Citation and Court Information
CITATION: Registrar, Alcohol, Gaming and Racing v. 1146587 Ontario Ltd. o/a The Royal Oak, 2019 ONSC 1469
DIVISIONAL COURT FILE NO.: DC-18-2364
DATE: 20190318
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Mulligan and Raikes JJ.
BETWEEN:
REGISTRAR, ALCOHOL, GAMING AND RACING Appellant
– and –
1146587 ONTARIO LTD. o/a THE ROYAL OAK Respondent
Counsel:
Aviva R. Harari and Elizabeth Maishlish, for the Appellant
Ian Carter, for the Respondent
HEARD at Ottawa: February 20, 2019
Reasons for Decision
Swinton J.:
Overview
[1] The Registrar, Alcohol, Gaming and Racing (the “Appellant”) appeals from a decision and order of the Ontario Licence Appeal Tribunal (the “Tribunal”) dated December 8, 2017. The Tribunal directed the Registrar not to carry out a proposal to suspend the liquor licence of the Respondent, 1146587 Ontario Ltd. o/a The Royal Oak, on the grounds that the Respondent had permitted drunkenness on its premises.
[2] The Appellant argues that the licensee’s obligation not to permit drunkenness on its premises includes an obligation to safely remove an intoxicated patron, and that obligation requires the licensee to ensure that the patron arrives at a safe place.
[3] For the reasons that follow, I would dismiss the appeal, as the decision of the Tribunal was reasonable and contains no error of law.
Factual Background
[4] This appeal arises from events on December 11, 2016 in the City of Ottawa. A regular patron of the Royal Oak appeared at the Respondent’s premises that evening. He was served four 24-ounce beers by the server, who had dealt with him numerous times in the past. When he was drinking his fourth beer, the server noticed signs of intoxication, and she took the beer away. The patron was asked to leave, but he was resistant to doing so. It took approximately 15 to 20 minutes before he left. Staff members had to assist him when he was putting on his coat. He was not wearing winter gear, and it was snowing.
[5] The staff had made repeated offers to call a cab for the patron, but he refused to provide his home address. The staff also attempted to obtain an address, but the patron refused to provide it. A friend of the server also offered to drive the patron home, and he agreed. However, the offer was retracted after the patron said something that made the driver feel concerned.
[6] A staff member escorted the patron to the door. He left the establishment around 10 p.m. The staff member observed the patron, still showing signs of intoxication, leave and walk through the parking lot. He fell once, got up and urinated against the building and then walked away. The staff member watched until she could no longer see him.
[7] The patron was reported missing on December 14, 2016 by his mother. Police found his body covered in snow on a well-used path behind the Royal Oak. Apparently, his residence was about a five minute walk from the Royal Oak. There was no evidence of the actual time of death.
[8] The Appellant then issued a Registrar’s Notice of Proposal to suspend the Respondent’s liquor licence for 60 days because of a violation of s. 45(1) of O. Reg. 719/90 made under the Liquor Licence Act, R.S.O. 1990, c. L.19 (the “Act”). It reads:
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.
The Tribunal’s Decision
[9] The Respondent appealed the proposal to the Tribunal. The appeal was allowed, and the Registrar was directed not to carry out the proposal to suspend the liquor licence.
[10] The Tribunal found that the Respondent had not permitted drunkenness on the licensed premises. It found that the Respondent met its statutory obligation by recognizing the patron was intoxicated and removing his drink, and that it took reasonable and adequate steps in the circumstances to remove the patron from the establishment.
[11] The Tribunal stated, “That [the patron] did not arrive home safely is very unfortunate, yet s. 45(1) cannot be understood to impose an enduring obligation on the licensee to ensure this for its patrons” (at para. 34).
This Appeal
[12] An appeal lies to this Court from a decision of the Tribunal only on a question of law (s. 11(1) and (3) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G).
[13] The standard of review is reasonableness, as the Tribunal is applying one of its home statutes (168774 Ontario Ltd. (c.o.b. Swazzees Restaurant and Bar) v. Ontario (Alcohol and Gaming Commission, Registrar), 2017 ONSC 3579 (Div. Ct.) at paras. 3-4).
Analysis
[14] The Appellant argues that the Tribunal’s decision is unreasonable because the Tribunal gave too narrow a reading to s. 45(1) of the regulation. The Appellant argues that as a result of judicial interpretation of s. 45(1), there are two obligations on a licence holder: the licence holder must not permit drunkenness in the premises, and it must safely remove a drunken patron within a reasonable period of time. According to the Appellant, the obligation of safe removal requires the licence holder to ensure that the patron arrives home safely or at least reaches a safe place. In other words, there is a continuing and ongoing responsibility to ensure the safety of patrons after they depart from the premises.
[15] The Appellant provides no case law in support of the assertion that the statutory obligation not to “permit drunkenness” includes an obligation to ensure a patron’s arrival at a safe haven. Certainly, the words of the provision do not clearly suggest there is such an obligation, as the provision focusses on disorderly conduct that is unacceptable in the licensed premises.
