Maya Corp. o/a Rebel Cabana v. Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019, 2025 CanLII 75758

Maya Corp. o/a Rebel Cabana v. Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019, the City of Toronto and Toronto Island Noise Committee, 2014 ONLAT LLCA 14068/LLCA and 14498/LLCA-s11

Appeal from the Notice of Proposal issued by the Registrar, Alcohol and Gaming Commission of Ontario Act, 2019 (the “Registrar”) to Attach Conditions and Review Existing Conditions; and,

Appeal from the Notice of Proposal issued by the Registrar to Refuse to Remove Conditions

Between:

Maya Corp. o/a Rebel Cabana

Appellant

-and-

Registrar, Alcohol and Gaming Commission of Ontario Act, 2019

Respondent

-and-

The City of Toronto and Toronto Island Noise Committee

Added Parties

AMENDED DECISION AND ORDER

ADJUDICATOR: Jeffery Campbell

APPEARANCES:

For the Appellant: James Bunting, Counsel

Eileen Church Carson, Counsel

For the Respondent: Rena Khan, Counsel

Rebecca Castillo, Senior Manager of Liquor Eligibility

For the City of Toronto: Mark Crawford, Counsel

For the Toronto Island

Noise Committee: Robert Tanner, Counsel

Held by Videoconference: October 20, 25, 27, 31, 2023

November 2, 3, 7, 9, 15, 22, 24, 28, 30, 2023

December 1, 5, 6, 7, 12, 2023

Overview

1Maya Corp. o/a Rebel Cabana (the “Appellant”) holds a liquor licence under the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22 (“Act”) and operates licenced premises at 11 Polson St. in Toronto (“the premises”). That licence is subject to 19 conditions. The Appellant seeks the removal of conditions from its licence while the Respondent Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 (“Registrar”) seeks to review and attach conditions to that licence. Both Added Parties oppose the removal of conditions and support the addition of conditions.

2With respect to this hearing and decision, a different Member of the Tribunal originally heard the matter over 16 days in the fall and winter of 2023 with written submissions received in February and March, 2024. On December 6, 2024, the Tribunal then advised the parties that the Member was unable to provide a decision due to circumstances beyond the Tribunal’s control. The Tribunal solicited the party’s submissions on how the matter should be reheard. After considering their submissions, on February 27, 2025, the Tribunal ordered that the matter be re-heard by a different adjudicator reviewing the existing record. This decision flows from that process.

BACKGROUND

3The Appellant operates two venues at the premises: Rebel, a 45,000 square foot indoor nightclub with a current capacity of 2,510 patrons and staff; and Cabana Pool Bar, an outdoor entertainment area with a current capacity of 4,565 patrons and staff.

4The central issue in this hearing, and that of previous hearings, is the outdoor noise that emanates from Cabana Pool Bar. In particular, residents from the Toronto Islands, which are close in proximity to the premises, have objected to that noise.

5The premises were formerly operated by The Docks by Cherry (the “Docks”). Subsequent to numerous noise complaints, the Docks’ licence was revoked in 2006 following a hearing regarding that revocation. In 2008, a new application for a licence for the premises by Polson Pier Entertainment Inc. (“PPEI”) was received by the Alcohol and Gaming Commission of Ontario (“AGCO”). An appeal regarding the subsequent Notice of Proposal to Review the application was scheduled for April 2008. During the hearing of that appeal, the parties, PPEI, the AGCO, the City of Toronto and the Toronto Island Noise Committee (“TINC”) reached a consensus, and the licence was approved with 19 conditions attached.

6The premises then operated relatively complaint free from 2008 to 2013. In 2013, the Appellant applied for the transfer of the licence from PPEI to the Appellant. That application was approved in 2014, with the 19 conditions attached.

7In May 2015, a new entity, Powerhouse Corporation (“Powerhouse”) applied for a new liquor licence for the premises. Powerhouse was 75% owned by the Appellant, with overlapping directors and management. That application ultimately culminated in an appeal to the Licence Appeal Tribunal (“Tribunal”) which, in 2018, ordered that the Registrar issue the licence with 9 enumerated conditions: See Powerhouse Corporation. v. Registrar of Alcohol, Gaming and Racing, 2018 CanLII 79631 (“Powerhouse LAT”).

8Many of the 9 conditions imposed on the Powerhouse licence arose from noise disturbance complaints by the residents of Toronto Island from noise emanating from Cabana Pool Bar between 2013 and 2017 during the time that the premises were operated by the Appellant.

9Powerhouse LAT was upheld by the Divisional Court in 2021: see 2021 ONSC 4116 (Div. Ct.) (“Powerhouse Appeal”). Powerhouse subsequently withdrew its application for a licence with the AGCO.

10To this date, both the Cabana Pool Bar and Rebel continue to operate under the Appellant’s licence with the 19 conditions still in place.

Notice of Proposal to Add Conditions

11On May 10, 2022, the Registrar issued a Notice of Proposal (“NOP”) under the Act to review the Appellant’s current conditions and to attach the 9 conditions it sought to impose on Powerhouse, and which were upheld by the Divisional Court.

12On May 24, 2022, the Appellant filed a Notice of Appeal opposing the addition of the nine conditions. This matter was assigned by the Tribunal as file number 14068/LLCA.

