Licence Appeal Tribunal File Number: 16655/LLCA

In the matter of an appeal from an Amended Notice of Proposal to Review an Application for a Liquor Licence under the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sch 22 (the “Act”).

Between:

1000652193 Ontario Corp o/a Aisle 3 Bar

Applicant

and

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

Respondent

and

Maggie Harkness

Added Party

DECISION

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Applicant:

Johnny Le, Representative

Jason Xue, Representative

For the Respondent:

Brian Haddad, Counsel

For the Added Party:

Maggie Harkness, Objector

Heard: By videoconference

April 22, 23, 2025

OVERVIEW

11000652193 Ontario Corp o/a Aisle 3 Bar (the “applicant”) appeals from an Amended Notice of Proposal issued by Registrar under the Act (the “respondent”) to review an application pursuant to paragraph 1 of subsection 25(1) the Act.

ISSUES

2The issues to be determined are:

i. Whether issuing the applicant a liquor licence is not in the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises to be licensed are located;

ii. If not contrary to the public interest, whether the Tribunal should impose conditions on the licence pursuant to s. 26(5) of the Act; and

iii. If so, what conditions should be imposed.

RESULT

3The issuance of a liquor licence to the applicant is not contrary to the public interest.

4The Tribunal imposes conditions on the licence to restrict the hours of liquor service and operation of the outdoor licensed area (“patio”), and prohibit the use of amplified music on the patio.

ANALYSIS

Aisle 3 Bar and its neighbourhood

5The applicant owns and operates Aisle 3 Bar at 2535 Dundas Street West in Toronto (“Aisle 3”). The applicant describes the restaurant/bar as a “Vietnamese snack bar and cocktail-focused restaurant … in Toronto’s Junction district”.

6Aisle 3 began operations in late summer/early fall of 2024 after completing renovations to the leased premises. The previous operator/lessee of the premises was a licensed restaurant called Ravi Soups which had ceased operating more than a year prior to Aisle 3 commencing its lease of the premises.

7The applicant submits that Aisle 3 came under new ownership and management as of November 17, 2024. Mr. Johnny Le and Mr. Jason Xue were owner/directors prior to that date but another owner/director, Phil, was no longer associated with the applicant after November 17, 2024.

8Maggie Harkness, a resident living adjacent to Aisle 3, was added as a party to this proceeding on April 4, 2025 at the case conference in this matter, to represent the objectors (“objectors”) to the liquor licence application. The objectors describe the location of Aisle 3 as being within a primarily residential neighbourhood with no other restaurants or bars nearby.

Issuance of a liquor licence is not contrary to the public interest

9I find that the issuing a liquor licence to the applicant is not contrary to the public interest if it includes conditions.

10Section 3(6) of Act stipulates that the Registrar shall not issue a liquor licence to an applicant if doing so is not in the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises to be licensed are located. Section 3(6) clearly equates the public interest to an expression of the needs and wishes of residents of the municipality.

11Further, the Tribunal has found in previous decisions regarding s. 3(6) reviews, such as in 7510 v. Registrar of Alcohol and Gaming, 2012 CanLII 44793 (ON LAT), that for the purposes of considering the needs and wishes of the residents, the opinions of residents who live closest to the proposed premises and who are most likely to experience the effects of the applicant’s operations are given greater weight and consideration than other residents of the municipality.

12For the Tribunal to order that a licence not be issued, the objectors have the burden of proving, on a balance of probabilities (that it is more likely than not), that issuing the licence is not in the public interest.

13The objectors do not oppose the applicant being issued of a liquor licence but they stress that it must have conditions. Maggie Harkness testified that the objectors she represents, approximately 20 persons living on Jerome Street adjacent Aisle 3, are of a consensus that Aisle 3 should be issued a liquor licence. She notes that Ravi Soups had a licence at that location and operated without incident for years. The objectors submitted, however, that the licence must be subject to conditions on its hours of operation among other things. In other words, their support for a licence being issued to the applicant is conditional. The objectors submit that a licence without conditions would indeed not be in the public interest. The issue of potential conditions is analyzed below.

