Court of Appeal for Ontario

Citation: 2009 ONCA 711 Date: 2009-10-09 Docket: C49982

Between:

6477291 Canada Inc. o/a Hooley’s Restaurant Appellant (Respondent on Appeal)

and

Registrar, Alcohol and Gaming Commission of Ontario Respondent (Appellant)

Before: Feldman, Cronk and Gillese JJ.A.

Counsel: Richard E. Kulis, for the appellant Keith L. Geurts, for the respondent

Heard and released orally: September 25, 2009

On appeal from the judgment of Associate Chief Justice J. D. Cunningham, Regional Senior Justice J. F. McCartney and Justice P. B. Hambly of the Superior Court of Justice, sitting as the Divisional Court, dated October 10, 2008.

ENDORSEMENT

[1] The appellant Registrar appeals the Divisional Court’s decision overturning five findings of infractions by the respondent of various provisions of the Liquor Licensing Act, R.S.O. 1990, c. L. 19 and O. Reg. 719/90 made by the Board of the Alcohol and Gaming Commission of Ontario. The Registrar also appeals the sanction imposed by the Divisional Court in respect of the remaining infractions – a seven day liquor licence suspension – in substitution for the 21 day suspension imposed by the Board.

[2] At the outset, we note that although counsel for the respondent appeared on this appeal, in accordance with his client’s instructions he made no submissions on the merits of the appeal.

[3] We conclude that the appeal must be allowed in part.

[4] As the Divisional Court recognized, an appeal to that court from a Board decision is available only on a question of law. In this case, the Divisional Court’s reasons concerning some of the alleged infractions addressed in oral argument by the appellant, reveal that it undertook a reassessment of findings of mixed fact and law made by the Board in respect of some of the infractions at issue. With respect, this was an error.

[5] In particular: (i) in relation to the breaches arising out of the Southern Comfort Promotion, the Divisional Court impermissibly substituted its own assessment of the sufficiency of the evidence for that of the Board. There was evidence before the Board to support its conclusion that the respondent encouraged immoderate consumption of alcohol contrary to s. 20(1) of the Regulation; and (ii) similarly, contrary to the Divisional Court’s finding concerning the patron who was observed to be dancing or swaying in the bar while waving a plastic sword, there was evidence before the Board of this patron’s intoxication and, further, of his intoxication when he was served alcohol in the respondent’s premises. Accordingly, in relation to this patron, there was an evidential foundation for the Board’s holding that s. 45(1) of the Regulation and s. 29 of the Act were breached.

[6] As a result, the appeal from the Divisional Court’s decision concerning the three infractions above-noted – the contraventions of ss. 20(1) and 45(1) of the Regulation and s. 29 of the Act – is allowed.

[7] We also agree with the appellant that the Divisional Court erred in respect of the procedure followed by it concerning penalty. It appears that following argument of the main appeal before the Divisional Court, the court reserved its decision. When the Divisional Court thereafter determined to allow the appeal in part, no opportunity was afforded to the parties to make submissions concerning the appropriate sanction in light of the Divisional Court’s decision. Nor had such submissions been invited or received earlier. This was a denial of natural justice. Accordingly, the sanction imposed by the Divisional Court cannot stand.

[8] As this appeal has been allowed in part only, the appellant acknowledges that some reduction in the duration of the sanction imposed by the Board (21 days) is appropriate. In the circumstances of this case, we see no reason to remit this matter to the Board for the purpose of determining the appropriate sanction.

[9] Given the nature and number of the contraventions at issue, we accept the appellant’s submission that a total licence suspension of 14 days is appropriate in this case in the interests of both general and specific deterrence.

[10] The appeal is therefore allowed in part in accordance with these reasons. We make no award of costs in this matter.

“K. Feldman J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”