Andrew Bruce Arjoon dba Rooster’s Restaurant & Lounge v. Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019, 2024 CanLII 15878

Licence Appeal Tribunal File Number: 14477/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:

Andrew Bruce Arjoon dba Rooster’s Restaurant & Lounge

Appellant

and

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

Respondent

DECISION

VICE-CHAIR:

Geoff Pollock

APPEARANCES:

For the Appellant:

Sean O’Connor, Paralegal

Sian Tuang, Paralegal Student

Elizabeth Morgan, Paralegal Student

For the Respondent:

Heard:

Elizabeth Maishlish, Counsel

July 24-26, August 1, 3-4, 11, 17, 2023

BACKGROUND

1Andrew Bruce Arjoon, doing business as Rooster’s Restaurant & Lounge (“Appellant”), is the holder of Liquor Licence No. LSL23325 under the Liquor Licence and Control Act, 2019 (the "Act”) since on or about June 18, 2019.

2Rooster’s is a sole proprietorship. The sole owner is Andrew Bruce Arjoon.

3Following two inspections in October 2020, the Registrar fined the Appellant $900 for violations of the conditions placed upon his licence.

4In January 2021 the Registrar conducted two unannounced inspections and found that the Appellant had violated conditions placed upon his licence.

5In February 2022 the Registrar conducted an education session for the Appellant in which the conditions placed upon his licence were explained to him.

6In August 2022 the Registrar conducted two unannounced inspection and found that the Appellant had violated conditions placed upon his licence.

7On December 16, 2022, the Registrar issued a Notice of Proposal to revoke the Appellant’s liquor licence pursuant to ss. 13(1) and 25(1) of the Act (“NOP”).

ISSUE TO BE DETERMINED

8The issue to be determined is whether the Registrar has established that:

a. there are reasonable grounds to believe that the Appellant will not carry on business in accordance with the law and with integrity and honesty; or

b. The Appellant is not eligible for a licence under s. 3(4) or 3(6) of the Act, or the Appellant has contravened the Act, the regulations, the standards requirements established by the Registrar under s. 24 or conditions of the licence.

RESULT

9For the reasons set out below, the appeal is dismissed and pursuant to s. 26(4) of the Act, I direct the Registrar to carry out the NOP. The Respondent has established that the past conduct of the Appellant affords reasonable grounds for belief that the Appellant will not carry on business in accordance with the law and with integrity and honesty. Further, the Respondent has also established that the Appellant has repeatedly contravened the conditions of his licence.

ANALYSIS

Burden of Proof

10The Registrar bears the burden of proof. The Registrar must not only prove the facts upon which it relies on with respect to the Appellant’s past or present conduct makes him ineligible for a licence, but prove that there is a nexus between the impugned past or present conduct and the ability of the Appellant to carry out his duties under the applicable legislation, see: CS v. Registrar, Real Estate and Business Brokers Act, 2002, 2019 ONSC 1652 at para. 32 (Div. Ct.). These facts must be proven on the balance of probabilities.

11If the Registrar establishes the conduct itself on a balance of probabilities, for the next stage the Registrar’s burden is lessened. The Registrar need only to show that the Appellant’s past or present conduct affords reasonable grounds to believe that he will not act in accordance with the law, or with integrity, honesty or in the public interest. “Reasonable grounds to believe” is a standard lower than a balance of probabilities, meaning that I do not need to find that it is more likely than not that he will not act in accordance with the law or with honesty or integrity: see Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157 at paras. 18-19.

12Similarly, the Registrar needs to establish on the balance of probabilities that the Appellant contravened the Act, the standards requirements established by the Registrar under s. 24 or conditions of the licence. If the Registrar establishes this on the balance of probabilities, then the burden is reduced to reasonable grounds to believe in terms of either the eligibility of a licence under s. 3(4) or 3(6) of the Act, or that the contraventions make it otherwise ineligible for a licence.

