Citation: Yaya Alesh o/a Deluxe Restaurant and Lounge v. Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019, 2023 ONLAT 14884 LLCA

Licence Appeal Tribunal File Number: 14884 LLCA

In the matter of an appeal from an appeal from a Notice of Proposal to Revoke Liquor Licence under s. 25(1) of the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22 .

Between:

Yaya Alesh o/a Deluxe Restaurant and Lounge

Appellant

and

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

Respondent

AMENDED DECISION

ADJUDICATOR:

Kevin Lundy

APPEARANCES:

For the Appellant:

Yaya Alesh, Appellant (Not Present)

For the Respondent:

Elizabeth Maishlish, Counsel

Devin Sookdeo, Counsel

Brian Haddad, Articling Student

Heard by videoconference: October 16, 2023

This decision originally issued on October 31, 2023. It incorrectly listed Devin Sookdeo as counsel for the respondent. The decision has been amended to correct this clerical error. The amended portions have been highlighted with a strikethrough for ease of reference.

OVERVIEW

[ 1 ] Yaya Alesh o/a Deluxe Restaurant and Lounge (the ‘appellant’) appeals to the Licence Appeal Tribunal (the ‘Tribunal’) from a Notice of Proposal to Revoke a Liquor Licence (‘NOP’) issued by the Deputy Registrar, under the Alcohol and Gaming Commission of Ontario Act, 2019 (the ‘registrar’) dated April 26, 2023 pursuant to the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22 (the ‘Act’).

[ 2 ] The NOP, dated April 26, 2023, was served pursuant to subsections 3(4)(b) and 13(1) of the Act and states that the registrar has reasonable grounds to believe that the appellant will not carry on business in accordance with the law and with integrity and honesty. The registrar also alleges that the appellant has contravened the Act, its regulations and/or a condition of the licence. The appellant disputes the allegations in the NOP as set out in the Notice of Appeal (‘NOA’ ) dated May 8, 2023.

RESULT

[ 3 ] The registrar’s motion to dismiss the appeal is granted.

[ 4 ] The appeal is dismissed.

PRELIMINARY ISSUES

Attendance at the Videoconference

[ 5 ] The hearing of this matter commenced at 9:30 a.m. on October 16, 2023. The appellant did not call into the videoconference.

[ 6 ] Tribunal staff attempted to contact the appellant, leaving both email and voice messages for him at the telephone number and email address he had provided. Counsel for the registrar noted that she had not received any communication from the appellant since the case conference on July 20, 2023.

[ 7 ] The Case Conference Report and Order (‘CCRO’) issued August 2, 2023 stated that the three-day videoconference hearing will commence at 9:30 a.m. on October 16, 17, and 18, 2023. The Tribunal sent a Notice of Hearing to the appellant by email on August 21, 2023 confirming the date, time and call-in information for the hearing.

[ 8 ] Rule 4.4 of the Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure Version I (October 2, 2017) (the ‘Rules’) requires a party or a party’s representative to “notify the Tribunal and the other parties or their representatives, in writing, as soon as possible, of any change in their contact information.” As of the date of the hearing, the appellant had not provided any change in contact information to either the registrar or the Tribunal.

[ 9 ] The CCRO dated August 2, 2023 required the appellant to provide to the registrar copies of all documents upon which he intended to rely at the hearing, a list of witnesses and a brief description of anticipated testimony of each witness in accordance with Rule 9 by September 14, 2023 and file his document brief by October 10, 2023. As of the date of the hearing, the appellant had neither disclosed nor filed any evidence or submissions beyond a document titled ‘Licensee Memorandum of Fact’ on May 8, 2023, that outlined his proposed submissions primarily related to his interactions with a specific registrar inspector. He also submitted no response to the registrar’s motion to dismiss his appeal, addressed below. The registrar also advised that the appellant’s establishment no longer occupies the commercial space where it had operated while licenced and another business has since moved into that location.

[ 10 ] Subsection 7(1) of the Statutory Powers Procedure Act (‘SPPA’) permits a tribunal to proceed in the absence of a party so long as it has provided notice of the hearing. Furthermore, in the present case, the Notice of Hearing issued to the appellant included the caution that,; “if you do not attend the hearing, the Tribunal may make a decision in your absence and you will not be entitled to any further notice in the proceeding,” as required by subsection 6(5)(d) of the SPPA.

[ 11 ] Having regard to all the circumstances and noting that none of the Tribunal’s emails were returned as undeliverable, I am satisfied that the appellant received sufficient notice of this hearing.

[ 12 ] After waiting until 10:00 a.m. to allow the appellant a reasonable opportunity to call into the teleconference or to notify the Tribunal that he could not do so, I commenced the hearing and heard the registrar’s motion to dismiss the appeal on the basis that the Tribunal does not have jurisdiction to hear it, or that it is moot. The teleconference line remained open until the end of the hearing at 10:48 a.m. The appellant never called into the hearing or contacted the Tribunal or the registrar.

Registrar’s Motion to Dismiss the Appeal

[ 13 ] On September 23, 2023, the registrar filed a motion to dismiss the appeal; the registrar amended this motion on October 10, 2023 as follows. The registrar takes the position that:

a. The Tribunal does not have the jurisdiction to hear the appeal;

b. Further, or in the alternative, the registrar has no jurisdiction because there is no active licence; and.

c. Further, or in the alternative, that the matter is moot because there is no active licence.

[ 14 ] On August 10, 2023, the appellant’s liquor sales licence and catering endorsement expired. The appellant did not submit an application for renewal of the licence and did not submit the required fee to renew the licence pursuant to section 12 of the Act. As a result, as of the date of the hearing, the appellant was no longer licensed under the Act.

