7-Eleven Canada Inc. v. Registrar (Alcohol and Gaming Commission of Ontario), 2022 CanLII 65679

Date: 2022-06-30

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. 15, Sched. 22

Between:

7-Eleven Canada Inc. operating as or intending to operate as 7-Eleven, 1181 Western Road, London

Appellant

-and-

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

Respondent

-and-

Dr. David Heap and Jeff Robinson

Added Parties

Motion to Reconsider Decision on Motions brought by The University of Western Ontario (O/A Western University) and Muhammed K. Hamou to be added as a Party and other relief

ADJUDICATOR:

D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Moving Party:

Dr. David Heap, Self-Represented

For the Appellant:

Will Shaw, Counsel

Heard by way of written submissions

Background

1The added party, Dr. David Heap, brings a motion seeking the following relief:

a. That I reconsider my decision dated June 13, 2022 (“Decision”) to deny party status to the University of Western Ontario (“Western”) and Muhammed Hamou, and

b. I extend the deadlines for the added parties, Dr. Heap and Mr. Robinson, to prepare witness statements, with other changes in dates as needed.

2The grounds for the reconsideration motion are that Dr. Heap did not receive a copy of 7-Eleven Canada’s responding materials to Western’s and Mr. Hamou’s submissions on their motions to be added as parties. Dr. Heap takes the position that he was denied the opportunity to make submissions on 7-Eleven’s responding materials.

3The grounds for the extension of time are that if Western and Mr. Hamou are not parties, then Dr. Heap and Mr. Robinson will need extra time to canvass witnesses and prepare will-say statements. I note that Mr. Robinson has not joined Dr. Heap in this motion and that, in fact, he has produced his materials, witness lists and will-say statements for the hearing according to the timetable set out in my case conference report and order dated April 20, 2022 (“Order”).

Result

4Dr. Heap’s request for reconsideration of the Decision fails on several grounds:

a. Reconsideration is only available for final orders.

b. Dr. Heap failed to follow the procedural steps set out in my Order, which did not provide for a right of reply for Dr. Heap.

5Dr. Heap’s motion to extend time to deliver documents, witness lists and will-say statements is dismissed

Analysis

a) Reconsideration

6The Tribunal’s authority to review its own decisions is set out in s. 21.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. Rule 18.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) provides that, “The Tribunal may, … reconsider any decision of the Tribunal that finally disposes of an appeal.” The Decision does not finally dispose of the appeal. Dr. Heap’s rights are unaffected by the Decision. He may still call evidence, cross-examine witnesses, and make submissions. Doubtless he was hopeful of the support of the proposed added parties when they brought their motions, but the denial of those motions leaves his position completely unchanged from when he asked to be added as a party in February.

7While the provisions of Rule 18 completely dispose of Dr. Heap’s motion for reconsideration, I will still address his allegations of procedural fairness on the more fundamental basis that a procedure is either fair or it is not.

8In substance, Dr. Heap’s procedural fairness complaint can be reduced to the proposition that he failed to comply with the procedural steps he agreed to on April 20, 2022, and when he did purport to make submissions well after the due date, he failed to serve them on the Tribunal, and these failures may be laid at the door of the other parties.

9The April 20, 2022 case conference was the second case conference. At the first case conference on February 10, 2022 the parties agreed to a timetable that required them to exchange documents, witness lists and will-say statements by May 27 with the hearing scheduled for June 1 and 2, 2022. On April 4, 2022 Dr. Heap requested that the hearing be adjourned to allow him more time to prepare. This request led to a case conference being scheduled for April 20, 2022.

10Quite independently, Western sought to be added as a party on April 19. Mr. Hamou filed a motion to be added as a party on April 20. The parties then turned their minds to Western’s and Mr. Hamou’s motions to be added as parties. The following timetable was agreed to take into account the new disclosure and hearing timetable:

a. Western University shall file its materials in support of the motion by May 6, 2022. Submissions, exclusive of evidence and case law, shall be limited to 10 pages.

b. All other parties may file responding materials by May 20, 2022. Submissions shall be limited to 10 pages, exclusive of evidence and case law.

c. Western University may file reply submissions by May 27, 2022. Reply submissions shall be limited to 5 pages, exclusive of evidence and case law.

