Licence Appeal Tribunal File Number: 16637/LLCA

Application for the removal of conditions pursuant to section 11(4) of a licence under the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sch. 22 (the “Act”).

Between:

Fat Cat’s Pizza Inc.

Appellant

And

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

Respondent

DECISION and ORDER

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Applicant:

Pao Yen Chuang, Representative

For the Respondent:

Brian Haddad, Counsel

Heard by teleconference:

April 17, 2025

OVERVIEW

1Fat Cat’s Pizza Inc. (the “applicant” or “licensee”) is the holder of a liquor licence issued under the Act, for a restaurant establishment in St. Catharines of the same name, Fat Cat’s Pizza (the “establishment”). Under the Act’s predecessor law, the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996, on June 28, 2019, the Registrar issued the licensee a Notice of Proposal (“NOP”) to revoke its licence following two occurrences at the establishment in January and May 2019. The owners of the establishment appealed the NOP to the Licence Appeal Tribunal (“Tribunal”) on July 11, 2019. A hearing on the appeal occurred January 7 and 8, 2020 in the matter of Pan-Yen (Kelly) Chuang and Adrien Joseph Yvon Vachon o/a Fat Cat’s Pizza v. Registrar under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996, 2020 CanLII 27437 (ONLAT) (“12201/LLA”), from which the Tribunal ordered:

a) a suspension of the establishment’s licence for 90-days; and

b) two conditions (the “conditions”) be imposed on the liquor licence:

i. an experienced bar manager to be present behind the bar from 7:00 p.m. until the close of business on Thursday, Friday, and Saturday nights; and

ii. that the licensee develop a formal policy (“Compliance Plan”), to be approved by the Registrar, that incorporates all the licensee’s duties and responsibilities to the public in the service of alcohol under the Act and regulations, and once approved by the Registrar, that it adhere to the policy as a further condition of the licence.

2I note that the appellant representative’s name in 12201/LLA is Pan-Yen (Kelly) Chuang, it being inconsistent with the name she offered in the Notice of Appeal of this matter and confirmed orally at the hearing as Pao Yen Chuang. The appellant’s representative confirmed orally that she goes by the given name, Kelly. I conclude that Pao Yen Chuang is the same person named in 12201/LLA as Pan-Yen (Kelly) Chuang.

3On January 28, 2025, the applicant filed with the Tribunal an Application for Removal of Conditions from a Liquor Licence under subsection 11(4) of the Act. The applicant seeks an order from this Tribunal to remove the conditions from its licence.

4The respondent takes no position on whether the conditions should be removed. It looks to the Tribunal to make that determination.

5Subsection 11(4) of the Act allows the Tribunal to remove a condition that the Tribunal has previously imposed if it is satisfied there is a change in circumstances justifying the removal of the condition. The applicant has the onus of demonstrating, on a balance of probabilities, that a change in circumstances justifies the removal of a condition.

6The Tribunal may consider and determine whether a change in circumstances justifies a removal of a condition, at a case conference event of the Tribunal.

7This case conference is constituted under Rule 21 of the Licence Appeal Tribunal Rules, 2023 (the “Rules”) and all other Tribunal Rules apply except to the extent varied or negated by the provisions of Rule 21.

8At the case conference, both the applicant and respondent consented to me, as the case conference adjudicator, making the decision on whether there has been a change in circumstances and whether the condition should be removed. The parties’ submissions are therefore incorporated into the analysis of the issue in dispute.

ISSUES

9The issue to be determined is:

1. whether a change in the licensee’s circumstances justifies the removal of the conditions of its liquor licence.

RESULT

10The change in circumstances of the licensee justifies the removal of the conditions. The conditions are ordered removed.

ANALYSIS

Change in circumstances

11I find on a balance of probabilities that the applicant has met its onus in demonstrating that the change in circumstances of its establishment justifies the removal of the conditions.

12The conditions were imposed on the licensee in 12201/LLA following two incidents of non-compliance in January and May 2019. In the January incident, a patron of the establishment was found without vital signs at her residence after leaving the establishment. The May incident involved a failure of the licensee to stop the service of alcohol after 2:00 a.m., and remove all signs of alcohol service by 2:45 a.m.

13In issuing the order to impose the conditions in 12201/LLA, the Tribunal reasoned that the requirement of an experienced bar manager on evening shifts Thursday to Saturday would help protect patrons by ensuring greater “hands-on” supervision of employees during these busier times. On the second condition, the Tribunal reasoned that adherence to the Compliance Plan would help strengthen and formalize the compliance culture of the establishment.

