2130845 Ontario Inc. o/a Heart & Crown v. Ontario (Alcohol and Gaming Commission, Registrar), 2014 ONSC 3595
CITATION: 2130845 Ontario Inc. o/a Heart & Crown v. Ontario (Alcohol and Gaming Commission, Registrar), 2014 ONSC 3595
DIVISIONAL COURT FILE NO.: DC-13-1886
DATE: 2014-07-10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEENEY R.S.J., LOFCHIK and KITELEY, J.J.
BETWEEN:
2130845 Ontario Inc. o/a The Heart & Crown Irish Pub and Restaurant
Appellant
– and –
Registrar of the Alcohol and Gaming Commission of Ontario
Respondent
COUNSEL:
Michael Edelson and Solomon Friedman, for the Appellant
Phillip Morris, for the Respondent
HEARD: June 11, 2014 at Ottawa
HEENEY R.S.J.:
[1] This is an appeal from a decision of the License Appeal Tribunal (“the tribunal”) dated January 4, 2013, reported at [2013] O.L.A.T.D. No. 1, which found that the appellant had contravened certain provisions of the Liquor Licence Act, R.S.O. 1990 c. L.19 (“the Act”) and of the Liquor Licence Act Regulations, R.R.O. 1990, Reg. 719 (“the Regulation”). The appellant also appeals the sanction imposed on April 25, 2013, reported at [2013] O.L.A.T.D. No. 105, which was a suspension of its liquor license for 10 days, coupled with terms relating to maintenance of its digital security camera system.
The Facts:
[2] The appellant operates several taverns in Ottawa, one of which is the subject-matter of this proceeding. On February 20, 2011, a group of about 15 individuals, who were mostly co-workers, met at the Comedy Club for approximately 2 hours. At about 10 p.m., they relocated to the appellant’s bar, where they began to drink a lot of alcohol very quickly. According to the cash register receipts, they ordered their first round of drinks at 10:05 p.m. and their last round at 11:12 p.m. During that interval of one hour and 7 minutes, they ordered at their table and consumed 49 1-oz shots, 1 16-oz. beer, 2 20-oz beers, and 2 60-oz pitchers of beer. They also purchased 10 more shots at the bar. Since 4 or 5 members of the group were designated drivers, those drinks were shared between approximately 10 people. The amount of alcohol consumed in that time span amounted to 72 drinks, which is equivalent to 53.5 “standard” drinks.
[3] It became evident that several members of the group were intoxicated, and they were cut off from any further service and told to leave the bar. They complied without incident. However, one female member of their group was left in the washroom, where she was throwing up. A friend was with her, and yelled out that she needed help to get her drunken friend out of the bar. Four members of the group re-entered the bar and went to the hallway near the washroom. They were confronted there by the manager and the bouncer and told to leave. They refused and a physical confrontation ensued, as a result of which one of them, Mr. S., fell to the ground with a seriously injured ankle.
[4] Staff at the bar refused to call 911 or assist the injured patron. The patrons themselves called 911 and the police and an ambulance attended. The police investigated but no charges were laid. Inspector Daniels from the AGCO began an investigation about 2 weeks later, on March 4, 2011. He met with the manager, Mr. Slack. Daniels was most interested in obtaining a copy of the video from the bar’s surveillance cameras. Slack took him to the video room and offered to show him the video. However, Slack’s supervisor Mr. Pineault joined them, and stopped the conversation. He said they kept the video for months and months, and promised to provide a copy the following week.
[5] The next day Daniels returned with an OPP officer and asked to see the video. Pineault told him he had been instructed by senior management not to provide a copy. Senior management were called and one of them, Mr. Munro, became hostile with Daniels. He told Daniels that the tape had “rolled over”, meaning that it recorded in a loop and had already erased recordings made two weeks earlier. The general manager, Mr. Landon, testified at the hearing that the maximum length of time the data would stay on the system was 5 to 6 days.
[6] On these facts, the tribunal found that the appellant breached the following sections of the Act:
- S. 29: selling liquor to an intoxicated person
- S. 45(1): obstruct inspection/destroy information
- S. 45(2): fail to facilitate an inspection
and the following sections of the Regulation:
- S. 20(1): permitting practices that encourage immoderate consumption of liquor
- S. 45(1): permit drunkenness
- S. 45(1): permit disorderly conduct
[7] The appellant appeals each of those findings.