13The 9 conditions sought to be attached to the Appellant are those imposed on Powerhouse in Powerhouse LAT. They are as follows:

a. The capacity of the premises shall be limited to 4,565 patrons and staff in the indoor area of the premises currently known as Rebel and to 2,510 patrons and staff in the outdoor area currently known as Cabana Pool Bar;

b. There shall be no amplified music on or directed towards any outdoor area or patio;

c. The licence holder is required to be in compliance with the terms of the Compliance Plan as approved by the Registrar of Alcohol, Gaming and Racing.

d. The Licensee shall provide to the Ward Councillor's office a telephone number and e-mail address for residents to register concerns or complaints. The telephone number will normally be answered by a staff member during the Licensee's published hours of operation. The telephone number will be equipped with a functioning message service for those periods when the Licensee's staff is otherwise occupied and when the establishment is closed.

e. Clearly visible signs will be posted, at least 11" x 14" in dimension, near each exit of the Premises, requesting that patrons respect their neighbours by keeping outdoor noise to a minimum.

f. The Licensee shall post the phone numbers and e-mail addresses referred to in Condition d) on the Licensee's website.

g. All windows and doors located on the Premises shall remain closed, except for normal entrance and exit purposes, when music is playing in the interior licensed premises.

h. The holder of the licence shall ensure the following persons have no involvement in the business operations of the licensed establishment, including as an officer, director, shareholder or owner and have no beneficial or financial interest in the business or ongoing operations of the licence: Jerome (Jerry) Sprackman.

i. The Toronto Island Noise Committee (TINC), York Quay Neighbourhood Association (YQNA) and the City of Toronto shall receive timely notice of any application to transfer the liquor licence or vary the conditions on the liquor licence or an increase in the licensed capacities.

14The Registrar seeks to amend condition a. from 4,565 patrons and staff in the indoor area to 3,163 patrons and staff in the indoor area, in order to reflect the correct legal indoor capacity set by Toronto Fire Services and reflected on the liquor sales licence.

15The Registrar also seeks to eliminate condition h., as Jerome Sprackman has since passed away.

Notice of Proposal to Refuse to Remove Conditions

16On October 11, 2022, the Appellant filed an Application for Removal of Conditions of a Liquor Licence under s. 11(4) of the Act. Section 11(4) allows the Tribunal to remove conditions if it is satisfied there has been a change of circumstances since the conditions were imposed, or to order the Registrar to issue a Notice of Proposal to Refuse to Remove Conditions. On November 15, 2022, at a case conference held to consider this matter, the Tribunal ordered the Registrar to issue a Notice of Proposal to Refuse to Remove Conditions in respect of the Appellant’s liquor licence. The Registrar issued the said proposal on December 15, 2022, and the Appellant filed its appeal of that proposal on December 28, 2022. This matter was assigned by the Tribunal as file number 14498/LLCA.

ISSUES TO BE DETERMINED

17The issues to be determined are:

1. With respect to the Notice of Proposal to Add Conditions, are the nine conditions proposed by the Registrar “proper to give effect to the purposes of the Act,” given the Appellant’s licence and present prevailing circumstances? The onus will be on the Registrar to establish the grounds in support of the proposal to attach the nine conditions.

2. With respect to the Notice of Proposal to Refuse to Remove Conditions, has there been a change in circumstances that justifies a change in the conditions put on the licence to protect the public interest? The onus will be on the Appellant to establish the grounds in support of removing conditions.

The Powerhouse LAT Decision

18Powerhouse LAT determined that noise created by the operators of the premises was unreasonably disturbing to residents of the Toronto Islands, such that it represented a situation that was contrary to the public interest. As I accept the factual findings of Powerhouse LAT regarding noise disturbances, this present Tribunal need only determine if the noise from November 20, 2017 (the end of the Powerhouse LAT hearing) to December 12, 2023 (the end of this present hearing) was unreasonably disturbing to the residents.

19Although not a re-litigation of Powerhouse LAT, the hearing before me concerns the same premises, the same central issue (noise emanating from the property) and many of the same witnesses.

20While the Appellant is a different legal entity in this case than in Powerhouse LAT, the evidence establishes that the ownership, directorship and management of Powerhouse and Maya Corp. are largely the same.

21In this present hearing, much evidence was presented which was also considered in Powerhouse LAT (i.e., noise logs, sound reports, etc. up to and including 2017). For example, TINC seeks to establish that evidence prior to the Powerhouse decision is necessary in order to establish a pattern of behaviour from 2013 to the present day. As that evidence has already been litigated in 2017 and this Tribunal has reached conclusions based on that evidence in Powerhouse LAT, this present decision will centre its focus on evidence from 2017 to December 12, 2023.

PROCEDURAL ISSUE

22Pursuant to Rule 15 of the Licence Appeal Tribunal Rules, 2023, on October 18, 2024, the Appellant served and filed a Notice of Motion requesting the Tribunal to consider fresh evidence. That fresh evidence is an expert report from HGC Noise Vibration Acoustics dated October 16, 2024.

23The Registrar takes no position with respect to the introduction of the fresh evidence. The City of Toronto and TINC oppose the introduction of that evidence.

24My ruling on this motion shall be addressed at the end of this decision with reasons.

ISSUE 1 – NOTICE OF PROPOSAL TO ADD CONDITIONS

Result

25The Tribunal orders that the Appellant’s licence shall be subject to the following conditions:

• The capacity of the premises shall be limited to 2,510 patrons and staff in the outdoor area currently known as Cabana Pool Bar and 3,135 patrons and staff in main floor and 628 patrons and staff on the second floor of the indoor area of the premises currently known as Rebel.

• The Licensee shall provide to the Ward Councillor's office a telephone number and e-mail address for residents to register concerns or complaints. The telephone number will normally be answered by a staff member during the Licensee's published hours of operation. The telephone number will be equipped with a functioning message service for those periods when the Licensee's staff is otherwise occupied and when the establishment is closed.

• Clearly visible signs will be posted, at least 11" x 14" in dimension, near each exit of the Premises, requesting that patrons respect their neighbours by keeping outdoor noise to a minimum.

• The Licensee shall post the phone numbers and e-mail addresses referred to in Condition b) on the Licensee's website.

• All windows and doors located on the Premises shall remain closed, except for normal entrance and exit purposes, when music is playing in the interior licensed premises.

• The Toronto Island Noise Committee (TINC), York Quay Neighbourhood Association (YQNA) and the City of Toronto shall receive timely notice of any application to transfer the liquor licence or vary the conditions on the liquor licence or an increase in the licensed capacities.

