Citation: Two-Four-Seven Lounge and Restaurant Inc. o/a Two-Four-Seven Lounge and Restaurant and Adeniyi Balogun v. Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019, 2024 ONLAT 15306-R

RECONSIDERATION DECISION

Before:

Rebecca Hines, Adjudicator

Licence Appeal Tribunal File Number:

15306/LLCA

Case Name:

Two-Four-Seven Lounge and Restaurant Inc. o/a Two-Four-Seven Lounge and Restaurant and Adeniyi Balogun v. Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019

Written Submissions by:

For the Appellant:

Jacqueline Omotayo, Paralegal

For the Respondent:

Jordan Stewart, Counsel

BACKGROUND

1The respondent is seeking a reconsideration of my decision dated June 17, 2024 (“decision”). The decision addressed an appeal of the Notice of Proposal (“NOP”) issued by the Registrar, Alcohol and Gaming Commission of Ontario Act, 2019, (the “respondent”) under the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sch. 22 (the “Act”), to revoke the appellant’s liquor licence. In that decision, I determined 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 act with honesty and integrity. However, I found that the public interest would be served by a 30-day suspension and by adding terms and conditions to the appellant’s licence, rather than by revocation of the appellant’s liquor licence.

2The grounds for reconsideration are set out in Rule 18.2 of the Licence Appeal Tribunal Rules 2023 (the “Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

a. the Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;

b. the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or

c. there is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

3In its request for reconsideration, the respondent identifies criterion b) of Rule 18.2 as the basis for the reconsideration request. The respondent requested that my decision be varied and that I order the Registrar to carry out its NOP and revoke the appellant’s liquor licence.

4The appellant submits that my decision is correct, and I did not make any error in law such that I would have reached a different result had the error not been made. Further, the respondent has not met the threshold for reconsideration.

RESULT

5The respondent’s request for reconsideration is dismissed.

ANALYSIS

6Under Rule 18.2, the threshold for reconsideration is high. Reconsideration is a limited, error-correcting exercise, not a new hearing or an appeal of a hearing decision. The party requesting reconsideration must demonstrate how or why my decision falls into one or more of the criteria set out in Rule 18.2.

I did not make an error of law or fact such that I would likely have reached a different result had the error not been made.

7The respondent argues that I made errors of fact and law in my decision in the following ways:

i) I found that the respondent relied on this Tribunal’s decision in Andrew Bruce Arjoon doing business as Rooster’s Restaurant & Lounge v. Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019, 2024 CanLII 15878 (ONLAT) (“Rooster”) when it did not. Further, I incorrectly treated that decision as binding without considering other binding and persuasive case law.

ii) I erred in law by ordering a 30-day suspension and attaching terms and conditions to the appellant’s licence when the only remedy available was revocation, because the appellant was ineligible for a licence pursuant to s. 3(4) of the Act. The public interest is not relevant to determining whether a licence should be revoked once it has been determined there are reasonable grounds to believe a licence holder will not act with honesty, integrity, or in accordance with the law. Alternatively, the respondent argues that, if public interest is relevant, I did not consider the entire public interest.

iii) There was no evidence before me that the licence holder could be expected to be compliant with the existing regulatory obligations going forward and that I erred in determining that a suspension was the appropriate disposition.

8The respondent submits that had I not made the above-noted errors of law, I would have reached a different result and ordered the respondent to carry out the NOP. Instead, I ordered a 30-day suspension and added terms and conditions to the appellant’s licence.

Consideration of the Case Law

9I find that I did not err in law in considering the Rooster decision in paragraph [41] of my decision. In my view, referring to a case contained in the respondent's book of authorities, which is not discussed in the respondent's submissions, does not amount to an error of law. Further, I did not rely on Rooster as a "legal threshold" for revocation as alleged by the respondent, but simply noted that it had similarities to the case before me. For these reasons, I find that this does not support the respondent's request for reconsideration.

