Date: 2022-06-28

Appeal from a Notice of Proposal to Review an Application for a Liquor Licence under the Liquor Licence and Control Act, 2019, c. C. 15, Sched 22

Between:

7-Eleven Canada Inc. operating as or intending to operate as 7-Eleven, 1390 Weston Road, Toronto

Applicant

and

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

Respondent

and

City of Toronto and Ranu Hamilton

Added Parties

DECISION AND ORDER

ADJUDICATOR: Avril A. Farlam, Vice Chair

APPEARANCES:

For the Appellant: Will Shaw, Counsel and Dylan Bains, Summer Student

For the Respondent: Rena Khan, Counsel

Added Parties: Jessica Jakubowksi, Counsel, on behalf of the City of Toronto, and Ranu Hamilton, Self-represented

Heard By Videoconference: June 28, 2022

REASONS FOR DECISION AND ORDER:

BACKGROUND

1The appellant, 7-Eleven Canada Inc. operating as or intending to operate as 7-Eleven, 1390 Weston Road, Toronto (the “appellant”), applied for a consume on premises licence to sell alcoholic beverages on October 30, 2020 pursuant to the Liquor Licence Act, R.S.O. 1990, c. L19 (the “LLA”) at 1390 Weston Road, Toronto (the “Premises”).

2Pursuant to s. 7 of the LLA, the Registrar (the “Registrar”) gave notice of the application to residents of the municipality in which the Premises proposed to be licensed are located. The Registrar received objections from 16 persons. As a result, the Registrar issued a Notice of Proposal to Review an Application for Licence (“NOP”). The appellant appealed the NOP to the Tribunal.

3The Tribunal’s Case Conference Report and Order released April 21, 2022 (the “Order”) notes that although there were 16 objections in writing to the issuance of the licence, only Colleen MacLeod, Ranu Hamilton and the City of Toronto appeared or were represented at the case conference.

4The Tribunal’s Order added the City of Toronto, Colleen MacLeod and Ranu Hamilton as parties to this proceeding at their request.

5Colleen MacLeod withdrew her objection after the Order was released and did not attend this hearing.

PRELIMINARY ISSUES:

City of Toronto

6The City of Toronto indicated that it consents to the appellant’s application on condition that the following condition is placed on the appellant’s liquor licence for the Premises:

“The Licensee shall ensure clearly visible signs are posted, at least 8.5” X 11” in dimension, near each public exit of the Premises, requesting that patrons respect their neighbours by keeping outdoor noise to a minimum.”

7The City of Toronto further indicated that this condition speaks to its concerns about the public interest by reminding patrons to keep outside noise to a minimum.

8The appellant, the Registrar and Ms. Hamilton all confirmed that this condition is agreeable to them.

Objection to Documents Filed Late by Ms. Hamilton

9The appellant objected to documents served on the appellant June 24, 2022 by Ms. Hamilton because the production deadline in the Tribunal’s Order was May 27, 2022, these documents were filed approximately one month too late, constitute hearsay and are prejudicial to the appellant. The June 24, 2022 version of Ms. Hamilton’s document brief for the hearing contained new material marked as Tabs 12, 13 and 14, specifically a news story from the University of Washington and two academic papers.

10The Registrar did not take a position on the appellant’s objection.

11After hearing the appellant’s submissions Ms. Hamilton agreed that her late served material should not be included in her document brief for this hearing.

12Based on Ms. Hamilton’s consent, I ordered that Tabs 12, 13 and 14 in Ms. Hamilton’s brief of documents for this hearing be struck from the record.

ISSUES TO BE DECIDED

13The issues to be decided are:

1. In accordance with s. 3(6) of the Liquor Licence and Control Act, 2019, c. 15, Sched 22 (the “LLCA”) is the appellant disentitled to the issuance of a licence to sell liquor because 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 are located?
2. What conditions, if any, should be attached to the licence should it be granted?

RESULT

14For the reasons that follow, I direct the Registrar to approve the appellant’s application for a liquor licence subject to the condition set out below.

LAW

15The LLCA came into force on November 29, 2021. It repealed and replaced the LLA. In accordance with the transitional provisions in Ontario Regulation 767/21, the appellant’s application for a licence is deemed to have been made under the LLCA. The NOP and this hearing are also continued under the LLCA by virtue of the transition provisions.

16Section 8(1) of the LLCA provides that the Registrar shall issue a licence to an applicant if the applicant, among other things, complies with the LLCA, the regulations and the standards and requirements established by the Registrar, and is not ineligible to be issued a licence.

17Section 3(6) of the LLCA 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.

18After the hearing held under s. 26 of the LLCA, the Tribunal may direct the Registrar to issue the licence or to refuse to issue the licence. If the Tribunal directs that a licence be issued, it may impose any condition on the licence that it considers proper to give effect to the purposes of the LLCA.