26The Tribunal does not impose on the Appellant’s licence the following conditions requested by the Respondent:

a. There shall be no amplified music on or directed towards any outdoor area or patio.

b. The licence holder is required to be in compliance with the terms of the Compliance Plan as approved by the Registrar of Alcohol, Gaming and Racing.

27With respect to the Respondent’s request that the licence be subject to the condition that the holder of the licence shall ensure the following persons have no involvement in the business operations of the licensed establishment, including as an officer, director, shareholder or owner and have no beneficial or financial interest in the business or ongoing operations of the licence: Jerome (Jerry) Sprackman (Powerhouse LAT condition h), I order that the following condition shall be added to the Appellant’s licence:

• Maya Corp. (or any assignee of the License) is not and shall not be controlled in whole or in part or managed directly or indirectly by 11321165 Ontario Limited, or any person who has or had an interest in the business formerly known as "The Docks by Cherry".

Analysis re: NOP to Add Conditions

28Section 10(2)(b) of the Act states that the Registrar may issue a proposal to attach any further conditions that the Registrar considers proper to give effect to the purposes of this Act. The issue before this Tribunal is whether requested conditions to the Appellant’s licence are proper to give effect to the purposes of the Act.

29As noted, the Registrar seeks to add to the Appellant’s licence the conditions imposed on Powerhouse which were reviewed in the Powerhouse LAT decision. Both the City and TINC support the addition of the nine conditions.

30The parties agree that the most central condition sought to be added is condition b., that of no outdoor amplified music.

31The Registrar submits that the intent and purpose of the Act is to regulate in the public interest, including regulating noise from outdoor licensed areas. It submits that the nine conditions, particularly condition b., facilitate the public interest and are both clear and enforceable.

32The City of Toronto and TINC agree that the addition of the 9 conditions give effect to the Act and are in the best interests of the City of Toronto and the residents of the Toronto Islands.

33The Appellant submits that the addition of conditions, particularly condition b., does not give effect to the purposes of the Act given the prevailing circumstances, and is both disproportionate and unreasonable.

34In order to determine whether the 9 conditions give effect to the purposes of the Act, we must define what those purposes are. This is particularly relevant to condition b. “no amplified music on or directed towards any outdoor area or patio”.

35The Registrar, TINC and the City of Toronto submit that the purpose of the Act is the regulation of the sale and service of alcohol in the public interest, which includes the regulation of noise emanating from outdoor licenced areas. They rely upon s. 45 of Ontario Regulation 746/21 under the Act (the “Regulation”) which states:

“The holder of a licence shall not permit noise that arises directly or indirectly from entertainment on the premises to disturb persons who reside near the premises.”

36The Appellant submits that the objective of the Act is the regulation of the sale and service of alcohol and does not include the regulation of noise and, therefore, a condition regarding the regulation of noise (s. 45 of the Regulation) cannot be added under s. 10(2)(b) of the Act. The Appellant argues that conditions that are unconnected to the AGCO’s statutory mandate of regulating the sale and service of alcohol, like matters regulated by municipal by-laws, do not properly give effect to the purposes of the Act and cannot be attached to a licence.

37In support of its position, the Appellant cites 11643 v Registrar, 2019 CanLII 37556 (ON LAT) in which the Tribunal stated in paragraphs 76 and 77 that “noise outside licensed premises is regulated by municipal noise by-laws and is not within the AGCO’s mandate” and “it is questionable whether this Tribunal…has authority to arbitrate noise disputes or compliance with a noise attenuation plan”.

38With respect, I am not bound by 11643 and disagree with both the Tribunal in that decision and with the Appellant. While the overall purpose of the Act is regulation of the sale and service of alcohol, that purpose also incorporates related public interest considerations. Noise emanating from the premises of licensees is one of those interests. The Tribunal has assessed the impact of noise emanating from licensed premises on numerous occasions in the context of determining whether the issuance of a licence, or the conditions to attach to a licensee, and I find that this is consistent with the purposes of the Act.

39The Appellant further argues that the only reference to sound appears in s. 45 of the Regulation. It submits that language in a Regulation “cannot and does not establish a statutory objective or purpose”. With respect to this position, I am guided by s. 3(6) of the Act.

“The Registrar shall not issue a licence to operate a liquor consumption premises or a licence of another prescribed category or prescribed class within a category if issuing the 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.”

40Although s. 3(6) directly pertains to the issuance of a licence and not to the imposing of a condition on an existing licence, it does contemplate that conditions on licensed establishments could relate to a range of potential impacts that the licensed establishment may have on the residents of its municipality. This includes the impact of noise emanating from an establishment, which is the function of s. 45 of the Regulation.

41Also, while it’s certainly true that s. 45 is not found in the Act itself, a regulation is subordinate legislation to its enabling Act. It does not make sense for a provision of subordinate legislation to contradict the objectives of the enabling Act.

42Give the above, I find that the regulation of noise does give effect to the purposes of the Act. Whether condition b. is reasonable or proportional is a separate question to be addressed. To answer that question, we must ask two others:

i. Does the noise that arises from entertainment on the premises unreasonably disturb persons who reside near the premises (Toronto Island residents)?

ii. Has the Registrar proven that the addition of the nine conditions, particularly condition b, is reasonable and proportional?

i. Disturbance of the Residents

43I find that the residents of the Toronto Islands, particularly Ward’s and Algonquin Islands, have been disturbed by noise emanating from the premises.

The Evidence of Residents Near the Premises / TINC

44TINC is a committee of the Toronto Island Community Association, which represents the residents of the Toronto Islands. TINC’s mandate is to advocate for a healthy soundscape for the residents. Ten residents of the Toronto Islands presented testimony and evidence with respect to their experiences regarding noise emanating from the premises. The testimony of the President of TINC, Lynn Robinson, was read into the record.

45I found each of the residents to be helpful and sincere in their testimony. Each one testified of the effects of noise, particularly the effects of bass emanating from the premises.

