Reynolds v. Registrar (Alcohol and Gaming Commission), 2019 ONSC 5571

DIVISIONAL COURT FILE NO.: 500/19

DATE: 20191002

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, D.L. Corbett and R.D. Gordon JJ.

BETWEEN:

JOHN REYNOLDS, CARL IGNATIUS, EKREM UZUNOVA, ELBAHLUL BARA, ILIM UZUNOVA, OLGA GERMAN, PIETRO GRECO, RAVINO JUNAEV, RONEN ACKERMAN, SOFIA KULIEV, and VARANT KICHIAN

Applicants

– and –

REGISTRAR (ALCOHOL AND GAMING COMMISSION)

Respondent

Counsel:

Michael Lacy, Sharon Kour and Scott Dallen, for the Applicants

Judie Im, Andi Jin and Heather Burnett, for the Respondent

Gavin Finlayson and Ethan Schiff, for 2707461 Ontario Inc., Intervenor

Robin Linley and Christopher Di Matteo, for Steven Cochrane, Gerrit Murray, 11522302 Canada Inc., Intervenors

David Badham and Whitney Abrams, for Marilyn Jesti and 2208292 Alberta Ltd., Intervenors

HEARD at Toronto: September 25, 2019

SWINTON, J.

Introduction

[1] The applicants seek judicial review of the decisions of the respondent Registrar (Alcohol and Gaming Commission) (the “Registrar”) to disqualify their applications for Cannabis Retail Store Authorizations and Retail Operator Licences because of their failure to provide original copies of a Letter of Credit by a deadline of August 28, 2019.

[2] On September 27, 2019, this Court issued a handwritten endorsement stating that the application for judicial review was dismissed with written reasons to follow. These are those reasons.

Background

The Regulatory Framework

[3] Following the legalization of recreational cannabis by Parliament, the government of Ontario decided to allow private retailers to open and operate cannabis retail stores. The Alcohol and Gaming Commission of Ontario (“AGCO”) is responsible for regulating these stores and administers the relevant legislation, the Cannabis Licence Act, 2018, S.O. 2018, c. 12, Sched. 2 (the “CLA”) and Ontario Regulation 468/18 (the “Regulation”).

[4] To operate a cannabis retail store, a person must have both a Retail Operator Licence (“Licence”) and a Retail Store Authorization (“Authorization”) issued by the Registrar of the AGCO (CLA, ss. 3(1) and 4(1)). A maximum of 75 Authorizations may be issued and in effect at any given time (Regulation, s. 8.1(2)).

[5] To apply for an Authorization, a person must either hold a Licence or be in the process of applying for a Licence (CLA, s. 4(1)). Persons who are interested in applying for a Licence must submit an Expression of Interest (“EOI”) application (Regulation, s. 8.2(1)(a)). Applicants must provide evidence of their ability to meet the requirements for a Licence application. For example, in applying for a Licence, a person must demonstrate, in the manner specified by the Registrar, that they have sufficient capital to open a cannabis retail store (Regulation, s. 8.2(9)).

[6] Only applicants selected by the Registrar may apply for a Licence (Regulation, ss. 8(2)(1)(b) and 8.2(2)). In selecting among EOI applications, the Registrar must choose a method that does not rely on the exercise of discretion (s. 8.2(2)).

[7] The Registrar chose a lottery method for selecting among EOI applications. To date, two lottery processes have occurred – the first, in January 2019, for the selection of 25 EOI applications, and a second, in August 2019, for the selection of 42 EOI applications.

[8] The Cannabis Retail Store Allocation Lottery Rules (the “Rules”) were adopted by the Registrar for the operation of the August 2019 lottery. The Preamble states that the Rules were established to

• Support a process that provides a fair and transparent opportunity for pre-qualified prospective operators to apply for a Retail Operator Licence and Retail Store Authorization to operate a cannabis retail store; and,

• Provide a safe, legal alternative to the illegal market by having additional licensed and authorized operators open cannabis retail stores beginning in October 2019.

