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 7 Eleven 415 Melvin Avenue, Hamilton, Ontario
Applicant
-and-
Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019
Respondent
-and-
DeWitt Shainline, Lehaina Andrews, City of Hamilton
Added Parties
Decision and Order
ADJUDICATOR: Geoff Pollock, Vice Chair
APPEARANCES:
For the Applicant: Lauren Cook, and Jane Mayfield, Counsel
For the Respondent: Rena Khan, Counsel
For Added Parties: Kaush Parameswaran and Eric de Man, Counsel (City of Hamilton), DeWitt Shainline and Lehaina Andrews (Self Represented)
Heard by Videoconference: June 14-17, 2022
OVERVIEW
17-Eleven Canada Inc. o/a 7 Eleven 415 Melvin Avenue, Hamilton (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 415 Melvin Ave., Hamilton, Ontario (the “Premises”).
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 52 individuals, as well as an objection from the City of Hamilton. As a result, the Registrar issued a Notice of Proposal to Review an Application for Licence (“NoP”) under s. 21 of the LLA. With the repeal of the LLA and enactment of the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22 (“LLC Act”), effective November 29, 2021, an application initiated under the LLA continues under the LLC Act. The Applicant appealed the NoP to the Tribunal. A hearing before the Tribunal took place on the June 14-17, 2022 via video conference.
3Despite receiving 52 individual objections, only the City of Hamilton, DeWitt Shainline and Lehaina Andrews, attended the hearing and they were added as parties.
4The Added Parties opposed the granting of a licence on public policy grounds and due to concerns specific to this location. The City of Hamilton argued that conditions should be attached to a licence if one is issued.
5After considering the parties’ evidence and submissions, I have concluded that the licence should be issued subject to the following conditions:
a. A “Good Neighbour” sign shall be placed at or near the exit of the Premises, reminding patrons to be considerate and respectful of the neighbourhood.
b. A prominent sign shall be placed visible from the outside of the Premises containing a telephone number, as well as an e-mail address, for residents to register concerns or complaints.
c. The holder of the licence shall ensure that security cameras are installed that have clear, unobstructed views of all areas of the exterior of the Premises, that the equipment is maintained in good working order and that surveillance recordings are stored and made available for inspection and review upon request by AGCO inspectors and/or police for a period of 30 day(s).
PRELIMINARY PROCEDURAL MATTERS
Adjournment Request
6Prior to the hearing commencing, Counsel for the Applicant requested an adjournment. The Respondent and the Added Parties consented to the adjournment request. The request was made in response to late filing of some material by the City of Hamilton.
7The circumstances that gave rise to the late filing was that several photographs as well as a video taken by Ms. Andrews were referenced and indexed in the materials that the City of Hamilton disclosed to all parties, but the photographs and the video itself were omitted. I find as fact that this was done due to an inadvertent oversight of a clerical nature, not through any malice or malfeasance.
8The existence of the photographs and video, as well as their description, was previously disclosed to the Applicant. The Applicant failed to notice their omission. The omission was brought to the Applicant’s attention by the City of Hamilton, when the latter served the missing material to the former. The evidence itself was minor in nature. Nothing in the photographs or video was remarkable or unexpected. Further, all of the evidence could have been provided through oral testimony of Ms. Andrews alone.
9The Applicant relied upon Rule 16.2 of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure, Version 1(October 2, 2017) which states that adjournment requests may be made orally in “exceptional circumstances.”
10The evidence of the Applicant failed to demonstrate exceptional circumstances and I was not satisfied that the circumstances of the case require an adjournment, therefore the request for an adjournment was denied.
Request for consolidation of appeals
11Counsel for the Applicant requested that this matter be heard at the same time as the appeal commenced by 7-Eleven Canada Inc. o/a 7 Eleven 622 Upper Wellington Street, Hamilton, Ontario (“622 Upper Wellington”), identified as Tribunal file number 13345/LLA. All parties to both appeals consented.
12According to s. 9.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, the Tribunal may combine proceedings or hear proceedings at the same time, if they involve the same or similar questions of fact, law or policy, and all parties consent.
13The Applicant argued that much of the evidence, as well as many of the witnesses, would be the same in both proceedings. The proceedings involve similar questions of law and policy. By hearing the matters together, efficiencies could be gained, thereby saving costs for all parties, as well as conserving Tribunal resources.
