Vasikaran Karunakaran v. Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019, 2023 CanLII 122938

Licence Appeal Tribunal File Number: 14994 GCA

Appeal from a Notice of Proposed Order under the Gaming Control Act, 1992, to Refuse Registration of a Category 2 Gaming Assistant

Between:

Vasikaran Karunakaran

Appellant

and

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

Respondent

AMENDED DECISION

VICE-CHAIR:

Avril A. Farlam

APPEARANCES:

For the Appellant:

Vasikaran Karunakaran, Self-represented

For the Respondent:

Aviva Harari, Counsel

HEARD: November 28, 2023

OVERVIEW

1Vasikaran Karunakaran (“appellant”) appeals from the Notice of Proposed Order under the Gaming Control Act, 1992,(“Act”) dated June 5, 2023 (“NOP”) issued by the Deputy Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 (“Registrar”) to Refuse Registration of a Category 2 Gaming Assistant under s. 11 of the Act.

2The NOP is based on the ground that there are reasonable grounds to believe that the appellant will not act as a gaming assistant in accordance with the law, or with integrity, honesty, in the public interest and/or with financial responsibility because on his application for registration the appellant failed to disclose a charge under the Criminal Code that resulted in him being on probation at the time of the NOP, the appellant failed to disclose a number of driving related suspension and convictions, and when previously registered, the appellant failed to make full, complete and accurate disclosure on applications previously submitted to the Registrar.

ISSUES

3The issues to be decided in this hearing are:

a. Whether the Registrar has established reasonable grounds for belief that the appellant will not act as a gaming assistant in accordance with the law, or with integrity, honesty, or in the public interest having regard to his past conduct;

b. If so, is refusal of registration appropriate?

RESULT

4Having considered all of the evidence, and for the reasons that follow, I confirm the NOP.

LAW

5Section 11(a) of the Act provides that the Registrar shall refuse to register an applicant as a gaming assistant if there are reasonable grounds to believe that the applicant will not act as a gaming assistant in accordance with law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant or persons interested in the applicant.

6Section 13 provides that if the Registrar refuses to grant registration, the Registrar shall serve notice of the proposed order together with written reasons on the applicant following which the applicant may request a hearing by the Tribunal pursuant to section 13(3)

7Section 13(8) provides that after holding a hearing, the Tribunal may confirm or set aside the proposed order or direct the Registrar to take such action as the Tribunal considers the Registrar ought to take to give effect to the purposes of the Act. Section 13(9) provides that the Tribunal may substitute its opinion for that of the Registrar and under s. 13(10) the Tribunal may attach such terms to its order or to the registration as it considers appropriate.

8The onus is on the Registrar to establish the grounds alleged in the NOP.

ANALYSIS

Issue a: Has the Registrar has established reasonable grounds for belief that the appellant will not act as a gaming assistant in accordance with the law, or with integrity, honesty, or in the public interest having regard to his past conduct

9I find that the Registrar has established reasonable grounds for belief that the appellant will not act as a gaming assistant in accordance with the law, or with integrity, honesty, or in the public interest having regard to his past conduct for the following reasons.

10The Court of Appeal for Ontario in Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157 at paras. 18-19, held that the standard of proof with respect to reasonable grounds for belief does not require the Registrar to go so far as to show that the conduct makes it more likely than not that he will not carry on business as required.

11According to the Supreme Court of Canada in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para.114, the reasonable grounds for belief must be more than mere suspicion and will be found to exist where there is an objective basis for the belief which is based on compelling and credible information.

12Further, there must be a nexus between the appellant’s past conduct and his ability to conduct business as a gaming assistant serving the interests of the public: See CS v. Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONSC 1652 (Div. Ct.) at para. 32.