Jurisdiction:
[8] Pursuant to s. 11(1) of the License Appeal Tribunal Act, 1999, S.O. 1999, Chapter 12 Schedule G (“the LATA”), an appeal lies to the Divisional Court from a decision or order of the tribunal. Section 11(3) thereof provides that an appeal may be made on a question of law only.
Grounds of Appeal:
[9] The primary ground of appeal advanced is that the tribunal erred in law by failing to provide adequate reasons for its decision. The tribunal “found most of the witnesses to be credible”, save and except for Pineault. However, the evidence was in conflict in many respects. It is argued that the tribunal wholly failed to analyze the conflicting evidence in making its findings of fact, thereby leaving the appellant to wonder why certain evidence was apparently preferred over other evidence, and making meaningful appellate review impossible.
[10] The appellant also argues that the tribunal made errors of law in the manner in which it interpreted and applied the relevant sections of the Act and Regulation. I will deal with those alleged errors as I consider each infraction below.
Standard of Review:
[11] The appellant submits that since the appeal is on a question of law, the appropriate standard is correctness. The respondent submits that the applicable standard is reasonableness.
[12] In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, Bastarache and LeBel JJ., speaking for the court, said the following, at para. 57:
An exhaustive review is not required in every case to determine the proper standard of review. Here again, existing jurisprudence may be helpful in identifying some of the questions that generally fall to be determined according to the correctness standard (Cartaway Resources Corp. (Re), [2004] 1 S.C.R. 672, 2004 SCC 26). This simply means that the analysis required is already deemed to have been performed and need not be repeated.
[13] The correctness standard has been held by the Divisional Court to apply to questions of law arising on appeals under the Act and the Regulation. In Shooters Sports Bar Inc. v. Ontario (Alcohol and Gaming Commission), [2008] O.J. No. 2112 (Div. Ct.), Molloy J., speaking for the court, said this, at para. 20:
Counsel for the respondent submitted that the appropriate standard for the Board's findings is one of correctness. Mr. Preddie, a non-lawyer, was unfamiliar with the applicable law on this point. Prior to the Supreme Court of Canada's recent decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, 2008 S.C.C. 9, there was a consistent body of case law holding this board to a standard of correctness: Registrar of Alcohol and Gaming v. Hosseini-Rad, [2004] O.J. No. 1273 (Div.Ct.); 1166134 Ontario Inc. v. Ontario (Alcohol and Gaming Commission), [2006] O.J. No. 2567 (Div.Ct.). Given that the appeal from the board is solely on a question of law, in my view, the correctness standard will not be affected by Dunsmuir. There is no privative clause and the issues to be determined by the Board did not require any special expertise relative to that of the court. The nature of the question at issue was whether the evidence established that Shooters Bar on a specific date had permitted drunkenness on its premises and should therefore be subject to sanctions and possible cancellation of its liquor license. There is a right of appeal solely with respect to questions of law, in respect of which it is appropriate to require the Board to be correct. This is not a situation that brings into play the rationale underlying the change in the law as to the standard of review established by the Supreme Court of Canada in Dunsmuir. There is no reason to depart from the established case law on this point. In any event, there are no issues of legal interpretation raised in this appeal and very limited questions of law at all. Rather, the main issues raised relate to abuse of process, the fairness of the hearing and the adequacy of the reasons, to which the standard of review does not apply.
[14] In arriving at this conclusion, the court remained consistent with pre-Dunsmuir decisions that similarly arrived at a correctness standard for appeals of this nature.
[15] In another post-Dunsmuir case, the Ontario Court of Appeal applied a correctness standard to an appeal under the Regulation. In 1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), [2009] O.J. No. 1553 (C.A.), the Court of Appeal agreed with a decision of the Divisional Court which ruled that the tribunal had erred in law in its interpretation of s. 45(1) relating to “permitting drunkenness”. Although the court did not expressly state that it was applying a correctness standard, it is clear from reading the judgment that that is the standard that they were applying. At para. 5, the court said this:
The Divisional Court held that the Board erred in law by failing to make a finding on the question of whether the licensee permitted drunkenness on the premises (see para. 15). We have reviewed the Board's reasons. We are satisfied that the Board applied the wrong interpretation of the word "permits" in making its finding against the licensee.