[16] To understand the basis for the Appellant’s argument, it is necessary to consider two decisions of the Divisional Court dealing with appeals concerning the application of s. 45(1) of the regulation: Horseshoe Valley Resort Ltd. v. Registrar of the Alcohol and Gaming Commission of Ontario, 2005 81108 (ON SCDC), [2005] O.J. No. 5895 and 2088675 Ontario Inc. (c.o.b. Zu Bar) v. Ontario (Alcohol and Gaming Commission), 2010 ONSC 5527 (Div. Ct.).
[17] In Horseshoe Valley, the Divisional Court was concerned about the draconian interpretation that had been adopted by the Liquor Licence Board in its application of s. 45(1). The Court emphasized that liability under the provision did not arise just from the fact that there was a drunken patron on the premises. Rather, liability required a determination, based on all the circumstances, whether the licensee knew or ought to have known of the drunkenness of the patron. The Court also asked whether the licensee “failed, within a reasonable period of time to take reasonable steps to effect her safe departure from the bar” (at para. 14).
[18] In Zu Bar, the Divisional Court slightly rephrased the second part of the obligation: “the appellant permitted drunkenness by failing, within a reasonable period of time, to cause the male to be removed safely from the premises” (at para. 15).
[19] When these two Divisional Court decisions are read in context, it is clear that the reference to safe removal or safe departure of a patron within a reasonable period of time was meant to provide a defence to the licence holder to an allegation of “permitting drunkenness.”
[20] The Court of Appeal, in 1213963 Ontario Ltd. (c.o.b. Sin City Bar and Eatery) v. Ontario (Alcohol and Gaming Commission), 2009 ONCA 323 approved the interpretation of s. 45(1) as requiring “proof that that the licensee knew or ought to have known of the drunkenness on the premises” ( at para. 3). There is no suggestion in the Court of Appeal’s decision that there is an obligation on a licensee to ensure that a drunk patron must be removed to a safe place.
[21] The Appellant has not provided any decision in which a court has held that s. 45(1) imposes a statutory obligation on the licensee with respect to removal of a patron to a safe place. The only Tribunal decision on liability that speaks of a failure to provide for safe removal is New Zone Inc. o/a Six Nites Karaoke Br v. Registrar, Alcohol, Gaming and Racing, 2017 ONLAT LLA 10922. This is a very different case from the present one, in that the patron there was showing clear signs of physical distress such that it would have been appropriate to call an ambulance.
[22] The Appellant is, in effect, asking this Court to read into s. 45(1) a new statutory obligation with respect to the ongoing protection of patrons, because of concerns for public policy and public safety. That is not an appropriate role for this Court on an appeal, given the precise wording of s. 45(1) and given other parts of the legislative regime.
[23] The Legislature has dealt with the licensee’s responsibility to intoxicated patrons and those injured by them by providing a statutory right of civil action in s. 39 of the Act. It states:
The following rules apply if a person or an agent or employee of a person sells liquor to or for a person whose condition is such that the consumption of liquor would apparently intoxicate the person or increase the person’s intoxication so that he or she would be in danger of causing injury to himself or herself or injury or damage to another person or the property of another person:
If the person to or for whom the liquor is sold commits suicide or meets death by accident while so intoxicated, an action under Part V of the Family Law Act lies against the person who or whose employee or agent sold the liquor.
If the person to or for whom the liquor is sold causes injury or damage to another person or the property of another person while so intoxicated, the other person is entitled to recover an amount as compensation for the injury or damage from the person who or whose employee or agent sold the liquor.
[24] The Appellant argues that s. 45(1) should be read consistently with s. 39. However, s. 39 is reactive and compensatory, providing a civil remedy against the licensee for damages arising from the conduct of intoxicated patrons after the patrons have left the establishment. Section 45(1) is regulatory in nature, aimed at preventing certain conduct on the licensed premises. It was open to the Legislature to have framed the two provisions to complement each other, but the Legislature chose not to do so. It is not for this Court to interpret s. 45(1) to accomplish that goal. If the Appellant believes there is a need for further protection for patrons in the form of further statutory obligations on licensees, the appropriate course of action is to seek an amendment to the legislation or the regulations. I see no error in law in the Tribunal’s interpretation of s. 45(1).
[25] The Appellant also argues that the Respondent’s staff did not do enough to remove the patron safely. In particular, the Appellant says that police could have been called.
[26] However, the Tribunal rejected this argument, given that the patron had committed no offense, and there was no violent or disorderly conduct (see para. 28 of the decision). The Tribunal found that the steps taken by the staff to remove the patron were reasonable and adequate in the circumstances. That is a finding of fact open to the Tribunal to make, and it was reasonable. This ground of appeal does not raise a question of law.
Conclusion
[27] For these reasons, the appeal is dismissed. Cost to the Respondent are fixed at $5,000.00 all inclusive.
Swinton J.
I agree _______________________________ Mulligan J.
I agree _______________________________ Raikes J.
Released: March 18, 2019
CITATION: Registrar, Alcohol, Gaming and Racing v. 1146587 Ontario Ltd. o/a The Royal Oak, 2019 ONSC 1469
DIVISIONAL COURT FILE NO.: DC-18-2364
DATE: 20190318
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Mulligan and Raikes JJ.
BETWEEN:
REGISTRAR, ALCOHOL, GAMING AND RACING Appellant
– and –
1146587 ONTARIO LTD. o/a THE ROYAL OAK Respondent
REASONS FOR JUDGMENT
Swinton J.
Released: March 18, 2019