Appeal from a Notice of Proposal to Review an Application for a Liquor Licence under the Liquor Licence Control Act, 2019, S.O. 2019, c. 15, Sched. 22
Between:
7-Eleven Canada Inc. o/a 7 Eleven 1730 Bloor St. W., Toronto Applicant
-and-
Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 Respondent
-and-
City of Toronto Added Party
Decision and Order
ADJUDICATOR: Geoff Pollock, Vice Chair
APPEARANCES:
For the Appellant: Will Shaw and Lauren Cook, Counsel For the Respondent: Rena Khan, Counsel For Added Party: Ray Kallio and Jessica Jakubowski, Counsel, and Meghan Faught and Michelle LaFortune, Articling Students
Heard by Videoconference: May 3-4, 2022
OVERVIEW
17-Eleven Canada Inc. o/a 7 Eleven 1730 Bloor St. W. (the “appellant”) applied for a licence to sell alcoholic beverages pursuant to s. 6 of the Liquor Licence Act, R.S.O. 1990, c. L.19 (the “LLA”) at its 7-Eleven store located at 1730 Bloor St. West, Toronto, Ontario (the “Premises”).
2The Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 (the “Registrar”) gave notice of the application to residents of the municipality in which the Premises are located. The Registrar received objections from 61 individuals, as well as one from the City of Toronto. As a result, the Registrar issued a Notice of Proposal to Review an Application for Licence (“NoP”) under s. 21 of the LLA. The appellant appealed the NoP to the Tribunal. A hearing before the Tribunal took place on the May 3-4, 2022, via video conference.
3Despite receiving 61 individual objections, by the time of the hearing, the City of Toronto was the lone objector and was added as a party.
4The City of Toronto opposed the issuing of a licence. The city’s opposition to the licence was on grounds of public policy, rather than on the specifics of this location. The City of Toronto further submitted that, should the licence be granted, the licence should be subject to certain conditions regarding sales hours and signage.
5After considering the parties’ evidence and submissions, I have concluded that the licence should be issued without conditions.
THE LAW
6The Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22 (the “LLC Act”) provides that the Registrar shall issue a licence to an applicant if the applicant, among other things, complies with the LLC Act, and is not ineligible to be issued a licence. Section 3(6) states that:
The Registrar shall not issue a licence to operate a liquor consumption premises or a licence of another prescribed category or prescribed class within a category if issuing the licence is not in the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises to be licensed are located.
7The burden of proof, rests upon the added party to prove on a balance of probabilities that it is not in the public interest, having regard to the needs and wishes of the residents of the community in which the premises are located, to grant a licence to the appellant.
8I agree with the following recent statement by the Tribunal in 7 – Eleven 72 Wharncliffe Road North, London v. Registrar:
The good faith concerns of the residents in the immediate area of the premises at issue who are the most affected by the proposed licence will be given greatest consideration as compared to those who are less directly affected. In determining whether the needs and wishes of the residents are presented on a good faith basis, the Tribunal will look at the totality of the evidence to determine if the subjective concerns and fears of the residents are supported on a valid, objective basis.1
9In making my final decision, I am required to balance the appellant’s qualified right to a licence against the wants and needs of the residents of the community, with a particular sensitivity to those of the immediate area, for it is these members of the community, who will likely be most impacted by the decision to grant or withhold a licence. I heard no direct evidence from any resident in the immediate area. I did hear evidence from the ward councillor, Councillor Gord Perks. His evidence focused solely upon general alcohol policy.
ISSUES
10The first issue that needs to be determined is whether the added party has established, on a balance of probabilities, that the issuance of a licence to operate a liquor consumption premises to the appellant is not in the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises are located.
11Should the Tribunal direct the Registrar to issue the licence, then the second issue that needs to be determined is whether any conditions should be attached to the licence.
EVIDENCE
The Premises
12The Premises is currently being operated as a convenience store. It carries products typical of convenience stores including snacks, drinks, groceries, as well as age restricted items such as lottery tickets, cigarettes, and vaping products. It also offers a limited variety of meal items such as hot dogs, prepared sandwiches, cookies, coffee, donuts and taquitos. In addition, it serves uncooked items such as fresh fruits. Although the precise layout of the Premises should a licence be granted has not been finalized, the appellant intends to offer an increased menu of fresh meal items, all of which can be described as fast-foods. The appellant intends to designate an area of the store as a restaurant which would be separated from the grocery area by a “pony wall”. The restaurant area would consist of seating for ten, with a mix of low and high tables. Food will be prepared behind a counter located along the front of the store. Customers will place their order at the counter and carry their food to their seats. Alcohol will be kept in a cooler or cabinet behind the counter which will only be accessible by staff. All alcohol will be served at the table by staff.