[ 15 ] The registrar takes the position that pursuant to section 26 of the Act, the Tribunal does not have the authority or jurisdiction to make an order to not to carry out or to carry out the proposal to revoke, given that no licence exists. I disagree since subsection 26(1) of the Act provides that “a person who has received a notice of proposal from the Registrar under subsection 25(4) is entitled to a hearing by the Tribunal as described in that subsection.” With respect to a notice to proposal to revoke a licence, subsection 26(4) permits the Tribunal to “direct the Registrar not to carry out the proposal or to carry out the proposal, in whole or in part, and with any changes that the Tribunal considers appropriate.” Nothing in section 26 of the Act requires the licence in dispute to be valid or not expired.

[ 16 ] The Tribunal considered its jurisdiction to revoke an expired licence in 11849 v. Registrar of Alcohol, Gaming and Racing, (2019), CanLII 83602 (ON LAT) (‘MacLaren’), in which the appellant’s licence had expired after he filed his appeal but before the Tribunal hearing. The registrar in MacLaren submitted that because the appellant no longer held a valid licence, the immediate suspension order had no further application and the proposed order to revoke was moot since there was no longer a licence to revoke. Similarly, in the present case, the registrar suggested that because there was no issue for the Tribunal to decide, the appellant’s appeal should be dismissed.

[ 17 ] In MacLaren, the Tribunal relied upon Ontario (Registrar of Real Estate and Business Brokers) v. Ontario (Licence Appeal Tribunal), [2001] O.J. 883 (Div. Ct). In that case, the registrar under the Real Estate and Business Brokers Act (‘REBBA’) applied for judicial review of a Tribunal decision dismissing its motion that the Tribunal had no jurisdiction to hear an appeal from a notice of proposal to revoke registration. The appellant was served with a notice of proposal and requested a hearing while she held a valid registration, but her registration expired before the Tribunal hearing due to her failure to maintain insurance. The Divisional Court denied the registrar’s motion and stated that the expiry should not serve to disentitle the appellant to a hearing:

However, in our view, the jurisdiction of the Tribunal to proceed with a hearing would not be ousted by the circumstance that the registration of Ms. Reid as a salesperson under REBBA expired after service of the notice of proposal by the Registrar and her notice requiring a hearing before the Tribunal but before the hearing itself. If the Registrar wishes to proceed against her with the serious allegations set out in the notice, then Ms. Reid is entitled to the hearing she has requested to respond to them.

[ 18 ] Similarly, in MacLaren, the Tribunal disagreed that a hearing would be moot. As in the present case, the appellant had asked for a hearing into the registrar’s allegations and noted that a decision on the registrar’s proposal one way or the other will undoubtedly have implications for the appellant should he seek to reinstate his licence in the future.

[ 19 ] Despite some differences in wording between section 26 of the Act and the corresponding provision in the REBBA, the mandatory language in the Act does not permit discretion to consider whether the licence in dispute has expired. As well, subsection 25(1) of the SPPA provides that an appeal from a decision of a tribunal to a court or other appellate body operates as a stay in the matter unless,

(a) another Act or a regulation that applies to the proceeding expressly provides to the contrary; or

(b) the tribunal or the court or other appellate body orders otherwise.

[ 20 ] As the registrar cited no provision in the Act that would counter the SPPA in this regard, I find no basis to dismiss the appeal under section 26 of the Act.

[ 21 ] However, I also find that the above cases are distinguishable as the registrar has now withdrawn the NOP. As a result, I agree with the registrar that the matter is moot since any decision made by this Tribunal will not have the practical effect of determining whether the applicant can continue to exercise any of the privileges attached to a liquor sales licence.

[ 22 ] Ironically, if the Tribunal were to proceed with the hearing, the evidence presented by the registrar could prejudice a prospective application for a liquor licence should the appellant choose to apply for one while conferring no tangible benefit to the appellant, particularly as he did not attend to offer submissions against the NOP. A potential future application for a liquor licence would proceed as an entirely separate process through section 3 of the Act and could include new evidence that favours licencing.

[ 23 ] In Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), [1989] 1 SCR 342 at 353 (‘Borowski’), the Supreme Court of Canada held that a matter will be considered moot where deciding it will have no practical effect on the rights of the parties since there is no longer any “live controversy” between them. In Gorges v. Unifund, 2023 CanLII 9249 (ON LAT), the Tribunal set out the following three factors, as outlined in Borowski, to be considered in determining whether a moot proceeding should nevertheless continue:

a. Whether the parties maintain an adversarial relationship despite the mootness of the underlying issue;

b. Whether it is useful allocation of adjudicative resources to consider an issue that is now moot; and

c. Awareness of the Court’s proper law-making function.

[ 24 ] In Borowski, the Court also held that a court (or, in this case a tribunal) may exercise its discretion to adjudicate a moot matter despite the absence of a live controversy if the circumstances warrant it. The onus is on the appellant to satisfy the Tribunal that it should exercise its discretion to adjudicate a moot matter.

[ 25 ] In the present case, there is no longer any suspension in effect and an order of the Tribunal would have no practical effect on the rights of the parties. I find that the appeal is therefore moot. Lastly, as in Alahdab v. Registrar of Motor Vehicles, 2023 CanLII 17693 (ON LAT), as the appellant did not appear at the hearing and offered no submissions that the Tribunal should exercise its discretion to hear the appeal, I decline to exercise such discretion.

ORDER

[ 26 ] The registrar’s motion to dismiss the appeal as moot is granted.

[ 27 ] The appeal is dismissed.

Released: October 31, 2023

Kevin Lundy

Adjudicator