1000183831 Ontario Corp. o/a Tapps Restaurant & Bar v. Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019, 2023 CanLII 84375

Licence Appeal Tribunal File Number: 14405/LLCA

Appeal from a Notice of Proposal to Review an Application for a Liquor Licence Under the Liquor Licence and Control Act, 2019, S.O. c. C 15 Schedule 22

Between:

1000183831 Ontario Corp. o/a Tapps Restaurant & Bar

Appellant

and

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

Respondent

-and-

James McNab

Added Party

DECISION

ADJUDICATOR:

Geoff Pollock, Vice Chair

APPEARANCES:

For the Appellant:

Chris Chen, Officer of 1000183831 Ontario Corp.

For the Respondent:

Jordan Stewart, Counsel

For the Added Party:

James McNab, Self Represented

Heard by Videoconference: June 1-2, 2023

BACKGROUND

11000183831 Ontario Corp. o/a Tapps Restaurant & Bar (the “Appellant”), applied to the Alcohol and Gaming Commission of Ontario (“AGCO”), for a liquor sales licence under the Liquor Licence and Control Act, 2019 (the “Act”) for the outdoor area of its premises located on Danforth Avenue (the “Premises”). The Appellant is already licenced to sell and serve liquor inside the Premises.

2The Registrar under the Act gave notice of the application to residents of the municipality in which the proposed licenced premises are located, as required by s. 7 of the Act.

3The Registrar received objections from 10 residents, all of whom live in proximity to the Premises. The Registrar then issued a notice of proposal to review whether issuing the licence is in the public interest, to which the Appellant required a hearing, under s. 25 of the Act. At the Case Conference on the 26^th of January 2023, the objectors agreed that James McNab be designated as their representative party. At that Case Conference, the Tribunal ordered that Mr. McNab be added as a party to this proceeding.

ISSUE TO BE DETERMINED

4The issue to be determined is whether the Added Party has established, on a balance of probabilities, that the extension the appellant’s existing licence to operate a liquor consumption premises to include its patio, 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, pursuant to s. 3(6) of the Act. If I determine that a licence should be granted to the appellant, the next question is whether conditions should be attached to that licence.

RESULT

5For the reasons set out below, I order the Registrar to issue a licence to the Appellant.

6I decline to order any conditions be attached to the licence.

ANALYSIS

The Premises

7At the Premises, the Appellant runs a family-owned neighbourhood restaurant and bar located on Danforth Avenue. It is a sports bar with numerous TVs and serves typical pub food. Prior to Tapps’ opening, the Premises was the site of several different restaurants that served alcohol. Previously, the patio area that is subject of this hearing was licensed to sell and serve alcohol.

8Danforth Avenue is a very busy commercial area of Toronto located along the Bloor-Danforth subway line. The area is home to numerous clubs, bars, restaurants and cafes, many of which have outdoor patios. Within a single block radius there are at least four other patios that are licenced to sell and serve alcohol.

ISSUES RAISED BY THE ADDED PARTY

9The Added Party called three witnesses, including himself. All three had homes within the surrounding area. Their objections can be broadly broken down into the following categories:

a. Ontario’s alcohol policy;

b. The proximity of a school;

c. Intoxicated people in the neighbourhood;

d. Prior behaviour of the appellant; and

e. Concerns about noise.

OBJECTIONS TO ALCOHOL POLICY

10One of the consistent themes running throughout the testimony of the witnesses for the Added Party was a general objection to the manner in which alcohol is sold and served in the Province of Ontario. To give an example, Ms. Reed-Tanaka, an area resident called by the Added Party, spoke about recent studies have shown a shift in terms of the medically acceptable limits of alcohol permitted, although none of these studies was provided in evidence. Ms. Reed-Tanaka contended that, “as a society we need to stand back and re-examine our attitudes towards alcohol consumption.” She also stated that, “I don’t want to see people drinking beer. I don’t want my children and grandchildren seeing people drinking beer.”

11I find that the objectors’ concerns in this area are outside the mandate of the Tribunal. They are related to general policy decisions made by the Legislature with respect to the sale of alcohol in Ontario, over which the Tribunal has no jurisdiction to adjudicate (see, e.g., 7-Eleven Canada Inc. o/a 7 Eleven 72 Wharncliffe Road North, London v. Registrar, 2022 CanLII 20142 at paras. 29-34 (ON LAT)).