The Premises

13The Appellant owns and operates a family-run restaurant and bar known as Rooster’s Restaurant & Lounge (“Premises”) located in a strip mall in Brampton. In addition to the Appellant working at the Premises, he employs his fiancée as well as his stepmother. The Appellant’s father, Michael Arjoon (“Mr. Arjoon”), also assisted with the operation of the restaurant.

Conditions Upon the Licence

14The Registrar granted a licence to the Appellant to sell and serve liquor, subject to a number of conditions. The Appellant agreed to all conditions. At no time did the Appellant seek to vary the conditions. The conditions are as follows:

a. Lighting requirements;

b. Completion of a compliance plan;

c. Installation of surveillance cameras, with retention of 30 days of recordings to be available for inspection and review to the Registrar or the police upon request.

15In addition to the above general conditions, the Registrar had very specific conditions about the Appellant’s father, Mr. Arjoon, as they relate to his presence or involvement with the Premises. Those conditions are:

a. Michael Arjoon is not permitted to enter, or be at, or adjacent to the Premises;

b. Michael Arjoon is not to have any involvement in the business operations of the licensed establishment, including as an officer, director, shareholder or owner and have no beneficial or financial interest in the business or ongoing operations of the licence; and

c. Michael Arjoon shall not be employed in any capacity, including as manager, security personnel, service staff, or other function at the Premises.

16The terms “adjacent to the Premises” is needlessly ambiguous and overbroad. This was a strip mall including many other businesses, including a dentist. To take a broad reading of the terms, this could put the Appellant in breach of the terms of their licence for example, should Mr. Arjoon be seeking medical treatment. Further, as everything adjacent to the Premises was public property, the Appellant could in no possible manner from preventing Mr. Arjoon from patronizing other businesses in the mall that we “adjacent” to the Premises, which is an absurdity.

GENERAL CONDITIONS

17There was no evidence given with respect to any deficiencies with the lighting used at the Premises. Some evidence was given with respect to the timeliness and adequacy of the compliance plan; however, for the purposes of this appeal, they were not a persuasive factor. Rather, as I detail below, other conditions have greater significance, namely the availability of video surveillance recordings for inspection and the presence or involvement of Mr. Arjoon at the Premises.

THE AVAILABILITY OF VIDEO SURVEILLANCE RECORDINGS

18On October 14, 2020, the Registrar made an unannounced inspection of the Premises.

19During the inspection, the inspectors requested to review the Premises’ security surveillance footage. The Appellant stated that he was unable to retrieve any footage and that he would require the services of a technician to fix the system. The Appellant agreed that he would provide the requested footage no later than October 16, 2020.

20On October 16, 2020, the Appellant wrote the inspector to state that he was unable to provide the requested footage, as the hard drive was no longer functioning and required replacement.

21On January 21, 2021, the Registrar made an unannounced inspection of the Premises. During the inspection, the inspectors requested to review the Premises’ security surveillance footage. The Appellant stated that he was unable to retrieve any footage, because he did not have the login credentials for the video surveillance system. The Appellant agreed that he would put the requested footage onto a USB key for the inspector, no later than January 25, 2021. The footage was not provided to the Registrar.

22These facts were undisputed by the Appellant.

23The failure to provide the video recording upon request was a violation of the conditions of the Appellant’s licence. The Respondent submitted that an adverse inference should be drawn from this failure, which may have provided evidence about whether the Appellant was violating the conditions upon his licence relating to his father, Mr. Arjoon, which I shall detail below. I agree.

MICHAEL ARJOON

24On the afternoon of October 14, 2020, the Registrar conducted an unannounced inspection of the Premises. In violation of conditions upon on the Appellant’s licence, Mr. Arjoon was present.

25On the afternoon of October 23, 2020, the Registrar conducted an unannounced inspection of the Premises. In violation of conditions upon on the Appellant’s licence, Mr. Arjoon was present.