14The respondent took no position on the question of whether issuing the licence was not in the public interest.

15The applicant submitted that it satisfies all the statutory criteria for approval of a liquor licence and should be issued a licence with no conditions beyond those specified in the Act and the regulations.

16I find that neither the objectors nor the respondent opposes the applicant being issued a liquor licence, but the objectors’ support is tied to there being appropriate conditions imposed on the licence. Given the above, I find that the issuance of a liquor licence is not contrary to the public interest. I next turn to the issue of whether conditions should attach to the liquor licence.

Licence to include conditions to limit noise and disruption to the residents

17I find the liquor licence of the applicant shall include conditions to limit the hours of service of liquor and operation of the patio, and the use of amplified music at the patio.

18Section 26(5) of the Act sets out that following a hearing the Tribunal may impose any condition on a licence that it considers proper to give effect to the purposes of the Act. The needs and wishes of the residents adjacent to the intended premises, as contemplated by s. 3(6) of the Act, persuade me that conditions are necessary for the licence, so that its issuance is not contrary to the public interest.

The objectors’ position

19The objectors presented evidence and made submissions illustrating their experience with Aisle 3 since September 2024, and the engagements they have had with the applicant in attempts to reach agreement on Aisle 3’s hours of operation that might prevent a hearing.

20Duran Wedderburn, Heidi Tao Yang, and Mark Thompson, residents living in close proximity (10 to 20 metres) to Aisle 3 appeared as witnesses for the objectors. They each live close to the corner of Jerome Street and Dundas Street West, where Aisle 3 is located, and describe the neighbourhood as a quiet residential area with many families and seniors who value the quiet, peaceful enjoyment of their property. They described occurrences from Aisle 3 that have given them cause to be concerned that a standard (no-conditions) licence for

Aisle 3, allowing liquor service 2:00 a.m., would significantly disrupt the quality of life on the street.

21Mr. Thompson testified about a physical altercation he and his daughter witnessed between Mr. Le and former owner Phil, that left his daughter frightened and shaken.

22Mr. Thompson referred me to a City map depicting a number of restaurant/bars the applicant submitted were “comparable” to Aisle 3, the closest of which is located 500 metres south along Dundas Street West. On average, the comparable locations are within about one kilometre away and include The Hole in the Wall, Boo Radley’s, Jenny’s Bar & Restaurant, Whelan’s Gate, and the Toronto Style Bar and Grill. I take notice that these locations publish operating hours to at least 2:00 a.m., with the exception of Whelan’s Gate which is open to 12:00 a.m. from Tuesday to Thursday, and 1:00 a.m. from Friday to Sunday.

23Mr. Thompson described the other locations, using the map and photos, pointing out that they are situated along street-level retail/commercial strips (beside other retail businesses). He testified that Aisle 3, on the other hand, stands alone amidst residential properties on each side and behind the premises, along Jerome Street.

24Mr. Thompson referred me to a number of restaurants and eating establishments in the neighbourhood that publish closing times of between 10:00 p.m. and 11:00 p.m.

25Each of the objectors’ witnesses testified about noise disturbances from Aisle 3 such as loud music emanating from inside the bar and loud conversations and commotion late at night on the patio. Although Aisle 3 does not currently have a liquor licence, during the last several months it has hosted several events using Special Occasion Permits (“SOPs”) which allow a permit holder to sell and serve liquor at an unlicensed premises.

26The objectors testified that the noise disturbances interrupted theirs and their family’s sleep and, therefore, negatively affected their health and readiness for work, school and daily activities. They acknowledged that there have been fewer noise disturbances since the fall of 2024 but they attributed it to the last several months (since November 2024) being in the cold-weather season. They are concerned that when the warmer weather arrives, and patio season begins, there will be more noise from Aisle 3’s patio.

