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. operating as or intending to operate as 7-Eleven, 1181 Western Road, London
Applicant
-and-
Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019
Respondent
-and-
Dr. Heap and Jeff Robinson
Added Parties
Decision on Motions brought by The University of Western Ontario (O/A Western University) and Muhammed K. Hamou to be added as a Party
ADJUDICATOR: D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Moving Party: Paul Eluchok, Counsel
For the Appellant: Will Shaw, Counsel
Heard by way of written submissions
Background
1There are two motions before me where the moving parties are seeking to be added as parties to this proceeding. One motion has been brought by the University of Western Ontario (O/A Western University) (“Western”) and the second has been brought by Muhammed K. Hamou. I will deal with both motions in these reasons.
2The appellant, 7-Eleven Canada Inc. operating as or intending to operate as 1181 Western Road, London (“7-Eleven”), has applied for a consume on premises licence to sell alcoholic beverages pursuant to s. 3 of the Liquor Licence and Control Act, 2019, S.O 2019 c. C. 15, Sched 22 (the “Act”).
3Two case conferences have been held in this matter. The first was held on February 10, 2022 and the second on April 20, 2022 at the request of one of the Added Parties, Dr. David Heap, to amend the timetable for documentary disclosure. On April 19, 2022 the University of Western Ontario (O/A Western University) (“Western”) brought a motion to be added as a party to the proceedings on the grounds that the Tribunal may add a party to a proceeding under rule 3.6 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire and Safety Commission Common Rules of Practice and Procedure (the “Rules”), and that Western has a significant interest in the proceeding.
4Western was invited to participate in the April 20, 2022 case conference to establish a timetable for hearing its motion. I ordered Western’s motion to be heard in writing and set May 6, 2022 for delivery of Western’s materials in support of the motion, May 20, 2022 for 7-Eleven, the Registrar and the Added Parties to deliver motion materials, and May 27, 2022 for Western’s reply, if any. Only Western and 7-Eleven have made submissions on the motion.
5Mr. Hamou served his Notice of Motion on the day of the case conference, April 20, 2022, too late for him to be invited to participate in the case conference. I was made aware of his motion and asked Tribunal staff to forward my case conference report and order to him and advise him that the same timetable applied to his motion. 7-Eleven filed a response to Mr. Hamou’s motion.
67-Eleven opposes the motions on three grounds: the moving parties failed to voice an objection until more than a year after the time for filing objections had expired; they do not have a significant interest in the Appeal; and the grounds asserted in support of their objections to the issuance of a licence are already being advanced by the two Added Parties.
ANALYSIS
7I find that the motions must fail. While Rule 3.6 allows the Tribunal a general discretion to add parties to proceedings, that discretion must be weighed together with the specific statutory mechanism for making objections to the issuance of new liquor licences and the moving parties’ failure to abide by those provisions. The general provisions must also be weighed together with the specific provisions of Rule 22.4 for adding parties in liquor licencing matters. Together the statutory scheme and the Tribunal’s Rules establish a process that ought to be adhered to in the ordinary course. While of course the Tribunal has the discretion to vary its Rules where appropriate, and thus may add parties later in the process than is anticipated by the legislation or the Rules, it ought only do so in exceptional circumstances.
8I do not foreclose entirely the possibility that a party with a significant interest in the outcome of liquor licencing proceedings before the Tribunal may yet be added this late in the day, but note that Mr. Hamou does not assert any grounds other than he wants to be part of the hearing. His request does not get beyond the prima facie case and his motion is dismissed. The balance of these reasons will deal with Western’s motion.
9I find that Western has failed to demonstrate a significant interest. Western’s significant interest boils down to the proximity of the proposed licensed premises to several university residences concentrating young people in the area and that the intersection where the premises are located is a busy one. These grounds are similar to those already being advanced by the Added Parties, Dr. Heap and Mr. Robinson and are evidentiary in nature rather than creating a significant interest. Nothing prevents either of the Added Parties from presenting Western’s evidence as part of their cases.
Failure to Object in a Timely Manner
10The current application was commenced under the provisions of the Liquor Licence Act, R.S.O 1990 c. L-19 (“LLA”), now repealed and replaced by the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22 (“LLCA”). Section 7 (1) of the LLA was in effect in February 2021 when the applicant submitted its application for the licence. Section 7 (1) established a procedural process for giving public notice of and objecting to an application such as this:
(1) Subject to subsection (2), the Registrar shall give notice of an application for a licence to sell liquor to the residents of the municipality in which the premises are located by giving notice,
(a) in the prescribed manner in a newspaper having general circulation in the municipality; or
(b) in any other manner that the Registrar considers desirable.