[9] The Rules set out requirements and timelines, which are summarized in the Registrar’s factum at paragraph 14 as follows:

(a) all EOI applicants must create an account on the AGCO’s online portal, called “iAGCO”, through which their EOI applications must be submitted (Rule 6);

(b) an EOI application must be made in respect of one specific region or city (Rule 7);

(c) all EOI applicants must provide a letter of confirmation from a bank or credit union (the “Letter of Confirmation”) stating that the applicant has the financial capacity necessary to obtain a $50,000 Standby Letter of Credit (an “LC”), which will be provided by the bank or credit union within five business days of being selected (Rule 8(c)(iii));

(d) the selection will take place by lottery on August 20, 2019 (Rule 13);

(e) within 24 hours of the selection, the EOI applicants who are selected (“Selected Applicants”) will be contacted by the AGCO, and provided with a notification letter from the Registrar, using the contact information identified in the [EOI] Application” (Rule 14);

(f) within five business days of the Registrar notifying Selected Applicants of their selection, they are required to submit: (i) an original LC; (ii) proof of a right of possession of the proposed retail space in the form of a formally executed legal instrument; (iii) a Licence application; and (iv) a Store Authorization application (Rule 14(a));

(g) if an EOI application is not selected by the Registrar, then it is placed onto a ranked waitlist for the region or city to which the EOI application pertains (Rule 13);

(h) if the Registrar determines that any of the Selected Applicants have not met the requirements of the Regulation or the Rules, they “will be disqualified” from the Lottery process (Rule 18(b)); and

(i) if a Selected Applicant is disqualified, then the EOI applicant at the first position on the waitlist for the relevant region or city will become selected and that EOI applicant will become a Selected Applicant (Rules 16 and 18).

[10] In order to submit an EOI application through iAGCO, the applicant must provide contact information, including an email address, a telephone number and a mailing address. The applicant must also select a preferred method of contact.

[11] All applicants are to carefully consider all the rules before submitting their applications. They must also attest that they have read “read, understand, and agree to comply with the Allocation Process,” and that they have not provided false information in their application.

The Factual Background

[12] The Applicants all made applications between August 7 and 9, 2019. There were 4,864 EOI applications.

[13] To create their iAGCO account, all EOI applicants had to enter a valid email address for the account. They then received an email, at the email address they provided to open their iAGCO account. That email contained a hyperlink which the applicants clicked. That link then took them back to a web page where they were then able to activate their iAGCO account. This process provided an assurance that the email addresses provided by the applicants were functional at the time their applications were made, and that subsequent communications sent to them at their email addresses were not misaddressed.

[14] The applicants were all successful in the lottery, and so they were placed on the Selected List. The Registrar sent initial notification of these results to the applicants on August 21, 2019 at approximately 9:45 AM via the email addresses they had provided. The email told them of their selection and referred them to an attached letter from the Registrar for further information.

[15] The letter, dated August 21, 2019, congratulated the applicants on their selection, stating that it served as notification from the Registrar that they might apply for a Licence. The letter specified the steps that must be taken by no later than August 28, 2019 by 5:00 PM EST [which was five business days]:

Next Steps

As stated in the Allocation Lottery Rules, you are required, no later than by 5:00 p.m. EST on Wednesday August 28, 2019, to:

1. Submit a Retail Operator Licence application …

2. Submit a Retail Store Authorization application …

3. Submit a formally executed legal instrument demonstrating you have the right to

possession of the retail space identified …

To submit items 1 through 3 you will need to login to iAGCO …

4. Provide an original standby Letter of Credit in the amount of Fifty Thousand

Dollars ($50,000) …

Please provide the Standby Letter of Credit to the following address in person, by courier, or by registered mail:

Attn: Diane Pace

90 Sheppard Avenue East

Suite 200-300

Toronto, Ontario M2N 0A4. (emphasis added)

[16] However, the email notifications to the 11 applicants were immediately returned as undeliverable. With respect to a number of the email accounts, a message was sent from Google that the email account was disabled.

[17] The AGCO then immediately sought to contact the applicants by telephone, using the number that had been provided with the EOI application. Only one applicant, John Reynolds, was reached on the morning of August 21, 2019. He provided an alternative email address, and the information was sent to him at that address on August 22, 2019.

