COURT FILE NO.: 220/09
DATE: 20090608
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: SHOOTERS v REGISTRAR ALCOHOL AND GAMING COMMISSION
BEFORE: Justice Karakatsanis
COUNSEL: Clive Preddie (principal), for the corporate Applicant/Appellant
Joyce Taylor, for the Respondent
HEARD AT TORONTO: May 28, 2009
E N D O R S E M E N T
[1] The licence-holder seeks a stay of an Order dated May 4, 2009 of the Alcohol and Gaming Commission imposing a 14 day suspension of its liquor licence, commencing July 12, 2009, pending an appeal of the decision dated February 26, 2009.
[2] The test for a stay is well established. The moving party must show: (a) the appeal raises a serious question; (b) irreparable harm will result if the stay is not granted; (c) and the balance of convenience favours the granting of a stay. These factors must be considered as a whole. The overarching consideration is whether the interests of justice call for a stay. RJR MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] S.C.J. No. 17 (S.C.C.).
[3] The Respondent has conceded that irreparable harm would result if the suspension is served prior to the hearing of the appeal and that the balance of convenience favours a stay. The appeal cannot be perfected and determined prior to the date of the suspension. A fourteen day suspension of the liquor licence results not only in the loss of income and livelihood but may impact the ongoing viability of the business. The Respondent also accepts that the balance of convenience clearly favours the granting of a stay.
[4] The Respondent submits, however, that the appeal does not raise a serious issue to be tried because an appeal may be brought on a question of law alone and the grounds of appeal disputes only the findings of fact and credibility.
[5] The test of whether there is a serious issue to be heard is a low bar. The court should not extensively review the merits but must determine that the issues raised are not frivolous or vexatious. Ontario v Shehrazad Non-Profit Housing Inc. (2007) 2007 ONCA 267, 85 O.R. (3rd) 81 (C.A.) para 19.
[6] Appeals from the decision of the Alcohol and Gaming Commission are on questions of law alone. In the Notice of Appeal, the appellant disputes the Boards findings of fact and credibility. It was not prepared by a lawyer. It alleges that the Board’s failure to accept Mr. Preddie’s evidence and its acceptance of inconsistent police evidence amounts to an overriding and palpable error, resulting in a misapprehension of the burden of proof.
[7] In his Notice of Appeal, his Notice of Motion and in his oral argument, Mr. Preddie challenged the findings of fact and credibility of the Board and made detailed submissions about the inconsistencies in the police evidence identified in the decision and submitted that the Board failed to resolve them.
[8] In its decision, the Board directly identified the inconsistencies, dealt with them and made findings of fact. The Board made clear findings of credibility and as a whole preferred the evidence of the police officers over that of Mr. Preddie. The Board is entitled to reject evidence even if there is no evidence to the contrary if it determines that the evidence does not make sense in the circumstances. The Board is entitled to review the nature, importance and extent of any inconsistencies in the evidence in the context of the evidence as a whole and make findings of fact. Inconsistencies are commonplace in hearings and are often the hallmark of honest witnesses who honestly differ in their observations and recollections. The findings were clearly articulated and reasons given. The issues raised by Mr. Preddie in his submission relate to the facts as found by the Board and do not appear on the face of the judgment capable of rising to an error of law.
[9] However, Mr. Preddie said that the transcript will disclose other inconsistencies that the Board failed to identify and consider. Findings of fact may potentially involve an error of law if the decision-maker fails to consider relevant evidence. Furthermore, Mr. Preddie indicated that he will bring a motion to file fresh evidence - the transcripts of the police officers’ subsequent testimony about the same events in the Ontario Court of Justice. Whether or not that motion would ultimately be successful, the appeal does not appear to be frivolous or vexatious and raises a serious issue to be heard.
[10] Irreparable harm would result if the stay is not granted and the suspension is imposed. The balance of convenience is clearly in the appellant’s favour. Weighing the three factors as a whole, I am satisfied that the interests of justice require that the appellant have its day in court.
[11] Given the cost of ordering the transcripts and proceeding with this appeal, Mr. Preddie may wish to seek legal advice on the strength of the appeal before incurring the additional costs.
[12] A stay of the order of suspension is granted. Costs reserved to the panel hearing the appeal.
Karakatsanis J.
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