Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 16158 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. 2019, c. C. 15, Sched 22

Between:

Lake of Bays Marina 2 Inc. o/a as Lake of Bays Marina Appellant

and

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

and

Ellen Briant, David McKey, Paul Conway, Heather Lawson Added Parties

DECISION

ADJUDICATOR: Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant: Liam Alrich, an owner

For the Respondent: Brian Haddad, Counsel

Added Parties: David McKey, Paul Conway, Heather Lawson, Self-represented

HEARD By Way of Videoconference November 26, 2024

DECISION

OVERVIEW

1Lake of Bays Marina 2 Inc. o/a as Lake of Bays Marina, the appellant, applied to the Alcohol and Gaming Commission of Ontario (“AGCO”) for a liquor licence for the indoor and outdoor areas of 1092 Main Street, Dorset, Ontario (the “Premises”) with capacities of 50 and 189 persons respectively under the Liquor Licence and Control Act, 2019, S.O. 2019, c. C. 15, Sched 22 (“Act”).

2Pursuant to s. 7 of the Act, the Registrar (“Registrar”) gave notice of the application to residents.

3The Registrar received written objections from 5 individuals. As a result, the Registrar issued a Notice of Proposal to Review an Application for Licence (“NOP”). The appellant appealed the NOP to the Tribunal.

4The Tribunal’s Case Conference Report and Order dated October 7, 2024 added as parties to this proceeding, at their request, four individuals, namely Ellen Briant, David McKey, Paul Conway and Heather Lawson (“Added Parties”).

5Ellen Briant did not attend this hearing.

ISSUES TO BE DECIDED

6The issues to be decided are:

(a) Whether the added parties have established, on a balance of probabilities, that the issuance of a liquor licence to the appellant 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;

(b) Whether conditions should be attached to the licence, if one is granted.

RESULT

7For the reasons that follow, I direct the Registrar to issue the licence applied for to the appellant. I decline to order any conditions be attached to the licence.

LAW

8Section 3(6) of the Act states that the Registrar shall not issue a licence to operate a liquor consumption premises or a licence of another prescribed category or prescribed class within a category 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.

9Under s. 7(11) of the Act, after receiving written objections to the application from residents of the municipality and calling a public meeting, the Registrar may, among other steps, issue a NOP to review whether issuing the licence is in the public interest.

10Under s. 26 of the Act, a person who has received an NOP under s. 25(4) of the Act, is entitled to a hearing by the Tribunal.

11After holding a hearing under s. 26 of the Act to consider a proposal to review whether issuing a liquor licence is in the public interest, the Tribunal may direct the Registrar to issue the licence or to refuse to issue the licence. If the Tribunal directs that a licence be issued, it may impose any condition on the licence that it considers proper to give effect to the purposes of the Act.

12The good faith concerns of the residents in the immediate area of the premises 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.

ANALYSIS:

Issue (a):

Whether the added parties have established, on a balance of probabilities, that the issuance of a liquor licence to the appellant 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

No Issues Raised by Added Party Ellen Briant

13In a hearing held under s. 26 of the Act, the Tribunal must balance the needs and wishes of the residents with the appellant’s desire to operate its business, bearing in mind that the appellant has a qualified right to a licence unless it is not in the public interest. The onus is on the Added Parties to establish that issuing the licence is not in the public interest. The Tribunal must consider the totality of the evidence to evaluate whether the subjective concerns of the Added Parties are supported on a valid and objective basis.

14Added Party Ellen Briant did not attend the hearing and submitted no evidence.

Issues Raised by Added Party David McKey

15Added Party David McKey, who lives next door to the Premises testified about his concerns.

16Firstly, Mr. McKey is concerned that if the liquor licence is granted, it will interfere with his enjoyment of his own waterfront residence and devalue his property because no one wants a cottage beside a noisy bar. Mr. McKey agrees with his witness, Penny Kiely, an experienced real estate salesperson, that the value of his property would go down. Mr. McKey testified that he has observed loud music being played at the appellant’s water skiing shows in the past, and once observed a woman unsuccessfully requesting that the volume be turned down. Mr. McKey also testified that if the appellant is trying to create a family venue, the service of alcohol is not necessary, and he did not take his children to venues where alcohol was served.

17Secondly, Mr. McKey, a building contractor, questions whether the appellant, if granted a liquor licence, will comply with applicable rules and regulations because he observed Liam Alrich, one of the owners of the appellant, conducting renovations that he believes were done without a permit, and using unsuitable building materials. Mr. McKey testified that if Mr. Alrich doesn’t care about municipal laws, he is not likely to care about complying with Provincial laws in the operation of the Premises, if granted a liquor licence. Mr. Key testified that Mr. Alrich would not show him a map of the Premises and didn’t return two of his phone messages.

