Licence Appeal Tribunal File Number: 16200/LLCA

In the matter of an appeal from a Notice of Proposal to suspend a licence and add conditions to a licence under the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15 Sched. 22.

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:

Colin Osterberg

APPEARANCES:

For the Appellant:

Frank Ayafor, Representative

For the Respondent:

Rena Khan, Counsel Brian Haddad, Counsel

HEARD: November 19 and 20, 2024

OVERVIEW

112403528 Canada Limited o/a J’TM Resto Bar (the “appellant”) appeals from a Notice of Proposal (“NOP”) issued by the Registrar, Alcohol and Gaming Commission of Ontario Act, 2019 (the “Registrar”) on August 9, 2024. In the NOP, the Registrar proposes to suspend the appellant’s liquor licence for 30 days and to attach conditions to the appellant’s liquor licence. The Registrar relies on the Liquor Licence and Control Act, 2019, S.O. 2019, C. 15 Sched. 22 (the “Act”) and the Regulations made under the Act in support of its NOP.

2The appellant owns and operates a licensed establishment at 101 Clarences Street called J’TM Resto Bar (the premises). Frank Ayafor and Octave LeConte are the appellant’s shareholders and directors.

The basis upon which the Registrar proposes to suspend the appellant’s licence is that the Registrar has reason to believe that the appellant has contravened the Act and the Regulations thereto or a condition of the licence. The Registrar relies on ss. 13(1)(b) and 25(1) of the Act with respect to its proposal to suspend the appellant’s licence.

3The Registrar proposes to attach the following condition to the appellant’s licence:

The Licence Holder shall ensure that every entrance to the premises during operating hours is staffed with at least one security person equipped with a metal detector and that the device is used on every person entering and re-entering the premises, without exception. AGCO and police are not subject to being searched.

4The Registrar relies on ss. 10(2)(b) and 25(1)4 of the Act with respect to its proposal to attach the condition to the appellant’s licence.

ISSUES

5The issues in dispute are:

i. Has the Registrar established that the appellant has contravened the Act and the Regulations thereto or a condition of its licence?

ii. If so, should the Registrar carry out its NOP to issue a 30-day suspension of the appellant’s licence?

iii. Has the Registrar established that the proposed licence condition is proper to give effect to the purposes of the Act?

RESULT

6The Registrar has established that the appellant has contravened the Act and the Regulations thereto or a condition of its licence.

7The Registrar has established that the proposed licence condition is proper to give effect to the purposes of the Act.

8The Tribunal directs the Registrar to carry out the NOP to issue a 30-day suspension of the appellant’s licence and impose the proposed condition on the appellant’s licence.

ANALYSIS

The appellant has contravened the Act and the Regulations

9Section 43(1) of O. Reg. 746 under the Act provides that a licensee shall not permit intoxication, unlawful gambling or disorderly conduct to occur on the licensed premises. The courts have interpreted this provision to entail a two-part test. It must be established that the licensee knew about the violation, in this case disorderly conduct, and that it permitted the violation to occur by failing to take reasonable steps to prevent the violation from taking place: See 1213963 Ontario Limited (Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), 2009 ONCA 323 and 2088675 Ontario Inc. o/a Zu Bar v. the Registrar of the Alcohol and Gaming Commission of Ontario, 2010 ONSC 5527.

10In its NOP, the Registrar alleges that, on June 10, 2023, at approximately 1:30 a.m. a shooting took place inside of the licensed premises on a crowded dancefloor. Police investigation determined that four victims had suffered gunshot wounds and one of the victims of the shooting also had a gun.

11The appellant admits that the alleged shooting took place as alleged but argues that it has made a number of changes in the operation of its establishment and that the suspension is not an appropriate remedy in the circumstances.

12Section 55(8) of the Act provides that it is a condition of every licence that the licensee must facilitate inspections under the Act. The Registrar alleges that the appellant failed to comply with demands made by an inspector for the video surveillance recordings from the times surrounding the shooting.

13The appellant alleges that it made efforts to produce the video surveillance and any failure to comply was due to technical difficulties in making copies of the video surveillance. It also alleges that the person who was assigned to provide the videos to the inspector is no longer associated with the appellant and that their failure to comply should not be visited upon the appellant.