[18] With respect to eight applicants, the call to the telephone number provided went to an automated recording in French, which stated that the number called was not available and provided another number. The new number, when called, was not in service, except apparently for Mr. Reynolds. Nevertheless, Ronen Ackernan called the AGCO on August 22 and provided a new email address, to which the notification letter was sent. So, too, did Carl Ignatius and Ilim Uzunova.

[19] Another attempt to call Bahul Bara succeeded on August 21, and a message was left for him to call AGCO. He did not call back, although he uploaded materials to iAGCO on August 27.

[20] In the case of other applicants, when the phone was answered, a message was left telling the applicant to call the AGCO about the cannabis lottery. Pietro Greco returned the call on August 23 and provided a new email address. Ekrem Uzunova returned the call on August 21, but said he wanted to try his email account. He called back on August 22 and provided a new email account.

[21] The AGCO also sent courier packages with the notification letter on August 21. Six were delivered on August 23. Two were delivered on August 26 and 27. Three were never picked up.

[22] In addition, the names of the successful EOI applicants had been posted on August 21 on the AGCO website at 10:07 AM, announced in a Twitter feed with a link to the website at 10:26 AM, and provided in a communication to the AGCO’s cannabis email list at 10:36 AM.

[23] To summarize, five applicants provided new email addresses on August 22 and one on August 23. Three applicants did not receive the courier package, but two of them had already provided updated email addresses. The one who did not, Varant Kichian, still uploaded material to iAGCO on August 27.

[24] At no time before the deadline of August 28, 2019 that was stated in the letter did the AGCO receive any communication from any of the applicants raising concerns about the deadline. Two of the applicants, Ronen Ackernan and Ilim Uzunova, were in contact with the AGCO prior to the deadline, because they requested and obtained approval to change the address of their proposed retail premises from the one in the application.

[25] While all of the applicants uploaded material to iAGCO prior to the August 28 deadline, none of them provided an original copy of the LC before the deadline, as required by Rule 14(a)(i). The Registrar has explained in affidavit material that an original copy of the LC is required in order to protect against forgery.

[26] The Registrar made a decision to disqualify each of the applicants on August 30, 2019 pursuant to Rule 18 because of their failure to abide by the Rules. Rule 18(b) states:

If the Registrar determines an Applicant has not met the requirements of Ontario Regulation 468/18 or the Allocation Lottery Rules:

(b) Once an Applicant is placed on the Selected List, the Applicant will be disqualified. Assuming the $50,000 Standby Letter of Credit has been provided it will be drawn in full, unless the selected Applicant submits a request to the Registrar not to draw down on the Standby Letter of Credit due to extenuating circumstances, and the Registrar agrees to the request. Any pending application for a Retail Operator Licence will be considered abandoned.

[27] The applicants were then removed from the Selected List (as was one other person), and 12 waitlisted EOI applicants were notified on August 30, 2019 that they were Selected Applicants. They were informed that they must provide the required information by September 16, 2019 (10 business days), in accordance with the Rules. Apparently the deadline is longer because notification does not follow the fixed event of the lottery: lottery winners knew when the lottery was taking place and that they would be notified of their success the day after the lottery. Waitlisted applicants did not know when they might move to the Selected List by reason of a disqualification or withdrawal of a lottery winner.

[28] Rule 18(b) allows the Registrar to draw down an LC that was submitted after the deadline unless the Registrar agrees not to do so on the basis of a request made and “extenuating circumstances.” On September 1, 2019, four of the applicants contacted the AGCO and asked that there be no draw down on their LCs. Other applicants made this request through counsel.

[29] During the course of the present court proceeding, the Registrar has indicated that the AGCO will not draw down on the applicants’ LCs.

The Court Proceedings

[30] On September 6, 2019, the applicants brought this application for judicial review. The newly Selected Applicants were not joined as parties nor served by the applicants. However, the AGCO informed them of the proceedings a few days later. Eight of the newly Selected Applicants brought a successful motion to intervene in the judicial review proceeding, allowing them to provide evidence and make submissions on the appropriate remedy, should the application for judicial review succeed.

[31] The applicants brought a motion to stay the selection process on September 12, 2019. The stay was granted by D.L. Corbett J. that day, to expire at the end of the day set aside for hearing the application for judicial review on September 25, 2019.