27The objectors submitted a copy of an undated petition that was sent out to the Jerome Street area requesting that the Registrar and the Tribunal consider imposing conditions on Aisle 3’s indoor and outdoor licensed areas to mitigate potential disturbances. It is signed by 20 residents at various addresses on Jerome Street. The petition, which is worded as a resolution (“We, the undersigned support the request to…”), seeks limits on the hours of alcohol service on the patio and in the indoor areas, and a prohibition on amplified music on the patio.

28The objectors acknowledged that Mr. Le and Nicole Tzipelovan, partner and new front-of-house manager, invited their reports of any concerns with Aisle 3’s operations, and noted that Aisle 3 voluntarily removed a subwoofer from the indoor sound system (to reduce noise that could be disturbing nearby residents). On cross-examination, the objectors reported that they did not always report the noise disturbances they experienced in the last months to management at Aisle 3.

29Ms. Harkness testified that, although Aisle 3 has made efforts to mitigate noise and disruption, the negative experiences the neighbourhood has witnessed these last six months have left a bad impression that will not easily be corrected. She stated they have lost trust in Aisle 3 to respect the quiet nature of the neighbourhood. She testified that the neighbourhood is ill-suited for the operations of a late-night cocktail bar because there are so many residents in close proximity. Ms. Harkness and Ms. Tao Yang each testified that it is unfair to put the burden of late-night noise and disruption onto nearby residents just so that a business may stay open to 2:00 a.m. They testified that in these cases, the public interest of the residents should outweigh the prerogatives of the licensee. Therefore, the objectors conclude, the licence should include conditions that mitigate the disruption Aisle 3 will create in the neighbourhood.

30The objectors submit that the licence should be conditional on:

i. Service of alcohol indoors being limited to 10:00 p.m. from Monday to Thursday, and 11:00 p.m. on weekends;

ii. Service of alcohol on the patio being limited to 8:00 p.m.; and

iii. No amplified music on the outdoor patio.

The applicant’s position

31The applicant submitted that since the ownership change on November 17, 2024 it has taken greater steps to mitigate noise and disruption by removing the subwoofer from the sound system inside the premises, installing railings on the patio to keep patrons confined to that area, directing foot-traffic to the entrance on Dundas Street West (and away from the entrance on Jerome Street), and erecting signage asking patrons to park along Dundas Street West (rather than on Jerome Street), refrain from smoking, and to practice courtesy and respect to Aisle 3’s neighbours.

32Craig MacDonald, Julia Whekamp and Sean Skiffington, patrons of Aisle 3, testified that they value having Aisle 3 in the neighbourhood because it is a short walk from home, it offers above-average food and drinks and they are served by polite, service-minded staff and management. They testified that they appreciate having the opportunity to get a drink and/or something good to eat after work which can sometimes mean after 8:00 p.m. on weekdays. Each of the three witnesses for the applicant have frequented Aisle 3 multiple times, on their own or with family, including children.

33Mr. MacDonald testified that Aisle 3 should be subjected to the same rules as its competitors and should not face restrictions based on speculation or conjecture that is not substantiated. They should have the opportunity to prove they are respecting the community and then, if they do not, face conditions or sanctions.

34Hung Vo, the front-of-house and bar manager for Aisle 3, testified that since he assumed his role he has concentrated on staff training and ensuring service staff are observant of the Smart Serve principles for responsible liquor service. Mr. Vo testified that he brings 12 years of hospitality experience to Aisle 3 with the last 8 years being in the service of liquor and in bar operations.

35Mr. Vo testified that he recognizes Aisle 3 is located in a quiet residential area, not a commercial area. He testified that staff have been, and will continue to be, trained in safety and noise prevention protocols. He intends to ensure all staff and managers are attentive to Aisle 3’s obligations to operate a safe and welcoming environment for all patrons, while respecting its location within a residential area.

36Mr. Le testified on behalf of the applicant noting that Aisle 3 had pursued an agreement with the local residents on the hours of operation that might prevent its application from going to a hearing. The applicant submitted, on page 3 of its 13-page submission document, that it had proposed to make “last call” at 10:30 p.m. on weekdays, and 11:30 p.m. on weekends, these times applying to the indoor licensed area only.