[16] By overturning the tribunal’s decision because it was “wrong” in law, a standard of correctness was clearly being applied.
[17] In arguing for a standard of reasonableness, the respondent relies on Prestige Toys Ltd. v. Ontario (Motor Vehicle Dealers Act, Registrar), 2009 43657 (ON SCDC), [2009] O.J. No. 3437 (Div. Ct.). That case involved an appeal of a decision of the tribunal under the LATA, but was one that emanated from the Motor Vehicle Dealers Act, R.S.O. 1990, c. M.41, and not the Act or the Regulation that we are dealing with. In concluding that a standard of reasonableness applied, Karakatsanis J., speaking for the court, said the following at para. 15:
A measure of deference is appropriate where a tribunal's governing statute provides a specialized adjudicative regime for resolving disputes. Under the Licence Appeal Tribunal Act, the determination of whether past conduct of an applicant or registrant affords reasonable grounds for belief that it will not carry on business in accordance with law, honesty and integrity is a core function of the Tribunal. This is the case not only in relation to the registration of car dealerships or salespersons under the MVDA, but also in relation to registrations or licences under numerous other statutes containing a similar provision. The Tribunal therefore applied a statutory provision with which it has particular familiarity. As well, with respect to the principal's responsibility for the actions of the corporation, the legal and factual issues are intertwined and cannot be readily separated. In these circumstances, a deferential standard of reasonableness applies.
[18] To the extent that this case is in conflict with Shooters Sports Bar and the other authorities referred to, I prefer to follow the latter. To begin with, those authorities have established the standard of review to be applied in appeals emanating from the Act and Regulation, whereas Prestige Toys dealt with a different statute. Secondly, I agree that deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function: see Dunsmuir at para. 54. However, I take issue with the suggestion that the tribunal has a “home statute” with respect to which it has developed specialized expertise.
[19] In 1999, the License Appeal Tribunal was created to consolidate various tribunals having jurisdiction over a wide variety of statutes spanning a vast range of subject matter. Section 11(1) of the LATA lists the following 21 statutes that fall under its umbrella:
Bailiffs Act
Board of Funeral Services Act
Building Code Act, 1992
Collection Agencies Act
Consumer Protection Act, 2002
Consumer Reporting Act
Discriminatory Business Practices Act
Film Classification Act, 2005
Funeral, Burial and Cremation Services Act, 2002
Gaming Control Act, 1992
Motor Vehicle Dealers Act, 2002
Ontario New Home Warranties Plan Act
Paperback and Periodical Distributors Act
Payday Loans Act, 2008
Private Career Colleges Act, 2005
Private Security and Investigative Services Act, 2005
Real Estate and Business Brokers Act, 2002
Travel Industry Act, 2002
Upholstered and Stuffed Articles Act
Vintners Quality Alliance Act, 1999
[20] Instead of being a body that has developed specialized expertise in a particular domain of the law, a tribunal under the LATA bears more resemblance to a court of law, which similarly deals with disputes arising under a variety of statutes on a regular basis. To the extent that the tribunal has developed any special expertise in dealing with disputes under those 21 statutes, I observe that the Divisional Court is the body that hears appeals on questions of law arising under the same basket of 21 statutes, and presumably has developed expertise of its own. There is no compelling reason for the Divisional Court to cede deference to the legal decisions of such a generalist tribunal. As the Supreme Court of Canada observed in Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] S.C.J. No. 18 at para. 28:
Greater deference will be called for only where the decision-making body is, in some way, more expert than the courts and the question under consideration is one that falls within the scope of this greater expertise: see Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11, at para. 50. [emphasis in the original]
[21] The two remaining criteria in a Dunsmuir analysis also point toward a correctness standard. First, there is no privative clause. Indeed, it is quite the reverse: the legislature has expressly entrusted appeals on questions of law to the Divisional Court.