PROXIMITY OF HOLY NAME CATHOLIC SCHOOL

12All three of the witnesses called by the Added Party (including Mr. McNab himself), made the point that the Premises is located across the street from Holy Name Catholic School. Holy Name is an elementary and middle school serving children from Junior Kindergarten to Grade 8. One of the grounds on which concerns were raised was the fact if the licence for the patio was granted, then children on school grounds would be able to see people consume alcohol on the patio. However, children can currently see people consuming alcohol within the Premises either through the windows, or else when the large “garage style” doors are open during temperate days.

13There is no minimum proximity requirement from schools for the sale and service of alcohol. The policy decision to impose –or not impose—a minimum distance between an establishment that serves and sells alcohol and any other entity such as a school, is a policy decision that is the exclusive purview of the Legislature. It is beyond the scope of this Tribunal to examine these decisions, nor is it within the scope of this Tribunal to look at the merits of the procedure that has been put in place for the sale and the service of alcohol in this province (see, e.g., 7-Eleven Canada Inc. o/a or intending to o/a 7 Eleven, 140 Father Tobin Road, Brampton, v. Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 and City of Brampton, 2022 CanLII 70552 at paras. 29-30 (ON LAT)).

14Further to this, it should be noted that the Holy Name was not an objector. Nor was the principal, or vice principal of Holy Name an objector. Nor was any teacher of Holy Name an objector. Nor was any parent of a current student of Holy Name an objector.

15I am not satisfied that licensing the patio at the Premises will create any significant issue with respect to the neighbouring school.

INTOXICATED PEOPLE IN THE NEIGHBOURHOOD

16During their testimony, Ms. Reed-Tanaka, Ms. Camilleri and Mr. McNab all mentioned issues that they have had related to people who are intoxicated. Ms. Camilleri said that in an alleyway near the bar, there is the smell of urine. She vividly described the area as “toilet land”. Ms. Reed-Tanaka also mentioned the issue with public urination. Ms. Camilleri conceded that this problem pre-dated when the Appellant’s establishment was opened. Ms. Camilleri also mentioned that one morning in mid-April, she came across an individual sleeping in the alleyway. Notwithstanding these serious issues, there was no evidence that any of the people involved came from the Appellant’s premises, or that the problems the witnesses experienced were as a result of any wrongdoing on the part of the Appellant.

17Mr. McNab mentioned that on one occasion in the morning, when he was walking his dog, he came across vomit on the sidewalk. Again, there was no evidence that this was the fault of a patron of the Appellant’s. Mr. McNab also mentioned that, following the victory of the Toronto Maple Leafs over the Tampa Bay Lightning, in the first round of the playoffs, a large, boisterous and enthusiastic crowd of some 30-40 people had gathered outside of the Appellant’s establishment, celebrating the first series victory in quite some time. Mr. McNab conceded that he never felt threatened, nor was he afraid.

18As has been previously noted, Danforth Avenue is an extremely busy area of the city. There are many other bars and restaurants in the immediately surrounding area, some of which cater to younger and more boisterous patrons. Evidence was given by Chris Chen, that Rivals, a night-club that was directly across the street, attracted very different patrons. Mr. Chen also testified that Rivals was the involved in a shooting several years previously.

19Other than the celebration of the Leafs’ victory, there was no evidence that any of the ill effects upon the neighbourhood had anything to do with the Appellant. The Appellant gave evidence that their establishment both at this location and at a previous location in which they owned and operated a sports bar had never been the subject to a violation citation issued from the AGCO. This was compelling evidence that they were operating in accordance with the requirements of their licence and were not engaged in prohibited behaviour, such as over-serving patrons.

PRIOR BEHAVIOUR OF THE APPELLANT

20The Added Party presented evidence from his witnesses regarding a number of different aspects of the Appellant’s prior behaviour. The behaviour largely revolved around two areas:

a. Illegal parking; and

b. Improper handling of waste.

21All three of the witnesses called by the Added Party mentioned the illegally parked Lexus, which belonged to the principal of the Appellant. While the Lexus was continually parked on the Appellant’s property, the manner in which it was parked obstructed sightlines from the laneway and was illegal. I accept their evidence that this was a not insubstantial irritant. However, on behalf of the Appellant, Chris Chen testified that arrangements had been made with a neighbouring business to park the Lexus on their property. Further, should the patio licence be granted, the area where the Lexus had been parked would in fact be within the patio area and therefore could not park there.