The shooting

14Detective Cory Chuchryk of the Ottawa Police Service was the lead investigator in charge of the shooting which took place at the premises on June 10, 2023 and gave evidence at the hearing with respect to the circumstances surrounding the shooting. He based his evidence on witness interviews, scene examination, and surveillance videos of the premises on the night of the shooting. According to Detective Chuchryk, the surveillance video showed that the appellant’s premises appeared to be at capacity when the shooting took place. The suspect was seen in the video firing a gun from inside a satchel he was carrying, causing an injured victim to fall to the ground. The victim is then seen removing a gun from his own waistband and throwing that out a nearby window. Further shots were fired and the video shows the crowd in the premises fleeing to safety.

15Detective Chuchryk testified that prior to the shooting, the suspect was seen entering and leaving the premises three times. He was not seen to be searched when he entered. Detective Chuchryk noted that he observed five security persons at the front doors who were searching some persons who were entering but not others. He noted that females were not being searched at all and that some of the males were not either. Further, it was noted that persons, including the suspected shooter, were being given wristbands to wear and that they were being allowed to leave the premises and re-enter without being checked again. It appeared that searches that did occur were cursory and that bags being brought in were not thoroughly inspected. Bags being carried by female persons were not inspected at all.

16Detective Chuchryk stated that there had been other incidents at the appellant’s premises involving guns. In October 2022, a gun was discharged in a bathroom and this was not reported to the police. One of the appellant’s directors was later found to have removed evidence from the scene and a bullet hole in a wall was patched before it could be investigated by police. He testified that in April 2023, there was another shooting involving one victim and that both subjects involved in that incident had firearms on that occasion.

17Detective Chuchryk was concerned that the appellant’s premises were becoming a focal point for violence and was attracting a criminal element and that the appellant was not employing adequate safety measures such as conducting thorough searches of entrants, not allowing re-entry without a search, and ensuring that all entrants, including females, were searched.

18Tyler McCarthy is an inspector with the AGCO and testified at the hearing. Mr. McCarthy was assigned to investigate the shooting incident. He was able to review the video surveillance materials, most of which he was able to obtain from the Ottawa Police Service after attempts to obtain that surveillance from the appellant was largely unsuccessful.

19According to Mr. McCarthy’s observations, on the night of the shooting, at the front door of the premises, persons entering the building were sometimes searched and sometimes not. There were some pat-downs on male patrons and some bag-checks occurring but this did not occur with all persons entering. Female patrons were not patted down and most of their bags were not being checked.

20Mr. McCarthy noted that wrist bands were being handed out to some patrons which Mr. McCarthy later learned indicated that those patrons were “VIPs”. Those patrons were not being searched in any way and the person giving out the wristbands, who was a patron and not a staff member, was also not searched.

21Mr. McCarthy confirmed the description of the shooting given by Detective Chuchryk.

22Mr. McCarthy stated that, since the shooting, he has been back to the premises several times. On those occasions no new security measures were observed with pat-downs only occurring with respect to some male patrons and not others and no searches being conducted on female patrons.

23Frank Ayafor testified at the hearing that he was present on the premises the night of the shooting. According to Mr. Ayafor, at that time there were three other people who were shareholders and directors: Jennifer Krespine, Octave LeConte, and David Amar. According to Mr Ayafor, Krespine and Amar were associated with a bad crowd and so “bad people” were coming to the premises regularly and causing trouble. Mr. Ayafor testified that he wanted the business to cater to young professionals whereas Krespine and Amar wanted to run hip and wild events.

24On the night of the shooting, Krespine invited what Mr. Ayafor thought was a dangerous group of people. Mr. Ayafor says that he knew there was likely to be trouble and told Krespine that he was not comfortable with the people who were expected to attend that night. Despite this, and despite the fact that Mr. Ayafor was present at the premises that night, he allowed the event to proceed and took no additional precautions to try and make the premises as safe as possible.

25Mr. Ayafor did not dispute the description of the night of the shooting, and in particular the security measures that were in place that night, as described by Detective Chuchryk and Mr. McCarthy. He did not suggest that searches were being completed on all patrons, that female patrons were being searched or that bags were being adequately searched. He did not dispute that wrist bands were being given out or that those patrons who received a wrist band were being exempted from being searched.

