Licence Appeal Tribunal File Number: 16831/LLCA

In the matter of an appeal from a Notice of Proposal to Refuse to Remove a Condition from a Liquor Licence under s. 11 of the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sch 22 (the “Act”).

Between:

2589943 Ontario Ltd. o/a Bistro Ristoro

Applicant

and

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

Respondent

and

Lowertown Community Association

Added Party

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Appellant: Stanko Krstik, Representative

For the Respondent: Brian Haddad, Counsel

For the Added Party: Sylvie Grenier

Heard by Videoconference: May 22, 2025

OVERVIEW

12589943 Ontario Ltd. o/a Bistro Ristoro (the “appellant”) appeals from a Notice of Proposal to Refuse to Remove a Condition (“NOP”), issued by the Registrar under the Act (the “respondent”) on February 25, 2025. The Lowertown Community Association (“LCA”) was added as a party to this proceeding.

2The appellant is a holder of a liquor licence under the Liquor Licence and Control Act, 2019 (the “Act”) and has operated a licenced restaurant located at 17 Clarence Street, Ottawa since 2018. In 2018, the LCA opposed the appellant’s licence, however, they were able to reach an agreement and the appellant agreed to terms and conditions such as limiting the time for alcohol sales and not playing amplified music on its outdoor patio.

3In December 2024, the appellant sought to remove the condition attached to its liquor licence to allow it to play amplified music on its patio. The respondent issued a Notice of Proposal to Refuse to Remove Conditions. The appellant has the onus of demonstrating on a balance of probabilities that a change in circumstances justifies the removal of a condition.

4The respondent takes no position on whether the condition of not playing amplified music on the establishment’s patio should be removed. However, LCA opposes removing the condition from the appellant’s licence.

ISSUE

5The issue to be determined is:

i) Is there a change in the appellant’s circumstances that justifies the removal of the condition in its liquor licence prohibiting amplified music on the patio?

RESULT

6I find that a change in circumstances of the appellant justifies the removal of the condition of its liquor licence that prohibits amplified music on the patio and order the condition removed.

ANALYSIS

7I find the appellant has met its burden in proving on a balance of probabilities that there is a change in circumstances that justifies the removal of the prohibition on amplified music on the patio.

8Subsection 11(4) of the Act allows the Tribunal to remove a condition that the Tribunal previously imposed if it is satisfied there is a change of circumstances justifying the removal of the condition.

9As highlighted above, the conditions imposed on the appellant’s licence were agreed to in 2018 following the appellant’s appeal of the respondent’s NOP seeking to review a liquor licence application after it received an objection from the LCA. The Tribunal endorsed the agreement by consent order.

10The appellant argues that there has been a change in circumstances because the COVID-19 pandemic has crippled the restaurant industry and resulted in inflation to food prices and a decrease in consumer’s discretionary spending. The appellant submits that the pandemic not only had an impact on the financial cost of running the business but also in the way people dine out. Post-pandemic customers prefer to sit on patios in the spring and summer months and will go to establishments with more ambiance. This has had financial consequences for the appellant’s business, and it is at an unfair advantage when compared to other restaurants and bars in the area who operate without any restrictions. Finally, the appellant maintains that they have operated without any incidents for over seven years and that they have the support of the community. On behalf of the appellant, I heard the testimony of Vladmir Ristovski, co-owner of the appellant, and Jamie Robertson (“Robertson”) and Keith Leclair (“Leclair”), nearby residents.

11The LCA submits that there has been no change in circumstances and that factors such as the changing economic climate are risks taken on by any small business owner when deciding to open a business. It also argues that the fact that the appellant has operated for seven years without any issues is irrelevant because the appellant has an obligation to comply with the law. Further, there is a risk to the residents if the appellant decides to sell its business because the licence may be transferred to an owner who is less responsible. Moreover, the fact that the appellant has the community’s support is immaterial to whether there has been a change in circumstances. Finally, the LCA maintains that allowing the appellant to play amplified music on its patio will add to the noise pollution and cause additional stress and frustration to the residents who live close by. On behalf of the added party, I heard the testimony of the following members of the LCA: Sylvie Grenier (“Grenier”), former Vice President, Sharon Fernandez (“Fernandez”), member, and Warren Waters, current Vice President.

12I find there to be a change in circumstances because of the economic impact of the COVID-19 pandemic on the restaurant industry resulting in inflation, rising food costs and a decrease in consumers dining out. Ristovski testified that the condition on the appellant’s licence should be lifted so that they can compete with other restaurants in the area who operate without restrictions. Ristovski submits that there has been a decline in business in the spring and summer months following COVID-19 because patrons will flock to other restaurant patios with greater ambiance. Ristovski asserts that he remains committed to continuing to be a respectful neighbour and if the condition is removed, they plan to play amplified music on the patio not exceeding 40 decibels.

