Court File and Parties

Court File: Toronto Region Information Nos. 102738; 102900; 100382; 100383; 100384

Date: January 12th, 2015

Ontario Court of Justice

Between:

The Corporation of the City of Toronto

— AND —

Hard Luck Inc.

Before: Justice of the Peace M. H. Conacher

Counsel:

• M. Gauthey for the Prosecution
• C. Tsantis for the Defendant

Trial Dates: November 24th & 25th, 2014; C Court; Old City Hall, Toronto

Decision & Reasons: January 12th, 2015; N Court; Old City Hall, Toronto

Decision

[1] Hard Luck Inc. was charged on five separate Part III Provincial Offences Act Informations with the following infractions:

Information Date / #	Date(s) of Alleged Infraction	Alleged Infraction	By-Law
1. April 30, 2013 / #102738	March 17, 2013	Carry on business of an owner of an entertainment establishment/night club without having the necessary licence.	Chapter 545, City of Toronto Municipal Code, S.545-2A(65)
2. May 14, 2013 / #102900	February 14, 2013 to March 25, 2013	Make, cause or permit noise or vibration, which is likely to disturb the quiet, peace, rest, enjoyment, comfort or convenience of the inhabitants of the City.	Chapter 591, City of Toronto Municipal Code, S.591-2
3. January 16, 2014 / #100382	October 26, 2013	Carry on business of an owner of an entertainment establishment/night club without having the necessary licence.	Chapter 545, City of Toronto Municipal Code, S.545-2A(65)
4. January 16, 2014 / #100383	October 26, 2013	Emit or cause or permit the emission of sound resulting from the operation or (sic) any electronic device or a group of connected electronic devices incorporating one or more loudspeakers or other electro mechanical transducers, and intended for the production, reproduction or amplification of sound, that projects noise beyond the lot line of the property from which the noise emanates and into any street or public place.	Chapter 591, City of Toronto Municipal Code, S.591-2.1.A.(1)
5. January 16, 2014 / #100384	July 4, 2013 to October 31, 2013	Make, cause or permit noise or vibration, which is likely to disturb the quiet, peace, rest, enjoyment, comfort or convenience of the inhabitants of the City.	Chapter 591, City of Toronto Municipal Code, S.591-2

[2] These five Informations were sworn to on three separate dates and relate to four distinct offence dates and to three distinct infractions of the City of Toronto Municipal Code. For ease of reference, the offences alleged will be referred to as counts 1 to 5 respectively as reflected in the above chart. With the consent of the parties there was a joinder of Informations and one trial was conducted on all counts.

Findings

[3] The City has established each of these offences beyond a reasonable doubt and Hard Luck Inc. has failed to establish, on a balance of probabilities, a due diligence defence to counts 1, 2, 4 and 5. A due diligence defence has been established with respect to count #3. Accordingly, there are findings of guilty with respect to counts 1, 2, 4 and 5. Count 3 is dismissed.

Reasons

[4] These charges stem from noise complaints initiated by Wendy Fox, a resident of 169 Palmerston Avenue, Toronto and investigated by Cesar Jaramillo, a Provincial Offences Officer with the City of Toronto's Licencing and Enforcement Unit.

Noise Complaint – Count 2

[5] Counts 2 & 5 above relate to the noise complaints made by Ms Fox and for which she provided viva voce testimony at trial. I will deal with these counts first as it was the investigation of these complaints that also generated the other counts.

[6] Ms Fox's testimony was given with the assistance of the "noise logs" that she maintained and to which she referred for the purpose of refreshing her memory. These records were prepared from hand written notes that Ms Fox made at the time of the occurrences and which she subsequently transcribed onto forms provided by the City. She testified that she transcribed her notes precisely as she had hand-written them.

[7] Her testimony relevant to count 2 referenced events occurring on a series of dates between February 14th and March 25, 2013, specifically February 14th, 15th, 22nd and 27th, March 17th, 20th, 21st, 23rd and 24th. Her typewritten notes for this period were transcribed by her from her hand-written notes toward the end of March, 2013.

[8] Her testimony relevant to count 5 referenced events occurring on a series of dates between July 5th, 2013 and October 30th, 2013, specifically July 5th, 11th, 21st and 25th, September 4th, 8th and 24th, October 2nd, 3rd, 7th, 9th, 20th and 30th. Her typewritten notes for this period were transcribed by her from her hand-written notes within a day or two following each of these occurrences.

[9] She stated that the noise had been going on for over a year since Hard Luck moved into the neighbourhood. She had been in email communication with the previous owners about her concerns. Sometime in early 2013 there had been a change in the ownership of Hard Luck and she had been optimistic that the situation would improve. When she perceived the noise problem continuing, she obtained the email address of the new owner from the previous owner. She would email the new owner from time to time when she was disturbed by the noise.