14I am satisfied that the appeals involve similar questions of fact, law and policy and that hearing them at the same time will result procedural efficiencies and the saving of time and costs. With the parties’ consent, I order that the appeals be heard at the same time.
15Although the two appeals were heard at the same time, since they involve different premises, as well as different parties, a separate decision will be issued for each appeal.
THE LAW
16The 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 … 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.
17The burden of proof rests upon the Added Parties to prove on a balance of probabilities that granting a licence for the Premises is not in the public interest.
18I agree with the following recent statement by the Tribunal:
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
19In making my determination, I am required to balance the Applicant’s qualified right to a licence against the needs and wishes of the residents of the community, with a particular sensitivity to those of the immediate area, for it is these members of the community who will likely be most impacted by the decision to grant or withhold a licence.
ISSUES
20The first issue that needs to be determined is whether the Added Parties have established, on a balance of probabilities, that the issuance of a licence to operate a liquor consumption premises 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.
21Should the Tribunal direct the Registrar to issue the licence, then the second issue that needs to be determined is whether any conditions should be attached to the licence.
EVIDENCE
The Premises
22The Premises are currently being operated as a convenience store. It carries products typical of convenience stores including snacks, drinks, groceries, and age restricted items such as lottery tickets, cigarettes, and vaping products. It also offers a limited variety of meal items such as hot dogs, prepared sandwiches, cookies, coffee, donuts and taquitos. In addition, it serves uncooked items such as fresh fruits. In the future, the Applicant intends to offer an increased menu of fresh meal items, all of which can be described as fast-foods.
23Although the precise layout of the Premises has not been finalized, the Applicant intends to designate an area of the store as a restaurant which would be separated from the grocery area by a “pony wall”. The restaurant area would consist of seating for ten, with a mix of low and high tables. Food will be prepared behind a counter located along the front of the store. Customers will place their order at the counter and carry their food to their seats. Alcohol will be kept in a cooler or cabinet behind the counter which will only be accessible by staff. All alcohol will be served at the table by staff. In addition to the store itself, this location also has a gas bar.
24According to the evidence presented by the Applicant, the staff at the Premises will be able to view the restaurant area from their position behind the counter. No alcohol will be permitted outside the licensed food-service area. The Premises have large windows which allow staff to monitor the parking lot, as well as the gas bar. The windows also allow persons outside the store to see inside the Premises. According to the evidence of the Applicant, this enhances the safety of those inside. The store is well-lit and monitored by multiple security cameras both inside and outside the Premises.
25The Premises are located at an intersection. On one side of the Premises is a single family dwelling, on the other is Stoney Creek Community Homes, which is a three story apartment building. The Premises backs onto another single family dwelling where Lehaina Andrews lives with her family.
The Objectors
26DeWitt Shainline and Lehaina Andrews both gave evidence at the hearing, as did Councillor John-Paul Danko for the City of Hamilton. Councillor Danko is the Councillor for Ward 8. Ward 8 is neither the Ward in which the Premises is located, nor is it an immediately adjacent Ward.
Lehaina Andrews
27Lehaina Andrews, her two children (2 & 4), her husband, and her dog all live directly behind the Premises. Her backyard backs onto the rear of the Applicant’s property. Ms. Andrews described numerous problems associated with living behind the Premises that she succinctly summarized by saying that they “are not a good neighbour.”
28Ms. Andrews’ grievances fall broadly within three different categories:
a. Theft and property damage;
b. Garbage and debris;
c. Interference with the quiet use and enjoyment of her home.
29In her testimony, Ms. Andrews outlined several incidents of vandalism and petty theft to her home, including damage to a fence, air conditioner, as well as a stolen bicycle. Ms. Andrews conceded that the people stealing from her and damaging her property were not necessarily customers of the Applicant. However, she says they did come on her property from the Premises.