26The appellant also called Ndzemdzela Langwa to testify. Mr. Langwa has worked as a manager at the premises for three months prior to the hearing date. He also worked at the premises for a period of time starting 2022 but left when it became clear that Krespine was taking charge of event planning and the events she was organizing were attracting a “bad crowd”. He could not speak to the events which took place on the night of the shooting.

27I find that the appellant knew about the violation, in this case disorderly conduct, and that it permitted the violation to occur by failing to take reasonable steps to prevent the violation from taking place. The appellant did not seriously dispute this. The appellant’s owners, including Mr. Ayafor, knew that events that were being organized were attracting a bad crowd and Mr. Ayafor at least was concerned that something bad was going to happen. He discussed his concerns with the other owners but those concerns were disregarded.

28At least one other shooting had occurred prior to the night in question. That should have, and based on Mr. Ayafor’s evidence it did, cause the appellant to be aware that disorderly conduct was likely to take place at the premises and that actions should have been taken to prevent that from happening.

29Despite this, the appellant and its directors conducted security in what can only be described as a haphazard fashion. Female patrons were not searched before they entered the premises. Male patrons were only sometimes searched. Bags that were being brought into the premises were looked at in a cursory manner and often not examined at all. Patrons were allowed to leave and then allowed re-entry without being searched.

30I find that the appellant knew about the disorderly conduct and failed to take reasonable steps to prevent that conduct from taking place. In the circumstances where the appellant’s owners and managers were aware that the events they were conducting were attracting a dangerous group of people and where there had been at least one previous occasion involving guns being brought into the premises and discharged, the appellant had a duty to take more actions than they did in order to prevent that from occurring. They did not take sufficient action and four people were shot, one critically.

31The appellant’s primary argument at the hearing was that it has now taken action that should provide the AGCO with confidence that the previous conduct which has occurred will not happen again.

32Mr. Ayafor says that Amar and Krespine are no longer shareholders or directors and that he has hired a new general manager, Mr. Langwa, and a new manager of security, Papa Gora Thioune. Mr. Ayafor says that the appellant’s operations are now such that they are attracting a better clientele and that the crowd that Krespine was encouraging to attend is no longer part of the picture. In addition, Mr. Ayafor says that the appellant has purchased metal detectors (wands) which are being used regularly (although not all the time) and that he no longer has concerns that something will happen like what occurred June 10, 2023.

33The appellant’s manager of security, Mr. Thioune, testified that he has put in place a security staff who are experienced and licensed. He supervises security every night and makes sure all patrons are patted down when they enter or re-enter the premises.

34On cross-examination Mr. Thioune appeared to be unable to name any of the security persons that are on his team without referring to his notes. He acknowledged that all of the security staff are men despite the fact that Mr. Ayafor testified that there were women on the staff to pat-down the female patrons. Although he says the metal detector wands are regularly used, he could not say whether there were three or four wands available at the premises. He also acknowledged that the security staff only starts working at 9:00 or 10:00 p.m. on Friday and Saturday nights although the premises are open earlier and through the week as well.

Contravention of the Act re: disorderly conduct

35I find that the Registrar has proven that the appellant has contravened the Act by permitting disorderly conduct to occur on the licensed premises. It allowed circumstances to continue in which unruly and disorderly crowds were regularly in attendance at the premises and failed to institute adequate security measures to prevent an occurrence like the one which took place on June 10, 2023.

36I do not accept the appellant’s position that the problem has been mitigated by the fact that Amar and Krespine are no longer shareholders and directors. When the problems occurred which led to the NOP, Mr. Ayafor and Mr. LeConte were also shareholders and directors, and apparently did nothing to try to avoid the problems that they apparently knew were likely to occur. This is so even after the previous shootings took place on the premises.

37The appellant did not present evidence sufficient to satisfy the Tribunal that there have been significant improvements in security or in the way the premises are operated in order to mitigate the public safety concerns which have arise out of the appellant’s operations. Further, the appellant has failed to demonstrate that it understands the seriousness of the events that have taken place at the premises or its obligations to ensure the safety of the public and its own employees. Krespine, whose management Mr. Ayafor blames as the source of many of the disorderly conduct which has taken place, has continued to be significantly involved in the management of the premises until just before the hearing according to Mr. Ayafor. The appellant failed to co-operate in the investigation of the shooting by the AGCO and has resisted implementing safety measures recommended by the AGCO because of a concern for its business interests over that of public safety.