13The appellant relied on the 2019 Hospitality Market report, which notes that as of 2018, the restaurant industry experienced an increase in revenue. In contrast, the Restaurant Canada Food Service Statistic Report from 2024, indicates that 62% of restaurants are operating at a loss or barely breaking even compared to 10% pre-pandemic. The appellant also relied on a newspaper article from January 4, 2025, which discussed various restaurants in the Byward Market area that were closing or had closed because of the state of the economy.

14While I acknowledge that the reports and article relied upon by the appellant are hearsay evidence because the authors of these documents did not testify, I find the 2024 report helpful because it provides statistics from studies conducted by an economist. Those statistics reveal the negative impact of the COVID-19 pandemic on inflation and rising interest rates which have affected the restaurant service industry. Further, the article corroborated the impact by discussing the number of restaurants which have recently closed in the Byward Market due to the state of the economy. I find this supports a link between COVID-19 and restaurant closures in the Byward Market area. I also note that administrative Tribunals are permitted to accept hearsay evidence. Although I agree with the LCA that business owners take on a level of financial risk when opening a business, I find the pandemic would not have been a foreseeable risk for anyone in 2018 when the appellant agreed to the terms and conditions attached to its licence. For these reasons, I conclude that the appellant’s inability to play music outside places their business at an economic disadvantage compared to other restaurants in the area with no restrictions.

15Further, I disagree with the LCA that the fact that the appellant has the community’s support is irrelevant to the analysis. In fact, the jurisprudence supports that if I find there has been a change of circumstances, I must turn my mind to whether the change requested is in the public interest, having regard to the needs and wishes of the residents of the municipality in which the premises are located.

16Robertson and Leclair, who both live in the apartment building across the street from the appellant, testified that they fully support removing the condition from the appellant’s licence. They submit that the appellant has been an excellent neighbour and has never generated any noise complaints or other issues. They also testified that the restaurant is an integral part of the community with excellent food and a diverse clientele ranging from families with small children to seniors.

17Robertson testified that the noise generated by traffic on the street bothers him more than the noise from the appellant’s establishment. Further, other local bars such as Alora and the Senate Tavern have created a lot of noise and disturbance. Leclair testified that he has a rooftop patio on the fourth floor of the building directly across from the appellant and he has never had any issues with noise generated by the appellant’s business. The appellant also relied on 23 letters from residents who support removing the term from the appellant’s licence. I also accept that many of these residents live in close proximity to the appellant’s business. I note that a letter of another resident in support of the condition being removed was not served in compliance with the deadlines provided in the Tribunal’s case conference report and order. I find it unnecessary to consider same because it will not affect the result.

18Grenier, who also lives in the building across the street from the appellant, testified that noise pollution has a negative impact on people’s health. She referred to information from the website of the World Health Organization (“WHO”) in support of this. She also maintains that an increase in liquor licences has resulted in higher crime rates in the Byward Market area. She testified that residents have a right to peace and quiet and removing the condition from the appellant’s licence will result in increased noise. Further, making a by-law complaint to address unreasonable noise is a stressful and frustrating process and bars such as Alora and The Senate have been very disruptive to the neighbourhood. Also of significance, Grenier is concerned that if the condition is removed from the appellant’s licence and they decide to sell the business, the licence may be transferred to an irresponsible owner with no ability for the LCA to voice an object. Fernandez’ testimony echoed many of the same concerns raised by Grenier, however, she stated that the noise generated from outdoor patios in the neighbourhood have had an impact on her health to the point where she is considering moving to another area.

19During cross-examination, both Grenier and Fernandez both conceded that they have never had any noise complaints or issues with the appellant’s business. I also find that the information on WHO’s website referred to by Grenier unhelpful because it primarily addresses noise pollution indoors. Further, I was not provided with any statistical reports that support a link between an increase in crime rates and licensed establishments in the Byward Market area. Nor was I provided with any evidence that removing the condition from the appellant’s licence will result in increased crime.

20I find the testimony of the witnesses and the evidence presented at the hearing support that there has been a change in circumstances since the terms and conditions were ordered by the Tribunal, on consent, in 2018. Further, I find the appellant has the support from the residents of the local community for the condition to be removed. There was no evidence presented at the hearing to suggest that the appellant has been disruptive in the past. The fact that other licensed premises in the area may be behaving in an unsatisfactory manner does not lead to the conclusion that the appellant is likely to do the same. Further, the appellant has been in operation since 2018 without any issues or complaints. Therefore, I find it likely that the appellant will continue to operate its business with respect for its neighbours without disruption if given the opportunity to play amplified music on the patio. I find that the concerns raised by Grenier and Fernandez to be speculative. Should the future result in a new owner who is as irresponsible as Grenier and Fernandes suggest, then the respondent may take any steps it sees fit according to the Act.

ORDER

21Having considered the evidence and submissions of the parties, I direct the Registrar to remove the condition prohibiting amplified music on the patio from the appellant’s licence.