Licence Appeal Tribunal File Number: 14900/LLCA

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

Between:

Afro-East Restaurant Inc. c.o.b. Afro-East Restaurant

Appellant

and

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

Respondent

DECISION

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Appellant:

No one appeared

For the Respondent:

Aviva Harari and Ashley An, Counsel

Brian Haddad, Student-at-Law

Heard by Videoconference:

February 6, 2024

OVERVIEW

1Afro-East Restaurant Inc. c.o.b. Afro-East Restaurant (“appellant”) appeals the Notice of Proposal to Revoke the appellant’s liquor sales licence No. LSL1195140 dated May 1, 2023 (“NOP”) issued by the Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 (“Registrar”) pursuant to the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22 (“Act”). The appellant’s liquor licence (“Licence”) permitted it sell liquor at 91 Queen Street South, Unit 10, Kitchener, Ontario (the “Premises”).

2The NOP is based on ss. 13(1) and 3(4)(b) of the Act. The Registrar alleges in the NOP that there is reason to believe that the appellant has contravened the Act, its regulations, or a condition of the licence. The Registrar also alleges that the past or present 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. As a result, the Registrar proposes to revoke the appellant’s liquor licence pursuant to s. 25(1) of the Act.

3Specifically, the NOP alleges that the appellant has:

a. Failed to comply with licence conditions.

b. Failed to ensure compliance with the Fire Protection and Prevention Act, 1997.

c. Failed to ensure that every person involved in the sale and service of liquor held a valid Smart Serve Certificate.

d. Permitted patron removal of liquor from the licensed Premises.

4The Registrar issued an Amended Notice of Proposal to Revoke the appellant’s liquor licence dated September 12, 2023, which added, “The AGCO received a police report that on or about April 15, 2023 officers observed signs of sale and/or service of alcohol after 2 am and further observed that signs of service were not removed by 2:45 am.”

5The Registrar issued a Further Amended Notice of Proposal to Revoke the appellant’s liquor licence dated December 22, 2023 (“FANOP”), which added, “On or about November 16, 2023, the City of Kitchener Licensing Tribunal rendered a decision in which it revoked the business licence, Food Shop, that had been issued to Kidane Abraha for 91 Queen Street S., Unit 10, Kitchener. The grounds for the revocation related to breach of conditions that had been attached to the business licence. The decision was upheld by council on December 11, 2023.”

6The FANOP contains all allegations against the appellant made by the Registrar as at the date of the hearing of the appeal.

7In its Notice of Appeal dated May 11, 2023 (“NOA”) the appellant denies the allegations set out in the NOP, alleges it took steps to steps to attempt to comply with its legal obligations under its licence and denies knowingly engaging in the alleged conduct.

8The appellant admitted in paragraph 5 of the NOA that “The Licensee/Appellant admits it failed to notify the Registrar of charges”.

9The appellant did not file an amended NOA or any documents for the hearing of this appeal in support of its position.

PRELIMINARY ISSUE: Appellant did not attend the hearing on February 6, 2024

10Section 7(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) provides that the Tribunal may proceed with an electronic hearing in the absence of a party where the Tribunal is satisfied that the absent party was given proper notice of the hearing and that the absent party did not request a change of hearing format because an electronic hearing would cause them significant prejudice.

11For reasons that follow, I am satisfied that proper notice was given and, consequently, I ordered the hearing to proceed.

12This hearing was originally scheduled to commence October 17, 2023 but was adjourned on that date to allow the appellant time to obtain an interpreter for the hearing.

13With the agreement of the parties, the hearing was re-scheduled to commence February 6, 2024 as set out in the Tribunal’s Case Conference Report and Order released December 20, 2023.

14On February 6, 2024, the appellant did not attend the hearing despite having been given notice of the hearing by the Tribunal. The appellant did not contact the Tribunal indicating that it could not attend the February 6, 2024 hearing or asking for a further adjournment. The Registrar attended the hearing on February 6, 2024 with proposed witnesses.

15I waited 30 minutes for the appellant to attend the hearing. During the 30 minutes that I waited for the appellant to attend the hearing, Tribunal staff contacted the appellant’s telephone three times and received messages that the number is unavailable. Tribunal staff sent an email to the appellant but received no response.

16After 30 minutes had passed and the appellant failed to attend the hearing on February 6, 2024, I asked for submissions from the Registrar.

17The Registrar submitted that the appellant’s appeal appeared to be abandoned and the Tribunal should dismiss it without a hearing.

18After considering the submissions of the Registrar, I ruled that the hearing should proceed in the absence of the appellant given that the Respondent appears to bear the burden to prove that the appellant’s licence should be revoked.

19As a result, I proceeded with the hearing in the absence of the appellant.

