12403528 Canada Limited o/a J’TM Resto Bar v. Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019, 2024 CanLII 4249

Licence Appeal Tribunal File Number: 14985/LLCA

An appeal under subsection 13(4) of the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sch. 22 (the “Act”), from the issuance of a Proposal to Suspend a Licence pursuant to s. 13(1) of the Act.

Between:

12403528 Canada Limited o/a J’TM Resto Bar

Appellant

and

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

Respondent

DECISION

VICE-CHAIR: Jeffery Campbell

APPEARANCES:

For the Appellant: Jennifer Krespine, Director Octave LeConte, Director Frank Ayafor, Director

For the Respondent: Ashley An, Counsel Rena Khan, Counsel

Heard by Videoconference: January 17, 2024

REASONS FOR DECISION AND ORDER

OVERVIEW

1On May 25, 2023, the Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 (the “respondent”) under the issued a Notice of Proposal to Suspend a Licence, dated May 24, 2023, pursuant to the Liquor Licence and Control Act, 2019 (the “Act”) to 12403528 Canada Limited, operating as J’TM Resto Bar (the “appellant”). The notice proposed a suspension of 14 days and included reasons for the proposed suspension.

ISSUES IN DISPUTE

2a) Has the respondent established reasonable grounds to believe that the appellant will not carry on business in accordance with the law and with integrity and honesty?

b) Is a 14-day suspension the appropriate sanction?

RESULT

3For the reasons that follow and pursuant to s. 26(4) of the Act, I direct the respondent not to carry out its proposal to suspend the appellant’s licence as set out in the Notice of Proposal of May 24, 2023. Further and pursuant to s. 26(5) of the Act, I direct the respondent to impose certain conditions on the appellant’s licence as outlined below.

EVIDENCE AND ANALYSIS

a) I find that there are reasonable grounds to believe the appellant will not carry on business in accordance with the law and with integrity and honesty.

4According to the Court of Appeal in Registrar, Alcohol and Gaming Commission of Ontario v. 751809 Ontario Inc. operating as Famous Flesh Gordon’s, 2013 ONCA 157, once the relevant facts are determined on a balance of probabilities, the issue is whether those facts afford reasonable grounds for belief that the business will not be carried on in accordance with the law and with integrity and honesty.

5The “reasonable grounds to believe” standard requires something more than mere suspicion but less than proof on a balance of probabilities. In other words, the Registrar does not have to show that the past/present conduct of a licensee make it more likely than not that they will not carry on business as required. The Registrar need only show that there are reasonable grounds for belief that their business will not be carried on in accordance with the law and with integrity and honesty.

6Jennifer Krespine, Octave LeConte and Frank Ayafor are officers, directors and shareholders of the appellant. David Amar was an officer and director of the appellant at the time of the NOP but has since been removed. He remains a shareholder of the appellant.

7The appellant owns and operates an establishment at 101 Clarence Street called J’TM Resto Bar (“the establishment”) in Ottawa, Ontario. The respondent claims that, upon the discharge of a firearm in the establishment in October 2022, the appellant failed to notify the police. The respondent also claims that the appellant failed to deter disorderly conduct on property adjacent to or in the vicinity of the establishment and that it failed to minimize harm to the property arising out of disorderly conduct.

8The appellant submits that since the incident of October 2022, they have taken steps to ensure the safety of the public and their employees and to carry on its business with integrity and honesty.

9Constable Amanda Smith, a patrol officer with the Ottawa Police Service, testified on behalf of the respondent. Constable Smith testified that, just before 2:30 a.m. on October 23, 2022, as she was patrolling the Byward Market area in Ottawa, she was called to attend to a male who was unconscious due to a physical altercation on Clarence Street. She testified that, upon arriving at the scene, she discovered a male lying on the street outside of the establishment. Paramedics were on the scene.

10As she was attending at the scene, an individual whom she identified as Octave LeConte was attempting to take a picture of the unconscious individual. He advised Constable Smith that the individual had earlier fired a gun in the establishment and wanted to ‘trespass’ him from the bar.

11Constable Smith testified that she encountered David Amar as he was leaving the establishment. Mr. Amar confirmed the shooting (the “incident”) and advised her that he had patched up the bullet holes and would contact the police the following day.

12Constable Smith testified that she returned to the establishment later the same day and spoke again with Mr. Amar, who showed her the scene of the incident: a men’s room on the second level of the establishment. She was advised that an individual inside of that men’s room discharged a firearm. Mr. Amar showed her the patched-up entrance and exit locations of the bullet. He advised her that he had taken the bullet casing home with him earlier that day.