13The appellant failed to disclose his charge, finding of guilt and the sentence received on the Criminal Code charge of voyeurism. The testimony of Daniel Macdonald, regulatory investigator for the Alcohol and Gaming Commission of Ontario (“AGCO”) and the documents filed by the Registrar establish that the appellant was charged in 2018 with voyeurism under the Criminal Code after he went into a stall in the women’s washroom at a bar and recorded a woman on his cell phone. The appellant pleaded guilty and was found guilty on July 9, 2020 and sentenced to a conditional discharge and three years probation on July 9, 2020.

14The appellant also has 14 convictions under the Highway Traffic Act between 2012 and 2023 and four convictions under the Compulsory Automobile Insurance Act, including a January 15, 2019 conviction for speeding 169 kmh in 100 kmh zone. The most recent conviction is speeding 99 kmh in a 60 kmh zone on August 10, 2023. A May 2, 2016 conviction is for driving while licence is suspended. The appellant’s driver’s licence was suspended 13 times from 2012 to 2022, mostly for unpaid fines. Two of the driver’s licence suspensions in 2022 resulted from breathalyser “warning” for alcohol. The appellant also has a 2014 trespass conviction for trespassing at a casino before he was registered.

15Mr. Macdonald discussed the appellant’s driving convictions and suspensions with him on April 28, 2023. During this conversation, the appellant did not deny the driver’s licence convictions and suspensions but stated that he took programs after the breathalyzer incident. The appellant did not deny the voyeurism but said he was surprised it was still on his record.

16Although the appellant was still on probation at the time, in his March, 2023 application for registration the appellant failed to disclose that he had pleaded guilty to the Criminal Code offence of voyeurism on July 9, 2020, and had received a sentence of conditional discharge and three years probation. In addition, the appellant failed to disclose a number of provincial offence convictions including driving related suspensions and convictions.

17The appellant was still on probation related to his voyeurism offence at the time the NOP was issued on June 5, 2023.

18The appellant was previously registered and had failed to make full, complete and accurate disclose on applications previously submitted to the Registrar.

19As explained in the testimony of Gary White, senior manager of specialized eligibility within the registration and licensing department at AGCO, the Act requires registered gaming assistants to act with honesty and integrity in order to maintain the confidence of the public in the regulation of gaming operations.

20During the application for registration process, the onus is on the appellant to provide complete information to the Registrar. This is made clear in the application form. Mr. White testified that the appellant’s new application for registration dated March 13, 2023 contains a Declaration that provides “I understand that providing false, Incomplete or misleading information or omitting to provide information in this form/application or related documents may result in the refusal, suspension or revocation of a gaming registration.”

21Here, Mr. White testified that the appellant was not honest in answering questions on the application and I accept and agree with his testimony. Mr. White reviewed the Disclosure Report dated March 14, 2023 which forms part of the appellant’s application for registration which contained dishonest answers to the following questions:

(i) Question 1: “Have you ever been charged, found guilty and/or convicted of any offence under any legislation in any jurisdiction? This includes any absolute and/or conditional discharges, withdrawn charges, suspended sentences, convictions, fines or guilty pleas. Note: This includes ALL federal and provincial offences. Response: No.”

(ii) Question 2: “Have you ever applied for, held or do you currently hold a licence, permit, authorization, certificate or registration of any kind in any jurisdiction? This includes any licence, permit, authorization, certificate, or registration related to liquor, gaming, horse racing and/or cannabis…..Response: No.”

22When the Registrar checked the information, the extent of the appellant’s dishonesty was discovered including the lack of disclosure regarding the voyeurism charge and the provincial offences convictions and suspensions involving the appellant’s driver’s licence and other provincial offences including a 2014 trespass.

23The appellant had been through the Registrar’s application process before and was aware of the disclosure obligation having made some disclosure in his successful 2018 application for registration. For example, in his application dated October 5, 2018, the appellant answered “yes” to the question “Have you ever been…found guilty and/or convicted…” The appellant also answered “yes” to the question “Do you currently have any outstanding charges…” Further, the appellant attached a handwritten document disclosing some of the driving convictions. The appellant also disclosed some driving convictions in his 2019 renewal application.