[32] In making the stay order, he also scheduled an early date for the hearing of the application for judicial review on September 25, given the importance to the parties in having the selection process carried out expeditiously. To do that, the appeal originally scheduled before this panel for that day was moved to another date. Counsel have worked very hard to prepare all their material in just two weeks, and the Court has responded by expediting a process that would usually take many months to complete, even on an expedited basis.

The Issues

[33] The applicants raise the following issues:

1. Were the decisions of the Registrar to disqualify them incorrect or unreasonable?

2. Are Rules 14(a)(i) and 18(b) ultra vires?

3. Was there a denial of procedural fairness?

[34] The Registrar raises an additional issue:

4. If the applicants establish a basis for relief, should this Court nonetheless decline to grant relief on the basis that, in the circumstances of this case, it would be inequitable to grant the requested remedy?

Were the disqualification decisions of the Registrar incorrect or unreasonable?

The standard of review

[35] The applicants argue that the standard of review on the merits of the disqualification decisions is correctness, because the Registrar’s decision was based upon an interpretation of Rule 14 and the meaning of “notification” or “notifying”, rather than matters within his specialized expertise. They rely on Nobody v. Ontario (Civilian Police Commission), 2016 ONSC 7261 (Div. Ct.) at para. 13.

[36] The Registrar argues that the standard of review is reasonableness, because the Registrar was making determinations of fact in the course of interpreting his own Rules (Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 at para. 22).

[37] I agree that the standard of review is reasonableness. The Registrar was interpreting and applying the Rules developed by the AGCO for the selection process and making a decision as to whether the applicants should be disqualified for non-compliance with the Rules, all within the specific context of a selection process the Registrar was mandated to design and then run. Those are not matters of central importance to the legal system and outside the Registrar’s specialized expertise, as the Divisional Court held in Nobody. In Nobody, the decision-maker was interpreting provisions of the Police Services Act concerning service of a notice of appeal and deemed receipt.

The applicants’ argument

[38] The applicants argue that even if the standard of review is reasonableness, the disqualification decisions are unreasonable. They submit that there is only one reasonable interpretation of Rule 14 with respect to when notification has been made. The Rule states in part:

Within twenty-four hours (24) of the Lottery, Applicants on the Selected List for a Region or North Region city will be contacted by the AGCO and provided with a notification letter from the Registrar using the contact information identified in the Expression of Interest Application. An Applicant on a Selected List will be required:

a. Within five (5) business days of the Registrar notifying the Applicant of their selection:

1. To submit an original $50,000 Standby Letter of Credit from a bank found in Schedule I or Schedule II of the Bank Act (federal), or a credit unions [sic] and caisses populaires registered under the Credit Unions and Caisses Populaires Act, 1994, substantively in the AGCO form identified by the AGCO. The Standby Letter of Credit is to be secured until the end of the Allocation Time [July 3, 2020] …

(emphasis in the Rules)

[39] The applicants argue that “notify” means to “inform expressly” or to “make known, to give notice, to inform” (Briere v. Canada Employment and Immigration Commission), [1983] 3 F.C. 88 at para. 57.) They argue that there is no notice until the notification letter is received. Thus, the time limit for compliance runs from the receipt of the notification letter. In the present case, that would vary from individual to individual, resulting in submission dates between August 29 and 30.

[40] The applicants argue that it is significant that the notification rules changed from the first lottery. There the rules provided that documents must be provided the AGCO within 5 days of the posting of the results on the AGCO website (then Rule 16(a)).

The reasonableness of the disqualification decisions

[41] The Court’s task is to review the reasonableness of the disqualification decisions. The Registrar decided to remove the applicants’ names from the Selected List because they had failed to deliver original copies of their LC by a deadline of Wednesday, August 28, 2019 by 5:00 PM. The letters stated that “pursuant to Rule 18 of the Allocation Lottery you have been disqualified for failure to meet the Allocation Lottery Rules”, specifically Rule 14(a)(i).

[42] In my view, it is inappropriate to draw anything from the change in wording in the rules from the first to the second lottery, as the applicants suggest. I note, however, that the old rules stated in then Rule 15 that applicants on the selected list would be contacted and provided with a notification letter “using the contact information identified in the Expression of Interest Application.” The deadline for submission in documents was expressly stated to be within 5 days of posting the results on the website (then Rule 16).