46In their testimony and in noise logs that the witnesses submitted previously to the AGCO, TINC’s witnesses submit that the noise was extremely loud, invasive, soul destroying, relentless, thundering, extraordinarily disturbing and outrageous. Many of the residents testified that the noise was inescapable whether inside or outside of their homes. Some testified that the noise penetrated their bodies, caused them to feel nauseous and rattled the walls and fixtures in their houses.

47The residents testified that they completed noise logs, as directed by TINC, when they encountered disturbing noise emanating from the premises. In completing those logs, again as instructed by TINC, the residents would go from their homes to a point on their island (whether Ward’s or Algonquin Island) in order to identify the source of the noise. These logs were then subsequently submitted to the AGCO as official noise complaints.

48Upon cross-examination, some of the residents admitted that they may have been mistaken in the source of the noise. They agreed that other sources of noise, such as party boats as well as other venues such as nearby Cherry Beach, are also problematic.

49The Appellant submits that the residents’ description of the noise was exaggerated and ‘over the top’.

50While I find that most of the residents who reported noise were genuine in describing how they identified the premises as the source of noise disturbance, I find that the other numerous sources of noise, at times, made it debatable as to how much the premises (particularly Cabana Pool Bar) was either the source of or contributed to the noise reaching the islands. For this reason, I am unable to accept that the premises was the source of disturbance in every case that the residents claim that it was.

The Evidence of the City of Toronto

51Councilor Fletcher testified on behalf of the City of Toronto. Councilor Fletcher is the City Councilor for Ward 14, which incorporates the property at 11 Polson Street (the premises) but not the Toronto Islands.

52Councilor Fletcher testified that she has had many complaints with respect to Cabana Pool Bar. She supports the condition of no amplified outdoor music coming from Cabana Pool Bar.

53In particular, Councilor Fletcher advised that she received over 200 emails complaining of the noise from a concert held over the Thanksgiving weekend in 2021.

54I do note, however, that, upon cross-examination, Councilor Fletcher agreed that the source of the noise over the Thanksgiving weekend was not the premises, but, rather, a neighbouring property at 20 Polson Street, known as City-View Drive-In, which was neither owned nor operated by the Appellant. For this reason, I do not rely upon Councilor Fletcher’s testimony with respect to the source of noise disturbance over the Thanksgiving weekend of 2021.

The Evidence of the Registrar

55Rebecca Castillo, Senior Manager of Liquor Eligibility for AGCO, testified that, from 2013 to the date of this hearing (with the exception of 2020 and 2021) the Registrar has received complaints every year regarding the noise emanating from the premises. Due to these complaints, it is Ms. Castillo’s view that the Appellant has breached Condition 1 on the Appellant’s current licence that no sound amplified by mechanical, electronic or other means ("Sound") emanating from the Premises shall be audible on Ward's Island or Algonquin Island (the "Community") at any time.

Evidence of the Appellant

Thomas Rutherford

56Condition 2 of the current conditions on the Appellant’s licence requires the Appellant to employ a sound monitor (an individual) in order to track sounds emanating from the premises to Ward’s and Algonquin Islands. This individual is required to continuously monitor sounds from different locations on the islands, report to the Appellant any sounds emanating from the premises and to respond to complaints from those on the islands.

57That monitor is Thomas Rutherford, himself a resident of Algonquin Island. Mr. Rutherford testified on behalf of the Appellant.

58As part of his duties as a sound monitor, Mr. Rutherford telephones in complaints and submits noise reports documenting those complaints to the Appellant.

59In 15 noise reports from September 5, 2022 to September 10, 2023, presented by Mr. Rutherford, we see:

• Start and end times of noise emanating from Cabana Pool Bar;

• Recorded noise levels at various times between the start and end times;

• Recorded noise levels from other sources;

• The names of complainants and the time of the complaints.

60Mr. Rutherford assessed noise levels using a three-point scale with 3 being the highest, which he describes as slightly audible in houses.

61While Mr. Rutherford’s noise reports assist with comparisons of his description of noise from noise logs submitted by the residents, I do not find them particularly helpful. His three-point scale is limited in its range and is at wide variance from the description of noise from residents’ noise logs. It is also clear from his testimony that Mr. Rutherford was somewhat dismissive of the complaints of the residents, believing that their depiction of noises, specifically bass sounds and vibrations, was exaggerated. In the least, Mr. Rutherford’s assessment of the noise was no less subjective than that of the residents.

Jamil Kamal

62Jamil Kamal also presented evidence on behalf of the Appellant. Mr. Kamal is the Vice-President of Venues and Risks with INK Entertainment, which is owned by Charles Khabouth and Danny Soberano. Messrs. Khabouth and Soberano are also shareholders of the Appellant. INK Entertainment oversees the operations, marketing, bookings, management, risk and sound for the Appellant.

63Mr. Kamal testified that he oversees Thomas Rutherford and his reporting regarding complaints made by the island residents. He is aware of the residents’ complaints, whether through Mr. Rutherford, AGCO inspectors or otherwise; however, he believes that sound from the Cabana Pool Bar does not disturb the residents. He also testified that it is his belief that the word “disturb” in s. 45 of the Regulation is subjective; that is, “what is disturbing to one may not be to another”.

Conclusion Regarding Disturbances

64Despite the instances where residents were incorrect or uncertain with respect to the source of noise, and despite the Appellant’s assertion that some of the descriptions of noise were over the top, it is apparent from the totality of the evidence (Resident’s Noise Logs, Testimony of the Residents), that noise emanating from the Cabana Pool Bar did, to some degree, disturb the residents on occasions between the end of the Powerhouse hearing to the commencement of this one. The question is how to best address further disturbances.

ii. Are the 9 Conditions Reasonable and Proportional?

65I find that not all of the 9 conditions are reasonable or proportional and not all are proper [italics mine] to give effect to the purposes of the Act.

