CITATION: Sticky Nuggz Inc. v. Alcohol and Gaming Commission of Ontario, 2020 ONSC 5916
DIVISIONAL COURT FILE NO.: CVD-TO-8-20JR
DATE: 20201009
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Lederer, Penny JJ
IN THE MATTER OF the Cannabis Licence Act, 2018, S.O. 2018, c.12, Sched. 2, as amended, and the regulations thereunder, as amended;
AND IN THE MATTER OF the Judicial Review Procedure Act, R. S.O. 1990, c.J.1, as amended, and the regulations thereunder, as amended;
AND IN THE MATTER OF the refusal to issue a retail sales authorization by the Registrar of the Alcohol and Gaming Commission of Ontario regarding STICKY NUGGZ INC.
BETWEEN:
STICKY NUGGZ INC.
Applicant
– and –
ALCOHOL AND GAMING COMMISSION OF ONTARIO AND THE ATTORNEY GENERAL OF ONTARIO
Respondents
Matthew P. Maurer and Marco P. Falco, for the Applicant
Sunil S. Mathai, Andrew Jin and Faye Kidman, for the Respondents
HEARD (by videoconference): August 31, 2020
REASONS FOR JUDGMENT
Penny J.:
[1] This is an application for judicial review of a decision by the Registrar of the Alcohol and Gaming Commission of Ontario, which declined to issue the Applicant a retail sales authorization to operate a retail cannabis store in Toronto.
[2] The basis for the rejection of the Applicant’s application for a retail sales authorization was that the Applicant’s proposed location is within 150 metres of a school. Under the legislative scheme, it is a fixed requirement that no retail sales authorization will be issued in respect of any proposed location of a retail cannabis store within 150 metres of a school.
[3] This application for judicial review attacks the AGCO’s internal decision to use the “straight-line” or “as the crow flies” method to measure the 150 metre requirement, rather than an “on the street” or “as the wolf runs” method of measurement. The Applicant likewise attacks the use of this approach in the Registrar’s evaluation and rejection of the Applicant’s application for a retail sales authorization at the proposed location. The Applicant argues that its proposed location is more than 150 metres from any school using the “on the street” method and that the AGCO’s adoption of a straight-line method of measurement is unreasonable.
[4] For the reasons that follow, the application for judicial review is dismissed.
Standard of Review
[5] The parties agree that the standard of review in this application is reasonableness. What is reasonable in the circumstances will depend on context including the governing statute, the evidence before the decision maker, the submissions of the parties, and past practices of the decision maker. Written decisions, when necessary, are not assessed against a standard of perfection, but must still meet the requisite standard of “justification, intelligibility and transparency”, Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras. 91-93 and 106.
Regulatory Framework
[6] The AGCO is the provincial agency responsible for regulating private retail sales of recreational cannabis in Ontario. The legislative framework for the private retail sale of cannabis is set out in the Cannabis Licence Act, 2018, S.O. 2018, c.12, Sched. 2 and the general regulation made under it, Ontario Regulation 468/18. The Registrar of the AGCO administers the CLA in the public interest and in accordance with the principles of honesty, integrity, and social responsibility.
[7] The establishment and operation of a cannabis retail store is highly regulated. A retail cannabis operator must, among other things, apply for and be issued two instruments under the CLA:
i) a Retail Operator Licence (“ROL”) that attaches to an individual operator; and
ii) a Retail Sales Authorization (“RSA”) that attaches to a specific cannabis retail store.
The School Distance Requirement
[8] At the heart of this application is the interpretation and application of the school distance requirement under the CLA and Regulation.
[9] The legislation sets out in detail many circumstances in which the Registrar must refuse to issue a ROL and a RSA. A threshold disqualifying criterion is the school distance requirement. Section 4(12) of the CLA prohibits the issuance of a RSA if the proposed store is located less than a distance specified by regulation from a public or private school as defined under the Education Act:
“4(12) The Registrar shall refuse to issue a retail store authorization,
(a) if the proposed cannabis retail store would be located less than the distance specified by or determined in accordance with the regulations from,
(i) a school as defined in the Education Act…”
[10] Section 11(2) of the Regulation establishes 150 metres as the minimum “distance specified” in s. 4(12)(a):
“11(2) For the purposes of clause 4(12)(a) of the Act, a proposed cannabis retail store may not be located less than 150 metres from a school or a private school, as determined in accordance with the following:
If the school or private school is the primary or only occupant of a building, 150 metres shall be measured from the property line of the property on which the school or private school is located.
If the school or private school is not the primary or only occupant of a building, 150 meters shall be measured from the boundary of any space occupied by the school or private school within the building.”
[11] If a proposed location does not comply with the school distance requirement, under s. 4(10) of the CLA the Registrar must refuse to issue the RSA and may do so without further assessment of any of the other disqualifying criteria.