[43] In deciding whether to disqualify the present applicants, the Registrar was required to determine whether they had failed to provide the necessary documentation – an original LC – in accordance with the Rules. That necessarily required him to determine whether there had been compliance by the AGCO with respect to its notice obligations.

[44] Pursuant to Rule 14(a), the AGCO had to contact the applicants on the selected list “using the contact information identified in the Expression of Interest Application.” Each of the applicants had provided the AGCO with an email address in the application period between August 7 and 9, and they confirmed that email was their preferred method of communication. Thus, less than two weeks before the lottery, their email addresses were working.

[45] When the emails were returned as undeliverable, the Registrar made a number of attempts to reach the applicants. However, the telephone numbers provided by eight of the applicants were not answered and were forwarded to a message in French saying that the number was not in service. Seven could not be reached by telephone because the new number provided in the French message was not in service. The Registrar then sent the notification letter by courier.

[46] In the circumstances, the Registrar reasonably concluded that the AGCO had complied with the notice requirement in the Rule, as AGCO had attempted to contact the applicants by their preferred method of communication within 24 hours of the lottery. Knowing of a problem, the AGCO then tried the telephone and finally sent a copy by courier, although it was not obliged to do so.

[47] The word “notifying” in Rule 14 takes its meaning from its context. The Rule requires the Registrar to contact the successful applicant within 24 hours of the lottery “using the contact information” provided. The applicants had specified their preferred method of communication. “Notifying”, here, is reasonably understood to mean using the means of contact provided by the applicants.

[48] The applicants rely on cases in which courts have held that actual notice of a legal proceeding must be received. In my view, those cases do not apply. It is understandable that courts take a protective approach to ensure proper notice in a legal proceeding, where an individual needs to know that his legal rights may be affected and the proper time line for a response, particularly in the case of an originating process.

[49] Here, however, the applicants are not like a party to a legal proceeding. They were seeking a privilege, hoping to be chosen in the lottery so they could apply for a Licence and Store Authorization. Like all others participating in the lottery, they knew of the key dates and the tight time lines that had been set. They were asked to provide contact information, and they provided contact information that turned out to be ineffective. It was not the responsibility of the Registrar to track them down personally when the emails were undeliverable, although the AGCO made numerous attempts to contact them. In the circumstances, the applicants bear the risk that there might be a problem in the delivery of the notification letter if their chosen method of contact does not work.

[50] In any event, there is no evidence that they were prejudiced because they did not receive the initial email. They would have known of the date of the lottery from the Rules. There was publicity of the Selection List on the AGCO website, Twitter and email list. And there was the notification letter itself, received by all the applicants before the deadline, clearly specifying that the deadline was August 28, 2019.

[51] Counsel argued that the applicants would have understood this deadline to relate to the date of the letter: that is, not having received the letter on its date (August 21), the applicants would have understood that the deadline would be calculated from the date they received the letter. There are two obvious problems with this argument. First, that is not what the letter says. It states, unambiguously, that the deadline is August 28. Second, there is no evidence from any of the applicants that this is what they understood. I see no basis to conclude that the letter means anything other than what it says, or that the applicants misunderstood it.

[52] None of the applicants came back to the Registrar with an explanation as to why they were not able to be contacted by email or, in several cases, by telephone as well. Moreover, none of them ever protested about or called into question the deadline of August 28, 2019. All of them uploaded material to the iAGCO accounts between August 26 and 28. Two contacted the AGCO about changing the address of their retail premises, but did not take that opportunity to question the deadline. On this application the applicants have not sought to put in evidence about these points, or even evidence that they did not learn of their selection until after August 21.

[53] In the circumstances, the Registrar reasonably concluded that the AGCO had met its obligation to contact the applicants to notify them of their selection using the email information they had provided, and then making many efforts to contact them by other means. He also reasonably concluded that the applicants failed to comply with the Rule requiring them to provide an original LC by August 28. In the circumstances, he reasonably operated on the basis of the date he had specified in the notification letter, given the absence of any protest from any of the applicants. Therefore, the decisions to disqualify were reasonable.

Are Rules 14(a)(i) and 18(b) ultra vires?