66The Appellant submits that the 9 conditions, particularly condition b, are disproportionate and unreasonable. The Appellant argues that, while the Powerhouse decision found that those conditions were necessary at the time, changes in circumstances have made them unnecessary and potentially harmful not only to their operations, but also to the economic and cultural health of their community.

67The Appellant submits a number of changes in circumstances supports their position that the 9 conditions should not be added. The two which I find convincing are as follows:

• Changes in the City of Toronto noise by-law; and

• The implementation of noise monitoring and a sound system by the Appellant.

City of Toronto noise by-law

68The current noise by-law for the City of Toronto, Chapter 591-2.1 of the Toronto Municipal Code, was adopted by the City of Toronto City Council on June 19, 2019 and came into force on October 1, 2019. The parties agree that the new by-law is based on a decibel level standard as opposed to the subjective complaint-based system of the previous by-law.

69The relevant decibel limits that are codified in the noise by-law during the hours of operation between 11:00 a.m. and 11:00 p.m. of the Cabana Pool Bar are 55 dB(A) or 70 dB(C).

Monitoring and Sound System

70The Appellant submitted an Expert Report of Howe Gastmeier Chapnik (“HGC”) dated August 30, 2023 (the “HGC Report”). In the report, authors Andrew Dobson and Brian Howe chronicled their involvement with the Appellant during 2022 and 2023.

71In his testimony before this Tribunal, Brian Howe, acoustical consultant and President of HGC, advised that, in the summer of 2022, HGC installed a sound monitoring system in order to determine the decibel levels emanating from Cabana Pool Bar. This system consisted of electronic monitors at two locations on the north-east corner of Ward’s Island, directly across from the premises. From the readings from those monitors, HGC then provided recommendations to the Appellant on how to mitigate noise levels emanating from the premises. Those recommendations included continuing a sound monitoring system as well as replacing the existing speakers with a unidirectional (cardioid) speaker system.

72Based on the sound readings from 2022, HGC also recommended that sound levels from the cardioid speaker system be calibrated not to exceed 94 dB(C) in order for the sound levels at Ward’s Island not to exceed the permissible 70dB(C) level.

73Using read-outs from the electronic sound monitors, the HGC Report also provided the decibel level readings of noise from the Cabana Pool area from the months of June to September in both 2022 and 2023. It revealed decibel levels of 70dB(C) or higher at occasional times being received at the Ward’s Island monitor locations. However, not all of those levels could be attributed to Cabana Pool Bar alone, as HGC also made note of other sound sources contributing to the noise levels at the times of the readings. Also, it is apparent that the instances of levels of 70 dB(C) being recorded at Ward’s Island lessened noticeably after the installation and final calibration of the cardioid speaker system on July 23, 2023. This appears to be validated by the reduction in noise logs from residents in 2023 (from 37 noise logs from 14 noise loggers in 2022 to 5 noise logs from 3 noise loggers in 2023).

74The Appellant submits that the above-mentioned noise mitigation efforts confirm their success in complying with the Toronto City noise by-law, thereby rendering the condition of “no amplified sound” not only unreasonable but unnecessary.

75The Appellant also submits that, as both s. 45 of the Regulation and Chapter 591-2.1 deal with the same subject matter (noise regulation), they must be interpreted together. In practical terms, this means defining noise that disturbs (s. 45 of the Regulation) as noise above the permitted decibel levels (Chapter 591-2.1). In other words, levels below the permitted decibel levels should not be determined to have disturbed a resident. The Appellant submits that this is not only congruent with proper statutory interpretation, but also provides definition and certainty by which the Appellant can ensure that they are not disturbing residents at the same time that they are able to continue operations at the Cabana Pool Bar.

76The City of Toronto and TINC, on the other hand, argue that s. 45 of the Regulation is the authority and the standard by which the AGCO regulates noise emanating from a licenced establishment. They submit that the regulation of noise by use of the City’s by-law is unenforceable and outside of the AGCO’s jurisdiction.

77While the Registrar takes the same position as the City of Toronto and TINC, the Registrar’s only witness’ testimony appears to align more with that of the Appellant.

78Ms. Castillo confirmed that the AGCO is seeking to replace the current 19 conditions on the Appellant’s licence with the 9 conditions enumerated in the Powerhouse LAT decision.

79Ms. Castillo testified that the 9 conditions are much more concise than the 19 conditions currently attached to the Appellant’s licence. She further testified that the current 19 conditions are practically unenforceable and “have not been working”. She advised that, in her estimation, the 9 conditions address the concern of residents with respect to outdoor noise.

80Nonetheless, upon cross examination, Ms. Castillo agreed that:

i. Noise outside licensed premises is regulated by municipal noise by-laws and is not within the AGCO’s mandate;

ii. If a venue complies with a city’s noise bylaws, it is acting reasonably;

iii. If a venue is complying with noise bylaws, they are then complying with s. 45 of the Regulation;

iv. The Appellant has deployed a new sound system and better sound containment measures than it previously had; and

v. If the new sound system results in the Appellant complying with the new noise by-laws, the condition prohibiting amplified noise would then be disproportionate.

81I concur with Ms. Castillo. While the condition of no amplified noise (the proposed Condition b. is more concise than condition 1 of the Appellant’s current licence, that no amplified sound is to be audible on Ward’s or Algonquin Islands, I agree with her conclusion that the addition of a condition prohibiting outdoor noise would be disproportionate if the Appellant is complying with the City of Toronto noise by-law.

82The Appellant has shown that they have implemented mitigation efforts which are summarized in the HGC Report (which was not available for Powerhouse LAT or Powerhouse Appeal). The Appellant has also shown that, in 2023, those mitigation efforts have had the effect of maintaining, for the greater amount of time, the decibel level on the Islands at or lower than 70dB(C).

83With respect to whether the Regulation or the bylaw is best to regulate and mitigate noise, I note that s. 45 of the Regulation and Chapter 591-2.1 both aim to control noise levels while taking into consideration the differing interests of the community. Indeed, both s. 45 of the Regulation and Chapter 591-2.1 were drafted with the consideration of controlling disturbance to residents of communities.