[22] The second factor favouring a correctness standard is the nature of the question before the court, which is always an important consideration in a Dunsmuir analysis. The provisions of the Act and the Regulation which are under consideration in this appeal are, to some extent at least, quasi-criminal in nature. They establish a standard of conduct, and provide for the imposition of sanctions when that standard is breached. In such situations, certainty in the law is of paramount importance. Citizens should be able to know what the law is, so that they know what standards of conduct are expected of them, and can govern their behaviour accordingly. Certainty in the law can only be achieved through a correctness standard.
[23] A reasonableness standard gives no such certainty. The law may be this or it may be that, depending upon the reasonably-held views of the Member who is presiding. Behaviour which one Member finds to be unobjectionable may be found by another Member who has a different, yet reasonable, interpretation of the law, to be deserving of sanction. Given that the sanctions can be financially onerous, as in the case presently before this court, the application of the law should not appear to be unpredictable.
[24] I therefore conclude that with respect to the issues in this appeal, the applicable standard of review is correctness.
Analysis:
1. Section 45(1) of the Regulation (permitting drunkenness) and s. 29 of the Act (service to an intoxicated person):
[25] The tribunal’s findings that the appellant had breached certain sections of the Act and Regulation begin at para. 68 of the reasons. The first four paragraphs reveal the analysis that led to a finding that both s. 45(1) of the Regulation (permitting drunkenness), and s. 29 of the Act (service to an intoxicated person) had been breached:
This Tribunal finds the following facts.
The evidence is quite clear, and essentially undisputed, that the patrons were served an excessive amount of alcohol in a short period of time. 72 drinks were served to 10 patrons in 65 minutes, Further, there seemed to be little or no monitoring of the group in terms of the amount or rate of consumption. There was no evidence put before the Tribunal regarding any procedures instituted by management for staff to follow for the responsible sale and service of alcohol; manuals and written documentation were entered as evidence but not a procedure to be and, in fact, followed by staff. When action was finally taken to cut the patrons off, because they were, at a minimum, showing signs of intoxication, they were served, and consumed, more alcohol. There is no evidence regarding any procedures in place for communication among staff to ensure service would not continue.
By all accounts, whether the staff, the police or the patrons themselves, several in the group were intoxicated, some like S, to the point of being ill. Therefore, on the evidence, the Tribunal finds that some of the patrons were intoxicated, which intoxication the Applicant knew, or ought to have known of, a breach of s. 45(1) of the OReg (permit drunkenness).
In respect of service of these patrons, at least 4 of them became drunk while at the establishment, staff noticed signs of intoxication in some of these patrons, and the manager was alerted; yet, patrons were permitted to order and consume drinks thereafter. By virtue of the evidence regarding the sale and service of alcohol to some of those same patrons, after the group had been cut-off, a finding of a violation of s. 29 of the Act (service to an intoxicated person) can also be made.
[26] The relevant section in the Regulation reads as follows:
- (1) The licence holder shall not permit drunkenness, unlawful gambling or riotous, quarrelsome, violent or disorderly conduct to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under the exclusive control of the licence holder.
[27] The relevant section in the Act reads as follows:
- No person shall sell or supply liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated.
[28] The appellant argues that the tribunal’s reasons were fatally deficient. There is no analysis of the credibility of the witnesses, except the comment at para. 67 that “it found most of the witnesses to be credible”. Notable by its absence was any analysis of the reliability of the testimony. Reliability is a distinct consideration from that of credibility. Perfectly honest witnesses can still give unreliable evidence, depending upon their ability to perceive, remember and accurately recount the events in question. In this regard, many of the witnesses who testified against the appellant were, by their own admission, drunk at the time the events transpired. The appellant argues that this is a consideration that should have been dealt with by the tribunal in analysing the evidence.
[29] I pause to note that the appellant has a right of appeal only on a question of law, not on a question of fact. The process by which the tribunal arrived at its findings of fact is not the proper subject of appellate review. However, the appellant submits that a failure to provide adequate reasons constitutes an error in law. In Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, [2010] O.J. No. 1046 (C.A.), the court overturned the Hearing Panel’s decision on the basis of inadequate reasons. At para. 4, Doherty J.A., speaking for the court, said this:
I am satisfied that the appellant has demonstrated that the reasons given by the Hearing Panel are so inadequate as to foreclose meaningful appellate review. The inadequacy of the reasons constitutes an error in law requiring an order directing a new hearing.