24Mr. White testified that in his 2019 renewal application, although the appellant disclosed some provincial offences convictions, he failed to disclose the outstanding voyeurism charge laid in 2018. This answer is a failure to disclose the outstanding Criminal Code charge of voyeurism. Further in his February, 2022 renewal application the appellant answered “no” to the question about whether he had a finding of guilt (leading to the conditional discharge) or provincial offences convictions. This answer was false. The Registrar did not learn until March, 2023 that these answers were not honest.

25Mr. White testified that all applicants for registration are subject to the same review. The first test of honesty is on the application. Here the Registrar is concerned with the appellant’s lack of honesty in his 2023 application and his lack of honesty in the previous renewal applications. The Registrar’s view is that the appellant was not truthful, his past criminal conduct is recent and concerning and the appellant applied for registration while he was on probation without disclosing the matter that led to the probation or the probation sentence. The appellant’s probation was only recently completed. The appellant should have disclosed all of his charges, their details and the voyeurism sentence in his prior renewals and in his new application in 2023, all of which he failed to do. Based on this and the conduct which led to the charges and findings of guilt, taken together, the Registrar has no confidence that the appellant will act as a gaming assistant in accordance with the law, or with integrity, honesty, or in the public interest.

26Although in his Notice of Appeal, his testimony and his submissions at the hearing the appellant stated that he has been honest to the best of his ability and he thought he did not need to disclose the voyeurism offence because he received a conditional discharge, and thought he did not need to disclose all his provincial offences, I find the appellant’s testimony in this regard not credible because it is not consistent with his behaviour in the past and the declarations in the applications completed, signed and sent to the Registrar.

27The appellant had completed applications for registration in the past in which he had disclosed some provincial offence convictions such as speeding, which indicates that he understood disclosure was required.

28Further, the applications that he signed included questions specifically asking about findings of guilt including conditional discharges and provincial offences and yet failed to answer them honestly and fully.

29Still further, the applications contained a declaration that he signed declaring that the appellant understands that providing false, incomplete or misleading information or omitting to provide information may result in the refusal of a gaming registration. In the face of this declaration, the appellant chose to make dishonest, untrue and incomplete answer. I find that that choice, in view of the clearly stated consequences, indicates that the appellant chose to not act in accordance with the law, or with integrity, honesty, or in the public interest.

30The nature of the conduct not disclosed, including the voyeurism charge and the behaviour which gave rise to it, is serious and concerning as it shows that the appellant is able to act not in accordance with the law, without integrity, honesty or in the public interest. As a gaming assistant, the appellant would have to deal with the public and respect their privacy, dignity and legal rights. Similarly, his lack of candour in the form of full disclosure directly impacts the Registrar, who is mandated to regulate the gaming industry in the public interest. At this time the appellant has only recently completed his probation sentence.

Issue b: Is refusal of the appellant’s registration appropriate?

31The Registrar submits that there are no appropriate conditions which could be attached to the registration of the appellant to ensure that the appellant would act in accordance with the law, or with integrity, honesty, or in the public interest in the future.

32The appellant submitted that he wishes to return to work but did not suggest any conditions.

33I find that the registration of the appellant with conditions is not appropriate. Nothing in the evidence led me to believe that imposing any conditions attached to the registration would be appropriate or effective.

34More importantly, the problematic conduct by the appellant is that he failed to disclose the information as was required when he applied for registration. There are no conditions that can be tailored to reflect and mitigate the risk of providing false or inaccurate information to the Registrar when submitting accurate information on an application is the threshold step for registration.

35One of the purposes of the Act is the protection of the public when engaging in gaming n the and the refusal of registration of the appellant at this time is consistent with that mandate.

Conclusion

36As a result of all of the foregoing evidence, considered in totality, I find that the Registrar has established there are reasonable grounds for belief that the appellant will not act as a gaming assistant in accordance with the law, or with integrity, honesty, or in the public interest having regard to his past conduct within the meaning of s. 11(a) of the Act.

ORDER

37For the reasons set out above, I confirm the NOP.