[10] Ms Fox described in some detail what she heard and felt on each of these dates. There was a consistency to the nature of the noise and vibrations that she says she experienced:

February

• 14th: heavy bass, very loud music
• 15th: after 8 pm to 11:15 pm - loud, heavy metal music - could hear it from all the rooms at the back of her house; called 311 & police
• 22nd: after "mid-evening", heard bass in back bedroom, continued until after midnight – very loud, heavy bass – knew it was coming from Hard Luck as there were limited businesses open at that time
• 27th: very loud music – heavy bass – sounded like heavy metal – from 8 pm 'till after 11 pm; emailed City of Toronto by-law enforcement – emailed new owners

March

• 17th: very intense bass – went on very late – was a "thrashing sound"
• 20th: started at 9 pm and went past 11 pm – very loud music and heavy bass – coming from Hard Rock – very upsetting because I had a meeting in the morning; emailed the owner
• 21st: really loud music went on till past after midnight – couldn't read or concentrate in my own bedroom
• 22nd: loud, heavy metal – 2:20 a.m. – tried sleeping in the front of the house; called police – emailed the owners
• 24th: a Sunday – bands start earlier – very heavy bass – you can feel it in your body – Hard Luck advertising 5 bands playing that night – angry that we couldn't sleep in our own house

[11] The rear of Ms Fox's residence where her bedroom is located faces east along the alleyway it has in common with the building that houses Hard Luck. The distance is slightly less than a city block. She did not report noise issues affecting the rooms on the west side of her house, the side facing Palmerston Avenue.

[12] She determined the source of the sound that was affecting her by walking the alleyway on at least three occasions to pinpoint the source. She also went on the internet on a number of the evenings in questions to verify from Hard Luck's online listings the live bands that were playing. She also observed on Dundas Street, in front of Hard Luck's building, trucks and equipment related to the bands that were playing the venue.

[13] On the evening of March 16th, 2013, Mr. Jaramillo circled the block and building where Hard Luck is situated. He did not hear any sound emanating from the rear of the building, particularly not at the end of the alleyway at Palmerston where Ms Fox's home is located. He did hear sound from Hard Luck when standing on Dundas Street at the main access door when the door was opened. March 16th is not one of the dates that Ms Fox referred to in her evidence. As will be discussed below in relation to count 5, he did hear sound emanating from Hard Luck in the evening of October 26th, 2013 when walking on Markham St. on the east side and north of the Hard Luck building and while standing on the north-east corner of Dundas Street West and Markham St. The building housing Hard Luck is situated on the north-west corner of that intersection.

Noise Complaint – Count 5

[14] An Information alleging count #2 was received by a Justice of the Peace on May 14th, 2013. The disturbances according to Ms Fox continued. Her testimony regarding those instances is summarized in a manner similar to those above:

July

• 5th: after 9 pm – started hearing loud, heavy bass – continued after midnight – same noise as heard for 1 ½ years – bar had advertised live music – couldn't sleep – really loud aggravating sound; called police at 11:30 pm.
• 21st: loud music – could be heard from everywhere in the house – coming from Hard Luck
• 25th: started around 8 - really, really loud – couldn't be in the room – it was really, really awful – it felt aggressive, that awful, terrible bass – like an insistent pounding – came from Hard Luck – they were advertising a "thrash off" that night – "thrash bands" from the U.S. were brought in – in my room it was the same bass coming from the same place – when you open your window and listen you can see where it's coming from – I walk out through my garage into the back alley and as you approach you can hear it – don't remember if I did that that night but have done that 2 or 3 times and it's coming from that building – that night had to get up a 5 a.m. next morning so I was especially angry

September

• 4th: loud music – started at 7:30 p.m. and went till after midnight – could hear it in all the rooms in back of the house – coming from Hard Luck – same type of music I had heard many times before & they were advertising live music that night
• 8th: loud music – went on till 11:40 p.m. – wanted to read in the bedroom but couldn't get through any of the pages because the bass was too loud – coming from Hard Luck – similar to loud music I'd heard in the past and I opened my back window and I could hear it coming from the back quite clearly
• 24th: loud music, heavy bass to after 11:00 p.m. – started around 7 p.m. – very loud, heavy bass coming from a heavy metal band – coming from Hard Luck – they had advertised live music and when I walked by earlier in the evening at 6:30 people were lining up for the event – there were several bands playing – so I just had to sit in the front of my house until it ended – I was really angry that night – it was a Tuesday night and I had to work the next day

October

• 2nd: Wednesday - started in early evening and went on past midnight – very loud heavy metal music – coming from Hard Luck – had 5 bands playing that evening – had been advertised; called 311 just to complain and see if there's anything they could do – nothing happened
• 3rd: heavy metal – very loud bass – started between 7:30 pm - 8 pm to after midnight – coming from Hard Luck – live music was advertised – walked by at 6:30 pm - there was a huge tour bus parked in front of the bar, a lot of people and amplifiers – I couldn't concentrate – all I could hear was the bass and a lot of drumming – I was mad
• 7th: Monday – music started earlier in the evening and continued to after midnight – heavy metal, i.e. heavy bass, heavy drumming – fast drumming & fast bass – coming from Hard Luck – same type of music I'd heard earlier- when walking home from work earlier there was a tour bus from California parked in front of the bar
• 9th: loud music continued to after 11 pm – loud bass – could hear from back of house – from Hard Luck – same type of music – I can hear it through the walls and windows but if I open the windows I can hear what direction it's coming from – coming from where Hard Luck's building was – I was upset & couldn't sleep
• 20th: Sunday – went to watch movie in my room and couldn't because of the music – heavy bass – same type of music coming from same area
• 30th: really loud night – it was a ticketed event – advertised 4 bands and tickets online- kept awake till after midnight – aggressive type of music