30Ms. Andrews testified that she needs to clean her backyard on a weekly basis, from debris that mostly comes from the Premises. Several photographs taken by Ms. Andrews were entered into evidence. One of the photographs in particular shows a significant amount of garbage located at the rear of her property. Ms. Andrews testified that this picture was taken after a large windstorm. Although Ms. Andrews says that some of the garbage was specifically branded with the 7-Eleven logo, nothing in the photograph was clearly visible as such. The only logo that was clearly identifiable was from Lowes. It should be noted that in addition to the Applicant’s property, Ms. Andrews’ property also borders on Stoney Creek Community Homes and some of the garbage may come from there. However, considering all of the evidence, I find as fact that garbage regularly winds up on Ms. Andrews’ property and that some of the garbage is from the Premises.
31The most concerning aspect of Ms. Andrews’ testimony is the interference with the quiet use and enjoyment of her home by herself and her family. Ms. Andrews testified that the Applicant placed a shed at the rear of the Premises, near the fence separating it from her backyard. There was a significant gap between the fence and the shed. The gap allowed for people to congregate, as they were essentially hidden from the street by the shed, whilst being in plain view of anyone in Ms. Andrews’ backyard, or even from her rear windows.
32The area that was hidden from the street acted as a magnet for what can be charitably described as unsavoury characters who engage in objectionable activity including drug use and public urination. Both a video and a photograph with people behind the shed were entered into evidence. Ms. Andrews testified that sometimes these characters on the Premises and hidden behind the shed try to engage her and her young family in conversation. This made her feel afraid for their safety. I find as fact these concerns are not misplaced.
33Ms. Andrews testified that she brought some of her concerns to employees of the Applicant, including the broken fence, the garbage, the stolen bicycle, as well as the loitering behind the shed. One employee told her, “We know that there are issues”, but implied that nothing would be done to address them.
34Whilst the Applicant failed to take action on Ms. Andrews’ concerns for years, in the months prior to this hearing, steps have finally been taken. The shed, which seemed to be the genesis of much of the problem, has been moved. It no longer provides a convenient and hidden area in which to loiter. The fence has been fixed. Security lighting has been added.
DeWitt Shainline
35Mr. Shainline lives in the west end of Hamilton whereas the Premises are in the eastern part of the city. He neither lives nor works near the Premises. He lives about 15 minutes away from the Premises by car. Mr. Shainline objects to the sale and service of alcohol in convenience stores as a matter of public policy. Mr. Shainline concedes that the law allows for convenience stores to sell alcohol, but states that “just because it is legal for them [convenience stores] to sell it, does not make it right for them to sell it.”
Councillor John-Paul Danko
36Councillor Danko was called to give evidence by the City of Hamilton. Councillor Danko described his concerns with granting the Applicant a licence to serve and sell alcohol. He is concerned that the sale of alcohol at the Premises will be a drain upon scarce city resources for enforcing community standards and will further burden the already “over extended” by-law enforcement officers. However, during cross examination, he acknowledged that the Applicant has not had a single by-law infraction, nor has a complaint been registered against it.
37Councillor Danko is also concerned about the dangers of alcohol use in the wider community. He is concerned about the risks of drinking and driving and of underage drinking. He does not approve of the sale of alcohol in convenience stores where unaccompanied minors are often present. In cross examination, Councillor Danko admitted that he was not aware of any problems with the Applicant selling age restricted products.
38Councillor Danko summarized his testimony by saying that his “major concern is that convenience stores not [be allowed to] sell alcohol as a matter of policy.”
The Applicant’s Practices and Policies
39The Applicant’s witness, Victor Vrsnik, Senior Manager, Corporate Affairs & Business Development testified about its policies and procedures, both in general and how they deal with age-restricted products. The Applicant’s age verification program is called ID Zone and requires photo ID from anyone who appears to be under 30 years old in order to purchase alcohol. Mr. Vrsnik noted that this was a more robust requirement than the LCBO, who obtains photo ID from anyone who appears under the age of 25.
40The Applicant’s employees will all be required to take the ID Zone training in addition to the provincially mandated “Smart Serve” program.
41In addition, the Applicant confirms that customers’ driver’s licences presented as proof of age are not fake by using a device that scans the licence and is able to determine whether it is valid. Mr. Vrsnik testified that not once in its history has the Applicant been convicted of an age restriction violation. This evidence was not challenged.
42Mr. Vrsnik gave evidence that the Applicant has a national toll free number that goes directly to an Area Leader for any complaints regarding a specific location.