38In my view, the appellant contravened the Act as described above and this contravention more than justifies the imposition of a 30-day suspension. A purpose of the Act is to ensure the safety of the public as well as staff. This is the second incident in which gunfire within the premises has resulted in a hearing before the Tribunal. In my view a suspension (at the very least) is required in order to impress upon the appellant the seriousness with which it is required to take public safety.

39The fact that the appellant’s contravention of the Act resulted in four people being shot and one person suffering very serious injuries is so serious that it should not have surprised the appellant if the Registrar had determined to impose a significantly more severe penalty than it did.

Failing to facilitate inspections

40I have found that the appellant has contravened the Act as set out above and that the contravention associated with the shooting in question is sufficient to confirm the suspension set out in the NOP. It is therefore not necessary to make a determination with respect to the allegation that the appellant contravened the Act by failing to facilitate inspections.

41That said, I do find that the appellant failed to facilitate inspections contrary to s. 55(8) of the Act.

42The evidence at the hearing was that, after the shooting several requests were made to the appellant for copies of the surveillance video in its possession showing the night of the shooting. Although the appellant produced some of the video, it did not provide all of it and did not comply with the Registrar’s several requests for the video. The Registrar was ultimately able to obtain a copy of the video from police in the spring of 2024.

43Mr. Ayafor alleged that the appellant’s failure to produce the video was the fault of Krespine since she was the person in charge of answering such requests. He says he was not aware that the requests were not being complied with until the NOP was issued.

44In my view, Mr. Ayafor’s explanation is inadequate. The fact that the appellant failed to comply with the inspector’s request due to the inaction of one of the owners does not relieve the appellant of its responsibility to comply with inspections and does not alter the consequences of its failure to do so. The fact that Mr. Ayafor left the responsibility of handling the AGCO’s request for the video, when he blamed her for the incident occurring in the first place indicates that Mr. Ayafor either did not understand the seriousness of the situation or that he lacks judgement and is incompetent in the proper management of the premises.

45Further, Mr. Ayafor testified that he was trying to remove Krespine from her role in the company since the shooting of June 10, 2023, and I find it implausible, or at least very irresponsible, for him to have entrusted Krespine with the responsibility of complying with the inspector’s requests.

46I find that, by failing to provide the Registrar with the items requested by the inspector in a timely fashion, or at all, the appellant breached s. 55(8) of the Act.

Conclusion regarding suspension

47The Registrar has established that the appellant has contravened the Act and the Regulations thereto or a condition of its licence in that it permit intoxication, unlawful gambling or disorderly conduct to occur on the licensed premises contrary to s. 43(1) of O. Reg. 746 under the Act.

48The Registrar has established that the appellant has contravened the Act and the Regulations thereto or a condition of its licence in that it failed to facilitate inspections as required by s. 55 of the Act.

49As a result of the contraventions and in all the circumstances the Registrar has demonstrated that a 30-day suspension of the appellant’s licence is appropriate.

The Condition

50Section 10(2)(b) of the Act provides that the Registrar may issue a proposal to attach any further conditions that the Registrar considers proper to give effect to the purposes of the Act.

51In this case, as set out above, the Registrar proposes that the following condition be attached to the appellant’s licence:

The Licence Holder shall ensure that every entrance to the premises during operating hours is staffed with at least one security person equipped with a metal detector and that the device is used on every person entering and re-entering the premises, without exception. AGCO and police are not subject to being searched.

52As noted, public and staff safety are important purposes of the Act. Requiring the use of metal detectors at premises where there have been at least two incidents involving the use of guns as described above is, in my view, clearly appropriate and directed directly toward the public safety purposes of the Act.

53The appellant’s position is essentially that metal detectors should only be required later in the evening since the supper crowd is less likely to be a problem and are likely to be unhappy about being wanded. I am not persuaded that the appellant’s position holds merit. Allowing persons entry early in the evening is likely to defeat the purpose of having metal detectors in the first place. If the wands are not in use until 9:00 p.m. as the appellant suggested, for example, a person wishing to bring in weapons could simply arrive earlier.

54I find that the condition proposed by the Registrar is reasonable, proportionate to the circumstances, and directed toward a purpose of the Act.

ORDER

55In accordance with s. 26(4) of the Act I direct the Registrar to carry out the NOP in its entirely.