84Dr. David Roberts is an associate professor and a certified expert in urban studies. Dr. Roberts testified, on behalf of the Appellant, that the noise by-laws are drafted taking into account a wide variety of interests and opinions, including that of residents. He testified that the current by-law provides objectivity and predictability as opposed to s. 45 of the Regulation.

85I also concur with Dr. Roberts. I conclude that the implementation of the condition of no outdoor amplified noise is overly restrictive as well as disproportional to the objective of balancing the interests of the residents of the islands and the Appellant. The current noise by-law provides residents with a mechanism to address their complaints while providing certainty to businesses with respect to how to measure sounds which may disturb those residents.

86Again, I agree with Ms. Castillo. Noise that complies with the noise by-law does comply with s. 45 of the Regulation in this case.

The Divisional Court and the Noise By-Law

87I am alive to the argument of TINC that the Divisional Court in the Powerhouse Appeal decision describes the noise by-law as an “irrelevant regime of noise control to the liquor licensing scheme”. The Divisional Court also described the by-law as a “potentially more permissive standard” than s. 45 (then s. 46) of the Regulation.

88However, the Divisional Court was limited to considering the Tribunal’s conclusions based on the evidence provided at the Tribunal hearing. The by-law in place during the Powerhouse LAT hearing was one that was subjectively based. The new City of Toronto by-law is objective and decibel-based, and I find that rather than being irrelevant, it provides the best way of identifying disturbing noise for the purpose of liquor licensing in this case.

89TINC argues that Powerhouse raised the new by-law for consideration during the appeal hearing before the Divisional Court (the by-law came into force between the Tribunal hearing and the argument before the Divisional Court). I agree that the new by-law was raised then, as it is apparent from paragraphs 14 and 99 of Powerhouse Appeal. The Divisional Court rejected the use of that new by-law, dismissing it as an irrelevant regime of noise control. However, I find I may distinguish the present hearing from Powerhouse LAT and Powerhouse Appeal because the evidence for this hearing satisfies me that complying with the new noise by-law is the appropriate way to identify noise that disturbs.

90In paragraphs 93-95 of Powerhouse Appeal, the Divisional Court outlines the lack of an evidentiary basis before the LAT in Powerhouse LAT in determining the effectiveness of the use of a decibel-based standard as well as noise reduction efforts.

91Here, the Appellant has presented detailed expert evidence with respect to the effectiveness of the Appellant’s noise control efforts and the relevance of Chapter 591-2.1 of the Toronto Municipal Code. Accordingly, I am persuaded to apply the new noise by-law.

Conclusion regarding condition b.

92Given the above, I conclude that the condition of no outdoor amplified noise is not proper to give effect to the purposes of the Act. I find that this condition is overly restrictive and not proportional to the objective of balancing the interests of the residents and of the islands and the Appellant. I conclude the use of Chapter 591-2.1 of the Toronto Municipal Code as a measure of disturbance to residents to be a more proportional measure by which to balance the interests of the public in this situation.

93I therefore find that the Registrar has not established on a balance of probabilities that the condition of no outdoor amplified sound is proper to give effect to the purposes of the Act.

Conclusions regarding Issue 1 – Notice of Proposal to Add Conditions

94Condition a. is amended to read, “The capacity of the premises shall be limited to 2,510 patrons and staff in the outdoor area currently known as Cabana Pool Bar and 3,135 patrons and staff in main floor and 628 patrons and staff on the second floor of the indoor area of the premises currently known as Rebel”.

95Condition b. (“there shall be no amplified music on or directed towards any outdoor area or patio”) is not added as a condition to the Appellant’s licence for reasons previously provided.

96Condition c. is not added as no evidence was presented with respect to a Compliance Plan to which the condition refers.

97Conditions d., e., and f. are added as they provide the residents and the City of Toronto (Ward Councillor’s office) helpful information with which to communicate with, and to register complaints with, the Appellant.

98Condition g. is added as it continues to ensure that sound is not emanating from Rebel, which could possibly and unnecessarily increase the noise emanating from the premises to nearby residents.

99Condition h. is not added but is replaced by an update of existing condition 15, as explained below.

100Condition i. is added as it is in the best interests of nearby residents as well as the City of Toronto to be notified of any application for the transfer of the Appellant’s licence or for a variation of conditions on its licence.

ISSUE 2 – NOTICE OF PROPOSAL TO REFUSE TO REMOVE CONDITIONS

Result

101Of the conditions which the Appellant is seeking to have removed, conditions 1-4, 6-7 and 13 are removed. Conditions 8 and 15 remain.

102As noted earlier, on October 11, 2022, the Appellant filed an Application for Removal of Conditions of a liquor licence under s. 11(4) of the Act. The parties agree that the onus is on the Appellant to establish on a balance of probabilities that there has been a change in circumstance since the condition was originally imposed that would warrant the removal of the conditions. I must also be satisfied that the removal of these conditions is not contrary to the public interest having regard to the needs and wishes of the residents in the municipality in which the premises is situated. (Cheaters Tavern (Re), [2002] OAGCD No 35 at para. 16)

103Of the current 19 conditions on the Appellant’s licence, the 9 conditions that the Appellant is seeking to have removed from its licence are conditions 1-4, 6-8, 13 and 15.

