RECONSIDERATION DECISION
Before: Avril A. Farlam, Vice Chair
Tribunal File Number: 13639/LLA
Case Name: Oscar David Gutierrez Ramirez v. Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996
Written Submissions by:
For the Applicant: Oscar David Gutierrez Ramirez, Self-represented on Reconsideration
For the Respondent: Jordan Stewart, Counsel
OVERVIEW
1This request for reconsideration was filed by Oscar David Gutierrez Ramirez (“appellant”).
2It arises out of my June 3, 2022, decision (the “Decision”) in which I confirmed the Order of Monetary Penalty #1123959 (the “OMP”) in the amount of $1,500.00 made by the respondent Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c. 26 Sched. and Ontario Regulation 719/90 (the “Act” and “Regulation,” respectively). The OMP arose as a result of the respondent’s August 8, 2020, inspection of the appellant’s licensed premises at 44 Talbot Street West, Leamington, Ontario (the “premises”) where the inspector found 39 persons were on a patio licensed for 10 people.
3The appellant asks for a “reconsideration of the decision of the LAT to deny my appeal” which I take to mean that the appellant seeks a variation or cancellation of the Decision.
RESULT
4The appellant’s request for reconsideration is dismissed.
ANALYSIS
5The grounds for a request for reconsideration to be allowed are contained in Rule 18 of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice & Procedure, October 2, 2017, as amended (the “Rules”). The appellant makes this request under Rule 18.2 (a) which is that the Tribunal acted outside its jurisdiction or violated the rules of procedural fairness, under Rule 18.2 (b), which is that the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made, and under Rule 18.2 (d) which is that there is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
6In summary, the appellant submits that I acted outside the Tribunal’s jurisdiction or violated the rules of procedural fairness because it was unreasonable and inappropriate to deny his adjournment request made the day of the hearing to allow his legal representative, whom he retained at 5:00 p.m. the day before the hearing, to prepare for the hearing or submit documentary evidence especially given that the respondent did not oppose the adjournment request.
7Further, the appellant submits that I made errors of fact and law by not accepting the appellant’s position at the hearing that he had made an honest but mistaken reading of the information provided by the respondent concerning the expansion of patios, with the Decision condoning the municipality “wrongfully appropriating onto itself the investigative and enforcement procedures of the Liquor Licence Act for its own improper purposes…”.
8Lastly, the appellant submits that there is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by him now seeking to introduce it, and would likely have affected the result. Specifically, the appellant submits that the municipality is “engaged in a wrongful campaign against me and my business to create a false record of impropriety of conduct”1 and that the complaint that prompted the respondent’s inspection of his licensed premises on August 8, 2020, came from the municipality.
9In response, the respondent submits the appellant has not satisfied the criteria for a reconsideration request, the appellant’s submissions consist of arguments that were open to him at the hearing, and which are irrelevant, not supported by the evidence or both. Even if the denial of the appellant’s adjournment request provides grounds for reconsideration, there is nothing to suggest that a new hearing would produce a different result. The uncontested evidence remains that on August 8, 2020, the appellant exceeded the lawful capacity of his licensed premises as he admitted at the hearing. In the respondent’s view, the Tribunal correctly stated that where the contravention is made out, the Tribunal must confirm the OMP.
a. Jurisdiction and Procedural Fairness
10Having reviewed the Decision, I find that I did not exceed my jurisdiction and there was no breach of procedural fairness in my denial of the appellant’s request at the start of the hearing for an adjournment.
11The granting of an adjournment was a matter within my discretion as the hearing adjudicator and was exercised fully, fairly and proportionately in the circumstances for the reasons set out in paragraphs 6 through 12 of the Decision, including the fact that the hearing had already been adjourned in March, 2022 at the appellant’s request to allow the appellant time to retain legal representation, and that his second request for a further adjournment was fully and fairly canvassed by another adjudicator on May 11, 2022 and denied with written reasons. The appellant’s third request for an adjournment on the morning of the hearing was denied by me in this context and in the context that the time for disclosure of documents had passed and the quantum of the OMP was $1,500.00. In this context, there was no error in denying the adjournment. The appropriate factors were considered in the circumstances. It is well-settled that the Tribunal has the statutory authority to control its own process and prevent abuse thereof2 Reconsideration is not an opportunity to re-argue the adjournment request.
12After the adjournment request was denied, the appellant’s legal representative proceeded to represent the appellant at the hearing, conduct cross-examination, lead evidence in chief from the appellant, and make submissions and to effectively participate in the hearing.