26On the late afternoon of January 21, 2021, the Registrar conducted an unannounced inspection. Raman Sharma is an inspector employed by the Registrar. Mr. Sharma was one of three inspectors present on January 21, 2021. Mr. Sharma testified that upon arriving at the Premises, he spoke with Wallton Abear, who identified himself as the manager. Mr. Sharma testified that he was told that Mr. Arjoon had left immediately prior to the arrival of the inspectors and that Mr. Arjoon was cooking a meal ordered for take-out. This evidence is hearsay. Notwithstanding that hearsay evidence is admissible in certain circumstances, in this particular instance, I assign no weight to the alleged statement of Mr. Abear.

27The following day, on January 22, 2021, the Registrar conducted another unannounced inspection. After they arrived, Mr. Arjoon surreptitiously attempted to leave through the backdoor. This did not transpire unnoticed. Mr. Sharma, who was personally familiar with Mr. Arjoon, identified him as the man leaving the Premises through the rear exit. This was in violation of conditions upon the Appellant’s licence.

28On the afternoon of August 12, 2022, the Registrar conducted an unannounced inspection. Mr. Arjoon again attempted to leave unseen through the backdoor immediately after the inspectors arrived. The inspectors engaged Mr. Arjoon in conversation, where he admitted that he worked at the Premises as a cook. This was in violation of conditions upon the Appellant’s licence.

29On August 26, 2022, the Registrar conducted an unannounced inspection. Mr. Arjoon was on the Premises. He admitted that he was again working as a cook. In his testimony, the Appellant conceded that Mr. Arjoon was working for him. This was in violation of conditions upon the Appellant’s licence.

30These facts were undisputed by the Appellant.

31Mr. Arjoon was scheduled to testify as a witness for the Appellant. The Appellant later decided not to call Mr. Arjoon as a witness. The Respondent asked that an adverse inference be drawn by the fact that Mr. Arjoon did not testify. I agree.

AGREED ORDER OF MONETARY PENALTY

32Following the two inspections on October 14 and 23, 2020, the Appellant entered into an Agreed Order of Monetary Penalty with the Registrar. The penalty was for violations of the conditions on his licence related to the presence of Mr. Arjoon, as well as his failure to provide video footage upon request.

33A monetary penalty of $300 was agreed to for each instance of Mr. Arjoon’s presence, as well as a further $300 for the failure to produce the requested video surveillance. The total agreed to fine was $900. The Appellant paid the monetary penalty in full.

EDUCATION SESSION

34On February 16, 2022, Mr. Sharma attended the Premises to conduct an education session with the Appellant. Present with the Appellant were his stepmother Chrissie Arjoon, his fiancée Breeanne Whiffen, and Mr. Abear.

35During the education, Mr. Sharma reviewed the results of the inspections that the Registrar had conducted on January 21 and 22, 2021 specifically dealing with the continued presence of Mr. Arjoon, as well as the continued failure to produce video surveillance footage upon request. Mr. Sharma reviewed with the Appellant that Mr. Arjoon was a prohibited person, which meant that as a condition of the Appellant’s licence, not only was Mr. Arjoon prohibited from having any financial interest in the business, but he was further not allowed to be employed by the business. He was not even allowed to be present on the Premises at any time or for any reason.

NOTICE OF PROPOSAL

36After inspections on August 12, and 26 2022, when Mr. Arjoon was again present, the Registrar issued the NOP.

INTEGRITY AND HONESTY

37Between October 14, 2020, and August 26, 2022, the Registrar conducted six unannounced inspections of the Premises. In five of the inspections, Mr. Arjoon was present.

38Not only did Mr. Arjoon, as a prohibited person, continue to be present on the Premises, he was also working for the business. His involvement and presence at the Premises continued, notwithstanding repeated warnings from inspectors, an Agreed Order of Monetary Penalty, and an education session. Further, when the Registrar made unannounced inspections of the Premises, Mr. Arjoon would attempt to sneak out unseen from the Premises.