13According to the evidence presented by the appellant, the staff at the Premises will be able to view the restaurant area from their position behind the counter. No alcohol will be permitted outside the licensed food-service area. The Premises have large windows which allow staff to monitor the parking lot. The windows also allow persons outside the store to see inside the Premises. According to the evidence of the appellant, this enhances the safety of those inside. The store is well-lit and monitored by multiple security cameras both inside and outside the Premises.
14There was limited evidence presented at the hearing with respect to the neighbourhood around the Premises. The Premises are located at 1730 Bloor St. W., Toronto. The store is on Bloor St., less than block from Keele St., and the Keele St. subway station. Bloor is one of the busiest streets in Toronto.
The Objector
15Notwithstanding that 61 individuals made initial objections, all but the City of Toronto had withdrawn by the time of the hearing. The City of Toronto called a single witness, Gord Perks, who is the city councillor for Parkdale – High Park, the Ward in which the Premises is located.
16Councillor Perks has been the elected representative of the residents of his community continuously since 2006. In addition to his duties as a councillor, and the committees on which he sits, Councillor Perks is the Chair of the Toronto Drug Strategy Implementation Panel (the “Panel”). During 10 of his 16 years on city council, Councillor Perks has served as chair of the Panel.
17After being sworn in as a witness and after having begun its examination in chief, of Councillor Perks, the City of Toronto sought to have him qualified as an expert witness. The appellant objected, citing amongst other arguments the complete lack of notice and their inability to obtain their own expert evidence. I decided to decline to qualify Councillor Perks largely on the basis that doing so would be fundamentally unfair to the appellant.
18Rule 10 of the Tribunal’s Common Rules establishes a process that governs the use of expert evidence. A party wishing to rely on an expert must disclose certain information, including an expert report and the proposed expert’s qualifications, at least 20 days before the hearing. No such report was prepared and disclosed by the City of Toronto.
19In some cases, the Tribunal permits a party to rely on what is referred to as a “participant expert” without following the formalities of Rule 10. However, even where this is the case, the proffering party must still, as a basic component of procedural fairness, provide some notice to the other parties of their intention to do so. They must also provide a basic summary of the opinion the witness intends to give: see for example, Costan and Esanu v. Tarion Warranty Corporation, Remington Homes (Mississauga) Inc., 2021 CanLII 71153 (ON LAT) at paras. 30-39.
20In this case, the City of Toronto gave no notice at all to the appellant of its intention to qualify Councillor Perks as an expert. The city did not provide a reasonable explanation as to their failure to give notice. While Councillor Perks may have been permitted to give expert evidence without the City of Toronto following the strictures of Rule 10, to allow expert evidence with absolutely no notice to the appellant would be fundamentally unfair. The lack of notice would mean that the appellant would be unable to properly prepare a response. They would be deprived of an opportunity to challenge Councillor Perks’ qualifications, opinions or both, if they wished. And finally, they would be deprived of the opportunity to call competing expert evidence.
21In the circumstances, in spite of Councillor Perks’ evident knowledge and experience in this area, the request to have Councillor Perks qualified as an expert witness was denied.
22Councillor Perks made 3 main points in his examination in chief:
a. Alcohol is an incredibly harmful substance;
b. The harms of alcohol go far beyond that of person drinking and into the broader community; and
c. The increased availability of alcohol, including in the variety of venues is strongly correlated with increased alcohol use.
23Councillor Perks spoke eloquently and persuasively about the dangers of alcohol use to both individuals, as well as to the wider community. Of particular resonance was his discussion of the findings of the Alcohol Policy Framework published by the Centre for Addiction and Mental Health (“CAMH”). The finding of the CAMH study was that “about 59% of Canadian university women reporting experiencing sexual assault since age 14, and at least half of these situations involved alcohol consumption by the victim, perpetrator, or both.”2 The results revealed in this study are appalling.
24Councillor Perks also discussed the correlation between alcohol availability and its increased use. He discussed both outlet density (the number of outlets selling alcohol in any given geographic area), as well the intensity (the diversity of different types of outlets selling alcohol). He also spoke of the “normalization” of the purchase of alcohol.
25Under cross examination, Councillor Perks admitted that he had not reviewed the appellant’s plan “in great detail”. He also admitted that it was his policy to object to 100% of all applications for a licence to serve alcohol. Councillor Perks stated that sometimes this was done for tactical reasons, such as in order to obtain a concession from the applicant. In other cases, the objection was to attempt to block the licence, full stop.