18Thirdly, Mr McKey is also concerned that the appellant has not put forward specific plans for the Premises. Mr. McKey admitted in cross-examination that he knows the Premises are zoned for commercial use including a restaurant.

19Mr. McKey also testified that of the approximately 20 letters the appellant put forward supporting its liquor licence application, Mr. McKey knows that at least five of them are not “on the lake” and that the supportive letter-writers are a very small percentage of residents.

20Penny Kiely, a licenced real estate salesperson with approximately 43 years experience in cottage country, testified that noisy neighbours always have an adverse effect on the value of real estate, including Mr. McKey’s, because buyers in this area want privacy, tranquility and a view. Ms. Kiely testified that because the Premises are on the waterfront, the noise will carry across the water and will impact the general neighbourhood.

21In cross-examination Ms. Kiely admitted that there is another bar in Dorset, and also a restaurant which is “low-key and closes early”.

22Ms. Kiely also admitted that she has not seen a problem with boating and alcohol on the lake, that the Premises are currently zoned for commercial use, that she does not know what the appellant’s application involves, and that a bar would not be a “huge thing”.

23Ms. Kiely did not submit a written report, or any other document in support of her views.

Issues Raised by Added Parties Paul Conway and Heather Lawson

24Paul Conway and Heather Lawson, residents at 1015 Donaldson Street, Dorset, attended the hearing. Mr. Conway did not testify and said that he agreed with Heather Lawson.

25Heather Lawson testified that she is concerned about boating safety, children on the lake and safety in the community. Ms. Lawson testified that serving beer at a marina is like serving beer at a gas station, that the marina is very close to where liquor will be served on the Premises if the liquor licence is granted, and that the lake is tricky to navigate if one is not familiar with it.

26Ms. Lawson said a representative of the appellant told her that the immediate and longer range plans for the Premises were not known. Everyone understands that there is a marina but it is not clear beyond that, and she believes there is a lack of transparency about what is going to occur.

27In cross-examination Ms. Lawson conceded that just because the Premises are zoned for a restaurant doesn’t mean there has to be a restaurant on the Premises. and the appellant is allowed to choose what it does with the Premises.

28Ms. Lawson also agreed in cross-examination by the Registrar that she believes the AGCO has a responsibility to ensure that the holder of a liquor licence adheres to the rules and regulations applicable to the licensee and has inspectors for this purpose. Ms. Lawson further conceded that she does not know if a liquor licensee has to serve food in order to serve alcohol.

29No other evidence was put forward in support of the proposition that issuing the licence would not be in the public interest within the meaning of s. 3(6) of Act.

The Added Parties have failed to establish that it is not in the public interest to grant the appellant a liquor licence.

30I find that the Added Parties have failed to establish, on a balance of probabilities, that it is not in the public interest to grant the appellant a liquor licence, having regard to the needs and wishes of the residents of the municipality in which the Premises are located under s. 3(6) of the Act, for the following reasons.

31Although Mr. McKey is concerned that if the liquor licence is granted, it will interfere with his enjoyment of his own waterfront residence and devalue his property because of noise, there is insufficient evidence to establish that these subjective concerns are supported on a valid, objective basis, on a balance of probabilities. Mr. McKey testified that he has observed loud music being played at the appellant’s water skiing shows in the past, and on a single occasion observed a woman unsuccessfully requesting that the volume be turned down. This evidence regarding periodic events and a single observation regarding volume of music does not rise to the level of supporting objective concerns about the issuance of a liquor licence to the appellant for the Premises.

32Further, the Premises are currently zoned for commercial use, tending to indicate that the Premises have been considered by the municipality to be suitable for commercial use.

33Ms. Kiely’s testimony that noisy neighbours always have an adverse effect on the value of real estate, and that because the Premises are on the waterfront, the noise will carry across the water and impact the general neighbourhood is not specific to a concern with a liquor licence being issued to these Premises in particular, and insufficient to constitute evidence that it is not in the public interest to issue the requested liquor licence to the appellant.

34Further Ms. Kiely admitted that there is another bar and another restaurant in Dorset, which is not of concern.

35Still further, in the end, Ms. Kiely admitted that she has not seen a problem with boating and alcohol on the lake, that she does not know what the appellant’s application involves, and that a bar would not be a “huge thing”.