39The Respondent submitted that the actions of the Appellant give reasonable grounds to believe that the Appellant would not carry on the business in accordance with the law and with integrity and honesty. I agree. I find that the Appellant's conduct by permitting Mr. Arjoon to be on the Premises on multiple occasions, despite previously fined, and being told repeatedly, such as during the education session on February 16, 2022, that this was in breach of a condition of his licence, affords reasonable grounds to believe that the Appellant will not carry on the business in accordance with the law and with integrity and honesty.

THE OTHER GROUND FOR REVOCATION

40For the reasons already mentioned above, the Appellant repeatedly contravened the Act, the standards requirements established by the Registrar under s. 24 or conditions of the licence. Further under s. 3(4)(b) the Appellant has demonstrated by his past conduct that is ineligible for a licence as there are reasonable grounds to believe that he will not carry on business in accordance with the law and with integrity and honesty.

MITIGATING, OR AGGRAVATING CIRCUMSTANCES

41During his testimony, the Appellant offered little in the way of mitigating circumstances beyond the fact that COVID-19 was very difficult for restaurants and bars and that Mr. Arjoon was assisting him in keeping his business afloat.

42While there is no question that COVID-19 had an absolutely devastating impact upon many businesses, in particular upon restaurants and bars, this did not absolve the Appellant of the obligations he had to obey the conditions of his licence.

43The Appellant submitted that the conditions relating to Mr. Arjoon were onerous and alluded to the fact that the conditions were unduly harsh. The Appellant would have been completely within his rights to have brought an application before the Licence Appeal Tribunal to have some, or all of these conditions removed. He chose not to do so.

44The Appellant submitted that the Registrar did not offer any specific education programs related to how to obey the conditions of his licence, and that the Registrar thus shouldered some of the burden for his non-compliance. This is a disingenuous argument. Following the education session on February 16, 2022, Mr. Arjoon continued to be present and working at the Premises.

45The Appellant was demonstrably unwilling or unable to refuse his father’s entry into the Premises. While defying or saying no to a parent is no doubt challenging and difficult, it was an agreed-upon condition to the Appellant being granted a licence to sell and serve alcohol.

46The Appellant submitted that the fact that Mr. Arjoon had been served with a Notice of Trespass after the Appellant was given the NOP demonstrated that he now took his responsibilities seriously and henceforth Mr. Arjoon would no longer attend the Premises. Given the numerous chances, warnings and monetary penalties that the Appellant has had to this point, I am not satisfied that his behaviour would change going forward.

47In terms of aggravating factors, the Appellant’s complete and total unwillingness to accept responsibility for his repeated failures to follow the conditions of his licence was telling in terms of his integrity and his honesty.

48In 9521 v. Registrar, Motor Vehicle Dealers Act, 2002, 2016 CanLII 36674 (ON LAT), the Tribunal concluded that the licensee’s failure to “accept responsibility for his role … [was] unconvincing. The Tribunal concludes that [the licensee’s] registration must be revoked.” The two cases are similar in that both licensees refused to accept responsibility for their actions. In that case the Tribunal said that “Past misconduct can be offset by sincere and concrete actions to take responsibility for the misconduct, learn from it and minimize the chance of a recurrence.” In the case of the Appellant, the misconduct of Mr. Arjoon’s presence happened time and time and time again. Rather than accept responsibility for the repeated violations of the terms and conditions of his licence, the Appellant attempted to blame the Registrar, for essentially not offering a specific education program on how not to employ a prohibited person. This was disingenuous.

CONCLUSIONS

49This is not an appropriate circumstance to attach conditions upon the licence, as the entire Notice of Proposal was issued because the Appellant was either unwilling, or unable to comply with the original conditions placed upon his licence. I have no reason to believe that the Appellant would be any more observant of any subsequent conditions, that I may place upon his licence, than he has been of the existing conditions placed upon his licence.

50Having considered the evidence and submissions of the parties, for the reasons above, I find that there are reasonable grounds to believe that the Appellant will not carry on business in accordance with the law and with integrity and honesty.

ORDER

51Pursuant to s. 26(4) of the Act, I direct that the Registrar carry out the Notice of Proposal to revoke the Appellant’s licence.