[15] Ms Fox supplemented her testimony about her experience with the noise that she ascribed as coming from Hard Luck by stating that she hears the noise mostly in her bedroom, that she's lived in that location since 2007 and her sleep has been affected since the Hard Luck bar moved into the neighbourhood, that Hard Luck is not open every night and that on the nights when Hard Luck is closed she doesn't hear any music. There are other new businesses in the area but none that would play music. Under cross-examination she testified that she had had "serenity" windows installed in her bedroom and that reduced the noise by about 25% but that she could still hear it because it was coming through the walls.

[16] Ms Fox's testimony regarding noise generated out of Hard Luck was bolstered by the testimony of Mr. Jaramillo with respect to his visit to the site on October 26th, 2013 and reviewed in relation to count #5, below.

Defence Evidence Regarding Noise

[17] The Defence, in its cross-examination of the Prosecution's witnesses and through the evidence of its own witnesses, sought to call into question the perceptions of Ms Fox, both with respect to the volume and nature of the noise she reported, its source, and whether, perhaps, any annoyance or disturbance caused by the noise was unique to her. It also presented testimony regarding efforts made by Hard Luck to mitigate any noise emanating from its premises and to measure the sound levels of such noise.

[18] In cross-examination, Ms Fox was questioned as to why she declined to permit the sound engineer retained by the defence to enter her home the week prior to the trial to conduct sound level tests. She acknowledged she declined but no explanation was offered as to why.

[19] She was also questioned about her testimony that Hard Luck was the only possible source for the noise, that there were no other businesses in the area that would be the source of the noise. She was asked about businesses named 'Magpie', 'Studio' and 'Press Club'. She acknowledged their presence but stated they are to the west of Palmerston and her home. She acknowledged Press Club has live music but that that she's unable to hear Press Club from her home.

[20] She was presented with the information that the sound engineer retained by Hard Luck took noise level readings behind Ms Fox's home and reported that noise coming from Hard Luck did not add appreciably to the ambient background noise in that area. Ms Fox testified that that made "zero sense" to her.

[21] She was questioned about whether there had been any improvement in the noise levels during the periods set out in the Informations. She testified that there had not except for the actions that she herself took, referred to above, to install the sound-reducing windows but that the disturbances continued.

[22] The Defence presented George Diamantouros, President of Hard Luck, to testify as to the company's handling of noise issues.

[23] Mr. Diamantouros testified that he and his partners, who have experience with all kinds of music, purchased the business in February of 2013. They thought it had been operating as a live music venue for a couple of years. They were unaware of any noise complaints when they bought but found out very quickly. They had intended to take some time when they first took over the business to effect some soundproofing similar to what they had done in another location that had worked "brilliantly" but when they learned of the complaints they decided to accelerate that process. He testified the business did not receive any other complaints than those of Ms Fox.

[24] While Hard Luck did not create or generate the music, Mr. Diamantouros testified that the speakers and sound board belong to the business and, by his other testimony, implicitly acknowledged Hard Luck's involvement in either causing or permitting the music to be played and that he was in control of the volume in that he could direct that it be turned down. He also implicitly acknowledged Hard Luck's responsibility, as the operators of the venue, to ensure that the noise generated in the establishment did not disturb the neighbourhood. He testified he felt they'd gone out of their way to ensure they had good relations with all their neighbours, including those that shared walls with the business.

[25] As corroboration, the Defence presented Spencer Fisher as a witness. Mr. Spencer lives next door to Hard Luck. His bedroom wall is a common wall to its stairwell and the Hard Luck stage is on the other side of that stairwell. He had been living there since October 1st, 2014. He testified that in the subsequent period he, "had not heard much of anything," other than that, on occasion, there had been a "little bit of a rumble from bass" but "well within the realm of reason" in Mr. Fisher's opinion. In cross-examination he stated that he could hear other sounds, from his hot water and from the street, more than he could hear what's going on next door at Hard Luck. He stated his opinion that Hard Luck is an excellent neighbour, they take care of the front of the establishment, cigarette butts are taken care of, the patrons are not loud, and there's no more noise at the front of the establishment than would be experienced from other street noise, street cars for example.

[26] The Defence also called William Avery. Mr. Avery lives three streets west of Hard Luck and two houses south of Dundas Street West. The distance he approximates as being 300 metres. He has been to Hard Luck to catch a show. His last time at the club was October, 2013. He's never had an issue with the patrons or with management. Hard Luck is part of the reason he moved to the neighbourhood, where he's lived since June of 2012. He testified that the only time he hears music, presumably meaning at his home, is during music festivals. Inferentially, he does not hear music emanating from Hard Luck as Ms Fox described.