ANALYSIS:

1. Is the Appellant Disentitled to the Issuance of a Licence to Sell Liquor Because 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 are Located?

19In a hearing held under s. 26 of the LLCA, the Tribunal must balance the needs and wishes of the residents with the appellant’s desire to operate its business, bearing in mind that the appellant has a presumptive right to a licence unless it is not in the public interest. The onus is on the added parties to establish that issuing the licence is not in the public interest. The City of Toronto brought forward no evidence and confirmed at the hearing that its concerns were satisfied by the condition it put forward.

20Ms. Hamilton testified about her objections to the appellant’s application. Ms. Hamilton said that she would like to see what the Premises will look like when licensed.

21Ms. Hamilton testified that with three schools near to the Premises and many children, she believes it will be hard for the appellant to minimize sales of liquor to minors because a lot of children, particularly middle to high school age children, give money to adults to buy them cigarettes and may do the same with alcohol.

22Ms. Hamilton testified that she and others she has spoken to in the neighbourhood around the Premises have concerns around the poverty issue which makes people in the neighbourhood vulnerable to doing things for money and to do crime.

23Ms. Hamilton said that she is concerned that patrons in the Premises may not get timely responses from the police given that she believes there is a high crime rate in the neighbourhood around the Premises.

24In support of her views, Ms. Hamilton submitted an informal community survey she completed recently, information about schools and daycares in proximity to the Premises, and statistics about the total number of children and youth residing in Mount Dennis, neighbourhood crime rates, Toronto Police Service’s number of dispatched calls, low income in Mount Dennis and an article taken from a website entitled “Confessions of a Beer Store Employee” by Jeff Lagerquist. Ms. Hamilton testified that the neighbourhood around the Premises may be more susceptible and vulnerable than others and this may be a tough place for licensed Premises to operate.

25In cross-examination Ms. Hamilton conceded that she felt the Smart Serve training the appellant’s employee would be required to take would be sufficient to educate them and acknowledged that she didn’t know the appellant’s employees at the Premises would received additional training in respect of the concerns she has raised. Ms. Hamilton also admitted that she has no evidence that the appellant will not comply with the law, acknowledged that third party sales are addressed in the appellant’s training materials, and admitted that if the appellant had a policy to refuse third party sales, this would alleviate her concerns.

26No other evidence was put forward made in support of the proposition that issuing the licence would not be in the public interest within the meaning of s. 3(6) of Act.

27Ms. Hamilton’s testimony is not supported by the documentary evidence and statistics she filed at the hearing. All of this information, including the petition which appears to have been signed by several other residents near the Premises, remains hearsay without the authors of the documents testifying at the hearing and being available to be cross-examined. Ms. Hamilton’s testimony, based on her own observations and knowledge of the neighbourhood around the Premises is insufficient to establish that it is not in the public interest to grant the appellant a liquor licence.

28This is particularly so in light of the testimony of Victor Vrsnik, the appellant’s senior manager for corporate affairs and business development and Jamie Martin, area leader and district manager for the Premises for the last ten years. Both Mr. Vrsnik and Mr. Martin confirmed that there is a compliance and operation plan for the licensing of the Premises which is still in a draft form because there is no licence yet and input will still be required later from health and other authorities who may require some changes to the plan. Although Ms. Hamilton said that she would like to see what the Premises will look like when licensed, the details of the plan are not yet finalized although both Mr. Vrsnik and Mr. Martin described that the licensed area of the Premises would be separated by some barrier from the rest of the Premises so that the Smart Serve trained staff employed at the Premises will be able to monitor the licensed area of the Premises and verify that patrons are at least 19 years of age with age-check procedures.

29Mr. Martin, who testified that he has worked in the United States for another food company in neighbourhoods vulnerable to crime and other social problems, described in detail the training, in addition to the legally required Smart Serve training, that employees at the Premises would receive from the appellant regarding third party sales, sales to under-age patrons, security issues at the Premises and for the employees personally, and police liaison when necessary. The appellant filed documents describing its policies, procedures and training to address the concerns Ms. Hamilton expressed.

30As a result, I find that Ms. Hamilton has failed to prove, on a balance of probabilities, that it is not in the public interest to grant the appellant a liquor licence provided that the condition sought by the City of Toronto and agreed to by all parties is imposed on the appellant’s liquor licence. As a result, I will direct the Registrar to issue the licence in the circumstances and turn next to the issue of whether conditions should be attached to that liquor licence.

2. Should conditions should be attached to the licence, if granted?

Condition agreed to by all parties

31The above-noted condition proposed by the City of Toronto and agreeable to the appellant and all other parties is as follows:

a. The Licensee shall ensure clearly visible signs are posted, at least 8.5” X 11” in dimension, near each public exit of the Premises, requesting that patrons respect their neighbours by keeping outdoor noise to a minimum

32I am satisfied that this condition is proper to give effect to the purposes of the Act within the meaning of s. 26(5) of the LLCA based on the consent of all parties.

