, sandwiches and subs, pizza, chicken wings, kebobs, hot dogs, fried chicken and chicken sandwiches.
447-11 wishes to develop that part of its business by creating small indoor dining areas (seating for up to 10 customers) 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 alcohol with food to consume on-premises would be attractive to customers, complement its expanding food menu, and ultimately increase its business. According to 7-11, the ability to sell alcohol is intended to drive the sale of hot and fresh food for in-store consumption.
457-11’s plans to move in this direction are not specific to the Eglinton location and it has made similar liquor licence applications for many (if not all) of its Ontario locations.
46It 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 up to 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 area7.
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.
47According 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 annually which includes strategies for dealing with difficult customers. Also, 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 in an effort to discourage robbery.
Store lighting is designed to discourage crime. The interior of the store (especially the cash register area) is visible from the outside, and the area outside is visible from the interior.
The location is visited each week by an area manager to evaluate the store’s operation and check for compliance with 7-11’s policies and requirements.
E. Added Parties’ Concerns
48The Eglinton 7-11 store occupies the ground floor of an office building in a downtown urban environment. It is located less than one block east of the intersection of Eglinton Ave. and Yonge St.
49That intersection contains a busy subway stop and the immediate area contains many high-rise office and condominium towers. It is also a local destination for dining and entertainment and the area contains a multi-plex cinema, many bars, restaurants, quick serve eateries, a shopping mall, and a liquor store.
50The AGCO received 60 written objections to 7-11’s application for this location and after a case conference in September 2021, 13 of those objectors were made Added Parties to this hearing.
51Of those 13 Added Parties, evidence was tendered in respect of one of them – the affidavit of Mr. da Silva. As mentioned, neither Mr. da Silva, nor those who wrote the objection letters attached to his affidavit, were available for cross-examination and I have taken that into account in assessing the weight given to their evidence.
52There was no testimony from any resident of the City of Toronto that was in favour of the application. There was also no resolution or any other indication by the City of Toronto that it supported or opposed to 7-11’s application.
53The concerns expressed by Mr. da Silva and those whose letters were attached can be summarised under the following three categories.
7-11 will not be able to sell alcohol safely or responsibly in a busy convenience store setting. Granting a licence will result in an increased risk of underage drinking, serving intoxicated customers, and threats/violence directed to 7-11 staff.
a licence will have a negative impact on children and underage youth - it will make it easier for teenagers to access alcohol, and children who enter the store to purchase child centered products will be exposed to alcohol advertising, adults who are drinking, and likely adults who are under the influence.
a licence will make alcohol more conveniently accessible and will contribute to an increase of aggressive and disruptive behaviour in the immediate vicinity of the 7-11.
(i) Serving Alcohol Responsibly and Risk of Violence to 7-11 Staff
54The evidence regarding this concern was mainly contained in Mr. da Silva’s affidavit. Mr. da Silva is a resident of the City of Toronto but lives in Scarborough, Ontario, several kilometres from this 7-11 location. There is no evidence that he works near the Eglinton location or frequents it.
55Mr. da Silva’s concern derives from his experience when his family owned and operated two convenience stores in Scarborough - one from 1975-1979, and a second from 1980-1981. According to his affidavit, Mr. da Silva worked the counter as a teenager and experienced abusive comments, demands and threats from customers. Many of those unpleasant encounters occurred over the theft of cigarettes - the only age restricted product they sold. According to Mr. da Silva, his mother was at the counter when she was robbed at knifepoint. Cash and cartons of cigarettes were stolen. The family sold the business soon after.
56According to Mr. da Silva, if a licence is granted 7-11 employees will be responsible for checking ID to ensure customers are of legal drinking age and refusing service to intoxicated customers. He worries that 7-11 staff will not be capable of doing that effectively, and the risk of underage drinking, intoxicated consumption and threats/violence towards staff will significantly increase.
57Some aspects of Dr. Stockwell’s report and evidence generally supported that concern. The 7-11 is in a local entertainment district with an LCBO store and many licenced bars and restaurants close by. According to Dr. Stockwell, such districts with multiple bars and restaurants have been shown to be particularly high risk for alcohol related violence.
58According to Dr. Stockwell, there are also special concerns that a convenience store operating late at night with few, often poorly paid staff, will be capable of effectively refusing service to intoxicated customers and checking ID. Although 7-11 staff presently enforce ID requirements relating to tobacco and lottery tickets, Dr. Stockwell points out that sale of alcohol and refusal of service carry unique challenges given alcohol’s intoxicating nature and tendency to increase aggressive behaviour.
(ii) Negative impact on children and underage youth
59This concern was shared by Mr. da Silva and three of the four letters attached to his affidavit.
60The concern has two aspects. The first is that staff will likely not be able to effectively check and enforce ID requirements which will make it easier for underage youth to get access to alcohol. The second is that 7-11 sells products that are attractive to young people. If a licence is granted, children and youth entering the store to buy those products will be exposed to the negative effects of alcohol advertising, adults who are drinking, and potentially adults under the influence.