[27] A third Defence witness, Bakar Glat, also offered testimony relevant to this issue. Mr. Glat is the spouse of the owner of Ali Baba, a restaurant operating on the north-east corner of Markham Street and Dundas Street West. He has worked at that location since 2011. He testified that he is unaware of any problems related to Hard Luck, that he 'never hears anything." He acknowledged that the area is "slow" and that Hard Luck brings business to the area.

[28] Perhaps most significantly, the Defence presented the report of Ramin Behboudi, M.Eng., P.Eng., of Swallow Acoustic Consultants Ltd. Mr. Behboudi was qualified as an expert witness. Mr. Behboudi's c.v. was submitted as exhibit #20. His report, done on behalf of Mr. D of Hard Rock and entitled 'Hard Luck Bar: Acoustic Assessment', was submitted as exhibit #21. The report is dated October 21st, 2014 and conveys the results of sound testing done in and around Hard Luck on May 9th, 2014, June 19th, 2014 and July 24th, 2014.

[29] To summarize, Mr. Behboudi's findings are that only faint noise emanating from Hard Luck could be detected at two points, directly in front of the establishment on Dundas St. and in the laneway immediately to the rear. No sound could be detected on the north-east corner of Dundas and Markham St. that could be attributed to Hard Luck.

[30] No tests were conducted at one of the locations testified to by Mr. Jaramillo, 169 Markham Street, i.e. 100 metres north of Hard Luck up Markham Street. Nor were tests conducted inside Ms Fox's residence.

Assessment of the Evidence Regarding Noise

[31] I will begin with the evidence and report by Mr. Behboudi.

[32] Firstly, the report states a conclusion that, within the trial context, is the responsibility of the Court to make. His first stated conclusion is, "The results of the acoustic investigations do not support the Resident's or the by-law officer's noise complaints against the Hard Luck Bar." The results of the testing may not be consistent with the noise complained of by Ms Fox or reported by Mr. Jaramillo, but if the test results are to be used as trial evidence, it is the role of the Court to be the tier of fact and to assess whether those results are probative or not of the central trial issues.

[33] Next, I find that the test results have little probative weight with respect to those central issues. The tests were conducted many months after the dates testified to by Ms Fox and Mr. Jaramillo. The evidence on behalf of Hard Rock is that the company was making efforts to more effectively sound-proof the premises. As stated below, however, there was no evidence as to when that work was performed. I cannot presume, in considering the findings of the testing, that the conditions under which the tests were being conducted were sufficiently identical to the conditions that existed on the dates of the complaints. This is so with respect to both the condition of sound-proofing of the facility and with respect to the strength of the sound being generated from within the premises.

[34] Finally, Mr. Behboudi indicates that "A more thorough acoustic investigation involving simultaneous measurements in the Residence and at the bar is required to assess and qualify the reported noise complaints."

[35] The Court's assessment of the expert report and evidence is that it neither contradicts and certainly does not controvert the testimony of Ms Fox and Mr. Jaramillo, particularly of Mr. Jaramillo's testimony as to what he heard on Markham Street on October 26th, 2013.

[36] In short, it simply has very little probative value with respect to the issues before the Court for determination. What value it does have is to support Ms Fox's testimony that sound emanating from Hard Luck could, in fact, have been reaching her residence.

[37] In a similar vein, I find the testimony of Mr. Fisher, Mr. Avery and Mr. Glat with respect to noise to be unhelpful. Mr. Fisher was not present until October, 2014. Mr. Avery resides a considerably further distance from Hard Rock than does Ms Fox. Mr. Glat testified he works until 10 p.m. He did not testify as to whether he was present at his location to the late hours described by Ms. Fox and Mr. Jaramillo. He honestly acknowledged a certain indebtedness to Hard Rock for its bringing business to the neighbourhood. I am concerned that his perceptions may have been from a somewhat biased perspective. Neither Mr Avery nor Mr. Glat was questioned with respect to the specific dates mentioned by Ms Fox and Mr. Jaramillo.

[38] The Court, then, is left with the testimony of Ms Fox and Mr. Jaramillo.

Credibility Assessment of Fox and Jaramillo

[39] Ms Fox presented her testimony in a calm, straightforward, clear and readily comprehensible manner. While the incidents that she described clearly had an emotional impact on her at the time, as she testified, her presentation of those incidents was controlled and she remained emotionally contained, including under cross-examination.

[40] The inference in the Defence position was that she was somehow unique; a single complainant; the only civilian complainant in these proceedings; the only person who was bothered. However, I found her recitation of what she had heard and her emotional response to be persuasive that she was not embellishing her testimony nor over-dramatizing. She presented as a very rational person.

[41] There is the issue raised by the Defence questioning Ms Fox's certainty about the source of the noise she was hearing inside the rooms at the rear of her house. She was asked about other establishments in the vicinity offering live musical entertainment, the implication being that the sounds she was hearing could have been issuing from one of these other establishments. Three of those establishments were to the west of Palmerston Avenue and Ms Fox's residence. Ms Fox was specific that the sound was coming from the east. She verified that by walking into the alleyway on at least three occasions. She opened her windows on the eastern side of her home to detect the direction and source. She did not hear the sounds on the west side of her house.