33I find based on the evidence before me that the agreed-to condition should be attached to the appellant’s liquor licence.

Ms. Hamilton’s Request for Additional conditions

34Ms. Hamilton asks that the following additional conditions (“Ms. Hamilton’s conditions”) be attached to the licence for the following reasons, if the Tribunal determines that a licence should issue:

a. Hours be limited to 5:00 p.m. to 11:00 p.m. – to support the safest outcomes for unaccompanied minors who are a noted large percentage of patrons of the store. Ms. Hamilton testified that she has observed that around 4:30 p.m. there are not as many children around the Premises and that is why she is asking that the licence have hours restricted from 5 p.m. to 11 p.m.

b. Security, in pairs, onsite during licence hours – to greater support safety of staff and patrons and compliance, and minimize police involvement.

c. No patio be allowed – to minimize noise and loitering complaints and maximize community safety outcomes.

d. Share resources for Al-Anon, Alateen (specifically due to the large populations of children and youth in the neighbourhood) and 211 Ontario – Community and Social Services Hotline wherever alcohol will be served.

e. Signage informing adult patrons to not share alcohol with minors, even parents/caregivers/guardians/relatives with children or youth.

f. A gentle verbal notice to anyone that arrives with children that they are not allowed to share alcohol with their child.

g. Immediate ban of anyone found sharing alcohol with a minor on premises, after the verbal notice was given, along with other consequences outlined in the LLCA.

Respondent’s Submissions on Ms. Hamilton’s additional conditions

35Condition a: The respondent submitted that it takes no position on the restriction on operating hours requested by Ms. Hamilton.

36With respect to the additional conditions b through g, the respondent submitted that none of these conditions should be attached to the licence for the following reasons.

37Condition b: Security is highly prescriptive. The respondent has moved away from prescriptive licensing. It is up to the licensee to identify risk and to deal with it appropriately using suitable security. A condition relating to security usually is imposed following evidence of a serious event such as a serious shooting or stabbing.

38Condition c: The appellant’s application is for indoor premises and not for a patio.

39Condition d: Sharing of the suggested resources would require a licensee to contract with third parties and cannot be enforced by the respondent.

40Conditions e and f: Adults are not allowed to share alcohol with children. This is already in the legislation and the respondent’s inspectors look for minors having alcohol when inspecting and this is taken seriously. Signage is unlikely to be effective.

41Condition g: A ban of patrons would not be practically enforceable by the respondent’s inspectors.

Appellant’s Submissions on Ms. Hamilton’s additional conditions

42The appellant submits that there should be no additional conditions attached to the licence. Specifically regarding condition a, the appellant submitted that there is no evidence that this restriction on operating hours would be effective or alleviate the concerns raised by Ms. Hamilton.

43With respect to the balance of the additional conditions requested by Ms. Hamilton, the appellant submitted that the conditions are not enforceable, outside the mandate of the respondent, or both, and that Ms. Hamilton’s evidence does not support the imposition of the additional conditions.

Analysis of Ms. Hamilton’s Additional Conditions

44After considering the evidence and submissions of all parties, I agree with the submissions of the respondent and the appellant. I have already found that Ms. Hamilton has failed to prove, on a balance of probabilities, that it is not in the public interest to grant the appellant a liquor licence. I also find that there is insufficient evidence to establish that any of the additional conditions suggested by Ms. Hamilton should be imposed on the appellant’s licence.

45With respect to condition a, there is no evidence that this restriction on operating hours would be effective or alleviate the concerns raised by Ms. Hamilton.

46With respect to condition b, the evidence of the appellant is clear that it has procedures and protocols in place addressing security and there is insufficient evidence from Ms. Hamilton that any further measures are necessary or enforceable by the respondent if attached to the licence.

47With respect to condition c, this condition is not relevant as the appellant’s application is for indoor premises and not a patio.

48With respect to condition d, sharing of resources would not be a condition enforceable by the respondent if attached to the licence.

49With respect to conditions e, f, and g, sharing alcohol with children is against the law. The appellant’s staff will be trained about this, the respondent’s inspectors will look for minors having alcohol when inspecting, and signage is unlikely to be effective. A ban of patrons would not be practically enforceable by the respondent’s inspectors.

50As a result, I decline to order that any of these additional conditions be attached to the appellant’s licence.

ORDER

51Pursuant to the authority of ss. 26(3) and (5) of the LLCA, I order the Registrar to approve the appellant’s application for a licence subject to the following condition:

a. The Licensee shall ensure clearly visible signs are posted, at least 8.5” X 11” in dimension, near each public exit of the Premises, requesting that patrons respect their neighbours by keeping outdoor noise to a minimum.

Licence Appeal Tribunal

_____________________________

Avril A. Farlam, Vice-Chair