Decision and Order
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 or intending to o/a 7 Eleven, 140 Father Tobin Road, Brampton Appellant
-and-
Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 Respondent
-and-
City of Brampton Added Party
Adjudicator: Geoff Pollock, Vice Chair Kenneth Fishman, Vice Chair
Appearances: For the Applicant: Will Shaw and Jonathan Andrews, Counsel For the Respondent: Rena Khan, Counsel For Added Party: Woranga Bedar, City of Brampton
Heard by Videoconference: May 10, 2022
OVERVIEW
17-Eleven Canada Inc. o/a 7-Eleven 140 Father Tobin Road, Brampton, (the “applicant”) 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 140 Father Tobin Road, Brampton, Ontario (the “Premises”). On November 29, 2021, the LLA was repealed and replaced by the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22 (the “LLC Act”), so from November 29, 2021, this matter has continued under the LLC Act.
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 59 individuals, as well as one from the City of Brampton (“Brampton”). As a result, the Registrar issued a Notice of Proposal to Review an Application for Licence (“NoP”) under s. 21 of the LLA. The applicant appealed the NoP to the Tribunal. A hearing before the Tribunal took place on the 10th of May 2022, via video conference.
3Despite receiving objections from 59 individuals and Brampton, by the time of the case conference, Brampton was the lone objector and was added as a party.
4Brampton opposed the issuing of a licence. The city’s opposition to the licence was on grounds of the licence not being in the public interest having regard to the needs and wishes of the residents of the municipality. At the outset of the hearing, Brampton took the position that if a licence was granted, it wanted the Registrar to impose conditions; however, that position was later abandoned.
5Having considered the evidence and submissions of all parties, we have concluded that the applicant’s application should be granted unconditionally for the reasons that follow.
THE LAW
6The 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 Brampton to prove on a balance of probabilities that it is not in the public interest to grant a licence to the applicant, having regard to the needs and wishes of the residents of the community in which the premises are located.
8In considering the public interest, the Tribunal stated 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 our final decision, we must balance the applicant’s qualified right to a licence against the wishes and needs of the residents of the community, with a particular sensitivity to those of the immediate area to the Premises for it is these members of the community who will be most impacted by the decision to grant or withhold a licence. Though there was evidence given by Allyson Sander, a bylaw enforcement officer for Brampton, there was no direct evidence from any resident in the immediate area of the Premises.
ISSUES
10The main issue to be determined is whether Brampton has established, on a balance of probabilities, that the issuance of a licence to operate a liquor consumption premises licence to the applicant 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.
11As Brampton no longer sought the imposition of conditions, the issue of appropriate conditions does not need to be addressed.
EVIDENCE AND ANALYSIS
The Premises
12The Premises is currently being operated as a convenience store. It carries products typical of convenience stores including snacks, drinks, and some meals/prepared foods. Assuming the licence is granted, the applicant will construct a separate consumption area within the store where people can consume purchased alcohol. This area will have a strict capacity limit and no customer will be permitted to consume alcohol outside the designated seating area. The seats will feature a mixture of tables and lean bars with stools. Patrons will only be able to access alcohol through service staff who will retrieve the purchased beverages.
13As to evidence regarding the neighbourhood where the 7-Eleven was located, other than some evidence regarding the immediate retail area, there was no other evidence about the neighbourhood.
Submissions of the Registrar
14Through 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 licenses and that the focus ought to be upon the impact of the licence on the local residents. The Registrar did not ask that any conditions be attached to the licence.
The Objector
15Notwithstanding that 59 individuals and Brampton filed objections, only Brampton remained at time of the hearing. Brampton called a single witness, Allyson Sander, who is a Bylaw Enforcement Officer for the City of Brampton.
Evidence of Ms. Sander
16Ms. Sander inspected the premises in February 2022. She testified that the premises is located in a retail area which contained seven other retail units. There is a large parking lot shared by 130 & 140 Father Tobin Rd. The premises also abuts residential properties.
17Ms. Sander testified that she conducted an analysis of calls to the city with respect to this 7-Eleven location. She testified that there were approximately four complaints in 2020, which alleged issues relating to noise or a violation of COVID-19 restrictions from the parking lot that adjoins the 7-Eleven. Ms. Sander conceded during cross-examination that, notwithstanding that existence of complaints with respect to COVID-19 restrictions, it was unclear if, in fact, any rules were violated. None of the complaints resulted in any action taking place.
18When cross-examined, Ms. Sander testified that there had been no complaints related to this 7-Eleven location since 2020. Furthermore, Ms. Sander confirmed that she could not say whether any of the complaints were directly related to the 7-Eleven location or another retail unit.
Discussion Regarding the Issuance of a Licence
19In deciding the present appeal, we must consider if the sale of alcohol at this location will have a negative impact on the public interest, having regard to the needs and wishes of the residents of this community. No evidence whatsoever was advanced with respect to the needs and wishes of this specific community and residents. It is understood that Brampton may have passed a resolution addressing the sale of alcohol at establishments such as 7-Eleven, however no evidence was adduced at the hearing as to the content of the resolution and no copy of the resolution was put into evidence.