37The applicant submitted the transcript of the responses (names, locations and comments) to a petition it sent to the area. The transcript lists 26 entries between January 2 and 24, 2025 that replied “yes” to the question, “Are you in favour of this proposal from Aisle 3”. The text of the “proposal” referenced in the petition heading is not included in the document on file. A review of the comments reveals similar sentiments and support of the applicant as was heard from Mr. MacDonald, Ms. Whekamp, and Mr. Skiffington. All three were listed in the petition responses.

38The applicant referred me to previous decisions of the Registrar with respect to licensees’ engagements with residents on issues of noise disruption from their licensed premises. The applicant referred to 1672251 Ontario Ltd. (Rio 40 Degrees Restaurant & Bar) vs. Registrar, Alcohol and Gaming Commission of Ontario, 2010 CanLII 81046 (ON AGC) (“Rio 40 Degrees”) at paragraph 40, suggesting the decision confirms that no formal complaints by objectors were registered with the licensee, and that this lack of formal complaints weighed in Rio 40 Degrees’ favour.

39The applicant also referred me to Black Cat Pub and Grill Inc. o/a Black Cat Pub and Grill (The) vs. Alcohol and Gaming Commission of Ontario, 2011 CanLII 45127 (ON AGC) (“Black Cat Pub”), noting that the premises was also situated in a mixed-use residential/commercial area, and that the Alcohol and Gaming Commission of Ontario (“AGCO”) took compliance with local bylaws and community standards into its decision on the matter.

40The applicant submits that, since November 2024, it has engaged in rigorous outreach to the local residents along Jerome Street to reach agreement on hours of operation, provided contact information for residents to report any noise or disturbance issues, and invited residents to report any concerns on multiple occasions. The applicant reports that there have been no formal complaints from residents since November 2024. Despite the lack of agreement on hours of operation, it has undertaken noise mitigation measures (removed subwoofer, installed railings and posted signs in an effort to avoid patrons causing noise that might disturb residents). It submits that it has acted in good faith to reach an amicable operating standard but the objectors’ insistence of an 8:00 p.m. cessation of liquor service on the patio, and 10:00 p.m. and 11:00 p.m. closing of indoor operations, is unreasonable because these limits are unsupported by any evidence of noise complaints.

41The applicant submits that as a licensed premises, Aisle 3 would be subject to regulations that require it to prevent noise from entertainment or from the sale of liquor from disturbing persons who live nearby. It submits therefore, that meeting its obligations as a licensee under the Act and regulations will sufficiently protect the interests of residents (against noise and disruption).

42The applicant’s submissions, at page 6 of Exhibit 7, indicate that it has no dance floor and no live music on the premises.

43The applicant seeks approval for a licence, for both indoor and outdoor areas, without conditions, however, it would accept limiting the service of liquor on the patio to 10:00 pm on weekdays, and 11:00 p.m. on weekends.

The respondent’s position on conditions

44The respondent takes no position on whether conditions are appropriate but if the Tribunal decides to order conditions, they must be clear, easily enforceable, and be related to the mandate of the AGCO.

45The respondent submits that sections 42 to 45 of O. Reg. 746/21 (the “Regulation”) set out the obligations of licensees to control the premises, prevent unlawful or nuisance behaviour, prevent disorderly conduct, and prevent noise arising from entertainment or from the sale of liquor from disturbing nearby residents.

The conditions

46I find that the applicant shall be subject to conditions on its licence that limit the sale and service of liquor, and the time of closing for the patio, and that there be no amplified music on the patio.

47I find the objectors met their onus in demonstrating that Aisle 3’s licence should contain conditions to limit the level of noise and disruption Aisle 3 could otherwise cause the neighbourhood. I give the objectors’ statements and evidence weight in illustrating the circumstances and character of the location Aisle 3 is situated in. I note that this part of Dundas Street West is primarily residential, unlike the locations of the establishments the applicant called comparable, that were situated in much more a street-level commercial district or strip.