[30] Neinstein, however, involved a case where both factual findings and legal findings were subject to appellate review. Here, one might observe that whether or not meaningful appellate review of the tribunal’s findings of fact has been foreclosed by the lack of adequate reasons is ultimately a moot point, since those findings of fact are not open to appellate review in any event (unless the error in fact finding was so egregious as to amount to an error of law).
[31] Having said that, I accept that the failure to provide adequate reasons can amount to a denial of procedural fairness: see Shooter’s Sports Bar (supra at paras. 43 to 51). Without adequate reasons, the party who is being sanctioned does not know why he has been found to have committed an infraction.
[32] The respondent relied on Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 to argue that the failure to give adequate reasons was not a stand-alone basis for quashing a decision, but should be blended into the analysis as to whether the decision was reasonable. Madam Justice Abella, at para. 22, said this:
It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach. Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis.
[33] However, that decision must be read with caution because it was a labour arbitration case, where the standard of reasonableness applied. The standard to be applied in the case at bar is one of correctness. There is, in essence, no reasonableness analysis into which the question of the adequacy of the reasons could be blended.
[34] Accepting that there is a duty to provide adequate reasons, does that suffice to overturn the tribunal’s finding that the appellant breached s. 45(1) of the Regulation by permitting drunkenness? In my view, the answer is no, because the reasons in this regard were adequate. There was no need for a credibility or reliability analysis, nor an analysis of the extent to which the evidence was in conflict because, as pointed out by the tribunal, “[b]y all accounts, whether the staff, the police or the patrons themselves, several in the group were intoxicated, some like S, to the point of being ill.” The appellant’s own records demonstrate the vast quantity of alcohol consumed during a short period of time, and according to the appellant’s own chart regarding the effects of alcohol based on consumption in one hour, which is found at Tab 15 of the Exhibit Book, such consumption would put all of the drinking members of the group into the “legally intoxicated” category. Since the evidence was not in dispute, no in-depth analysis was required. The appeal on this finding is dismissed.
[35] The same point can be made with respect to the finding that the appellant breached s. 29 of the Act, by selling liquor to an intoxicated person. It is beyond dispute that several members of the group became intoxicated, yet continued to be served and consumed alcohol, even after having been cut off. No analysis of the evidence beyond that which the tribunal engaged in was required to explain that finding. The appeal with respect to this finding is also dismissed.
2. Section 20(1) of the Regulation (permitting practices that encourage immoderate consumption):
[36] At para. 72 of its reasons, the tribunal engaged in the analysis that led to the finding that there had been a violation of s. 20(1) of the Regulation (permitting practices that encourage immoderate consumption):
The Tribunal heard evidence from the patrons and from Ms. Cone as to the quantity of alcohol served, as stated previously, in a short period of time; by the Applicant's own records, approximately 72 drinks in about one hour to a group of ten or so who were actually drinking. And again, there was no evidence from the applicant regarding any practice in place to prevent that level and rate of consumption. The Tribunal therefore concludes that there has been a violation of s. 20(1) of the OReg, (permit immoderate consumption).
[37] Sections 20(1) to (3) read as follows:
- (1) The holder of a licence to sell liquor shall not engage in or permit practices that may tend to encourage patrons’ immoderate consumption of liquor.
(2) Without restricting the generality of subsection (1), the licence holder shall not advertise the availability of complimentary liquor and may supply complimentary servings of liquor only in circumstances that are consistent with not encouraging the immoderate consumption of liquor and only for the purpose of customer relations.
(3) Without restricting the generality of subsection (1), the licence holder shall not offer for sale a serving of liquor for less than a total purchase price of two dollars, including retail sales tax, goods and services tax and any other applicable taxes.
[38] While subsections (2) and (3) do not restrict the generality of subsection (1), they do inform its interpretation. Giving away free liquor, or offering it for sale for less than $2 per drink are “practices” that encourage people to drink more. However, the tribunal’s reasons reveal no “practice” that was engaged in by the appellant that encouraged immoderate consumption. The servers did nothing more than serve drinks in response to the patrons’ orders. Since that is what they always do with respect to all patrons, clearly something more is required to constitute an infraction under this subsection.
