Case Conference Report and Consent Order
Application to change conditions on a Liquor Licence under the Liquor Licence and Control Act, 2019, S.O 2019 c. C. 15, Sched 22
Between:
13165272 CANADA INC., operating as Blackburn Social House Applicant
-and-
Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 Respondent
ADJUDICATOR:
D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Appellant:
Armin Eftekhari
For the Respondent:
Rena Khan, Counsel
Heard by Teleconference:
July 7, 2022
Background
1The appellant, 13165272 CANADA INC., operating as Blackburn Social House, has applied to the Tribunal for the removal of a condition on its licence pursuant to s. 11(4) of the Liquor Licence and Control Act, 2019, S.O 2019 c. C. 15, Sched 22 (the “Act”).
Jurisdiction
2The condition in question was one of a number of conditions imposed in 2010 by a consent order of the Board of the Alcohol and Gaming Commission (“Board”) as a result of a public interest proceeding involving the previous licensee, the Registrar and the Palmerston Area Rate Payers Association (“PARA”) as objectors. The licence has been transferred to the appellant, subject to the conditions.
3The condition the appellant seeks to remove states:
The holder of the licence shall not have any of the following in operation on the premises: video/arcade-type or other electronic games, manual games, video or TV screens of any size for patrons' public viewing (except PowerPoint-type presentations), dance floor/area, DJ playing music, live band performing music, pool/billiard table, karaoke machine and microphones, jukebox, or any other type of entertainment feature/offering that would create disturbing noise or appeal to youths.
4Section 11(4) provides that:
The Tribunal may, on the application of a licensee, remove a condition that the Tribunal has imposed if the Tribunal is satisfied that there is a change in circumstances justifying the removal of the condition, and, if it decides not to remove the condition, it shall direct the Registrar to issue a proposal to refuse to remove the condition.
5The Tribunal asked the parties for submissions on its jurisdiction to consider conditions imposed by the Board. Only the Registrar made submissions. The Registrar submits that the Tribunal is the successor to the Board and s. 11(4) includes conditions imposed by the Board before jurisdiction for these matters was transferred to the Tribunal in 2011. I agree with this submission. Section 11 sets out a procedure for removing conditions. If those conditions were agreed following negotiations between to Registrar and a licensee, then ss. 11(1) through (3) permit the Registrar and the licensee to amend the conditions and set out a process for addressing any disagreement through a proceeding before the Tribunal.
6In considering s. 11(4) it must be borne in mind that the Registrar is not the Board. Indeed, before the 2011 legislative changes, the Board adjudicated disputes between the Registrar and licensees. The impact of the separation between the Board exercising its adjudicative function and the Registrar means that the Registrar, as regulator, was subject to the adjudicative authority of the Board. Thus the provisions of s. 11(1) allowing the Registrar to change conditions imposed without a hearing do not extend to conditions imposed following a hearing by the adjudicative authority.
7In my view, the scheme of s. 11 is to reserve the removal of conditions imposed by the adjudicative authority to that authority. At present, this Tribunal is the adjudicative authority. Prior to mid-2011, it was the Board. The interpretation that the Tribunal would not have jurisdiction over this matter because the impugned condition was imposed by the Board is, in my view, unduly narrow and would lead to an absurd result. Having already found that the Registrar cannot review a condition imposed by an adjudicative authority, it would mean that a licence-holder seeking to remove conditions imposed by the Board would have no recourse other than to go to Divisional Court. In my view, this cannot be what the Legislature intended.
8I find that the reference to a condition imposed by the Tribunal in s. 11(4) of the Act includes by implication a condition imposed by the Board prior to 2011, thus the Tribunal has the jurisdiction to remove conditions imposed on licensees following a Board hearing.
Consent Order
9PARA has had no notice of this application to remove a condition. Thus, on the facts available to the Tribunal at this time, there is insufficient evidence to conclude that there has been a change of circumstances. The parties agree that a hearing before the Tribunal with the full participation of the appellant, the Registrar and PARA, if they wish, is necessary to fully explore the issues. Accordingly, and on the consent of the parties, the Tribunal directs the Registrar to issue a Notice of Proposal to Refuse to Remove the Condition (“NoP”), subject to the following conditions:
a. The Registrar will issue an NoP;
b. The appellant may appeal the NoP within the statutory time limits;
c. The Tribunal shall not schedule a case conference in the appeal before October 17, 2022;
d. The appellant shall ensure that PARA has notice of these and any subsequent proceedings, which step may be accomplished by delivering a copy of this order, a copy of the NoP and its appeal, and a copy of the Notice of Case Conference; and
e. PARA may attend and participate in the case conference and may ask to be added as a party to the proceedings either before or at the case conference in accordance with Rule 22 of the Tribunal’s Rules of Procedure.
LICENCE APPEAL TRIBUNAL
_______________________
D. Gregory Flude, Vice-Chair
Released: July 12TH, 2022