13Constable Smith testified that she told Mr. Amar to retrieve the bullet casing. She also required him to provide her with CCTV footage of the establishment at the time of the incident. Mr. Amar later provided that casing to Constable Smith. He also provided her with a thumb drive containing surveillance footage of the establishment. However, that thumb drive was corrupted and she was unable to view the surveillance.

14Constable Smith testified that, by patching up the scene of the incident and by taking the bullet casing home, Mr. Amar had compromised evidence regarding the incident. Subsequently, no criminal charges were pursued.

15Constable Smith testified that Mr. Amar failed to contact the police regarding the incident, compromised evidence regarding the incident and failed to provide surveillance of the establishment as requested.

16Michael Jaffal, an inspector with the Alcohol and Gaming Commission of Ontario (the “AGCO”) testified that it was not until November 5, 2022 that he found out about the shooting incident at the establishment after a casual conversation with another officer of the Ottawa Police Services. Mr. Jaffal subsequently attended at the establishment at 12:27 a.m. on November 6th and spoke with David Amar about the incident.

17Mr. Jaffal testified that Mr. Amar confirmed the incident and told him that, after the incident, he had panicked and tried to keep things quiet. Mr. Amar also advised Mr. Jaffal that since the incident, he has been cooperating with the respondent, providing it with a surveillance video, “beefing up” security and installing more cameras in the front of the property.

18After the interview with Mr. Amar, Mr. Jaffal reported the incident to the AGCO.

19Devine Sookdeo, Manager of Liquor Eligibility with the AGCO, testified that owners of an establishment are responsible for the safe sales and service of alcohol. With respect to the events of October 23, 2022 at the appellant’s establishment, he had concerns of the appellant concealing the evidence, tampering with the scene of the incident and not reporting the incident to the police.

20With respect to Mr. Amar no longer holding the position of officer or director with the appellant, Mr. Sookdeo advises that it is a requirement of liquor licence holders to inform the AGCO of any changes to the corporation. Mr. Sookdeo testified that the AGCO was never advised of Mr. Amar’s removal as an officer and director.

21Jennifer Krespine testified on behalf of the appellant that she was working on bottle service in the early hours of October 23, 2022. She testified that she was unaware of the incident when it occurred. She testified that she was advised of the incident later that morning, but it did not cross her mind to contact the police.

22Ms. Krespine testified that she is the main contact for the reporting of changes to the corporation with the AGCO. She testified that she was unable to make the changes online as she had problems with the AGCO website.

23Octave LeConte testified on behalf of the appellant that his position at the establishment is that of head chef. He testified that, in the early hours of October 23, 2022, he heard something upstairs and proceeded to check on what it was that he had heard. Upon arriving on the second level, Mr. LeConte observed Mr. Amar attempting to push open the entrance to the men’s room door. Once the door was opened, he observed an individual run out of the men’s room. Mr. LeConte then asked two others in the men’s room to leave.

24Mr. LeConte testified that, later that morning, he noticed that the individual who had left the men’s room was attempting to re-enter the establishment. Mr. LeConte denied him entrance. Later, he heard a commotion outside and discovered that that individual had been in an altercation and was laying on the street. Upon request from Mr. Amar, Mr. LeConte attempted to take a picture of the individual.

25Mr. LeConte testified that he was advised by Mr. Amar not to contact the police about the incident so as “not to create a frenzy among the people”.

26Frank Ayafor testified on behalf of the appellant that, on the morning of the incident, he was the bar manager at the establishment. He testified that he did not hear the gun shot and was told later by Mr. Amar that a firearm had been discharged in the men’s room.

27Mr. Ayafor testified that he was advised by Mr. Amar not to contact the police about the incident. Later however, upon cross-examination, Mr. Ayafor advised that he did not contact the police when he learned about the incident because the police were already there.

Analysis

28The respondent submits that it is the responsibility of the appellant to ensure that alcohol is sold safely, and ensuring the safety of the public is of utmost importance. It submits that the discharge of the firearm was a very serious incident that occurred at the establishment in which patrons and staff could have been injured. It further submits that a reasonable licencee would have notified the police immediately. However, none of the appellant’s directors and officers notified the police, deliberately choosing instead to keep the incident quiet.

29The respondent submits that Mr. Amar chose to conceal the incident and compromised the continuity of the evidence in patching up the bullet holes and taking the bullet casing home with him.

30The respondent submits that it was only after Constable Smith happened to come across Mr. LeConte attempting to photograph the man laying on the street in front of the establishment that the police learned about the shooting. It submits that, otherwise, there is no evidence that the police would ever have been notified about the discharge of the firearm.