The Registrar
43The Registrar took no position on whether the Applicant should be issued a licence. The Registrar argued that the focus ought to be upon the impact of the licence on the local residents. The Registrar also took no position upon any of the requested conditions on the licence as long as they are within the scope and mandate of the Registrar and are enforceable. Counsel for the Registrar submitted wording it recommended regarding the potential condition that the Applicant to have video surveillance. That wording is similar to that which it requires from licensed cannabis retailers.
ANALYSIS
44The analysis can be divided into two main categories dealing with the objections that were made. The first is a general policy objection against the Applicant serving and selling alcohol. The second is specific to the Applicant’s action (or more accurately inaction) when it comes to the concerns of Ms. Andrews.
45Much of the objectors’ evidence was aimed at establishing the social harms that alcohol sales generate in the general sense: much emphasis was given to the harms and risks of underage drinking, as well as the dangers of drinking and driving.
46I agree with the following recent statement made by the Tribunal:
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 needs and wishes of local residents.2
47The Tribunal recently made the following statement, with which I agree, regarding the focus on residents whose interests may be most impacted in a proceeding such as this:
The Tribunal has consistently held that the public interest provision in the LLAct, now s. 3(6) of the LLCAct, should be read such that the Tribunal’s enquiry is to be focussed on the public interest as it relates to the impact of the licence on the residents of the local municipality, with the concerns of the residents in the immediate area of the premises at issue who are the most affected by the proposed licence given greatest consideration as compared to those who are less directly affected. 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.
This approach was 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
48I 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, notwithstanding the submissions made by Councillor Danko and Mr. Shainline, 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. Instead, it is to determine if selling alcohol at this convenience store is not in the public interest, having regard to the needs and wishes of the community residents.
49Ms. Andrews is opposed to the granting of a licence. Ms. Andrews has expressed concerns that the issues surrounding the loitering, the garbage, the drug use and the petty crime will be exacerbated should the Applicant be granted a licence to serve and sell alcohol.
50These issues predate the granting of a licence to the Applicant. Further, evidence was led that the Applicant has taken steps to address these issues: most importantly, it moved the shed so that it would not provide a hidden refuge for those loitering on the property.
51I was impressed by the Applicant’s evidence regarding its robust, structured and detailed plan to ensure safe alcohol sales. I was particularly impressed that notwithstanding that the Applicant operates a number of locations in Ontario that sell age-restricted products, it had never been convicted of an age-restricted product-related offence. I am satisfied that the Applicant’s plan contains appropriate safeguards to protect the public and ensure safe alcohol sales.
52The present situation is very similar to the application for 7-Eleven 366 Christina Street North, Sarnia. In that matter, one of the objectors’ property also abutted that of the 7-Eleven that was making an application for a licence to serve and sell alcohol. In that matter, the objector also had an issue with loitering and petty crime. In that case, the Tribunal noted that the granting of the licence would likely improve the situation, rather than aggravate it:
It appears that if granted a licence, there will be a positive obligation on 7-11 to make efforts to deter disorderly conduct in the areas adjacent to or in the vicinity its premises. Any contravention of those requirements will place the licence in jeopardy – clearly a significant motivation for 7-11 to deter disorderly conduct.4
53Ultimately, I am not satisfied that the objectors discharged their burden of establishing that this licence is not in the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises is located. The evidence did not persuade me that the granting of a licence to the Applicant is not in the public interest, particularly given that I have found that the Applicant’s proposal contains appropriate safeguards for ensuring safe alcohol sales.
54Balancing the needs and wishes of the local residents against the Applicant’s qualified right to a licence, I am not satisfied on the evidence before me that the licence is not in the public interest.
CONDITIONS
55In the event that this Tribunal grants a licence to the Applicant, the City of Hamilton requested that five conditions be attached. The conditions are limits upon the hours during which the Applicant can serve alcohol, a physical barrier that separates the licensed from unlicensed areas of the store, signage requirements, the operation of a phone number that could be used to register complaints, and a video security system covering the exterior of the store.
56As noted, the Registrar’s position was that each of the proposed conditions should be enforceable; however, the Registrar took no position on whether the conditions ought to be imposed.
57The Added Parties all supported the imposition of conditions should the licence be granted.