26Councillor Perks gave evidence that his office often received complaints from local residents about public urination, vomiting and in at least one case defecation, all of which, he asserted were attributable to alcohol. None of these complaints were related to the applicant, nor was there any evidence that these complaints were from the immediate surrounding area of the Premise.
The Appellant’s Practices and Policies
27The appellant’s witness, Victor Vrsnik, Senior Manager, Corporate Affairs & Business Development spoke at some length at the policies and procedures at 7- Eleven, both in general and how they deal with age-restricted products. Mr. Vrsnik went through 7-Eleven’s age verification program called ID Zone. It was noted that whilst provincial LCBO requirements are to require photo ID from anyone who appears under the age of 25, 7-Eleven has a requirement to do so for everyone appearing under the age of 30. All 7-Eleven employees undergo their proprietary ID Zone training, which will be in addition to the provincially mandated “Smart Serve” program. 7-Eleven also utilizes technology. For example, it automatically scans the code for provincial driver’s licences in order to confirm that the potential customer is able to purchase an age-restricted product. Mr. Vrsnik testified that not once in its history has 7-Elevenbeen convicted of an age restriction violation. This evidence was not challenged.
28Mr. Vrsnik gave evidence that 7-Eleven has a national toll free number that goes directly to an Area Leader for any complaints regarding a specific location.
The Registrar
29Through counsel, the Registrar took no position on the issuing of a licence. Counsel noted in her submissions that s. 3(6) of the LLC Act governed the issuing of licences and that the focus ought to be upon the impact of the licence on the local residents. The Registrar also took no position upon any of the requested conditions being applied to a licence, beyond that all conditions were within the scope and mandate of the Registrar and were enforceable.
ANALYSIS
30Much of the objector’s evidence was aimed at establishing the social harms that alcohol sales generate in the general sense. Councillor Perks did not squarely address the specific application before the Tribunal or the immediate area within which it was located, but rather his evidence was directed toward alcohol policy more broadly. As noted above, Councillor Perks acknowledged that he was not particularly familiar with the appellant’s proposal.
31However, it is not for this Tribunal to examine the wisdom of the government’s policy choices. While it is open to a party to establish that the harms they say arise from alcohol sales generally will specifically occur in the proposed premises such that licensure would not be in the public interest, in my view the fact that increased alcohol sales or availability may create social harms is not, on its own, sufficient to deny a person’s qualified right to a liquor licence. Instead, the Tribunal’s task is to examine the specific application before it and determine whether any objector has established that the liquor licence is not in the public interest having regard to needs and wishes of local residents.
32I agree with the following recent statement made by the Tribunal regarding the focus on residents whose interests may be most impacted in a proceeding such as this:
The Tribunal has consistently held that the public interest provision in the LLAct, now s. 3(6) of the LLCAct, should be read such that the Tribunal’s enquiry is to be focussed on the public interest as it relates to the impact of the licence on the residents of the local municipality, with the concerns of the residents in the immediate area of the premises at issue who are the most affected by the proposed licence given greatest consideration as compared to those who are less directly affected. As the Tribunal stated in Powerhouse Corporation v. Registrar of Alcohol, Gaming and Racing:
The use of the words “public interest” in this subsection does not give us a mandate to embark on a far-reaching consideration of the public interest as a general concept.
This approach was upheld by the Divisional Court which stated at paragraph 52 of its decision:
It is evident that the full definition of “public interest” in s. 6(2)(h) of the Act represents a legislative intent to narrow the interpretation of those words in that provision…The legislature must be presumed to have made a deliberate choice to circumscribe the latitude of “public interest” in s. 6(2)(h) by adding the wording that immediately focuses attention on the “needs and wishes of the residents of the municipality in which the premises are located.”3
33It should also be noted that ss. 40 and 41 of Regulation 746/21 specifically contemplate that licensed premises may include, or be located in, a convenience store. Thus, notwithstanding the general submissions made by Councillor Perks regarding outlet density, as well as the variety of outlets, it is not for the Tribunal to order the Registrar to refuse to issue a licence on the sole basis that an appellant is a convenience store. Instead, it is to determine if selling alcohol at this convenience store is not in the public interest, having regard to the needs and wishes of the community residents.
34Notwithstanding the passionate testimony of Councillor Perks about the direct and indirect harms of alcohol, as well as evidence about the density and intensity of alcohol availability, no direct evidence was presented to this Tribunal about the needs, wishes and desires of the residents of the immediate community about the desirability, or lack thereof, of this particular store to sell alcohol. While I accept that Councillor Perks’ evidence is some evidence of the needs and wishes of the local residents, in my view it falls short when balanced against the appellant’s qualified right to a licence as well as its evidence as to how it intends to sell alcohol.