ISSUES

20The issues in dispute are:

i. Issue 1: Has the appellant contravened the Act and/or regulations or a condition of the licence? and

ii. Issue 2: Does the past or present conduct of the applicant afford reasonable grounds for belief that the appellant will not carry on business in accordance with the law and with integrity and honesty?

RESULT

21Having considered all of the evidence, and for the reasons that follow, I direct the Registrar to carry out the FANOP.

ANALYSIS

Issue 1: Has the Registrar has proven that the past or present conduct of the appellant affords reasonable grounds for belief that it will not carry on business in accordance with the law, and with integrity and honesty pursuant to s. 3(4)(b) of the Act?

22For the following reasons, I find that the Registrar has proven that the past or present conduct of the appellant affords reasonable grounds for belief that it will not carry on business in accordance with the law, and with integrity and honesty pursuant to s. 3(4)(b) of the Act.

23The appellant failed to attend the hearing of its appeal and submitted no evidence in support of its appeal for the hearing.

24As a result, I am left with the uncontroverted evidence of the Registrar’s witnesses and documents filed, which I find establish reasonable grounds for belief that the appellant will not carry on business in accordance with the law, and with integrity and honesty pursuant to s. 3(4)(b) of the Act.

Appellant Failed to Comply with Licence Conditions

25The appellant’s Licence contained three conditions which were consented to by Kidane Beyene Abreha (“Mr. Abreha”) on behalf of the appellant in writing on November 15, 2021. The conditions are summarized as follows:

i. The appellant shall ensure that Angesom Fitsumberhan (“Mr. Angesom”) and Abraham Gebremichael Kflu shall have no involvement in the business of the appellant’s licensed establishment as an officer, director, shareholder or owner and have no beneficial or financial interest;

ii. Mr. Angesom and Abraham Gebremichael Kflu shall not be employees in any capacity including as manager, security personnel, service staff, or other function.

iii. The appellant shall notify the Registrar within 5 business days of any charges, convictions or findings of guilt under any legislation.

26Kendra Giles, an experienced AGCO inspector, testified that she is familiar with the appellant’s Premises. Inspector Giles testified that she inspected the Premises on several occasions in 2022 and found infractions of the Act and violations of the conditions on the appellant’s liquor licence, which included:

a. Inspector Giles identified both Mr. Abreha and Mr. Angesom as bartenders based on her observations during her inspection.

b. Although Mr. Angesom was not to be involved in the business, Inspector Giles observed him behind the bar on her inspection and was the only person behind the bar and also observed him cleaning the Premises.

c. Mr. Angesom admitted to Inspector Giles that he is an employee of the appellant and had not obtained his Smart Serve certification.

d. On June 17, 2022 when Inspector Giles inspected the Premises with the police, Mr. Angesom was identified by patrons to Inspector Giles as a manager. Mr. Angesom told Inspector Giles that he had the keys to the Premises and he pays the rent.

e. During Inspector Giles’ November 26, 2022 inspection of the Premises, the female tending the bar that night admitted to Inspector Giles that she did not have Smart Serve certification as required by the Act.

f. The appellant served alcohol at the premises after 2:00 a.m. and failed to remove evidence of service by 2:45 a.m. according to the April 15, 2023 police report.

Appellant Failed to Ensure Compliance With the Fire Protection and Prevention Act, 1997

27Inspector Christopher Gowing, an experienced inspector, Kitchener Fire Department testified that on June 17, 2022, he attended the Premises with persons from the AGCO and Kitchener-Waterloo Police. He observed breaches of the Ontario Fire Code, specifically that there was a chain and a lock on the exit door, low levels of lighting and items stored in the path of exit, which could prevent persons from exiting in the event of a fire.

28Inspector Gowing testified that the chained and locked door could prevent a person from exiting the premises and that person(s) could be injured or die in the event of a fire. Inspector Gowing’s testimony was corroborated by the photographs that he took of the Fire Code infractions that he observed. Inspector Gowing testified that the chain and lock were removed by him before he left the premises on June 17, 2022 because the appellant’s representative on site said he was unable to locate the key but he observed the chain and lock had been installed on the exit door on two subsequent occasions when he returned to the Premises.

29Inspector Gowing’s evidence was corroborated by that of Inspector Giles who testified that she observed that the exit door to the Premises was chained and locked on June 17, 2022 prior to Inspector Gowing removing these items but on November 26, 2022 she observed that the exit door was again chained and locked.

Appellant Failed to Ensure that Every Person Involved in the Sale and Service of Liquor Held a Valid Smart Serve Certificate

30Inspector Giles testified that during her November 26, 2022 inspection of the Premises, the female she observed tending the bar admitted to her that she did not have Smart Serve certification.