The standard of review

[54] The Registrar, in the present case, has been granted a broad authority under the Regulation to choose a method of selecting those EOI applicants who will be able to make an application for a Licence (Regulation, s. 8(2)).

[55] In West Fraser Mills Ltd. v. British Columbia, 2018 SCC 22, a majority of the Supreme Court of Canada held that deference is owed when an administrative body has been given broad discretion to develop regulations – there, to protect worker health and safety (paras. 10-11). A court reviewing the validity of a regulation should ask whether the regulation “represents a reasonable exercise of the delegated regulatory authority” (at para. 11).

[56] In carrying out its review task, the court must engage in statutory interpretation, considering the text of the provision conferring the power to make the regulation, as well as the purpose and context. As the majority stated at para. 12,

The reviewing court must determine if the regulation is “inconsistent with the objective of the enabling statute or the scope of the statutory mandate” to the point, for example, of being “‘irrelevant’, ‘extraneous’ or ‘completely unrelated’”: Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at paras. 24 and 28. To do this, the Court should turn its mind to the typical purposive approach to statutory interpretation and seek an “interpretative approach that reconciles the regulation with its enabling statute”: Katz, at paras. 25-26.

[57] In the present case, the applicants attack the validity of two of the Rules, developed by the Registrar in the exercise of a broad discretion to develop a method to select among EOI applicants. The task for this Court is to determine whether the two impugned Rules were a reasonable exercise of the delegated rule making authority.

The applicants’ argument

[58] The applicants argue that the requirement of an LC and the power of the Registrar to draw it down if an EOI applicant has not complied with the Regulation or the Rules is ultra vires. They submit that the LC is meant to serve as security for a $50,000 penalty that becomes payable when the Registrar finds they have violated the Regulation or the Rules. They submit that there is no power to levy penalties conferred by the legislation.

Analysis

[59] In my view, Rule 14(a)(i) is not solely meant to be a financial penalty nor as a means to impose a financial penalty under Rule 18(b). Rule 14(a)(i) is clearly authorized by s. 8(9) of the Regulation.

[60] Section 8 of the Regulation deals with applications for a Retail Store Licence. Pursuant to s. 8(8), an EOI applicant has an obligation to provide an attestation and supporting evidence indicating that the person, if selected to apply for a Licence, could demonstrate that he or she has met the requirements of clauses 9(a) and (b).

[61] Subsection 8(9) then states,

A person selected to apply for a retail operator licence under this section is not eligible to be issued the licence if, when applying for the licence, the person fails to demonstrate in a manner specified by the Registrar that,

(a) the person has secured a retail space ….

(b) the person has sufficient capital to open a cannabis retail store in that retail space. (emphasis added)

[62] The words “in a manner specified by the Registrar” are important. They confer a broad discretion on the Registrar to specify how an applicant is to demonstrate financial capacity to operate a cannabis retail store.

[63] In the exercise of that power, the Registrar adopted Rules that require an EOI applicant to file a “Letter of Confirmation – Cash or Cash Equivalents Capacity” from a bank or credit union stating that the applicant is in good standing and has the financial capacity necessary to obtain $250,000 in Cash or Cash Equivalents. As well, the applicant has to provide a “Letter of Confirmation – Commitment to Provide Letter of Credit” from a bank or credit union confirming that the applicant has the financial capacity to obtain a Standby Letter of Credit in the amount of $50,000, and that the LC will be provided to the AGCO within 5 business days of the applicant being notified of their selection. The LC must be in a form specified by the AGCO.

[64] Once selected to apply for a Licence, the applicant must provide the $50,000 LC within 5 days of the notice of selection. The LC must remain in force until July 3, 2020.

[65] The Registrar submits that the LC is reasonably required pursuant to Rule 14(a)(i) as a way to demonstrate the applicant’s financial capacity to operate a retail store, as required by s. 9(b) of the Regulation. He also submits that it has a second purpose: to ensure accountability on the part of the selected applicants, and to ensure that they are taking the necessary steps to open a cannabis retail store in a timely manner because they have “skin in the game”.

[66] In my view, the requirement for an LC pursuant to Rule 14(a)(i) is intra vires, as the requirement of an LC is clearly consistent with the objectives of the CLA and s. 8(9) of the Regulation.