[42] Further, her observations were corroborated by Mr. Jaramillo on October 26th, 2013 and, to a certain extent by the testimony of Mr. Diamantouros and Mr. Behboudi. Mr. Diamantouros said he would go into the alleyway when the groups were playing and, if he heard noise would radio inside to have the "low end" turned down. Mr. Behboudi's test result showed that when music was playing at 100 db inside the club, the noise level in the laneway beside Ms Fox's house was 10 db higher than would be expected from the ambient noise level at that location.

[43] In summation, I find the testimony rendered by Ms Fox to be credible and compelling. I find that it establishes, beyond a reasonable doubt that the sounds and vibrations that she described as having occurred did, in fact occur and that they emanated from the Hard Luck Bar at 770-772 Dundas St. West.

"Likely to Disturb"

[44] This is not a question of whether the noise happens to disturb a particular individual. Guidance in this respect can be found in the Superior Court decision of Speigel, J. Jaukovic v. The Blue Mountains (Town), 58 O.R. (3d) 394, [2002] O.J. No. 182, January 17, 2002. In that decision, His Honour cited the decision of the Divisional Court in R. v. Highland Packers Ltd., [1978] O.J. No. 658. In that case, in striking down the noise by-law of the Town of Stoney Creek, the Court stated:

A[n] alleged violation of the by-law in question would be established by proving simply that any inhabitant of the Town of Stoney Creek had been disturbed by the noise in question. The violation of a by-law limited in scope to the general provisions of the enabling legislation could only be proved by establishing that the noise complained [of] was one that was likely to disturb the inhabitants. The latter case would depend upon the application of an objective standard and the defence might be that the noise complained was not of a volume or duration as would ordinarily disturb a reasonable person. The former case on the other hand would involve the application of a purely subjective standard depending on whether or not the complaining inhabitant was in fact disturbed.

[45] The test to be applied, as I understand it, is whether the Prosecution has proven beyond a reasonable doubt that the noise complained of is likely to disturb any reasonable inhabitant, or, has the Defence established that the noise complained of was not of a volume or duration as would ordinarily disturb a reasonable person?

[46] The Oxford English Dictionary principal definition of 'likely' is, "Such as well might happen or be true; probable".

[47] The noise complained of is described in various ways; loud, bass, aggressive, heavy metal, thrashing, penetrating. More particularly, it occurs in the late evening and early morning hours on weeknights as well as weekends. It can be heard on the street at least 100 metres to the north and almost a city block to the west inside a private residence. It recurs on numerous occasions over many months.

[48] In my opinion, any other objective person would conclude that such noise would be more likely than not to disturb, at a minimum, the quiet, peace, rest, comfort or convenience of the inhabitants of the City. The fact that this trial focussed on the complaints of only one individual in no way detracts from the finding that others, subjected to the same set of conditions not of their own making, would likely be disturbed as well.

[49] Accordingly, I find that the offences under counts 2 & 5 are made out.

Eating Establishment vs Entertainment Establishment/Nightclub – Counts 1 & 3

[50] Hard Luck presents itself as a bar. Ms Fox, as an area resident, testified to her belief that this is a "bar". The witnesses on behalf of Hard Luck made no reference to it being a restaurant or eating establishment. Their purpose in attending was to listen to the live bands. One witness acknowledged that there was snack food available for sale but it was evident that the edibles were not their purpose for attending. They were there to hear the live bands.

[51] Mr. Jaramillo testified as to the layout of the tables and chairs and floor space when he attended at Hard Luck. On March 17th he counted 70 seats and 100 patrons, 30 of whom he described as dancing to the music. The majority of chairs were stacked on top of each other and not in use. When he attended on October 26th, 2013 there were seats for 70 patrons but only 4 were in use. He stated the security personnel at the location advised him there were 179 patrons inside the venue.

[52] The Defence presented as an exhibit (#17) the floor plan showing a layout of the establishment which reflected seating for 90 persons. This plan was prepared in between the dates of Mr. Jaramillo's visits to Hard Luck. When presented with the diagram, Mr. Jaramillo agreed that it roughly resembled what he saw at the time of his second visit. He testified it appeared there had been an attempt to put in more tables, that they were there but not in use. Again, the liquor licence for the establishment provided for a capacity of 199.

[53] In the diagram, there is a large open area in front of the stage where the bands play their music. Based on the scaled diagram the open area in front of the stage is 10'-12' deep x 34' wide, or approximately 31.6 square metres. The stage itself is shown as being 8'x8' or 5.95 square metres. On his visits during the times that bands were performing, Mr. Jaramillo observed patrons standing in this area some of whom, according to his testimony, were dancing. On March 17th he estimated 60 patrons standing with half that number dancing to the music.

[54] The Business Names Report, exhibit 2, for the business lists the "Activity being carried out" as LIVE VENUE AND RESTAURANT. "Restaurant" is defined under the City of Toronto Zoning By-Law No 438-86 as:

"a building or a portion of a building used for the preparation and cooking of meals and the sale of food and beverages to the public while they are seated, for consumption on the premises and which may included .. (iv) floor area above or below grade in the aggregate up to six per cent of the non-residential gross floor area or 47 square metres, whichever is less, to be used for one or more of the purposes of a (inter alia): dance floor, stage, …".