31The respondent submits that the officers and directors, David Amar, Jennifer Krespine, Octave LeConte and Frank Ayafor all had the obligation to notify the police of the discharge of the firearm. However, for whatever reasons, they all failed to do so.

32The respondent also submits that the appellant failed to notify the AGCO of changes in the corporation upon the removal of David Amar as an officer and a director.

33The respondent submits that the appellant acted unreasonably, and thus meets the test outlined in Famous Flesh Gordon’s.

34The appellant submits that, since the incident, there has not been any problems in terms of “getting information to the authorities”. It submits that they have installed new CCTV cameras to monitor the area outside of the establishment. It further submits that it will act reasonably going forward. It also submits that Mr. Amar has been removed as an officer and director of the corporation due to his actions regarding the incident.

Conclusion

35It is more than apparent from the evidence and the testimony that the appellant failed to notify the police of the incident in a timely manner and that, through the actions of David Amar, the evidence necessary for a police investigation was compromised.

36It is also evident that the appellant failed, as is required, to notify the AGCO of changes in their corporation.

37For those reasons, I find that the appellant has acted unreasonably and that the respondent has satisfied me that there are reasonable grounds to believe the appellant will not carry on business in accordance with the law and with integrity and honesty.

b) A 14-day suspension is not the appropriate sanction.

38Section 26(5) of the Act states that, after a hearing, the “Tribunal may impose any condition on a licence or permit that the Tribunal considers proper to give effect to the purposes of this Act.”

39The failure of the officers and directors of the appellant to notify the police and the AGCO of the incident is a serious failure of those individuals, especially in the context of an incident as serious as the discharge of a firearm in the establishment. While at least two of the remaining officers and directors wrongly failed to notify the police allegedly upon the instruction of Mr. Amar, it was their responsibility to do so nevertheless. While the removal of Mr. Amar may be, in their minds, a step in correcting the failure to report the incident, it nevertheless does not serve, in itself, to impress upon the appellant their continued requirement to be diligent in their responsibility to ensure the safety of the public and their requirement of notifying police authorities and the AGCO of incidents that jeopardize that safety.

40I am not convinced that a 14-day suspension, while being punitive, will best serve to enforce the Appellant’s obligations of ensuring the safety of the public and of promptly reporting incidents that jeopardize the same.

41Devine Sookdeo, speaking on behalf of the AGCO advised that, while in his view, a 14-day suspension is appropriate, the AGCO wishes to work with the appellant and allowed for conditions that could be attached to the appellants liquor licence as a possible alternative to the suspension.

42Respondent counsel submitted the following conditions if the Tribunal chooses to impose conditions in the place of a suspension:

1. The holder of the licence shall ensure that security cameras are installed that have clear, unobstructed views of all public areas inside of the premises, including all entrances, exits and staircases, as well as the exterior front area of the premises (excluding the washrooms);

2. The equipment is maintained in good working order;

3. Surveillance records are be stored and made available for inspection and review upon request by AGCO inspector and/or police for a period of 30 days.

43Having considered the respondent’s proposed conditions, I agree that they will address the purposes of the Act to, among others, promote the safe and responsible operation of any establishment that serves alcohol, including the appellant’s. Accordingly, they shall be conditions to the appellant’s licence. Further, the Tribunal will add a condition that the appellant immediately report to law enforcement officials and the AGCO any criminal activity observed by the appellant in the establishment that puts at risk the safety of the public.

Conclusion

44I conclude that the above conditions are a sufficient enough sanction in this matter and may, in fact, serve more to advance the obligations of the appellant under the Act to provide a safe environment to the public than would a suspension of the appellant’s licence.

ORDER

45Pursuant to s. 26(4) of the Act, I direct the respondent not to carry out its proposal to suspend the appellant’s licence as set out in the Notice of Proposal of May 24, 2023.

46Further and instead, pursuant to s. 26(5) of the Act, I impose the following conditions on the liquor licence of the appellant for a period of two years effective on the date of this Order:

1. The appellant shall ensure that security cameras are installed that have clear, unobstructed views of all public areas inside of the premises, including all entrances, exits and staircases, as well as the exterior front area of the premises (excluding the washrooms);

2. The equipment shall be maintained in good working order;

3. Surveillance records are be stored and made available for inspection and review upon request by AGCO inspector and/or police for a period of 30 days; and

4. The appellant shall immediately report to law enforcement officials and the AGCO any criminal activity observed by the appellant in the establishment that puts at risk the safety of the public.