[39] Furthermore, the tribunal erred in law by effectively reversing the onus. The section requires that it be proven that the appellant engaged in or permitted a practice that encouraged immoderate consumption. The tribunal misdirected itself by basing liability on the fact that the appellant had no program in place to proactively prevent immoderate consumption. In so doing, the tribunal erred in law. The finding of a violation under s. 20(1) of the Regulation is quashed.
3. Section 45(1) of the Regulation (permitting drunkenness):
[40] The tribunal went on at para. 73 to apparently find that the appellant had again breached s. 45(1) of the Regulation (permitting drunkenness) by permitting four of the drunken patrons back into the bar to retrieve their drunken friend from the bathroom:
As to inviting or permitting drunken patrons to re-enter the establishment, these patrons were asked to leave the establishment and did so without incident. Thereafter, they were asked to re-enter in order to remove one of their friends from the washroom. While the Licensee takes the position that the request did not include male members of the group and that it was retracted, four drunken patrons were permitted to re-enter, were not stopped on entry and walked in plain view of staff to the back hallway before staff intervened. In the result, the Licensee permitted drunkenness on their premises, and disorderly and violent behaviour ensued.
[41] However, in the summary of infractions that follows in para. 74, only one violation of s. 45(1) of the Regulation (permitting drunkenness) is shown:
In summary, the Licensee breached s. 20(1) of Ont. Reg. 719/90 (engaging in or permitting practices that may tend to encourage patrons' immoderate consumption of liquor), s. 29 of the Act (selling or supply liquor, or permitting liquor to be sold or supplied, to any person who is or appears to be intoxicated) and s. 45(1) of Ont. Reg. 719/90 (permit drunkenness).
[42] The appellant had already been found to have breached s. 45(1) (permitting drunkenness) by having permitted this group to be in the bar earlier, with some of their members being in an intoxicated state. The appeal of that finding has been dismissed. From this summary, no additional infraction appears to have been recorded from having invited or permitted four drunken individuals to re-enter the bar to retrieve their friend from the women’s washroom.
[43] If, however, the intention of the tribunal was to make a finding that a second infraction of s. 45(1) of the Regulation (permitting drunkenness) had been committed, I agree with the appellant that the tribunal erred in law in so finding. In Horseshoe Valley Resort Ltd. v. Ontario (Alcohol and Gaming Commission), 2005 81108 (ON SCDC), [2005] O.J. No. 5895 (Div. Ct.) at para. 14, the court incorporated an element of reasonableness into its interpretation of s. 45(1) of the Regulation:
With respect to the Board's second finding, we are persuaded that the Board's reasons fall far short of demonstrating that it interpreted and applied the words"permitted drunkenness", as used in section 45(1) of the Regulation correctly. Indeed, we are of the view that it is likely that the Board's application of the law to the evidence was wrong. In order to properly find that the appellant permitted drunkenness with respect to Julie Strachan as alleged, the Board had to be persuaded that the appellant, through its employees, knew or should have known that Julie Strachan was drunk and that it failed, within a reasonable period of time, to take reasonable steps to effect her safe departure from the bar. The evidence before the Board showed that the appellant's employees recognized that Julie Strachan was drunk upon her entering the bar and that steps were taken quickly to make sure that she was not served alcohol and to make sure that she was safely removed and the Board's reasons fail to demonstrate in what respects the appellant failed to carry out its statutory duty. A finding of a violation of section 45(1) cannot be based on a draconian and unrealistic interpretation of its language that would create a violation the very moment a drunk patron entered the bar. Rather, it must be interpreted reasonably in accordance with its plain language and the practicalities of the context in which it is applied.
[44] In the case before this court, the tribunal did not resolve the factual issue as to whether or not the drunken patrons had been invited in, so the conclusion that an infraction had been committed must have been based upon the finding that they walked into the premises and went directly to the back hallway in the full view of staff, where they were stopped by the manager and told to leave. In my view, this is tantamount to finding that a violation occurred the very moment these drunken patrons re-entered the bar, which is contrary to this court’s ruling in Horseshoe Valley. A finding of a violation could only be made if the appellant’s employees failed to take steps to effect the removal of the drunken patrons within a reasonable period of time. The tribunal made no such finding. We were shown the floor plan of the bar during submissions, and it is a relatively short walk from the entry door, around the bar to the back hallway. That means that the drunken patrons would have been stopped by the manager and told to leave within mere seconds of having re-entered the bar. This is clearly a reasonable period of time.
