Citation and Court Information

CITATION: 1930495 Ontario Inc. o/a Early Mercy v. Registrar of Alcohol, Gaming and Racing, 2019 ONSC 6572

DIVISIONAL COURT FILE NO.: 142/19

DATE: 20191114

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

KITELEY, M.G.J. QUIGLEY and BALTMAN JJ.

BETWEEN:

1930495 ONTARIO INC. o/a EARLY MERCY Appellant

– and –

REGISTRAR OF ALCOHOL, GAMING AND RACING Respondent

Counsel: Phillip Morris, for the Appellant Danielle Bastarache and Tamara Brooks for the Respondent

HEARD at Toronto: November 13, 2019

Reasons for Decision

BALTMAN J.

[1] Early Mercy appeals a decision from the finding of the Licence Appeal Tribunal (“LAT”), that it breached s. 43 of Reg. 719/90 under the Liquor Licence Act, and the imposition of a suspension of its license for 15 days.

[2] On May 28, 2017, inspectors from the Alcohol and Gaming Commission found that the number of guests on the establishment’s outdoor patio exceeded the permitted number of 94. Early Mercy concedes it was overcrowded, although it disputes to what extent. Whereas the Tribunal states there were 171 persons, Early Mercy claims there were no more than 120 or 130 persons.

[3] The appellant challenges the decision based on four errors of law:

(i) Failure to consider to the extent of the breach, and its context;

(ii) Insufficient reasons;

(iii) Unfair conduct;

(iv) Excessive sanction.

[4] The Divisional Court has jurisdiction to resolve an appeal from the LAT on a question of law only. The standard of review is reasonableness. For the following reasons, I am not persuaded that the decision falls outside the range of acceptable outcomes which are defensible in respect of the facts and the law.

[5] On the first ground, I do not accept that the Tribunal was obliged to determine the extent of and reasons for the overcrowding before finding a breach of the Regulation. By the appellant’s own admission, the establishment was at overcapacity that night, with at the very least 120 persons in a patio allowing 94, i.e. an excess of 25%. Therefore, the Regulation was breached. Moreover, whether any serious consequences actually resulted does not change the fact that the overcrowding here created a risk to patron’s safety.

[6] Second, those factors, amongst others, were addressed in the Tribunal’s decision. Their reasons amply support the conclusion arrived at and permit meaningful appellate review.

[7] Third, I disagree that the Registrar misled the licensee by not disclosing during negotiations over previous breaches that there was a further Letter of Incident to be released. The appellant was informed of the breach on the very evening it occurred. There was no evidence before the Tribunal that the appellant was induced into a settlement of the previous breaches in the belief that it also encompassed the May 2017 violation. Significantly, in his August 11, 2017 response to the Letter of Incident, the appellant made no such suggestion. In any event, the proper challenge to the Registrar’s actions would be through judicial review, pursuant to the Statutory Powers and Procedures Act.

[8] Finally, I see no basis to interfere with the sanction imposed by the Tribunal. The Registrar proposed a suspension of 30 days. The appellant disputes the 15-day suspension that resulted, claiming it should not exceed 4 – 7 days. I agree with the respondent that given previous similar infractions, the penalty of 15 days was a reasonable response. The Tribunal considered the aggravating and mitigating factors before exercising its discretion on penalty. The Tribunal also properly took into consideration that although the overcrowding was at a serious level, no serious consequences resulted, and that the appellant had taken remedial steps to prevent similar conduct in the future. The Tribunal’s decision on sanction is owed substantial deference.

[9] The appeal is dismissed. By agreement based on success, the Respondent shall have costs of $5,000, payable by the Appellant, within 30 days of these reasons.

Baltman J.

I agree _______________________________

Kiteley J.

I agree _______________________________

M.G.J. Quigley J.

Released: November 14, 2019

CITATION: 1930495 Ontario Inc. o/a Early Mercy v Registrar of Alcohol, Gaming and Racing, 2019 ONSC 6572

DIVISIONAL COURT FILE NO.: 142/19

DATE: 20191114

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

KITELEY, M.G.J. QUIGLEY and BALTMAN JJ.

BETWEEN:

1930495 ONTARIO INC. o/a EARLY MERCY Appellant

– and –

REGISTRAR OF ALCOHOL, GAMING AND RACING Respondent

REASONS FOR JUDGMENT

Baltman J.

Released: November 14, 2019