Submissions
(3) In a notice given under subsection (1), the Registrar shall request from the residents of the municipality written submissions as to whether the issuance of the licence is in the public interest having regard to the needs and wishes of the residents. R.S.O. 1990, c. L.19, s. 7 (3); 2002, c. 18, Sched. E, s. 7 (3).
Idem
(4) Written submissions concerning an application shall be made in the prescribed manner and within the prescribed time.
11Moreover, section 5.1 of the Licence Appeal Tribunal Act, 1996 (‘LAT Act’) provides that the parties to hearings under the LLCA are the Registrar, the person who required the hearing and “other persons that the Tribunal specifies”. Both the LAT Act and the Statutory Powers Procedure Act allow the Tribunal to make procedural rules. Rule 3.6 of the Rules is a general rule under which the Tribunal may make a person a party if they have a “significant outcome in the proceeding”. The decision to add a party is discretionary.
12In this case the Registrar required 7-Eleven to post a placard in a prominent place in the premises. The Registrar also posted notice on the Alcohol and Gaming Commission of Ontario’s (“AGCO”) website. The notices asked that those objecting to 7-Eleven’s application to file written objections by March 11, 2021. There were 34 written objections filed to this application, not an insignificant number. Western University was not among them.
13The only evidence regarding the failure of Western to object in a timely manner is set out at paragraph 10 of the affidavit of Peter White, Executive Director of Government Relations for Western. He states that Western first became aware of the application in March 2022. He explains this by saying: “Western University's operations were primarily virtual during the 2020/2021 school year, which ran from September 8th, 2020, to April 30th, 2021. During this time, most faculty and staff of the University worked remotely.” In my view this paragraph does not satisfactorily explain Western’s failure to object in a timely manner. While staff may have been working remotely, there is no evidence that there were not faculty or staff members living and working in the vicinity of the premises. Indeed, Dr. Heap is a faculty member and objected within the time limit.
14There is also no explanation why staff was unable to access the AGCO website. If licensed premises in the vicinity of the university create such a significant interest for Western, it is not unreasonable to expect that its staff, particularly in the Government Relations department, would conduct periodic searches of the AGCO website for licence applications that may impact Western.
15Timely objection gives the objectors the right to be notified of the next step in the proceeding. That next step was the February 10, 2022 case conference. Despite there being 34 objectors, only Dr. Heap and Mr. Robinson appeared. Pursuant to Rule 22.3, the 32 objectors who did not appear lost their right to further notice of the proceedings. Under Rule 22.4, Dr. Heap and Mr. Robinson requested to be and were added as parties. The Registrar, 7-Eleven and the Added Parties then consented to a timetable for a hearing to consider the public interest issues.
16Both the legislation and the Tribunal’s rules contemplate a process in which objections are made at the outset of the application. In fact, if no objections are made within the prescribed time, the Registrar is free to issue the licence subject to certain exceptions. Against this statutory and regulatory scheme for making and processing objections, Western asks the Tribunal to invoke a rule of general application to add it as a party. In my view, the specific trumps the general, and while the Tribunal retains discretion to control its own process, it must not run roughshod over the statutory provisions or risk rendering them meaningless. I would not exercise my discretion under Rule 3.6 to add Western as a party unless Western can convince me that its “significant interest” warrants such a step.
Significant Interest
17Western’s “significant interest” is based solely on proximity of its school facilities to the proposed 7-eleven. This is particularly captured in paragraphs 4 and 5 of Mr. White’s affidavit where he says:
Service of alcohol to any of these students by any person has a direct impact on Western University's operations, as Western University is left to care for intoxicated students who return to its residences or its campus after consuming alcohol elsewhere.
The application by 7-Eleven for a consume on premises licence to sell alcoholic beverages relates to a property at 1181 Western Road ("7-Eleven") that is immediately adjacent to Western University's campus. In particular, the property is located within 200 meters of four university residences that collectively house a total of 2,366 students.