[45] Accordingly, the finding of a second violation of s. 45(1) of the Regulation (permitting drunkenness) is quashed.
4. Section 45(1) of the Regulation (permitting violent or disorderly conduct):
[46] The tribunal’s analysis at para. 75, relating to the further breach of s. 45(1) of the Regulation (permitting violent or disorderly conduct), is as follows:
After inviting or permitting their re-entry, staff stopped drunk patrons in a narrow hallway and engaged in conduct that escalated rather than de-escalated the situation. This resulted in a violent and unnecessary confrontation, and staff attempted to control patrons by the use of unreasonable force, including pushing and/or kicking, then required a seriously injured patron to leave the establishment and wait for medical assistance outside. The situation was further exacerbated by the Applicant's refusal to call police or an ambulance or to render any kind of assistance. Thus, the Licensee breached s. 45(1) of Ont. Reg. 719/90 (permit violent or disorderly conduct).
[47] The applicable section has already been reproduced above, at para. 26.
[48] The uncontradicted evidence is that the four patrons were stopped in the narrow hallway by Slack and the bouncer Doucet. The patrons were told to leave, and they refused, since they were there to retrieve their friend. Slack admitted repeatedly on cross-examination that he could have de-escalated the situation, but did not do so. Instead he “stood his ground”. There is conflict in the evidence as to who initiated the first physical contact, and there is conflict as well in the nature of the force applied by the bouncer to S. It is, however, undisputed that the bouncer pushed S. at the very least, he fell to the ground, and suffered a severely broken ankle. It is also undisputed that the staff took no steps to call an ambulance or otherwise aid the injured patron.
[49] The appellant submits that the tribunal erred by failing to consider that these patrons were unlawfully on the premises, having been previously told to leave; and that the staff was then permitted to remove the patrons, provided that no more force than necessary was used.
[50] In framing this issue in the Appellant’s Factum, the appellant asks “Did the Tribunal err in law in its interpretation of s. 45(1) … in finding that there was sufficient evidence of disorderly conduct?” It is useful at this point to recall that this is not an appellate review of the findings of fact of the tribunal. If it were, I might be disposed to find that the tribunal’s analysis of the evidence was less than satisfactory. However, the sufficiency of the evidence that led to the findings of fact of the tribunal is not a matter with which this court is concerned. Instead, this appeal is primarily founded on the allegation that the reasons were so deficient that they amounted to a denial of procedural fairness and an error of law.
[51] Reasons do not have to be perfect, but they do have to explain what was decided and why. Here, the tribunal’s reasons make it clear that it laid responsibility for the violent confrontation at the feet of the appellant. The staff stopped drunken patrons in a narrow hallway, and engaged in conduct that escalated rather than de-escalated the situation. That led directly to the violence that followed, in which the bouncer clearly took a prominent role. Those reasons are, in my view, sufficient to explain why the appellant was found to have permitted the violent or disorderly conduct that occurred. The appeal as to this finding is dismissed.
5. Section 45(1) of the Act (obstructing an inspection) and s. 45(2) of the Act (failing to facilitate an inspection):
[52] Finally, the tribunal’s reasons leading to a finding of a violation of both s. 45(1) and (2) of the Act are found at paras. 76 and 77 of the reasons:
Regarding the allegation of a breach of sections 45(1) and (2) of the Act, the Tribunal heard that Mr. Slack was initially cooperative with Inspector Daniels with whom he seemed to have a good working relationship. It was only as days passed and senior management became more involved, and by inference more concerned about the possible ramifications of the incident, that cooperation seemed to disappear. It is incumbent upon licensees to facilitate inspections by AGCO inspectors and police. If 'facilitate' is defined to mean "make easier" and "less difficult”, on the evidence of Inspector Daniels and DC Nichols, which was not contested, such did not occur on these facts. While it appears that the Applicant did cooperate with the police investigation, the same level of engagement was absent vis-à-vis the AGCO, a breach of s. 45(2) of the Act.