61Those concerns were expressed by Mr. da Silva and shared by Ms. Maria Rizzo, a Toronto Catholic District School Board Trustee for Ward 5, whose letter was attached to Mr. da Silva’s affidavit.8 Ms. Rizzo’s ward includes the Marshall McLuhan Catholic Secondary School which is within walking distance of the 7-11.
62Ms. Rizzo opposes the licence. According to her, the availability and promotion of alcohol in a store where young people gather to buy lunchtime and after school snacks creates an unacceptable risk of underage access to alcohol, exposure to alcohol marketing and aggressive, disruptive and intoxicated customers in and around the store.
63Both aspects of this concern were somewhat supported by Dr. Stockwell’s evidence. As noted above, he expresses doubt that convenience store staff will be capable of refusing service to intoxicated customers and effectively checking ID.
64His report also 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.
(iii) Granting a licence will contribute to aggressive, disruptive behaviour in the immediate vicinity of the 7-11
65This was a concern that was expressed in one of the four letters attached to Mr. da Silva’s affidavit.
66That resident lives on Holly Street, one block east of the 7-11. The back entrance of her building is on Cowbell Lane, a small street that runs parallel to Holly St. The 7-11 is at the corner of Cowbell Lane and Eglinton Ave. The resident states that in recent years she has noticed a significant increase in the number of individuals hanging out in Cowbell Lane near the 7-11 who are apparently experiencing homelessness, psychiatric issues and substance abuse problems. She has observed drug use and people sleeping there. She avoids it at night.
67She stated she is concerned that granting a licence to 7-11 will make alcohol readily available to the vulnerable people who congregate in that area and increase the risk of harm to them and nearby residents. She states that she has observed 7-11 staff struggle to manage some of their customers as it is and feels that adding alcohol to the situation will increase the existing problems.
F. DECISION AND ANALYSIS
68The primary issue is whether issuance of a licence to operate liquor consumption premises in this case is not in the public interest having regard to the needs and wishes of the residents in the City of Toronto. In making that determination, the following two principles, derived from previous Tribunal decisions dealing with the same issue, are relevant9:
(a) Under the LLCA, an otherwise eligible applicant has a qualified 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.
(b) The Tribunal must balance such concerns against an applicant’s qualified 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 may be adequately addressed through conditions.
69Bearing those principles in mind, I conclude that while the Added Parties have raised valid concerns, in my view those concerns are adequately mitigated by the nature of 7-11’s plan, the measures and safety features that it has or will put into place, and the legal requirements that 7-11 will need to comply with under the LLCA and regulations.
70Balancing the Added Parties’ concerns with 7-11’s qualified right to a licence, I am unable to conclude that granting the licence is not in the pubIic interest, having regard the needs and wishes of Toronto residents.
(i) Serving Alcohol Responsibly and Risk of Violence to 7-11 Staff
71The main evidence that 7-11 will likely be incapable of serving alcohol responsibly and in compliance with the law is contained in Mr. da Silva’s affidavit. While I certainly do not minimise his and his family’s experience, I do not find it particularly probative in the present context.
72Mr. da Silva’s experience behind the counter of a convenience store took place between 41 and 47 years ago, in another part of the city, and in a convenience store that was apparently independently owned and family operated. There is no evidence of what, if any, policies or security measures were, or were not, in place to ensure the safety of staff.
73Mr. da Silva did not testify so it was not possible to determine whether his concerns were addressed or at least mitigated by the features of 7-11’s compliance plan and the security and safety measure that it has put in place. I note that 7-11 operates nationally with hundreds of locations. Its stores are not franchises and are all corporately owned. 7-11 appears to have corporate experience in operating convenience stores that it has used to implement and administer programs, policies and requirement designed to promote the safety of its staff and customers and minimise risk.
747-11’s evidence in that regard was persuasive. 7-11 is not intending to operate a bar. According to it, selling alcohol is meant to drive food sales and any alcohol purchase must be accompanied by a food purchase. Each of its staff is required to wear a personal safety device allowing quick contact with a monitoring company and police if necessary. The store is equipped with a CCTV camera and windows and lighting are designed to promote visibility and safety. Staff are given violence prevention training including how to deal with difficult customers and de-escalate incidents.
75Staff will be Smart Served trained to recognise signs of intoxication. Service to minors or intoxicated customers are both grounds for suspension or revocation of a licence. If 7-11 is incapable of complying with that law its liquor licence and reputation will be placed in jeopardy.
767-11 has a long track record of selling age restricted products in Ontario at multiple locations and there is no evidence of any contravention. It has a staff training program for checking ID that must be repeated annually. It has policies in place to train and assist staff, and management systems in place to monitor compliance. Compliance is tested regularly through the mystery shopper program. Non-compliance has consequences for both front line staff and management. 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.
77In summary, I conclude that there is no factual basis to conclude that 7-11 will not serve alcohol responsibly and in compliance with the law. Based on the evidence available to me, I conclude that the measures described above adequately address the risk of violence to staff that may be created by serving alcohol in this location.
(ii) Negative impact on children and underage youth
78Mr. da Silva and the letters attached to his affidavit raised a concern that 7-11 sells products attractive to children and underage youth and it is not in the public interest to expose them to alcohol advertising, alcohol consumption and possibly customers under the influence of alcohol.