18The pillars of the claim of a significant interest are based on pure conjecture. In Mr. White’s view, he asserts, without evidence, that 7-Eleven will be understaffed, staff will not have training and staff will serve patrons to the extent of intoxication. In Mr. White’s affidavit there is a lot of misinformation about take-out alcohol or delivery of alcohol, both of which are denied 7-Eleven if licensed. At paragraph 8, for instance, Mr. White states: “Similarly, Western University is concerned that 7-Eleven will provide liquor to students for takeout and delivery -operating as a secondary LCBO - which can encourage unmonitored liquor consumption leading to higher rates of intoxication and passing off, to and by minors.” Further conjecture has a mass of students creating a “crush period of access” in the hour between when the bars operated by Western on campus close at 10:00 p.m. and when 7-Eleven intends to stop service at 11:00 p.m.
19In my view, while I acknowledge that Western has some interest in this proceeding, I am not satisfied that the evidence it has submitted in support of its motion establishes that Western University has a significant interest in the proceeding.
Current Objections
20As submitted by 7-Eleven, I find Western’s concerns are largely synchronous with the concerns of the Added Parties. Dr. Heap asserts the following concerns in his objection letter:
Young people on and near this campus have more than enough opportunities to purchase and consume alcohol in large quantities (see for example https://globalnews.ca/news/5971807/2019-foco-emergency-officials/ which occurred nearby in the Broughdale area).
In addition: alcohol sales at a gas station will never be a good idea.
21Mr. Robinson’s concerns are similar. He asserts:
Allowing alcohol sales at this 7-Eleven is a bad move for our community. This location is very close to Western University. Students do not need easier access to alcohol around the university. There are many underaged students and children in this area. The highly trained staff at the Beer Store and LCBO have a proven track record of ensuring safe alcohol sales. The same cannot be said for convince [sic] stores. 7-Eleven's model is a dangerous one for our communities. This location has a gas station. Alcohol and gas sales do not mix. From an environmental standpoint allowing this application does not make sense. 7-Eleven will be selling one way containers that will end up in our municipal recycling and landfill systems paid for by tax payers. We need to protect the green return system of The Beer Store, including the reusable beer bottle.
22As noted above, I find there is substantial overlap between the positions taken by the added parties and those that Western would advance. While not binding on either Dr. Heap or Mr. Robinson, I suspect that either or both would welcome evidence and assistance from Western to support their case that this licence is not in the public interest. Indeed, in contemplation of more extensive evidence, the hearing was extended at the second case conference from two days to three days. I find that by adding Western to provide largely overlapping evidence would be prejudicial to 7-Eleven by adding additional expense to the process without adding much substantively.
Conclusion
23Having considered the submissions of Mr. Hamou, Western and 7-Eleven, I find that they have not established that they ought to be made parties in this proceeding.
24While it is true the Tribunal has the discretion to add parties to its public interest proceedings, in my view the exercise of that discretion must be made by balancing a number of factors. These include, but are not limited to, the satutory scheme’s presumptive requirement that persons make their objection within the required time, the nature and extent of the proposed party’s interest in the proceeding, whether the proposed party will make a meaningful or unique contribution to the proceeding or whether their proposed position substantially overlaps with that of existing parties, how long they have delayed in requesting to be added as party and whether they have a satisfactory explanation for the delay, and any prejudice that adding the party will have on the applicant, another party or the public interest in expeditious and efficient proceedings. Again, these factors are not exhaustive.
25In the circumstances of this case, while I acknowledge that Western has some interest in the matter, I do not consider it to be significant, and I have also concluded that their perspective and position substantially overlaps with those of the existing added parties. Moreover, I have found that the length of Western’s delay is significant—more than one year—and that it has failed to provide a satisfactory explanation for why it delayed as it did. To add a party at this late stage would prejudice 7-Eleven because it would increase the cost and complexity of the hearing. Ultimately, after considering these circumstances, Western’s request to be added as a party is denied.
26I deny Mr. Hamou’s request to added as a party for susbtantially the same reasons. The basis for his request was that he wished to partiicpate in the hearing. He provided little additional detail. In the cirumstances, I am not satified that Mr. Hamou has a significant interest in this proceeding or has otherwise established that he ought to be made a party at this late stage in the process.
27Western’s motion to be added as a party to the proceeding is dismissed.
28Mr. Hamou’s motion to be added as a party is dismissed.
LICENCE APPEAL TRIBUNAL
D. Gregory Flude, Vice-Chair
Released: June 13, 2022