36Although Mr. McKey questions whether the appellant, if granted a liquor licence, will comply with applicable rules and regulations because he observed Liam Alrich conducting renovations that he believes were done without a permit, and using unsuitable building materials, would not show him a map of the Premises and didn’t return two phone messages, this is not sufficient evidence to support Mr. McKey’s contention that Mr. Alrich will likely not comply with Provincial laws in the operation of the Premises. The alleged lack of permit was not substantiated by any documentation, and the alleged inferences that Mr. McKey asks the Tribunal to draw are too strained, failing to demonstrate that it is not in the public interest to issue the requested liquor licence to the appellant.

37While Mr. McKey and Ms. Lawson testified that they’re concerned that the appellant has not put forward specific plans for the Premises and Ms. Lawson has alleged a lack of transparency, it is not necessary for the appellant to provide specific plans to them. The appellant’s intention to obtain a liquor licence is set out above. Mr. Alrich testified that the appellant’s specific plans for the Premises will depend on compliance with the various rules and regulations which will apply if the liquor licence is issued.

38Mr. McKey testified that of the approximately 20 letters the appellant put forward supporting its liquor licence application, Mr. McKey knows that at least five of them are not “on the lake” and that the supporters are a very small percentage of residents. These letters of support are hearsay before me without the authors of the documents testifying at the hearing and being available to be cross-examined, so I have given them little weight.

39I do find persuasive the testimony of the appellant’s witness Anthony Sturgess, a summer resident of the area whose parents reside there. Mr. Sturgess testified that he has volunteered at the appellant’s water skiing shows. Mr. Sturgess testified that the downtown Dorset community needs a catalyst to bring people downtown and provide an enjoyable activity and, that if the Premises could serve alcohol, it could help to fill that role. Mr. Sturgess testified that he fully supports what the appellant seeks to do at the Premises. Mr. Sturgess’s testimony is consistent with that of the appellant’s employee Victoria Reynolds but it is more persuasive given that Mr. Sturgess testified that he has no financial relationship with the appellant.

40I also find persuasive the testimony of Liam Alrich, one of the owners of the appellant, that he has for several years successfully operated another marina in the vicinity, has some 400 customers he services, and that the appellant will have to comply in the operation of the Premises with all the rules and regulations applicable to it, including liquor licence rules and regulations, if the application is approved. Mr. Alrich testified that the acquisition of Premises and its operation is a significant investment which he is prepared to make in Dorset because he lives nearby and would like to create a legacy for his four children. Specific plans for the Premises will be determined after it is determined whether the liquor licence is granted. Mr. Alrich said that his intention is to create an elevated boutique experience, enhance the availability of food and beverage for the local community, and he appreciates and respects all feedback from the community. I find the testimony of Mr. Alrich to be persuasive, as it was detailed, was not seriously shaken in cross-examination by the Added Parties, and was consistent with that of Mr. Sturgess.

41It is apparent from the testimony of Mr. Alrich that he has considerable business experience, and successfully operates another marina business in the vicinity, tending to indicate that the appellant has the skills and experience to carry on business in the Premises, if licenced, in a responsible manner. Mr. Alrich both lives and works in the vicinity and expressed respect the feedback provided, both positive and negative. Although specific plans for the Premises do not appear to have been developed yet, I find that it is not unreasonable that these would await the decision on whether the appellant’s application is successful and that this is not attributable to a lack of transparency or lack of communication as suggested by the Mr. McKey and Ms. Lawson.

42I will direct the Registrar to issue the licence in the circumstances, and turn next to the issue of whether conditions should be attached to that liquor licence.

Issue (b):

Whether conditions should be attached to the licence, if one is granted

43Ms. Lawson testified at the hearing that although she was at one time agreeable to the appellant’s application being approved on condition that the service of alcohol be limited to seven days a week May to September no later than 9:30 p.m. and October to April no later than 7:00 p.m., she was no longer agreeable to this condition.

44In closing submissions, Ms. Lawson reversed her position and said that she was now in favour of this condition should the appellant’s application be approved.

45The respondent submitted that it takes no position on the restriction on operating hours requested by Ms. Lawson, only that if any conditions be imposed that they be clear and enforceable by the Registrar.

46The appellant submitted that there should be no condition attached to the appellant’s liquor licence if granted.

47I have already found that the Added Parties have failed to prove, on a balance of probabilities, that it is not in the public interest to grant the appellant a liquor licence. I also find that there is no evidence before me that this restriction on operating hours would be effective in alleviating any valid concerns raised by any of the Added Parties or should be imposed on the appellant’s licence.

48As a result, I decline to order that any of these additional conditions be attached to the appellant’s licence.

ORDER

49Pursuant to the authority of ss. 26(3) of the Act, I direct the Registrar to issue the licence applied for to the appellant.