[55] The gross floor area of the establishment as reflected on the scale diagram is 319.2 square metres. Accordingly, the portion of the gross floor space occupied by both the stage and the area in which Mr. Jaramillo observed patrons standing and dancing is 11.6%. Mr. Jaramillo's own estimate of the area taken up by patrons standing and dancing at the time of his March 17th, 2013 visit was 60%.

[56] On his first visit to the establishment on March 16th, 2013, Mr. Jaramillo observed the kitchen area. On that date the kitchen equipment had not been installed. Food was not being prepared nor consumed nor was any readily available to the patrons.

[57] There were two security officers which, according to Mr. Jaramillo's testimony, is a requirement consistent with the Entertainment Establishment by-law. (also, see below By-law 20-2006)

[58] The City of Toronto Municipal Code, Chapter 545-1 defines Entertainment Establishment/Nightclub as:

A premises, including but not limited to a dance hall or disco, used to provide dance facilities for patrons, where seating is not provided for the majority of the patrons and where food or beverage may be offered for sale as an ancillary use.

[59] The City of Toronto Municipal Code, Chapter 545-5(G) defines Eating or Drinking Establishment as:

EATING OR DRINKING ESTABLISHMENT - Every place for the lodging, reception, refreshment or entertainment of the public; every place where foodstuffs intended for human consumption are made for sale, offered for sale, stored or sold; every victualling house, ordinary, and house where fruit, fish, oysters, clams or victuals are sold to be eaten therein, and any other place or premises or part thereof, named or described in § 545-2 of this chapter, where food or drink is sold or served in pursuance of a trade, business or occupation; or any other place or premises or part thereof, named or described in § 545-2 of this chapter, where food or drink is served in pursuance of a trade, business or occupation, licensed or required to be licensed under this chapter for the carrying on of or engaging in any trade, business or occupation in respect of such eating or drinking establishment.

[60] In providing for the licensing of Entertainment Establishment/Nightclubs in 2006 the City of Toronto By-Law 20-2006 set out the rationale for regulating such activity on the basis of, inter alia:

WHEREAS Section 150 of the Municipal Act, 2001 grants local municipalities the authority to license, regulate and govern any business wholly or partly carried on within the municipality for purposes of health and safety, consumer protection and/or nuisance control; and

WHEREAS there is a need to separately license and regulate businesses that provide entertainment to properly address the health and safety, nuisance and consumer protection concerns raised by this business activity; and

WHEREAS some of the concerns raised by the operation of these businesses include violence within and outside of the establishment, property damage, overcrowding, crowd control and unacceptable noise levels; and

WHEREAS requiring a sufficient number of easily identifiable security guards to be on site while the business is operating until an hour after closing will help ensure the health and safety of patrons and control the nuisances that may be caused by patrons entering and leaving the establishment;

[61] On March 16th, 2013, while Hard Luck was purporting to operate as an Eating Establishment, it did not have a licence to do so. An application had been made out on its behalf on February 28, 2013, exhibit #19, jointly for "Eating Establishment (B71) and Entertainment Establishment/Nightclub (B97)". No licence was on display when Mr. Jaramillo attended on March 17th, 2013. Exhibit #4, a certified statement from Licencing Services, Municipal Licensing and Standards, City of Toronto, established that neither did Hard Luck Inc. have an Entertainment Establishment/Nightclub licence on that date.

[62] Mr. Fisher, as a patron, testified that the food available at Hard Luck is "chips and things like that .. little snacks." This is as recently as October, 2014. There is no warm food prepared or offered for sale. Mr. Avery couldn't testify as to whether there was any food available on his visits. He stated he was there to catch the show.

[63] Both Mr. Fisher and Mr. Avery testified that there would be patrons standing in front of the stage and that some of them would be dancing, although there were also those who were not dancing. Mr. Fisher testified as to there being "a decent sized dance floor", that it is a punk rock venue and that there would be a "decent number" of people who will be up dancing. Mr. Avery, on his last visit which he stated was in October, 2013, testified that the club was pretty full and, in cross-examination, was led to an estimate of about 25 people standing in front of the stage.

Assessment of the Evidence

[64] The evidence was uncontroverted that Hard Luck was the location for live music performances, that members of the public were permitted to attend provided they paid a $20 cover charge, there were security personnel working the venue, alcohol was being sold and consumed under a liquor licence, there was a significant floor space in front of the stage where patrons were both standing and moving to the music. Dancing was not expressly promoted or encouraged but neither was it discouraged. There was not sufficient seating available on either of the visits by Mr. Jaramillo for a majority of the patrons present and certainly not for the capacity permitted by the liquor permit. The area being used for patrons in the front of the stage, given that it was being used by patrons for dancing, was significantly in excess of the area permitted by the zoning by-law for restaurants.