79I note that 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 with food in a small, delineated area within this location offends the public interest on that basis alone.
80I also 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 need to purchase food along with an alcoholic drink and servers are required by law to refuse service to anyone underage or intoxicated.
81There is no evidence to suggest that 7-11 will not comply with that law. 7-11 sells other age restricted products in many locations and there is no evidence of any contravention.
827-11 has put into place mandatory training for its staff as well as features to monitor compliance and take remedial action when necessary. According to 7-11 it will adjust that already established approach and apply it to alcohol sales. It is reasonable to conclude that 7-11 will comply with that law, just as it has apparently complied with the law relating to other age restricted products.
83With respect to the concern about exposure to alcohol advertising, I note that promotion and advertising of alcohol is already regulated. Advertising that appeals to those under the legal drinking age is specifically 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.
847-11 will need to comply with those guidelines or its liquor licence will be in jeopardy. In my view they are sufficient to address the concern about children being exposed to alcohol advertising.
(iii) Granting a licence will contribute to aggressive, disruptive behaviour in the immediate vicinity of the 7-11.
85The evidence supporting this concern was contained in one of the four letters attached to Mr. da Silva’s affidavit. The author of that letter was not available to testify and provide any additional detail or be cross-examined on her concerns.
86However, the crux of the concern seems is that people suffering from homelessness and possibly psychiatric and substance use issues congregate in the lane beside 7-11 and the ready availability of alcohol at the 7-11 will likely increase the risk of alcohol related disturbance and possibly dangerous behaviour.
87Firstly, I note that it appears that this issue is on-going at this location without the liquor licence. 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.
88According to 7-11, it will only sell beer, wine and coolers for in-store consumption and only if a food item is purchased. It does not intend to sell “hard” alcohol. I note that the area in which this 7-11 is located is well served by businesses that sell alcohol, including a nearby LCBO. It appears that if someone wants to get alcohol in that neighborhood it can easily be accomplished without the necessity of also purchasing food. In other words, I am not convinced that the addition of a 10 seat licenced dining area where “light” alcohol is available and only with a food purchase will make much difference to the existing problem.
89However, the features of 7-11’s plan and the legal requirements already in place to deter disorderly conduct adequately mitigate any additional risk that may be created by granting a licence to 7-11.
90I am satisfied that 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) will contribute to minimising the risk of problem consumption.
91I 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 control;10 and
ensure that reasonable measures are in place and reasonable efforts are made to deter disorderly conduct on property adjacent to or in the vicinity of the licenced premises11.
92It 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 of 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
93In summary, based on the evidence presented, I conclude that the concerns expressed by the Added Parties are understandable. However, my task is to weigh those concerns cumulatively against 7-11’s qualified right to a licence and determine whether the licence is not in the public interest.
94Neither party suggested that conditions be attached to any licence that may be granted.
95I conclude that the Added Parties’ concerns will be adequately mitigated by the features of 7-11’s compliance plan as outlined above, and the legal requirements with which 7-11 as a licence holder will need to comply.
96As a result, I am not satisfied that issuing a licence in the circumstances is not in the public interest and, as set out below, I direct the Registrar to issue a licence to operate liquor consumption premises to 7-11.
G. ORDER
97Pursuant 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 Inc. o/a 1 Eglinton Ave. E., Toronto.
LICENCE APPEAL TRIBUNAL
Stephen Scharbach, Member
Released: April 8, 2022
Footnotes
- O. Reg 762/21, made under the LLCA
- LLCA. s. 3(6)
- LLCA, s. 26(3), 26(5).
- R.S.O. 1990, c S.22 (“SPPA”)
- SPPA, s. 15(1)
- 7-Eleven Canada Inc. o/a 7-Eleven 366 Christina Street North, Sarnia v. Registrar, 2022 ONLAT LLA 13361, released on April 1, 2022.
- According to the Notice of Proposal to Review issued by the AGCO, 7-11 applied for a liquor licence for the indoor area of the premises with a capacity of 49 persons. However, according to Mr. Vrsnik’s evidence, 7-11’s compliance plan, and counsel’s final submissions to the Tribunal, 7-11 intends to create a small dining are with a capacity of up to 10 customers. I am therefore proceeding on the understanding that 7-11 is applying for a liquor licence to accommodate up to 10 customers.
- The copy of Ms Rizzo’s letter that was placed into evidence was not signed. However, I am prepared to accept that was an oversight and the letter accurately reflects Ms Rizzo’s views.
- For example, Powerhouse Corporation v. Registrar, 2018, 79631 (ON LAT), 11643 v Registrar, 2019 CanLII 37556, (ON LAT). Although these decisions were decided under the previous LLA, as noted the new legislation is significantly similar to the previous iteration, and transition provisions deem applications made under the LLA to continue as those under the LLCA. No party took the position that public interest proceeding decisions made under the LLA are no longer relevant to public interest proceedings under the LLCA.
- O. Reg. 746/21, s. 43
- O. Reg. 746/21, s. 44