13There has been no breach of procedural fairness regarding the respondent’s disclosure. In his reconsideration submissions, for the first time, the appellant submits that he and his legal representative did not have access to the documentation disclosed by the respondent for the hearing. This submission would not appear to be accurate given that the appellant in his submissions also concedes that the documents were provided to his previous legal representative and also concedes that he did not obtain the documents from his previous legal representative until after the hearing was concluded.3 Not accessing the documentation disclosed for the hearing was well within the appellant’s choice and control.
14Further, I note that the respondent submits that the revised book of documents for the hearing was served on the appellant directly on April 19, 2022, consistent with the deadlines set by the Tribunal prior to the hearing, and that the appellant had been advised by letter dated April 27, 2021, of the alleged contravention of the Act and Regulation with supporting materials and photographs. The appellant responded to this material by letter dated May 18, 2021. This submission is consistent with the evidence at the hearing.
15Still further, the appellant did not object to the respondent’s documents being made an exhibit at the hearing nor did the appellant indicate he had not received these documents or complain of inadequate disclosure of documents.
16The appellant in his reconsideration reply submissions appears to suggest that his submissions concerning the bad faith of the municipality are relevant to the issue of denial of procedural fairness and nature justice. I find no error in the Decision in this regard. The municipality is not a party to this proceeding. The state of relations between the appellant and the municipality is not relevant to my Decision on whether the number of persons on the patio on August 8, 2020, exceeded the licensed capacity of 10.
b. Error of Law or Fact Such that the Tribunal Would Likely Have Reached a Different Result had the Error not been Made
17I find no errors of law or fact in the Decision arising from not accepting the appellant’s position at the hearing that he had made an honest but mistaken reading of the information provided by the respondent concerning expansion of patios. The appellant made this argument, put slightly differently, at the hearing and it was rejected for the reasons set out in paragraph 33 of the Decision. There is no finding in the Decision as to the appellant’s honesty, or lack of thereof. Reconsideration is not an opportunity to re-argue one’s case in a new way.
18Although the appellant suggests that the Decision condones the municipality “wrongfully appropriating onto itself the investigative and enforcement procedures of the Liquor Licence Act for its own improper purposes…”, this submission is not relevant given that the Decision contains no finding about the municipality. There is no error of law or fact in the Decision in this regard as suggested by the appellant.
19I have considered the appellant’s submission that he “…questions whether there was any wrongful interference by the municipality in the AGCO’s discretion to impose an OMP as opposed to taking no action or another action”. This submission does not raise an error of fact or law in the Decision. There is no finding in the Decision regarding the municipality or any “wrongful interference”.
c. Evidence That Was Not Before the Tribunal When Rendering its Decision, Could Not Have Been Obtained Previously by the Party Now Seeking to Introduce It, And Would Likely Have Affected the Result.
20Although the appellant submits that he now has information leading him to believe that it was a complaint from the municipality that prompted the respondent’s inspection of his licensed premises on August 8, 2020, this does not satisfy this ground for reconsideration.
21The information which the appellant has now gathered about the municipality could have been obtained prior to the hearing. More importantly, the identity of the complainant, whether it was the municipality or another third party, is irrelevant to the issue that was before me, specifically, whether the appellant contravened the law by allowing more than 10 people on the patio which is licensed for 10 people as the evidence showed. Further information or evidence at the hearing about the complainant, or any motivation for making a complaint to the respondent, even if proven, would not have affected the result in my Decision.
22Dissatisfaction with the result contained in the Decision does not establish that a Decision violated the rules of procedural fairness, or that an error of law or fact was made such that the Tribunal would likely have reached a different result had the error not been made, or establish that the appellant has evidence not before me when rendering my decision, could not have been previously by the appellant that would likely have affected the result.
23I find that the appellant has not established his grounds for reconsideration. The grounds for reconsideration of a Tribunal Decision are limited and specific. In order to succeed on a reconsideration request, at least one of the grounds must be proven. Because the appellant has requested reconsideration, the onus is on him to establish his grounds and he has failed to do so. The appellant’s reconsideration submissions appear to be an attempt to reargue his case in a new way. Dissatisfaction with the Decision is not a ground of reconsideration. A reconsideration is not an opportunity to reargue one’s case or an appeal.
CONCLUSION AND ORDER
24For the reasons noted above, I dismiss the appellant’s request for reconsideration of my Decision.
Avril A. Farlam Vice Chair Tribunals Ontario – Licence Appeal Tribunal
Released: August 24, 2022
Footnotes
- Appellant’s Reconsideration Submissions dated June 24, 2022, para 32.
- Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 23 and (1) 25.0.1(a).
- Appellant’s Reconsideration Submissions dated June 24, 2022, para 21.