58The Applicant agreed to the condition of a “Good Neighbour” sign near the exit of the premises, reminding patrons to be respectful of the neighbourhood.
59The City of Hamilton requested that the Applicant be restricted to the sale of alcohol from 4pm-11pm. The position of the City was that the Applicant’s business operates as the “neighbourhood candy store”, and that unaccompanied minors would be in the store. The condition is tied to the objection of convenience stores selling alcohol. As previously mentioned, the matter of public policy is a matter for the legislature, not this tribunal. Further, no evidence was led that somehow at 4pm unaccompanied minors would stop coming into the store. Further, the Applicant has already demonstrated that they have a vigorous program in place to prevent underage purchases. Requiring the Applicant only begin serving alcohol at 4pm would prevent them from selling and serving alcohol during the lunch hours. This would put it at a significant competitive disadvantage, whilst at the same time not providing any meaningful mitigation of the risks that the city wanted to address.
60The request for a condition to construct a physical barrier separating the licenced and unlicensed areas of the store is purportedly to prevent the “passing off” of alcohol to minors. However, irrespective of a physical barrier, minors are still most welcome in the dining area. Thus, the proposed condition would not do anything to achieve the purposed objective.
61The City of Hamilton also requested that the Applicant be required to post a prominent sign, visible on the outside of the premises containing a phone number for residents to register concerns or complaints. It requested that the line be answered 24 hours per day, seven days per week. Given the previous incidents of petty crime, loitering, as well as garbage at this location, this is a reasonable condition. However, the requirement for it to be answered “live” is not. I am adding the requirement that the sign also provide an e-mail address. Providing an additional means of communicating any concerns or complaints with the Applicant will make it easier for community members, while also making it easier to document all such communication.
62The final condition is for a security camera system to monitor all areas of the property. The Registrar provided suggested wording that would be enforceable, mirroring the requirements imposed upon cannabis retailers. Given the previous issues with loitering, this is a reasonable condition.
CONCLUSION
63I have considered the concerns expressed by the objectors, in particular that of Ms. Andrews. I find that they failed to satisfy their burden. I am not satisfied that granting a licence in this case is not in the public interest having regard to the needs and wishes of the residents of the municipality and the local community in which the Premises are located.
64However, the licence shall be granted subject to the following conditions:
a. A “Good Neighbour” sign shall be placed at or near the exit of the Premises, reminding patrons to be considerate and respectful of the neighbourhood.
b. A prominent sign shall be placed visible from the outside of the Premises containing a telephone number, as well as an e-mail address for residents to register concerns or complaints.
c. The holder of the licence shall ensure that security cameras are installed that have clear, unobstructed views of the following areas, that the equipment is maintained in good working order and that surveillance recordings are stored and made available for inspection and review upon request by AGCO inspectors and/or police for a period of 30 day(s): all areas of the exterior of the Premises.
ORDER
65Having considered the evidence and submissions of the parties, I direct the Registrar to issue a licence to the Applicant, 7-Eleven Canada Inc. o/a 7-Eleven 415 Melvin Ave., Hamilton, for the Premises subject to the above conditions.
LICENCE APPEAL TRIBUNAL
Geoff Pollock, Vice Chair
Released: September 27, 2022
Footnotes
- 7-Eleven Canada Inc. o/a 7 Eleven 72 Wharncliffe Road North, London v. Registrar, Liquor Licence and Control Act, 2019, 2022 CanLII 20142 at para 10 (ON LAT).
- 7-Eleven Canada Inc. o/a 7 Eleven 1730 Bloor St. W., v. Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019, 2022 CanLII 55026 at para. 31 (ON LAT)
- 7-Eleven Canada Inc. o/a 7 Eleven 72 Wharncliffe Road North, London v. Registrar, Liquor Licence and Control Act, 2019, 2022 CanLII 20142 at paras. 31-32 (ON LAT) citing Powerhouse Corporation v. Registrar of Alcohol, Gaming and Racing, 2021 ONSC 4116 (Div. Ct.)
- 7-Eleven Canada Inc. o/a 7-Eleven 366 Christina Street North, Sarnia v. Registrar as defined in subsection 1 (1) of the Alcohol and Gaming Commission of Ontario Act, 2019, 2022 CanLII 27320 at para. 87 (ON LAT)