Appellant Permitted Patron Removal of Liquor From the Licensed Premises

31Inspector Giles testified that during her June 17, 2022 inspection of the Premises, she observed a male leaving the Premises with two bottles of beer and carrying them into the hallway leading to the exit. The hallway is not a licensed area. The appellant took no steps to stop the male from doing so.

Appellant Failed to Comply with Conditions of its City Business Licence

32Helen Fylactou, manager of enforcement for the City of Kitchener, testified that the appellant had been granted a business licence by the city which contained various conditions. As a result of the appellant’s failure to comply with the conditions attached to its business licence, the city revoked the appellant’s business licence.

33The appellant unsuccessfully appealed the revocation of its city business licence and the city proceeded with the revocation pursuant to a notice delivered to the appellant in November 2023. The result is that the appellant no longer has a business licence with the city.

Issue 2: Has the Registrar proven that the appellant has contravened the Act, its regulations, the standards and requirements established by the Registrar under s. 24 or a condition of the licence pursuant to s. 13(1) of the Act?

34For the following reasons, I find that the Registrar has proven that the appellant has contravened the Act, its regulations, the standards and requirements established by the Registrar under s. 24 or a condition of the licence pursuant to s. 13(1) of the Act.

35The uncontroverted evidence of Devin Sookdeo, manager of liquor licence eligibility, establishes that Mr. Abreha is the sole officer, director and shareholder of the appellant. Mr. Sookdeo testified that the appellant’s November 16, 2021 liquor licence for the Premises contains conditions, which the appellant through Mr. Abreha consented to including a condition that the appellant must report any charges and also contains two conditions prohibiting Mr. Angesom and Abraham Gebremichael Kflu from being involved in the appellant’s licenced business.

36The appellant admitted in its NOA that “The Licensee/Appellant admits it failed to notify the Registrar of charges”. Mr. Sookdeo confirmed the same in his testimony.

37Further, Mr. Sookdeo testified that the appellant committed numerous and repeated violations of its liquor licence since it was issued in 2021, which gives the Registrar grave concerns. Mr. Sookdeo testified that even with the education which the liquor inspectors give to licensees and with the conditions the appellant agreed to on its licence, the appellant did not abide by the conditions, leading the Registrar to conclude that the appellant is not governable. Concerns as to governability also arise by the appellant failing or abide by the Fire Code requirements and comply with the City’s requirements. Considering all of this, Mr. Sookdeo testified that the appellant’s licence should be revoked.

38I accept the uncontroverted evidence of the Registrar’s witnesses. Section 15(1) of the SPPA allows me to consider all evidence that is relevant to the subject-matter of the proceeding, and while some of the testimony of Inspector Giles is hearsay evidence, and I am mindful of the dangers of assigning the weight that it may not deserve, I accept this hearsay for the truth of its contents in this particular case. Inspector Giles is an experienced inspector who is required by her employment to observe premises and note statements made to her during inspections. Inspector Giles gave her testimony under oath, has no reason to be untruthful here, and none has been suggested by the appellant.

Conditions

39As an alternative to revocation, I have considered whether the Registrar should be directed to carry out the proposal with any changes that the Tribunal considers appropriate under s. 26(4) of the Act. I have also considered whether the Registrar should be directed to not carry out of the NOP but instead whether conditions should be imposed on the appellants licence under s. 26(5) of the Act.

40Here the respondent’s evidence clearly establishes that the appellant has breached all three conditions on its Licence.

41There is nothing in the uncontroverted evidence of the respondent that would lead me to believe that the imposition of further conditions on the appellant’s Licence would be effective as the appellant has not complied with the existing conditions on the Licence which were agreed to.

Costs

42At the conclusion of the hearing, the Registrar orally requested costs in the amount of $1,000.00 due to the appellant’s conduct in this proceeding. Specifically, the hearing was adjourned on October 17, 2023 because the appellant did not obtain a translator for the hearing and five days were set aside for the hearing. The Registrar appeared at the hearing with its witnesses because all indications were that the appellant was proceeding with the appeal and the appellant did not say otherwise.

43After considering the appellant’s conduct, I am not satisfied that it has risen to the level of acting unreasonably, frivolously, vexatiously or in bad faith as required by Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, Fire Safety Commission Common Rules of Practice & Procedure, October 2, 2017. No costs are awarded to the Registrar.

Conclusion

44It is clear from the Registrar’s uncontroverted evidence that the Registrar has met its onus to prove that the past or present conduct of the appellant affords reasonable grounds for belief that it will not carry on business in accordance with the law, and with integrity and honesty pursuant to s. 3(4)(b) of the Act; and has met its onus to prove that the appellant has contravened the Act, its regulations, the standards and requirements established by the Registrar under s. 24 or a condition of the licence pursuant to s. 13(1) of the Act.

ORDER

45For the reasons set out above, I direct the Registrar to carry out the FANOP.