COURT FILE NO.: 371/06
DATE: 20070228
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
lane, howden and spiegel jj.
B E T W E E N:
1132165 ONTARIO LIMITED carrying on business as THE DOCKS BY CHERRY
Applicant
(Appellant)
- and -
THE REGISTRAR OF THE ALCOHOL AND GAMING COMMISSION OF ONTARIO, TORONTO ISLAND COMMUNITY ASSSOCIATION, CITY OF TORONTO
Respondents
Alan D. Gold and J. Randall Barrs, for the Appellant
Richard E. Kulis, for the Registrar of the Alcohol and Gaming Commission of Ontario
Lynn Robinson and Vivian Pitcher, Representatives of the Toronto Island Community Association
Rosanne Giulietti and Anna R. Solomon, for the City of Toronto
HEARD at Toronto: February 28, 2007
LANE J.: (Orally)
[1] During this hearing we admitted fresh evidence for reasons delivered earlier. We have now had submissions made as to the effect of the admission of the fresh evidence on the conduct of the balance of the appeal.
[2] In our view, the fresh evidence has the potential, if it is accepted by the Board, to alter fundamentally the basis for the Board’s conclusion that it was not in the public interest that the appellants continue to be licensed. For that reason, we propose to remit the matter to the Board differently constituted to consider the matter bearing in mind the evidence already given, the fresh evidence admitted by us and any other evidence the parties may bring to the new hearing.
[3] The parties disagree on the mechanics of effecting this result. The respondents submit that the order should be left in place. But in our view, that cannot work. The Board has made an order and if it is not set aside there is no basis for the Board to rehear the same matter on which it has already made an order which is still existing. In our view, the only way to deal with this situation is to set aside the order leaving the new Board free to deal with the case as it sees fit. It was submitted that we have not heard the substantive appeal and that is true. But, the remaining issues, apart from the noise issue to which the fresh evidence pertains, are moot because our finding on the fresh evidence creates a need for a new hearing in any event.
[4] Mr. Gold indicated in his submissions that pending the new hearing his clients were content to abide by the clauses in the order of Swinton J., as to the way in which the business would be conducted. These are clauses 3, 4, 5, 6 and 10.
[5] Accordingly, we make the following order. The order of the Commission dated July 24, 2006 is set aside and the matter is remitted to the Board differently constituted to conduct a new hearing in accordance with procedures to be adopted by it in its discretion. In the interim, the licencee will continue to be bound by the terms set out in the order of Swinton J., being clauses, 3, 4, 5, 6 and 10.
[6] There will be no costs before Swinton J. It would be wrong to award costs to the Docks when they were put on terms by her. There will be no costs before Carnwath J. because the matter was not in the control of the Board. Today, there will be costs to the appellant fixed at $5,000.00 plus GST. I endorse as an Addendum that the costs are payable by the City and the AGCO equally, unless they agree differently but nothing is payable by the other respondents.
LANE J.
HOWDEN J.
SPIEGEL J.
Date of Reasons for Judgment: February 28, 2007
Date of Release: March 5, 2007
COURT FILE NO.: 371/06
DATE: 20070228
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
lane, howden and spiegel jj.
B E T W E E N:
1132165 ONTARIO LIMITED carrying on business as THE DOCKS BY CHERRY
Applicant
(Appellant)
- and -
THE REGISTRAR OF THE ALCOHOL AND GAMING COMMISSION OF ONTARIO, TORONTO ISLAND COMMUNITY ASSSOCIATION, CITY OF TORONTO
Respondents
ORAL REASONS FOR JUDGMENT
LANE J.
Date of Reasons for Judgment: February 28, 2007
Date of Release: March 5, 2007