[67] That brings me to Rule 18(b), which the applicants say is an impermissible monetary penalty. I accept the argument of the Registrar that the LC is not a monetary penalty under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996, S.O. 1996 c. 26, Sched., s.14.1 (“ACGRPPA”). That provision authorizes the Board of the AGCO to establish monetary penalties for contraventions of the CLA and Regulation. The penalties must be approved by the Minister, and set out in the schedule established by the Board of the AGCO. The Registrar may impose those penalties, but that decision is appealable to the Licence Appeal Tribunal (“LAT”).

[68] It is clear that Rule 18(b) is not a monetary penalty established pursuant to the ACGRPPA. Its purpose is not to provide an incentive for licensees to comply with the Act and Regulation. However, that does not render Rule 18(b) ultra vires. The Registrar has the power to develop rules governing the selection of those EOI applicants who may apply for a retail operator licence, provided that the method does not rely on the exercise of discretion by the Registrar or another person (Regulation, s. 8(2)).

[69] One of the purposes of the LC is to provide security in the application process and to provide an incentive to participants to take the application process seriously. If an applicant does not meet the requirements of the Regulation or the Rules during the application process, the Registrar may draw down the LC. This is a form of financial penalty, but one that does not depend on a finding of unlawful conduct under the Act or Regulation. It is meant to facilitate the operation of the selection process through attracting serious applicants who are able and willing to open a retail store in a timely manner, if they ultimately obtain a Licence.

[70] It cannot be said that Rule 18(b) is irrelevant, extraneous or completely unrelated to the statutory purpose (Shoppers Drug Mart Inc. v. Ontario, 2013 SCC 64 at para. 25). Therefore, the ultra vires argument fails.

[71] However, in the alternative, even if Rule 18(b) was thought to be ultra vires, this would not render Rule 14(a)(i) ultra vires. Rule 14 (a)(i) has more than one purpose, and even if one of its purposes is not authorized, the other clearly is.

Was there a denial of procedural fairness?

[72] There is no standard of review analysis required in determining whether there has been a denial of procedural fairness. The task of the reviewing court is to determine whether the requisite level of procedural fairness has been accorded (Brooks v. Ontario Racing Commission, 2017 ONCA 833 at para. 5).

[73] There is no question that the Registrar owed a duty to act fairly in determining whether the applicants should be disqualified. The content of that duty is informed by the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at paras. 22-28.

[74] The applicants submit that the Registrar could not disqualify them without a hearing. Pursuant to the CLA, ss. 3(3) and 4(3), the Registrar could refuse them a licence only if he issued a Notice of Proposal to refuse them a licence. That would permit them to appeal to the LAT.

[75] There is no merit to this argument. The applicants were not denied a licence by the Registrar, and he had no obligation to issue a Notice of Proposal. Rather, the applicants were disqualified from the selection process, because they failed to comply with the Rules governing the process.

[76] Having failed to provide an original copy of the LC in a timely manner in accordance with the deadline, they were not entitled to proceed to make a licence application. In effect, their licence applications were incomplete, because a key element of the application package was missing on the key date.

[77] The applicant has not shown that there was any denial of procedural fairness. There was no reasonable expectation of a hearing before the Registrar prior to the disqualification decision. This was not an adjudicative decision, which usually requires a higher level of procedural fairness. The Registrar was assessing the applicants’ applications against the requirements set out in the Rules, and they were found wanting because an original copy of the LC was missing. There was no need for an adjudicative type of hearing to ensure fairness.

The appropriate remedy

[78] For these reasons, I would dismiss the application for judicial review.

[79] However, even if the applicants had demonstrated that the Registrar’s disqualification decisions were unreasonable, I would not have granted the remedy they sought – namely, an order in the nature of certiorari quashing the disqualification decisions and setting aside the selection of the newly Selected Applicants who had been moved up from the waiting list. Such an order could only be with respect to the ten applicants who had submitted an original copy of the LC within 5 days of the receipt of the notification letter. Carl Ignatius failed to file the LC within the five days of admitted receipt, so he would not be entitled to any relief, unless the requirement for the LC was ultra vires. It is not.