10With respect to the respondent's position that I erred in law by failing to address two decisions it relied on in its submissions, I find that this does not constitute an error in law. It is well established that the Tribunal is not required to refer to every decision relied upon by a party in its reasons. I reviewed all of the decisions provided by the respondent, but chose to discuss the Rooster decision in detail in my reasons as it provided instructive points of comparison. This does not amount to an error in law and does not support the respondent's request for reconsideration.

Section 3(4) of the Act – Revocation of Licence

11The respondent takes the position that because s. 3(4) of the Act sets out circumstances where an applicant is ineligible for a licence, the only remedy available with respect to a licensee who meets one of the circumstances listed in that section, is revocation. I disagree for the following reasons.

12First, s. 3(4) of the Act specifically refers to circumstances which will make an applicant [emphasis mine] ineligible and does not state that those circumstances will also make a current licensee ineligible to maintain its licence.

13Second, s. 13 of the Act states that the Registrar may issue a proposal to refuse to renew a licence or to suspend or revoke a licence, if the licensee would not be eligible for a licence under subsection 3(4) if the licensee were an applicant. I find that this implies that remedies other than revocation (including suspension) are available to the Registrar, and therefore to the Tribunal, in circumstances where an existing licensee would have been ineligible for a licence if they were an applicant.

14Third, s. 26(4) and (5) of the Act provide the Tribunal with significant remedial flexibility, including empowering the Tribunal to impose conditions on a licence that the Tribunal considers proper to give effect to the purposes of the Act. I find the respondent’s argument that I erred in law in considering the public interest in determining the appropriate penalty has no merit. Section 26(5) of the Act permits imposition of any condition on a licence that the Tribunal considers proper to give effect to the purposes of the Act, which include serving the public interest. For these reasons, I find I did not err in law in determining that it was open to me to order a suspension and attach terms and conditions to the appellant’s licence in the public interest.

15Finally, I find the respondent’s argument that my decision did not adequately consider the public interest and that I should have exercised my discretion differently based on the facts are not grounds for reconsideration. I find the respondent is re-arguing its position which is not the purpose of reconsideration. I find that I explained my conclusions regarding the public interest and the respondent's disagreement with those conclusions is not a basis for reconsideration.

No Evidence of Intent to Comply with Act

16The respondent submits that there was no evidence before me that the licence holder could be expected to be compliant with the existing regulatory obligation going forward. That is not accurate. The appellant testified that he has been more involved in the day-to-day operations of the business following his health crisis and that he will ensure that the individual outlined in the terms and conditions attached to the licence will not attend the premises in the future. Although I did not find all of the licensee’s testimony credible (namely with respect to past conduct), I concluded that he had a genuine intention to comply with the law going forward. Further, I find that I did not err in law in considering that appellant’s transitory health crisis as a mitigating factor in this case in determining that terms and conditions were appropriate.

17For all of the above-noted reasons, I find that I did not err in law or fact such that I would have reached a different result had the errors not been made.

Request for Clarification

18In its reconsideration request the respondent asked for clarification regarding whether the terms and conditions I imposed in paragraph [45] b) and c) of my Order are to be attached to the licence as ongoing conditions. These paragraphs ordered the following:

a. The initial terms and conditions attached to the appellant’s licence remain in effect and the appellant will ensure that all employees are educated about them and are aware of who [Jimi Azeez] Amidu is.

b. The appellant shall ensure that the licence is posted in a conspicuous place and that the addendum is accessible and that all employees are educated in relation to same.

19Rules 17 b. provides that the Tribunal may clarify an order or decision that contains a misstatement or ambiguity, which is not substantive and does not change the order or decision. I am not substantively changing my decision but to address any ambiguity the above terms and conditions are ongoing conditions attached to the appellant’s licence.

CONCLUSION

20For the reasons noted above, I dismiss the respondent’s request for reconsideration.