By failing to retain and to provide the AGCO images taken from cameras in the establishment at the time of the incident, to the extent of aggressively questioning the AGCO's right to access the video, the Licensee also breached s. 45(1) of the Act (obstruct a person carrying out an inspection or withhold, destroy, conceal or refuse to provide any relevant information or thing required for the purpose of an inspection).
[53] The relevant sections of the Act read as follows:
- (1) No person shall obstruct a person carrying out an inspection under this Act or withhold, destroy, conceal or refuse to provide any relevant information or thing required for the purpose of the inspection.
(2) It is a condition of each licence and permit issued under this Act that the licensee or permit holder facilitate an inspection relevant to the licence or permit.
[54] There was uncontradicted evidence before the tribunal upon which it could make the finding that the appellant failed to facilitate the investigation, and the reasons illustrate the tribunal’s route to a finding of liability under s. 45(2) in a manner that is adequate. There is no error in law in the tribunal’s interpretation of the word “facilitate”. The appeal with respect to this finding is dismissed.
[55] With respect to the finding that the appellant obstructed the investigation, however, I am of the view that the tribunal erred in law. The finding of liability under s. 45(1) was based on the premise that the appellant had in hand the surveillance tape that recorded much of what transpired in the bar that night, but withheld it from the investigator.
[56] However, in its analysis the tribunal failed to consider two highly relevant items of evidence: that the inspector did not ask for the tape until March 4, 2011, two weeks after the incident; and the uncontradicted evidence of the general manager Landon that the maximum length of time the data would stay on the system was 5 to 6 days. Landon was among the group of witnesses whom the tribunal found to be generally credible. While there was evidence that a copy of the video had been promised, there was no evidence that it was in existence on March 4 when it was asked for. Without such evidence, a conviction cannot stand.
[57] It is an error in law to fail to consider relevant evidence that relates to a key issue in the case. Here, it is hard to imagine evidence that is more relevant than that which shows that the videotape which was allegedly withheld from the investigator did not exist when the investigator demanded it.
[58] Accordingly, the finding of liability under s. 45(1) of the Act is quashed.
Conclusion:
[59] In summary, the appeal relating to the following findings is dismissed:
- The first violation under s. 45(1) of the Regulation (permitting drunkenness)
- s. 29 of the Act (selling liquor to an intoxicated person)
- s. 45(1) of the Regulation (permit violent or disorderly conduct)
- s. 45(2) of the Act (fail to facilitate an inspection).
[60] The appeal is allowed in part and the following findings are quashed:
- a violation under s. 20(1) of the Regulation (permitting practices that encourage immoderate consumption)
- the finding of a second violation under s. 45(1) of the Regulation (permitting drunkenness)
- the finding of liability under s. 45(1) of the Act (obstructing an investigation).
[61] Since the evidence could not support a finding of liability under the three violations that have been quashed, there is no need to remit those matters to the tribunal for a further hearing.
[62] Counsel agreed that in the event that some findings were quashed and some were sustained, some adjustment of the sanction would be in order, and they agreed that this court should substitute the sanction that is appropriate for the violations that have been upheld. Hopefully counsel can arrive at a joint submission as to the appropriate sanction. We will accept written submissions in this regard from the appellant within 15 days, with the respondent’s response within 10 days thereafter, and any reply within 5 days thereafter. Submissions shall be filed with the Trial Coordinator in Ottawa.
[63] We note that both parties have claimed costs of this appeal. Given that success has been divided, the parties may not wish to pursue this issue further, but if they do their submissions on costs shall be included with their submissions on the sanction to be imposed.
T. Heeney R.S.J.
T. Lofchik J.
F. Kiteley J.
Released: July 10, 2014
CITATION: 2130845 Ontario Inc. o/a Heart & Crown v. Ontario (Alcohol and Gaming Commission, Registrar), 2014 ONSC 3595
DIVISIONAL COURT FILE NO.: DC-13-1886
DATE: 2014-07-10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEENEY R.S.J., LOFCHIK and KITELEY, J.J.
BETWEEN:
2130845 Ontario Inc. o/a The Heart & Crown Irish Pub and Restaurant
Appellant
-and-
Registrar of the Alcohol and Gaming Commission of Ontario
Respondent
JUDGMENT ON AN APPEAL
Released: July 10, 2014