14The pivotal question in this matter is whether the change in the circumstances of the establishment demonstrates the conditions are no longer required for the purposes of protecting patrons and ensuring the licensee is upholding its responsibilities and obligations under the Act and regulations. The analysis requires looking back at the changes in the licensee’s business activities since the incidents of January and May 2019, i.e. what has changed since then, that would justify the removal of the conditions?

Change in sales and clientele

15The applicant submitted that it operates a two-part restaurant in a retail plaza; one side for take-out and the other for up to 25 dine-in customers. The establishment is situated close to a General Motors (“GM”) manufacturing plant. Up until 2019, many of its patrons were GM workers who frequented the location for drinks and socializing. This resulted in 2/3 of the revenue of the establishment being from alcohol sales. Since then, the establishment went through two years of pandemic restrictions (mid 2020 to 2022) during which it served take-out food only. After the restrictions were lifted the establishment shifted to showcasing and giving priority to its food offering and in-restaurant dining.

16The applicant submitted that the new focus on food sales has completely inverted the food-alcohol sales ratio from what it was. Food now represents 2/3 of its gross sales. It has used marketing tools and social media platforms to feature its food menu offerings.

17The applicant submits that giving priority to its food sales has resulted in a change in its clientele. The establishment still serves many GM workers but has a higher number of family patrons and dine-in food guests from the community than before 2019.

Change in hours of operation

18The applicant submitted that upon reopening to in-restaurant dining after the pandemic, the establishment no longer offers alcohol service after the kitchen closes (at 11 pm weekdays and 12:00 am on Friday and Saturday). It submitted that this alignment of operating hours for food and alcohol has helped improve the food-alcohol sales ratio and reduced the risk of alcohol-related incidents.

Smart Serve Training

19The applicant submitted that immediately after the occurrences in 2019 it imposed mandatory Smart Serve training for managers and staff of the bar, and managers and staff of the kitchen. Smart Serve is the approved, official responsible liquor training program of the Alcohol and Gaming Commission of Ontario (“AGCO”). It is mandatory training for bar service staff in Ontario. The respondent submitted that it is not mandatory for kitchen staff. The applicant submitted that it requires kitchen staff and managers to take Smart Serve because the dine-in side of the establishment has an open-kitchen format where kitchen staff can observe patrons. By having Smart Serve training, the applicant submits, the kitchen staff will be more alert to the condition of patrons such that they could intervene in circumstances where service to a patron should be stopped, or if a patron appeared to need assistance.

20The applicant seeks the removal of the conditions on the basis that the improved staff training, higher food to alcohol sales ratio, alignment of food and alcohol service business hours and shift in clientele make the conditions unnecessary. The applicant submits that across multiple inspections each year by AGCO inspectors since May 2019 there have been no incidents of non-compliance.

21The respondent submitted that it neither opposes nor supports the application, leaving it to the Tribunal to determine if removal is justified. The respondent submitted that the Tribunal should, as part of its analysis, consider the circumstances and reasons for the conditions being imposed in 12201/LLA. The respondent confirmed that the establishment has been subjected to multiple inspections each year since 2019 and there have been no new issues of non-compliance.

22I find on a balance of probabilities that the applicant has met its onus in demonstrating that the change in circumstances, specifically its training regimen, business hours, and marketing for greater food revenues, justifies the removal of the conditions.

23The establishment has received multiple inspections each year since the occurrences that compelled the imposition of conditions and has recorded no further incidents of non-compliance.

24The applicant has voluntarily expanded its Smart Serve training to include kitchen staff and adjusted its operating hours to reduce alcohol service into the later evening and early-morning hours. These changes bode well for the improved safety of patrons and the community.

25There is nothing before me that would suggest the removal of the conditions is contrary to the public interest. The licensee will continue to be subjected to routine inspections by the AGCO to ensure compliance with the Act and regulations.

26I find this establishment, whose patron suffered a tragic outcome in January 2019, has taken deliberate and responsible actions since then to bring its operations into compliance on an ongoing and reliable basis. It is a sound example of a licensee meeting the objectives of AGCO compliance programs aimed at bringing licensees into compliance and giving them the tools to dependably operate in accordance with the Act and regulations thereafter.

Conclusion

27For the reasons outlined above, I find on a balance of probabilities that the change in circumstances of the applicant justifies the removal of the conditions.

ORDER

28Pursuant to section 11(4) of the Act, I order the following conditions be removed from the licence:

1. An experienced bar manager to be present behind the bar from 7:00 p.m. until close of business on Thursday, Friday, and Saturday nights.

2. The holder of the licence shall comply with the Compliance Plan filed with the Registrar of Alcohol and Gaming.