[80] Judicial review is a discretionary and equitable remedy. A court may refuse to grant relief setting aside an administrative decision in a particular case, having considered the circumstances and the balance of convenience (Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 36; Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713 at para. 37). However, as the Supreme Court of Canada observed in Mining Watch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6 at para. 52, the refusal to grant relief should be exercised with care, given that “such discretionary power may make inroads upon the rule of law.”

[81] Factors to be considered, in assessing the balance of convenience, include “any disproportionate impact on the parties or the interests of third parties” (at para. 52). In the present case, the intervenors, eight of the newly Selected Applicants, say that they will be prejudiced if the relief sought is granted. They have filed affidavit evidence showing the prejudice they will suffer if the relief sought is granted. They have irrevocably changed their positions in reliance on the invitation to participate in the licensing process. One intervenor, as an example, has used her personal savings to comply with the lottery requirements. She has entered into a lease to commence October 9, 2019 and faces a penalty of some $52,000 if she breaks that lease.

[82] The applicants say that they will also suffer prejudice if the relief is not granted. However, they have filed no evidence of prejudice. The only affidavit they have put forward in support of their application is from a law student, and it does not speak to the prejudice any individual applicant will suffer.

[83] A further consideration, in determining the balance of convenience, is the conduct of the parties and third parties. The newly Selected Applicants have complied with the lottery Rules to date. They are truly innocent parties here. The applicants, in contrast, were the ones who provided contact information to the Registrar that was not operative. They have failed to provide any explanation respecting the failure of their emails, and they have filed no evidence of prejudice, either with respect to the time they learned of their selection or with respect to their losses suffered as a result of this process. There is no explanation as to why they did not provide an original LC by August 28, given that they had uploaded other documents and some of the applicants had obtained the LC as early as August 22.

[84] The applicants suggest that the newly Selected Applicants will obtain a windfall if the disqualification decisions are not set aside. There is no windfall here. The newly Selected Applicants have participated in the process. They have taken steps to provide the required information after they were notified that they were selected because of the applicants’ disqualification in accordance with the Rules.

[85] Delay is another factor in considering the balance of convenience. The AGCO was conducting a selection process with tight timelines with the goal of having more cannabis retail stores open in October 2019. The applicants knew they were disqualified on August 30, but they did not launch the application for judicial review until September 6. The newly Selected Applicants were already proceeding to comply with the filing requirements under the Rules, as their deadline was September 16. They were not informed of the judicial review until a few more days had elapsed after September 6. While a stay order was obtained on September 12, and the delay in bringing this litigation forward was not lengthy, still the newly Selected Applicants suffered prejudice because they had taken steps to comply with the Rules in the interim, and this was readily foreseeable to the applicants.

[86] In Strickland, Cromwell J. commented on the nature of judicial review as follows (at para. 48), “unlike private law, its orientation is not, and has never been, directed exclusively to vindicating the rights of individuals.” In the present case, the balance of convenience favours the newly Selected Applicants, given the prejudice this group will suffer if the disqualification decisions are set aside and given that they are innocent parties.

Conclusion

[87] For these reasons, the application for judicial review is dismissed.

[88] In accordance with the Court order granting intervenor status, the intervenors are not entitled to ask for costs.

[89] With respect to the costs of the application, the Registrar shall file brief written submissions on costs within 10 days of the release of this decision. The applicants shall have 10 days to file brief written reasons. All submissions should be made through the Divisional Court office.

Swinton, J.

I agree _______________________________

D.L. Corbett J.

I agree _______________________________

R.D. Gordon J.

Released: October 2, 2019

CITATION: Reynolds v. Registrar (Alcohol and Gaming Commission), 2019 ONSC 5571

DIVISIONAL COURT FILE NO.: 500/19

DATE: 20191002

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, D.L. Corbett and R.D. Gordon JJ.

BETWEEN:

JOHN REYNOLDS, CARL IGNATIUS, EKREM UZUNOVA, ELBAHLUL BARA, ILIM UZUNOVA, OLGA GERMAN, PIETRO GRECO, RAVINO JUNAEV, RONEN ACKERMAN, SOFIA KULIEV, and VARANT KICHIAN

Applicants

– and –

REGISTRAR (ALCOHOL AND GAMING COMMISSION)

Respondent

REASONS FOR JUDGMENT

Swinton J.

Released: October 2, 2019