11Western filed its material on May 5. Only 7-Eleven filed responding materials on May 20. 7-Eleven admits that it failed to serve Dr. Heap with its materials. In her affidavit sworn June 21, 2022, Brooke Glover, a paralegal at Lawson Lundell LLP, counsel for 7-Eleven, deposes that this failure was due to inadvertence.

12I can find no prejudice to Dr. Heap resulting from not receiving 7-Eleven’s submissions. The procedure for Western’s motion was that Western would make submissions and the other parties, including Dr. Heap, would make responding submissions. The procedure did not give Dr. Heap the right to reply to 7-Eleven’s submissions, nor should it have. These motions were Western’s and Mr. Hamou’s, although the latter filed no material. It was open to Dr. Heap to make submissions in support after reviewing Western’s initial materials, i.e. item (a) above. He chose not to exercise his procedural rights. His right to provide submissions in a timely manner were not impinged by the fact that he had not read 7-Eleven’s materials.

13On May 27, Dr. Heap sent an email to the parties making comments in support of Western’s motion. He did not copy the Tribunal on the email, and it was not brought to my attention before I issued the Decision. Dr. Heap complains that it was somehow the responsibility of the other parties to bring the email to my attention. I fail to see how it was any other party’s responsibility to guess that an informal email in support of Western was a formal submission to the Tribunal. It was certainly not their obligation to submit it to the Tribunal on his behalf. Dr. Heap’s protestation that they should have advised him “who else my message should be sent to” is undermined by his sophistication in understanding how to bring motions before the Tribunal as demonstrated on April 4 and again on seeking reconsideration.

14Considering Dr. Heap’s failure to comply with the procedural steps he consented to on April 20, 2022, I can see no denial of procedural fairness. I considered the materials properly before me, that is, Western’s submissions and reply and 7-Eleven’s submissions and issued the Decision.

b) Extended Deadlines

15At the April 20 case conference, the first order of business was to accommodate Dr. Heap’s request for an adjournment and set a new disclosure timetable. The Order notes that Dr. Heap “believes he can have his materials ready by June 10, 2022.” The hearing was adjourned, and a new disclosure timetable established. On consent, Dr. Heap was given to June 17, one week later than his estimate to deliver his material. In an email dated June 17, sent to all the parties and entitled “disclosure submissions (Heap),” Dr. Heap stated:

Mr. Ross, Parties, others including AGCO staff,

You will find attached a document containing a list of the witnesses I intend to call (as of today), and a summary of the issues they will speak to.

I believe everyone is served here who needs to be. If there is anyone else who should received [sic] this information, please forward as needed.

16Ms. Glover deposes that the witnesses in Dr. Heap’s list include representatives of Western. The other added party, Jeff Robinson has also indicated that he intends to call Mr. Hamou. In light of this development, dated 3 days after his motion to extend time, it is far from clear if Dr. Heap is still seeking this relief. In the absence of a withdrawal of the motion, I will address it.

17Dr. Heap has had from February 10 until June 17 to produce his documents, witness lists and will-say statements. He has already been granted one extension. I am not inclined to grant a further extension, especially so in light of the June 17 email indicating that some, if not all of the disclosure requirements have been met. That which Dr. Heap submitted was an unreasonable burden, appears to have been accomplished.

18Any further delay in this matter is prejudicial to 7-Eleven and not consistent with the Tribunal’s mandate to ensure efficient, proportional, and timely resolution of the merits of proceedings before it. 7-Eleven filed its application on October 30, 2020. At Dr. Heap’s request, the hearing was pushed back almost three months to August 19, 23 and 24, 2022 to accommodate an expected increase in the number of witnesses due to Western’s and Mr. Hamou’s desire to be heard. The impact is that the decision will likely not be released until around 2 years from the date of application, hardly a desirable outcome from a process that is designed to be timely. This time frame is seriously prejudicial to 7-Eleven.

19Dr. Heap’s motion for reconsideration of the Decision and an extension of time to his disclosure is dismissed.