35As noted, Councillor Perks’ evidence related mostly to alcohol policy generally. Also as noted, a party is free to establish that harms that they say arise generally with alcohol sales will materialize with respect to the specific location of the proposed premises such that licensure is not in the public interest. In this case, however, the objector did not produce evidence of this nature. For example, it led no evidence that the area in which the Premises is located is particularly saturated with alcohol sale locations, or that this licence would not be in the public interest due to the existing alcohol density and intensity in the area. Again, Councillor Perks was not very familiar with the appellant’s proposal, and testified that he opposes all liquor licences in his ward.
36I was impressed by the appellant’s evidence regarding its robust, structured and detailed plan to ensure safe alcohol sales. I was particularly impressed that notwithstanding that the appellant operates a number of locations in Ontario that sell age-restricted products, it had never been convicted of an age-restricted product-related offence. I am satisfied that the appellant’s plan contains appropriate safeguards to protect the public and ensure safe alcohol sales.
37Ultimately, I am not satisfied that the objector has discharged its burden of establishing that this licence is not in the public interest, having regard to the needs and wishes of the resident of the municipality in which the premises is located. Their evidence did not relate specifically enough to this Premises to establish that its licensure is not in the public interest, particularly given that I have found that the appellant’s proposal contains appropriate safeguards for ensuring safe alcohol sales.
38Balancing the needs and wishes of the local residents against the appellant’s qualified right to a licence, I am not satisfied on the evidence before me that the licence is not in the public interest.
CONDITIONS
39In the event that this Tribunal granted the licence to sell alcohol, the City of Toronto requested that 3 conditions be attached. The conditions involved limits upon the hours during which the appellant can serve alcohol, signage requirements and the operation of a phone number that could be used to register complaints.
40As noted, the Registrar’s position was that each of the proposed conditions was enforceable, however the Registrar took no position on whether the conditions ought to be imposed.
41On consent, the request for the third condition for the phone number was withdrawn by the city.
42I will then turn to the other two conditions, noting that the conditions need to be connected to the evidence, in the public interest and address good faith concerns of the members of the community. With respect to restricting the hours during which the appellant could serve alcohol, the appellant noted that this would put their client at a competitive disadvantage. When asked under cross examination about the utility of the restricted hours Councillor Perks testified that “hours don’t matter, it is the exposure to alcohol [that matters].” Given this, I do not find such a condition is merited or appropriate in the circumstances.
43The other condition requested was for a “Good Neighbour” sign, encouraging patrons to be respectful of those in the surrounding area. Counsel for the appellant noted that such a requirement would increase their client’s regulatory burden, albeit only slightly. Further, it might deprive them of a commercial opportunity to use the “prime real estate” in the front of the store for general advertising, or specific promotions. Counsel for the objector failed to lead any evidence of the effectiveness of such signage, nor that it would in any way alleviate any of the concerns that the city raised. Given this, I do not find such a condition to be appropriate in the circumstances.
CONCLUSION
44I have considered the concerns expressed by the objector, in particular, the moving testimony of Councillor Perks of the direct and indirect harms of alcohol, as well as the issues presented by increased density and intensity of the availability of alcohol. However, I am cognizant that these are policy decisions that properly belong to the Legislature, not to this Tribunal.
45I find that the city failed to satisfy its burden. I am not satisfied that granting a licence in this case is not in the public interest having regard to the needs and wishes of the residents of the municipality and the local community in which the Premises are located.
ORDER
46Having considered the evidence and submissions of the parties, I direct the Registrar to issue a licence to the appellant, 7-Eleven Canada Inc. o/a 7-Eleven 1730 Bloor St. W., for the Premises without conditions.
LICENCE APPEAL TRIBUNAL
Geoff Pollock, Vice Chair
Released: June 21, 2022
Footnotes
- 7-Eleven Canada Inc. o/a 7 Eleven 72 Wharncliffe Road North, London v. Registrar, Liquor Licence and Control Act, 2019, 2022 CanLII 20142 at para 10.
- “Alcohol Policy Framework,” Centre for Addiction and Mental Health, September 2019, page 7.
- 7-Eleven Canada Inc. o/a 7 Eleven 72 Wharncliffe Road North, London v. Registrar, Liquor Licence and Control Act, 2019, 2022 CanLII 20142 at paras. 31-32 citing Powerhouse Corporation v. Registrar of Alcohol, Gaming and Racing, 2021 ONSC 4116 (Div. Ct.)