20The Tribunal has consistently held that the public interest provision in the LLA, now s. 3(6) of the LLC Act, should be read narrowly. The Tribunal’s enquiry is to be focussed on the public interest related to the impact of the licence to sell alcohol on the community, with especial attention to the residents of the immediate area of the Premises. 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. 2
21This approach was also 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
22We note that ss. 40 and 41 of Regulation 746/21 specifically contemplate that licensed premises may include, or be located in, a convenience store. Thus, it is not for the Tribunal to order the Registrar to refuse to issue a licence on the sole basis that an applicant is a convenience store. As the Tribunal stated in 7 – Eleven 1730 Bloor St. W., v. Registrar:
It is not for this Tribunal to examine the wisdom of the government’s policy choices… 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 the needs and wishes of local residents.4
Practices and Policies of the Applicant
23The applicant’s witness, Victor Vrsnik, Senior Manager, Corporate Affairs & Business Development spoke at some length about the policies and procedures at 7-Eleven, both in general and how they deal with age restricted products. 7-Eleven stores are presently licensed to sell age restricted products other than alcohol, such as tobacco products and lottery tickets. Mr. Vrsnik went through 7-Eleven’s age verification program called ID Zone. Mr. Vrsnik noted that whilst provincial 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 must be at least 19 years old and undergo 7-Eleven’s proprietary ID Zone training, in addition to the provincially mandated “Smart Serve” program. 7-Eleven also utilizes technology to confirm that the potential customer is able to purchase an age restricted product, for example automatically scan the code for provincial driver’s licences.
24During cross-examination, Mr. Vrsnik stated it is 7-Eleven’s current intention to sell alcohol only between noon and 11:00 p.m. He gave evidence about 7-Eleven’s responses to various scenarios if they were granted a licence. As it relates to the hypothetical issue of public intoxication in the neighbourhood, that 7-Eleven would join other neighbourhood restaurants to address public intoxication if the issue arose. Furthermore, employees were be trained to try to stop customers from getting into their vehicles inebriated and if they could not stop the customer, to call the police. Mr. Vrsnik gave evidence that most alcohol would be stored behind the sales counter, with excess inventory stored in coolers that were locked and which the public could not access.
25Mr. Sayed Waizi is an area leader for 7-Eleven, and he was the applicant’s second witness. He was responsible for this store from 2015-2016 and again from 2018 to May 1, 2022. While responsible for this store, he would visit the Premises weekly for several hours and was therefore intimately familiar with its operations.
26Mr. Waizi testified that the primary customer base of the store was comprised of individuals who were between the ages of 18 and 35 years old. Typically, there would be 2-4 employees working at the store at any given time. Mr. Waizi testified that 7-Eleven had no control over what took place in the plaza parking lot. Mr. Waizi went through some of the safety and security protocols within the store including robbery prevention protocols.
27Mr. Waizi testified that he was never contacted by Brampton with respect to the 2020 noise complaints about which Ms. Sander had testified. Overall, Mr. Waizi’s testimony strongly supported an environment within 7-Eleven that was highly regulated and focused on safety for its customers and staff, and training.
28Overall, given the evidence given on behalf of 7-Eleven, we are satisfied that 7-Eleven has a sufficient plan in place to properly and responsibly handle the sale of alcohol within its establishment.
Analysis
29We agree with and adopt the Tribunal’s reasons from 7-Eleven, 1730 Bloor St. W., above: it is not for this Tribunal to examine the decisions of the government surrounding the sale of alcohol, nor is it within the Tribunal’s mandate to look at questions surrounding the density, or intensity of the sale of alcohol. These are policy choices that are the exclusive purview of the Legislature.
30The Tribunal must direct the Registrar to issue a licence, unless the Tribunal is satisfied, on the balance of probabilities that issuing a licence is not in the public interest, having regard to the needs and wishes of the residents of the municipality.
31No direct evidence was presented at the hearing regarding the needs and wishes of residents of Brampton and the impact on the immediate community with respect to the desirability, or lack thereof, of licensing this Premises. Furthermore, there was no evidence before this Tribunal that 7-Eleven would not serve alcohol in accordance with the law.
32It is this Tribunal’s view that the objector has not met its burden of proof. The objector has not established that granting a licence to sell alcohol is contrary to the public interest and runs against the needs and wishes of the local community, who are most directly affected.
ORDER
33Having considered the evidence and submissions of the parties, we order the Registrar to issue a licence to the applicant, 7-Eleven Canada Inc. o/a 7-Eleven, 140 Father Tobin Road, Brampton, Ontario, for the Premises without conditions.
LICENCE APPEAL TRIBUNAL
Geoff Pollock, Vice Chair
Kenneth Fishman, Vice Chair
Released: August 4, 2022
Footnotes
- 7-Eleven Canada Inc. o/a 7 Eleven 72 Wharncliffe Road North, London v. Registrar under ss. 3, 7(4) and 25 the Liquor Licence Control Act, 2019, S.O. 2019, c. 15, Sched. 22, 2021 ONLAT LLA 13348 at para 10.
- 2018 CanLII 79631 (ON LAT) para. 27
- Powerhouse Corporation v. Registrar of Alcohol, Gaming and Racing, 2021 ONSC 4116
- 2022 CANLII 55026 (ON LAT) para 31.