48I give weight to the objectors’ descriptions of the noise disturbances they have already encountered, regardless of these incidents not resulting in formal complaints to the establishment, because the lack of formal complaint does not mean the offending noise or disturbance did not occur, and the objectors’ documentary evidence and testimony support the likelihood that Aisle 3 was the source of some noise and disruption.

Patio hours

49The objectors presented a persuasive argument for limiting the noise from the patio. Accordingly, I agree that the patio operation should not be open to 2:00 a.m., but rather, its hours should be in balance with the quiet, residential character of the neighbourhood in which it exists.

50The objectors sought an 8:00 p.m. close of the patio and the applicant is prepared to live with a 10:00 p.m. close on weekdays. Aside from the necessity to prevent noise from the patio into the later evening hours, when sleep might be disrupted, I find the objectors’ proposal, specifically for an 8:00 p.m. nightly closing on the patio, lacks a convincing rationale.

51I give the objectors’ petition weight because it sets out reasons for the signatories’ requests, however, the rationale for the 8:00 p.m. limit for patio hours is described as being for the purpose of “preventing noise disturbances into the evening hours”. I do not have anything before me that explains why the objectors landed on 8:00 p.m. as the limit. I do not disagree that preventing noise into the evening hours is a reasonable objective but for much of the patio season, roughly May through September, daylight persists well beyond 8:00 p.m.

52On that subject, I am persuaded by the applicant’s witnesses who made persuasive arguments that many patrons do not arrive home weekdays until after 6:00 p.m. and may not get out to their neighbourhood restaurant until 8:00 p.m.

53Balancing the need of the neighbourhood for quiet into the evening, especially for families with children, against the reasonable expectation of the patrons to be able to dine after 8:00 p.m., I find that the service of liquor on the patio should end by 9:00 p.m. on weekdays, and the patio should be closed by 9:30 p.m. On weekends, I find it is reasonable that service of liquor on the patio should end at 10:30 p.m. and close by 11:00 p.m., to be consistent with the City of Toronto noise bylaw which sets 11:00 p.m. as the start of the period for quiet.

54Section 45 of the Regulation prevents a licensee, with a licensed outdoor area, from allowing noise, whether directly or indirectly, from entertainment on the premises or from the sale and services of liquor, to disturb persons who reside near the premises. This provision of the Regulation underlines the ability of the AGCO to regulate licensees. If a licensee fails to meet this requirement or other legal obligations, they are subject to enforcement including warnings, licence suspension and/or revocation.

Amplified music on the patio

55Out of consideration for the needs of the neighbours in close vicinity, I find that the use of amplified music on the patio shall be prohibited.

56For the same reasons discussed above regarding limits on patio hours, the objectors make a persuasive case for prohibiting amplified music on the patio. I agree that ongoing amplified music from Aisle 3’s patio could be an unreasonable interruption for neighbours to bear, especially those in close proximity.

57The applicant did not make submissions on the subject of amplified music on the patio, but Mr. Xue testified that the applicant would accept no amplified music on the patio beyond 10:00 p.m.

58I give little weight to the applicant’s reliance on the decision in Rio 40 Degrees because the absence of formal complaints did not prevent the AGCO from ultimately ordering that no amplified music be allowed on the patio and that the licensee take actions to ensure its operations were not disruptive to the surrounding residential community. It appears that the AGCO was persuaded by the objectors’ concerns about noise and disruption from the premises, despite the absence of formal complaints to the management of the licensee.

59I give little weight to the applicant’s reliance on the case of Black Cat Pub because the citations it noted in its submission document “Liquor Sales Licence Tribunal Submissions – April 16, 2025” (Exhibit 7) do not appear to be correct. The paragraphs it directed me to have no relationship to the applicant’s explanation as to how or why the cited paragraph supports its position. I take note, however, that although the AGCO issued Black Cat Pub a liquor licence over the objections of local residents, the licence was ordered to include similar conditions as are being considered in this matter, to prohibit amplified music on the patio and steps to limit noise emanating from the premises.

