681311 Ontario Limited o/a Shots Sports Tap & Grill v. Registrar, Alcohol and Gaming Commission of Ontario
CITATION: 681311 Ontario Limited o/a Shots Sports Tap & Grill v. Registrar, Alcohol and Gaming Commission of Ontario, 2011 ONSC 2208
DIVISIONAL COURT FILE NO.: 09-DV-1555
DATE: 2011/04/08
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., FERRIER and BRYANT JJ.
BETWEEN:
681311 ONTARIO LIMITED o/a SHOTS SPORTS TAP & GRILL Appellant
– and –
REGISTRAR, ALCOHOL AND GAMING COMMISSION OF ONTARIO Respondent
Christopher B. Kelly, for the Appellant
Joyce A. Taylor, for the Respondent
HEARD: April 5, 2011
REASONS FOR JUDGMENT
BY THE COURT
[1] This is an appeal from the decision of the Liquor License Board dated July 13, 2009 in which the Board found that the appellant had violated Regulations under the Liquor License Act, R.S.O. 1990, c. L. 19. The appellant also appeals the sanction imposed by the Board’s decision dated September 25, 2009. The appellant seeks to have both decisions quashed.
[2] The Regulations in question are found in Regulation 719 of the Licenses to Sell Liquor R.R.O. 1990.
[3] The Board found that the appellant had committed the following violations:
(1) May 12, 2007: breach of section 45 (1) by permitting drunkenness on its premises;
(2) November 2, 2007: breach of section 34 (1) by permitting alcohol to be removed from the establishment; and
(3) November 16, 2007: breach of section 45 (1) by permitting drunkenness on its premises.
[4] In the sanction decision, the Board ordered a 10 day license suspension and added the following conditions to the license: (1) monitor its video surveillance at all times and maintain the video equipment in good working order; (2) retain all digital records from the cameras for a minimum of seven days; (3) make available immediately upon request to police officers and inspectors all video recordings.
[5] Four other alleged violations were dismissed by the Board. The appellant appeals only the findings of the Board with respect to the November 16, 2007 violations and the global sanction imposed by the Board.
[6] Pursuant to the Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, C. 26, sec.11(2) an appeal lies to this court on a question of law only.
[7] Inspector Beaudry of the Alcohol and Gaming Commission of Ontario (AGCO) conducted his investigation in the early morning hours of November 16, 2007. He spoke to counsel for the appellant by telephone on November 20, 2007. He told counsel of three intoxicated people inside, and two intoxicated patrons outside of the establishment that night. Once it was confirmed by the Deputy Registrar of the AGCO that disciplinary action would be taken, the notes and reports of the inspector were provided to the appellant on January 11, 2008.
[8] The first ground of appeal is that there was a denial of natural justice because the AGCO failed to provide timely disclosure. The appellant relies on Shooters Sports Bar Inc. v. Alcohol and Gaming Commission. The circumstances in the Shooters case were significantly different from the case at bar. In Shooters, the first notice given of any alleged infractions was 103 days after the alleged events. Furthermore, evidence was given on behalf of Shooters specifically related to the prejudice it suffered as a result of the delay. Here, the appellant was put on notice immediately that there had been infractions. The appellant was given immediate opportunity to consult with staff, check records (as was done in Shooters), check videos and, depending on the results of those efforts, to interview patrons (as was done in Shooters). In the case at bar, the appellant tendered no evidence of any steps it took once it was notified of alleged infractions. No evidence was led concerning any prejudice. In the circumstances of this case, there was no denial of natural justice. The appellant had notice of infractions within four days of the alleged events and received particulars of the infractions seven weeks after the alleged incidents.
[9] The second ground of appeal is that because the Board failed to adjudicate on the issue of timely disclosure, its reasons are inadequate and the decision should be quashed. We disagree. As is reflected in the detailed appendices, the Board was alive to the issue of timely disclosure. It matters not that the Board did not deal with the issue in its decision because, for the above noted reasons, there was no denial of natural justice.