104The three adverse parties (the respondent, the City of Toronto and TINC) all take the position that conditions the Appellant seeks to have removed should remain, although not all of the adverse parties agree on which ones. For ease of reference, the below chart sets out the parties’ positions on each condition:

Condition	Respondent	TINC	City	Appellant	Conclusion
1	Remove	Maintain	Maintain	Remove	Remove
2	Remove	Maintain	Maintain	Remove	Remove
3	Remove	Maintain	Maintain	Remove	Remove
4	Remove	Maintain	Maintain	Remove	Remove
6	Maintain	Maintain	Maintain	Remove	Remove
7	Remove	Maintain	Maintain	Remove	Remove
8	Maintain	Maintain	Maintain	Remove	Replaced by condition g.
13	Remove	Remove	Remove	Remove	Remove
15	Remove	Maintain	Remove	Remove	Maintain

Condition 1: “No sound amplified by mechanical, electronic or other means ("Sound") emanating from the Premises shall be audible on Ward's Island or Algonquin Island (the "Community") at any time. "Audible" shall mean audible to the human ear of any person, unassisted by any mechanical, electronic or other means”.

105The Respondent seeks to have condition 1 (as well as 2-4) removed, as it submits that those conditions are not enforceable.

106TINC submits that conditions 1-4 are enforceable and should remain, as it is in the public interest.

107The City of Toronto also submits that there have been no changes In circumstances which would warrant the removal of conditions 1-4.

108The Appellant submits that conditions 1-4 should be removed due to changes in circumstances since they were originally imposed. Those changes in circumstances include the new City of Toronto noise bylaw and the recent sound mitigation efforts by the Appellant.

109I agree with TINC in that condition 1 is, indeed, enforceable. However, I have earlier found that the Appellant’s efforts at noise mitigation coupled with the changes in the City of Toronto by-laws do not warrant the inclusion of a condition that restricts amplified music. Similarly, I am persuaded that the new decibel-based City by-law coupled with the sound mitigation efforts of the Appellant are changes in circumstance which warrant the removal of condition 1.

110The criterion of audibility in condition 1 is an extremely strict standard and one in which it is difficult to identify the source of that audibility at the best of times. Rather, it is both possible and reasonable to require electronic monitoring of sounds that are reasonably identifiable as emanating from the premises. Such a condition would be more realistic and practical.

111The Appellant has met its burden that there has been a change in circumstances, particularly the change in the City of Toronto noise by-law and the Appellant's efforts at mitigating noise by way of a new speaker system and noise monitoring measures.

112Condition 1 is to be replaced by conditions requiring the continued use of a monitoring system and by the regular reporting to the AGCO of decibel levels at the points of projection and reception. Those conditions shall be listed as Conditions 2, 3, 4 and 5 in the Order below.

2. Maya Corp. shall continue to retain HGC Engineering or a certified acoustical engineering and/or consulting firm (the “Firm”) to continue to monitor sounds emanating from 11 Polson Street during all times and seasons of operations.

3. Maya Corp. shall instruct the Firm to conduct synchronized automated sound level measurements at the point of projection (Cabana Pool Bar) and at two points of reception at the north-east point of Ward’s Island during all times and seasons of operations. Maya Corp. shall also require the Firm to provide to the Appellant weekly reports of hourly decibel readings from the point of projection and the points of reception. Maya Corp. shall upon receipt, forthwith provide those weekly reports to the AGCO.

4. The dBC sound levels at the south property line of the Cabana Pool Bar patio shall not exceed 90 dBC.

5. The dBC sound levels at the points of reception on Ward’s Island shall not exceed 70 dBC.

113Current conditions 2, 3, and 4 are redundant considering the new conditions 2 to 5. I also accept the submissions of the Respondent that current conditions 2-4 are effectively unenforceable. Therefore conditions 2, 3, and 4 are removed from the Appellant’s licence.

114Condition 6 of the Appellant’s licence states: “There shall be no outdoor musical events, including concerns, taking place at the outdoor facilities at the Premises;” All agree that “concerns” was to correctly read as “concerts”.

115This condition was originally imposed due to musical events at The Docks which disturbed residents of the Toronto Islands. The evidence at this hearing does disclose that recent activities at the premises, such as DJ events (although debate continues as to whether those are musical events) have disturbed some residents, but have done so less once the noise control measures as described above were adopted.

116I find that the conditions to be imposed under new conditions 2 to 5 are sufficient to warrant the removal of condition 6. While I recognize that this is not a perfect solution for the residents, I find that the continuing time constraints under condition 5 (from 11 a.m. to 11 p.m.) coupled with the newly imposed decibel limitations provides a balance in the interest of the parties.

117The Appellant has met its burden to warrant the removal of this condition by proving on a balance of probabilities the effectiveness of its noise control measures and the implementation of the new City of Toronto noise by-law. Condition 6 shall be removed.

118Condition 7: “PPE shall comply with the Docks Noise Containment Proposal, dated July 25, 2006, attached as Schedule "A", and maintain a record of any alerts relating to excess noise under the proposal.”

119The Appellant argues for the removal of this condition submitting that it is unenforceable. They also cite the new by-law amendment, long term impact of Covid-19 and the updated sound system as reasons for removal.

120The Respondent submits that this condition should be removed. TINC submits that “in the absence of any evidence in support of the removal of Condition # 7…it should remain.”

121I concur with the Appellant that the change in circumstances warrants the removal of the necessity of the Docks Noise Containment Proposal. This Condition shall be replaced by the new conditions 2 to 5.

122Condition 8: “All windows and doors located on the Premises shall remain closed, except for normal entrance and exit purposes, which music is playing indoors at the Premises.”

123Condition 8 is similar to condition g. of the NOP to Add Conditions. I have already concluded that condition g. is to be added. Therefore, Condition 8 is removed and replaced by condition g.

124Condition 13: “PPE shall not request that paid-duty police officers be specifically assigned from 51 Division (being the Division required to respond to complaints regarding the Lands). TINC acknowledges that PPE requires paid-duty police officers to conduct its business and that PPE does not control the assignment of police officers for this purpose.”

125All parties agree to the removal of Condition 13 as the process of assigning paid-duty police officers is no longer conducted by 51 Division. I therefore order the condition removed.

126Condition 15: “PPE (or any assignee of the License) is not and shall not be controlled in whole or in part or managed directly or indirectly by 11321165 Ontario Limited, Jerome ("Jerry") Sprackman or any person who has or had an interest in the business formerly known as "The Docks by Cherry".