Indoor licensed area hours

60I am persuaded by the comments of Mr. MacDonald that Aisle 3 should not be unreasonably restricted before it has had an opportunity to demonstrate its credentials and respect for the community, and that Aisle 3 will be competing with like businesses not too far away that are not similarly constrained by conditions on their hours of operation.

61I give weight to Mr. Vo’s testimony regarding the training regime being employed at Aisle 3 to ensure responsible liquor service and the upholding of protocols to prevent noise and disruption from disturbing the local neighbourhood.

62I give weight to the outreach and engagement that partners Le and Tzipelovan have undertaken to assuage concerns of the residents and their actions to mitigate noise and disruption caused by their business activities.

63I am persuaded by the evidence of objectors Wedderburn, Tao Yang, and Thompson who confirmed that occurrences of noise and disruption since December 2024, and after mitigating actions were taken by Aisle 3, have diminished and/or have not been significant enough to report. This is despite Aisle 3 operating indoors using SOPs these last several months. The same objectors attributed the lack of noise issues these last months to the cold weather season, i.e. that the patio was not in operation. It seems that the actions taken by Aisle 3 to reduce noise from its indoor operations are having the desired effect, meaning fewer concerns being expressed by nearby residents.

64The objectors expressed concern that with the arrival of warmer weather, noise and disruption will return. I conclude that the objectors are more concerned with the noise issues that could arise from the opening of Aisle 3’s patio than they are with the indoor licensed area.

65I am persuaded by the fact that Aisle 3’s comparable restaurant/bar establishments within approximately 1 km, are generally open to 2:00 a.m. I recognize that the comparable establishments are situated in a retail, street-level, commercial setting with less adjacent residential properties than is the case for Aisle 3, but it has operated indoors since December 2024 months without significant noise disruption to the local community.

66Accordingly, I am not persuaded that the indoor licensed area of Aisle 3 should be subject to an earlier closing than the standard set out in s. 31 of the Regulation for a licensed establishment (generally, a 2:00 a.m. closing time) for the following reasons:

i. the objectors’ noise complaints mainly relate to the patio, and the patio will now be subject to reduced hours and a prohibition on amplified music;

ii. Aisle 3 has taken actions to mitigate noise and disruption from its indoor operations, these actions have demonstrated fewer concerns or complaints from neighbours, and the training regime and community-minded attitude of Aisle 3 owners and managers suggest efforts to prevent noise and disruption will continue;

iii. Aisle 3’s principal competitors within a 1 km radius are generally open to 2:00 a.m.; and

iv. As a licensee, Aisle 3 will be obliged to comply with regulations requiring it to prevent noise, nuisance behaviour, and disorderly conduct arising from its operations, from disturbing nearby residents. In other words, Aisle 3 will need to govern its business activities such that it will be compliant with the Act and Regulation, including the prevention of noise disturbances.

Conclusion

67Accordingly, I find on a balance of probabilities that in consideration of the public interest, as expressed by the needs and wishes of the residents, Aisle 3 be issued a liquor licence with conditions to prohibit the use of amplified music on the patio, limiting the hours of sale and service of liquor on the patio, and limiting the hours of operations of the patio.

ORDER

68Pursuant to subsections 26(3) and (5) of the Act, the Registrar is directed to issue the applicant a licence with the following conditions:

i. There shall be no amplified music on or directed toward any outdoor area of the licensed premises;

ii. The sale and service of liquor for the outdoor licensed area shall cease at 9:00 p.m. and the outdoor licensed area shall close by 9:30 p.m. from Monday to Thursday, and all Sundays except those Sundays falling on Victoria Day, Canada Day, Civic Holiday and Labour Day long weekends; and

iii. The sale and service of liquor for the outdoor licensed area shall cease at 10:30 p.m. and the outdoor licensed area shall close by 11:00 p.m. on

Friday, Saturday, and the Sundays falling on Victoria Day, Canada Day, Civic Holiday and the Labour Day long weekends.

Released: May 12, 2025

__________________________

Bruce Stanton

Adjudicator