[10] The third ground of appeal is that the appellant was deprived of natural justice because the Board placed limits on the cross‑examination of Inspector Beaudry. This position is without merit. There were no limits placed on cross‑examination. Rather, the board simply intervened, in the absence of the witness Beaudry who was being cross‑examined, to raise questions about the need for the nature of the cross‑examination being pursued by counsel. Counsel was not prevented from pursuing his line of questioning. Furthermore, no objection was taken before the Board concerning the interventions, thus depriving the Board of making a determination of the issue. That being so, no appeal lies to this court on the issue.
[11] The fourth ground of appeal is that the Board erred in treating Inspector Beaudry as an expert. We disagree. The appellant relies on the use of the word “expertise” by the Board when referring to Inspector Beaudry’s experience. Read within the entire decision, the Board did not consider Inspector Beaudry to be an expert witness. This is particularly evident when reviewing the Board’s treatment of the evidence of Dr. Gamble, the registrar’s expert witness in forensic toxicology. Dr. Gamble was identified as an expert and was so qualified to give opinion evidence on the effects of drugs and alcohol on the human body. Inspector Beaudry’s evidence on the other hand was observational in nature, was not expert opinion evidence, and was so treated by the Board. Furthermore it was quite appropriate for the Board to consider Beaudry’s long experience as a liquor license inspector when the Board assessed the reliability of his evidence. He had been observing patrons in bars as an inspector for 13 years. Furthermore it was part of his responsibility as an inspector to observe patrons for physical signs of intoxication – and his evidence before the Board related specifically to those observations in the context of the alleged violations.
[12] The appellant did not challenge the credibility of Inspector Beaudry, but did challenge the reliability of his testimony. The appellant relies on Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, and takes the position that the decision of the Board on the issue of reliability is conclusory. However, the circumstances in Neinstein were markedly different than the case at bar. In Neinstein, there were several witnesses whose testimony was in direct conflict, a circumstance which called for an analysis of the conflicting testimony and reasons why the testimony of one witness was preferred over that of another. In the case at bar, the only witness concerning the alleged incidents was Inspector Beaudry. No evidence was led by the appellant. There was no evidence to compare and weigh against the evidence given by Mr. Beaudry. Thus the only task for the Board was to consider Mr. Beaudry’s testimony for errors or inconsistencies. The Board weighed the evidence and specifically noted errors in his testimony but held that such errors were not significant. Finally, although the Board’s reasons for finding Mr. Beaudry’s testimony reliable are brief, they do not lack substance against the background of his unchallenged credibility.
[13] There was no legal error in the treatment of the evidence of Inspector Beaudry. Furthermore, it was clearly the function of the Board to assess the evidence and it is not for this court to review that assessment failing legal error.
[14] Accordingly, the appeal from the finding of violations in the decision dated July 13, 2009 is dismissed.
[15] The appellant also appeals the sanction decision on the grounds that the decision provides no insight as to what part of the 10 day license suspension and added conditions applies to each part of the proven allegations. This is an argument that a global sanction for more than one infraction cannot be imposed. The Ontario Court of Appeal held otherwise in 6477291 Canada Inc. (c.o.b. Hooley’s Restaurant) v. Ontario (Registrar, Alcohol and Gaming Commission), [2009] O.J. No. 4120. (C.A.) where it imposed a global sanction in a case of multiple infractions.
[16] Accordingly, the appeal of the sanction decision is dismissed.
[17] Having received submissions on costs, we fix the costs to the respondent at $5,000.00 all inclusive.
Mr. Associate Chief Justice D. Cunningham
Mr. Justice L. Ferrier
Mr. Justice A.W. Bryant
Released: April 8, 2011
CITATION: 681311 Ontario Limited o/a Shots Sports Tap & Grill v. Registrar, Alcohol and Gaming Commission of Ontario, 2011 ONSC 2208
DIVISIONAL COURT FILE NO.: 09-DV-1555
DATE: 2011/04/08
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., FERRIER and BRYANT JJ.
BETWEEN:
681311 ONTARIO LIMITED o/a SHOTS SPORTS TAP & GRILL Appellant
– and –
REGISTRAR, ALCOHOL AND GAMING COMMISSION OF ONTARIO Respondent
REASONS FOR JUDGMENT
By the Court
Released: April 8, 2011