[65] There was no licence under the City of Toronto Municipal Code licencing requirements for an Entertainment Establishment/Nightclub. Neither, on March 17th, was there an Eating Establishment licence. On March 17th, the kitchen facility was not yet operational. Equipment had not been hooked up. There was no food preparation or service, other than "snack food". There was no evidence as to what that snack food consisted of other than Spencer Fisher's testimony as to "chips" and "snacks". An Eating Establishment licence was not obtained until June, 2013. Nor was the kitchen operational on October 26, 2013. An old stove had been installed but appeared not to be in use. Mr. Diamantouros confirmed that the kitchen hadn't been used for several months "due to an electrical problem". On at least one occasion, according to Babar Glat, food was delivered to Hard Luck from the Ali Baba restaurant next door.

[66] No evidence was forthcoming on revenue or expenses for the business. The $20 cover charge went, according to Mr. Diamantouros, to the bands as did the revenue from the sale of cd's and t-shirts.

[67] It was apparent that any food available for sale at Hard Luck was ancillary, at best, to its purpose as a live music venue. At no point in the course of the trial was it asserted on behalf of Hard Luck that it existed to operate as an eating establishment. As both Mr. Fisher and Mr. Avery testified, they went there for the music not the food. Mr. Fisher testified that if he wanted a snack he would go to 7/11.

[68] It is the finding of the Court that, for both March 17th, 2013 and for the October 26th, 2013 attendance at Hard Luck by Mr. Jaramillo, the activity occurring on those evenings met the description of an Entertainment Establishment/Nightclub. It did not meet that of an Eating Establishment.

[69] Pursuant to the licencing requirements of the City of Toronto Municipal Code at the time, given the business activity being carried on, Hard Luck would have required an Entertainment Establishment/Nightclub licence on those two evenings. Given the content of letters from the City's Licencing and Standards office, exhibits #4 & #9, and by testimony on behalf of Hard Luck, it is established beyond a reasonable doubt that it did not have one on either date.

[70] Accordingly the offence is made out for both dates, that is, for counts 1 and 3.

Permit Emission of Sound from Electronic Sources – Count 4

[71] On October 26th, Mr. Jaramillo attended at the Hard Luck location at 12:40 a.m. He walked the neighbourhood around Hard Luck. He testified that he could hear sound emanating from Hard Luck when he was on Markham Street north of the building. He testified he walk 100 metres north to 168 Markham Street, the 7th residence north of the Hard Luck building. He could hear the bass. He walked to the north-east corner, in front of Ali Baba restaurant, where he could hear strong bass. At that point he was 30 metres from Hard Luck. He walked the rear alley between Hard Luck and Ms Fox's residence. He could hear bass escaping but not as strongly as on Markham Street.

[72] When in front of the building on Dundas Street he could hear "slight bass" every time the door was opened. That sound, in Mr. Jaramillo's estimate, was not excessive and, by illustration, he stated he could not hear that bass when standing at the curb directly in front of this establishment.

[73] He entered Hard Luck. He observed a three-member band playing. The sound was such that conversation with Mr. Diamantouros was difficult from a distance of 2 feet. There were four speakers and a DJ booth and a sound control board on one of the tables.

[74] After he left the club he determined that the sound from the club was not as audible on Markham Street. He deduced from that that the sound has been turned down at that point.

Assessment of the Evidence

[75] Other than by inference of the information provided by the Defence's expert witness, Mr. Jaramillo's testimony as to what he heard on Markham Street and in the alleyway behind the Hard Luck building in the early hours of October 26th, 2013 was not challenged or shaken. Again, for the reasons expressed above, I find the expert's report unhelpful in assessing the credibility of what Mr. Jaramillo testified to hearing and observing directly. Mr. Jaramillo's testimony presented as clear, straightforward, uncontradicted and uncontroverted; in other words as credible and compelling.

[76] As a result I find that it has been made out beyond a reasonable doubt that Hard Luck certainly permitted and had a role in causing sound resulting from the operation of electronic devices incorporating several loud speakers to project beyond the lot line of the property from which the noise was emanating and into both a street and public place.

[77] Accordingly, the offence is made out for count 4.

The Defendant Corporation

[78] It may be noted at this point that it was never in dispute that the Defendant in these proceedings is properly Hard Luck Inc., which at all relevant times was an active Ontario business corporation with a corporate number of 2360096 carrying on the business activity of "Live Venue and Restaurant" under the business name of "Hard Luck Bar". The mailing address of the corporation is 772 Dundas St. West, Toronto, M6J 1V1. The administrator is George Diamantouros.

Classification of Offences

[79] Given the evidence and testimony advanced regarding the efforts made to ensure that noise from Hard Luck did not cause problems with neighbours, as well as the steps taken to obtain and Eating Establishment licence, consideration needs to be given to whether the defence of due diligence is available with respect to these offences.

[80] In this respect, it is necessary to refer to the instructive analysis of the Supreme Court of Canada in R. v. Sault Ste. Marie, [1978] S.C.J. No. 59:

I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two:

1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence.

2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case.

3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.

Offences which are criminal in the true sense fall in the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall in the first category only if such words as "wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.

[81] Presumptively, public welfare or regulatory offences are to be classified as strict liability offences, in which the Prosecution would only need to prove the actus reus in order to sustain a finding of guilt.