127The Appellant submits that this condition should be removed as Jerry Sprackman is now deceased.

128TINC objects to the removal of condition 15 on the basis that , although Jerome (Jerry) Sprackman is now deceased, this condition extends to “any person who has or had an interest in the business formerly known as The Docks by Cherry”. I agree.

129I find that the Appellant has not met its burden to warrant the removal of this condition. The Appellant has not provided sufficient evidence with respect to other persons who has or have had an interest in the Dock, whether those persons are in a controlling or managing position of the Appellant and, if so, whether there is reason that this condition should be removed. This condition shall remain in amended form.

[CANADIAN CHARTER OF RIGHTS AND FREEDOMS](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

130The Appellant submits that the following conditions unduly and disproportionately infringe their freedom of expression as guaranteed in s. 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”):

a. Condition 1 (no outdoor amplified sound) from the Notice of Proposal to Add Conditions:

b. Conditions 1, 3, 6 and 7 from the Notice of Proposal to Refuse to Remove Conditions.

131As Condition 1 from the Notice of Proposal to Add Conditions is not to be added as a condition and as Conditions 1, 3, 6 and 7 of the Notice of Proposal to Refuse to Remove Conditions are to be removed, I need not consider the Appellant’s submissions with respect to the Charter.

MOTION FOR THE INTRODUCTION OF FRESH EVIDENCE

132As noted earlier, the Appellant brought a motion to allow the introduction of an HGC expert report dated October 16, 2024 as fresh evidence.

133The test for consideration of whether to be fresh evidence is to be admitted is found in Palmer v. The Queen, 1979 CanLII 8 (SCC) which elucidates a four-part test.

a. The evidence shall generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases;

b. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

c. The evidence must be credible in the sense that it is reasonably capable of belief; and

d. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

134Regarding the first part of the Palmer test, I find that the evidence was not available and could not have been adduced at the hearing of this matter, as the report was prepared after the conclusion of the hearing.

135With respect to the second part of the Palmer test, I find that the evidence is relevant in that it deals with noise emanating from Cabana Pool Bar and with the City of Toronto noise by-laws.

136Concerning the third part of the Palmer test, I find that the evidence is credible in that it was produced by an expert who was accepted to provide evidence in this hearing.

137However, regarding the fourth part of the Palmer test, in reviewing the report of October 16, 2024, I find that the report will not affect the result of this hearing, as is evident from the heretofore decisions already reached. Therefore, the motion is denied.

THE TRIBUNAL ORDERS:

138Having considered the evidence and submissions of the parties, the Tribunal orders that the licence of Maya Corp. for the premises located at 11 Polson Street, Toronto, Ontario and comprising of the Rebel and Cabana Pool Bar shall contain the following conditions:

1. The capacity of the premises shall be limited to:

i. 2,510 patrons and staff in the outdoor patio area currently known as Cabana Pool Bar;

ii. 3,135 patrons and staff in main floor of the indoor area of the premises currently known as Rebel; and

iii. 628 patrons and staff on the second floor of the indoor area of the premises currently known as Rebel.

2. Maya Corp. shall continue to retain HGC Engineering or a certified acoustical engineering and/or consulting firm (the “Firm”) to continue to monitor sounds emanating from 11 Polson Street during all times and seasons of operations.

3. Maya Corp. shall instruct the Firm to conduct synchronized automated sound level measurements at the point of projection (the south property line of the Cabana Pool Bar) and at two points of reception at the north-east point of Ward’s Island during all times and seasons of operations.

4. The dBC sound levels at the south property line of the Cabana Pool Bar patio shall not exceed 94 dBC.

5. The dBC sound levels at the points of reception on Ward’s Island shall not exceed 70 dBC.

6. Maya Corp. shall also require the Firm to provide to the Appellant weekly reports of hourly decibel readings from the point of projection and the points of reception during the times of operation of the Cabana Pool Bar. Maya Corp. shall forthwith provide those weekly reports to the AGCO.

7. There shall be no amplified outdoor music, disc jockey, amplified voices or loudspeaker at the outdoor facilities at the Premises between the hours of 11:00 pm and 11:00 am.

8. All windows and doors located on the Premises shall remain closed, except for normal entrance and exit purposes, while music is playing in the interior licenced premises.”

9. Maya Corp. (or any assignee of the Licence) is not and shall not be controlled in whole or in part or managed directly or indirectly by 11321165 Ontario Limited, or any person who has or had an interest in the business formerly known as "The Docks by Cherry".

10. Maya Corp shall provide to the Ward Councillor's office telephone number and e-mail address for residents to register concerns or complaints. The telephone number will normally be answered by a staff member during the Maya Corp.’s published hours of operation. The telephone number will be equipped with a functioning message service for those periods when the Maya Corp.’s staff is otherwise occupied and when the establishment is closed.

11. Clearly visible signs will be posted, at least 11" x 14" in dimension, near each exit of the Premises, requesting that patrons respect their neighbours by keeping outdoor noise to a minimum.

12. Maya Corp. shall post the phone numbers and e-mail addresses referred to in Condition~~ 9~~ 10 on the Licensee’s website.

13. The Toronto Island Noise Committee (TINC), York Quay Neighbourhood Association (YQNA) and the City of Toronto shall receive timely notice of any application to transfer the liquor licence or vary the conditions on the liquor licence or an increase in the licensed capacities.

14. All operations on the Premises (11 Polson Street) shall comply with City of Toronto Municipal Code Chapter 591-2.1 and Section 45 of Regulation 746/21 under the Liquor Licence and Control Act, 2019.

15. The holder of the licence (applicant for a licence) shall comply with the Patron Control Plan filed with the Registrar of Alcohol and Gaming.

16. The holder of the licence (applicant for a licence) shall comply with the Safety and Security Plan approved by the Registrar of Alcohol and Gaming.