22The Added Party presented evidence that the Appellant’s waste had previously not been stored properly, in particular used cooking oil. The Added Party provided pictures, which were entered into evidence demonstrating this. However, the Appellant has since remedied this issue with a new waste storage policy. As Ms. Reed-Tanaka conceded in cross examination, the “garbage issue has been largely resolved.”

23Ultimately, I do not find these prior irritants, which have now been fixed, have persuasive relevance to the issue of whether issuing a liquor licence covering the patio is contrary to the public interest.

NOISE ISSUES

24The Added Party gave evidence that not long after the Premises were opened, a cooking fan on the top of the Appellant’s roof was extremely loud and interfered with the quiet use and enjoyment of their property. However, the Appellant gave uncontested evidence that they worked diligently, and at not inconsiderable expense, to remedy this issue. The Added Party conceded the issue of the fan had been resolved to their satisfaction.

25In his testimony, Mr. McNab speculated that due to the fact that the Premises was bordered on one side by the school, that noises from the patio would somehow be magnified or amplified. However, given that there was no evidence to support Mr. McNab’s statement, it was impossible to give any weight to his conjecture.

26The other significant noise issue was related to a private party that was hosted in May on the premises. At this party, a DJ was present, and the DJ repeatedly played an air horn. In his testimony, Chris Chen stated that as a result of Mr. McNab’s complaint, they shut down the private party an hour early. Further, he stated that they would not again employ this DJ.

27Given the above, I was not convinced that the noise issues raised by the Added Party demonstrated that the extending of the liquor licence to the patio was contrary to the public interest.

IMPACT UPON NEIGHBOURING RESIDENTS

28The concerns expressed by the three residents called by the Added Party about the negative effects extending the Appellant’s licence to their patio, whilst sincerely expressed, either pertain to broader regulatory issues, outside the scope of this Tribunal, such as the objections to alcohol policy, and the proximity to Holy Name, or else are largely speculative, such concerns about intoxicated people in the neighbourhood. Further the Appellant has led clear evidence that many of the concerns, such as the improper storage of refuse, or the prior noise of the exhaust fan, have been properly dealt with and no longer present concerns. The Appellant’s spotless record of compliance both at the Premises and their prior location are compelling evidence that they have been and will continue to be fulfilling their obligations for their licence. I am satisfied that the Appellant will continue to follow the rules and regulations of the sale and service of alcohol.

CONCLUSIONS

29I am required to balance the needs and wishes of the residents with the Appellant’s qualified right to a licence.

30I have listened to and considered the concerns express by the Added Party and the witnesses at this hearing. I must not rely on speculation or unsupported concerns in reaching a conclusion. I may not make orders which rely on any consideration beyond those required by the Act and any applicable case law.

31I find that the Added Party failed to establish that extending the existing liquor licence to include the patio area of the Premises 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. I order the Registrar to issue a licence to the Appellant for the patio area of the Premises.

CONDITIONS

32The objectors had asked that the Tribunal impose a number of conditions, if it determines that a licence should be issued:

a. The patio should be enclosed;

b. In the alternative, that the Appellant be required to put up some noise barrier;

c. That the garage doors between the patio and the restaurant itself be remained closed at all times;

d. That the hours be limited to 10:00 pm; and

e. Only allowing a limited number of seats.

33In my view, the conditions requested by the objectors are not supported by the evidence at the hearing or my findings above. Further, they are impossible, impracticable, or inconsistent with the other establishments selling and serving alcohol within a one block radius.

34With respect to the requirement that the patio either be completely enclosed, or else be required to put up a noise barrier, the Registrar made the submission that this would be an impossible condition for the Registrar to enforce. I accept their submission.

35With respect to the garage doors remaining closed, this would also be unenforceable, unrealistic and unfeasible.

36With respect to the limited hours and the limited seating, this would be inconsistent with the requirements imposed upon the other premises selling and serving alcohol within the immediate vicinity, including directly across the street.

37In my view, holding the Appellant to a different standard would be arbitrary in the circumstances and inconsistent with their qualified right to the issuance of a liquor licence.

38For these reasons, I decline to impose any conditions upon the licence.

ORDER

39Having considered the evidence and submissions of the parties, for the reasons above, pursuant s. 26(3) of the Act, I direct the Registrar to issue a licence to the Appellant.