[82] The wording contained in each of these by-laws is not indicative, in my view, of a clear legislative intent to create absolute liability offences. To the contrary, the noise-related by-laws especially refer to permitting prohibited types of noise. Where the prohibited act is proven to have occurred, it is open to the accused to establish, on a balance of probabilities, that they did not permit the act. As provided for in the Sault Ste. Marie decision, the offences are presumptively strict liability offences.

Due Diligence – Counts 2 & 5 – "Noise likely to disturb"

[83] Mr. Diamantouros testified that soundproofing was done around the walls of the premises and in the ceiling area in front of the stage. He did not describe specifically what this soundproofing consisted or specifically when it was done or by whom. However, after the initial work was done they still continued to receive complaints from Ms Fox.

[84] At some point, according to Mr. Diamantouros, they received the advice of a sound engineer and took steps to further insulate the ceiling, the back stairwell and the back wall of the premises. Again, he did not testify as to what these measures consisted of, except to state that two layers of insulation were added to the ceiling, nor was there evidence as to when the work was actually performed or by whom.

[85] Mr. Diamantouros also described his routine every night that bands were performing. He would wait outside until the performance had started and once the band had "gotten into it", if he heard anything, he would radio inside to tell them to turn down the low end.

[86] It was not clear to me from Mr. Diamantouros' testimony whether he performed this monitoring with every performance or just at the beginning of the evening. The evidence was that there were often evenings when more than one band performed.

[87] It was also not demonstrated what efforts were made, until very belatedly, by Hard Luck to engage Ms Fox in order to assess the nature of the noise and vibration penetration into the rooms on the east side of her house. Reference was made to email communications between the parties but copies were not provided to the Court.

[88] After the first Information was laid on May 14th, 2013 regarding the noise issue, the noise disturbances continued and the evidence is that Hard Luck was made aware that the complaints were continuing. No evidence was presented as to why the business did not take the one step that was well within its control which would have been to substantially reduce the volume until such time as all reasonable sound-proofing and noise level testing had been done.

[89] For these reasons I find on a balance of probabilities that all reasonable measures were not taken by Hard Luck to ensure that the prohibited act did not occur and, for those measures that were taken, the evidence as to what was actually done and when was unclear. In any event, those measures were not sufficiently effective.

Due Diligence – Counts 1 & 3

[90] With respect to count 1, the evidence was clear that there was no due diligence defence available. As found by this Court, above, the operation of the establishment on March 17th, 2013 accorded with that of an Entertainment Establishment/Nightclub. It did not accord with Eating Establishment. In any event the business had a licence for neither. An application had been made out and, perhaps, filed with the City but no licence had issued. There was no evidence tendered that, for example, a City official had advised the business that it could operate pending the consideration of its application. Neither was any other evidence tendered that would have given the owners a foundation to believe that, having made the application, they could carry on as they did without one or the other type of licence.

[91] With respect to count 3, the evidence establishes that after following the requisite process with City officials, including a zoning review, a licence to operate an Eating Establishment was issued sometime in June, 2013 and expiring June 17th, 2014. That licence was on display at the time of Mr. Jaramillo's attendance on October 26th, 2013.

[92] Again, I have found, with the benefit of the evidence in this proceeding, that the activities of Hard Luck on October 26, 2013 were consistent with that of an Entertainment Establishment/Night Club and not in accord with that of an Eating Establishment. However, given the foregoing, the Defence has established that the owners of Hard Luck had an honest, and a very reasonable belief, that their business model met with the approval of the relevant officials of the City as an Eating Establishment and that, therefore, they did in fact have the "necessary licence".

Due Diligence – Count 4

[93] I will infer that the evidence led by the Defence and through cross-examination of the Prosecution's witnesses pointing to the reasonable efforts made to avoid committing the offences alleged in counts 2 & 5 is to be applied, mutatis mutandis, to the consideration of count 4.

[94] For similar reasons I find that the actions described above with respect to counts 2 and 5 did not amount, on a balance of probabilities, to having taken all reasonable care to avoid the prohibited conduct. Indeed, the onus on the Prosecution to make out this offence is somewhat less burdensome than in counts 2 and 5. It is not required to prove beyond a reasonable doubt that the type of sound referred to by the by-law referenced in count 5 would be likely to disturb the inhabitants of the City, merely that the sound reached the streets or public spaces. There was no evidence presented that demonstrated what, if anything, Hard Luck had done to address that specific prohibition when it was known that, in fact, the electronically generated and amplified noise was seeping into the streets and public places, such as the laneway.

Summation

[95] For the reasons set out above, the Prosecution has proven beyond a reasonable doubt each of the offences set out in counts 1 to 5. Also for the reasons set out above, I find that Hard Luck has not established, on a balance of probabilities, that it was duly diligent in preventing or avoiding the commission of the offences proven with respect to counts 1, 2, 4 & 5. It has established a due diligence defence with respect to count 3.

[96] Therefore, there will be findings of guilt with respect to counts 1, 2, 4 and 5. Count 3 is dismissed.

[97] The Court will receive submissions with respect to penalty on January 12th, 9:00 a.m., in N Court at Old City Hall, Toronto.

Released: January 12, 2015

Signed: Justice of the Peace M.H. Conacher