[12] In some cases, such as where the Registrar decides to suspend, revoke, or refuse to renew a RSA, the Registrar must issue a notice of proposal along with written reasons explaining the basis of the proposed action. The notice of proposal may be appealed to the Licence Appeal Tribunal, which can confirm or set aside the notice. Importantly for this case, however, the CLA does not provide any similar process for a decision refusing to issue an RSA. Under s. 4(14) of the CLA a decision of the Registrar to issue or refuse to issue a RSA is final.
[13] The school distance requirement is part of a clearly articulated government policy to keep cannabis away from children and limit youth access and exposure to cannabis products by creating distance buffers between schools and cannabis stores. The government has indicated in numerous public statements that it will take whatever steps are necessary to ensure that cannabis remains out of the hands of people under the age of 19. The school distance requirement is just one component of a larger regulatory framework that serves to limit youth access and exposure to cannabis.
[14] The AGCO requires prospective retailers to submit applications through the AGCO’s public-facing online service delivery portal called “iAGCO”. Since January 2019, the straight-line, or “as the crow flies,” method for measuring the school distance requirement has been adopted by the Registrar and operationalized into the iAGCO portal for any RSA application.
[15] After entry of a proposed retail store’s street address, the iAGCO portal automatically checks the proposed location against the school distance requirement. This is done by means of an automated “exclusion zone map” based on school location data provided to the AGCO by the Ministry of Education. Excluded zones are mapped out using a straight line on a horizontal plane to create a 150 metre zone around the property line of the parcel of land on which the school is located.
[16] If the location of a proposed store is within an exclusion zone, the iAGCO portal rejects it as being in an ineligible location and the application is “hard stopped”. The applicant cannot continue to fill in or submit its application and the iAGCO portal will notify the applicant that its application is not eligible and state the reason why.
[17] Where a prospective applicant is hard stopped by the portal, it may request that AGCO staff conduct a manual review of the proposed location and the proximity to any school.
Background to the Applicant’s Proposed Location and Application for a RSA
[18] On June 29, 2018, the government announced that cannabis retail stores would be privately owned and operated. It later announced that it would be switching from an open application system to a “lottery” system.
[19] The right to apply for one of the first 25 licenses in Ontario was awarded by way of a random lottery draw conducted in January, 2019. A second lottery was held in August, 2019 awarding 42 applicants the right to apply for retail store licenses and authorizations.
[20] In December, 2019 the Ontario Government announced that it would move to an open application system. ROL applications could be submitted beginning January 6, 2020. RSA applications would start being accepted on March 2, 2020.
[21] The Applicant’s president, Mr. Bertucci, became aware in 2018 of the government’s intent to grant licences to private retailers to sell cannabis. He also became aware, at around the same time, of the 150 metre school distance requirement. The Applicant applied unsuccessfully in the first lottery but did not participate in the second.
[22] Mr. Bertucci began looking for a suitable location and found his proposed location in the fall of 2018. He was aware that there was a school nearby and claims to have turned his mind to the school distance requirement and determined that the school was more than 150 metres from the proposed location. There is more than a little confusion, however, about how the Applicant formed the impression that its proposed location met the school distance requirement and how (and when) it obtained the measurement of the school distance requirement on which it now relies.
[23] In emails of February 26 and March 2, 2020, the Applicant represented to the AGCO that the distance from the school to its proposed location was 262 metres measured using a “measuring wheel”. Mr. Bertucci was cross-examined. He admitted that the 262 metre measurement was not from a measuring wheel and, in fact, came from Google Maps (First Bertucci Examination Transcript at Q. 134-140). In answers to undertakings, the Applicant provided a text message purportedly showing a Google Earth measurement of 262 metres taken by an employee of the Applicant (Answers to Undertakings of Bertucci dated July 22, 2020 at R/F 1). The evidence of the Respondent, however, maintains that the Applicant’s document is not a Google Earth measurement; rather it is a map image with a notation that the distance “to the property line of the [school] is 262 m” (Second Bertucci Examination Transcript at Q. 149-153). In the end, Mr. Bertucci stated that he did not know how the 262 metre measurement was made (Second Bertucci Examination Transcript at Q. 155).
[24] It also is not clear whether, at the time, Mr. Bertucci also determined that using the straight-line method, his proposed location was under 150 metres from the school. It is, in any event, common ground that, in fact, the proposed location is within 150 metres of a school using the straight-line method.
[25] Mr. Bertucci’s evidence is also that he looked at other regulations to determine how distance is measured. He found a Toronto smoking by-law which used the term “radius” to establish the zone around the building in which smoking is prohibited. He also says he looked at a definition of “radius” in the Merriam Webster English Dictionary which defined that term as “a line segment extending from the centre of a circle or sphere to the circumference or bounding surface”. By contrast, he said, one of the Merriam’s definitions of “distance” was an “extent of space measured other than linearly”. Based on this, Mr. Bertucci claims to have formed the “impression” that, because the CLA used the word “distance” rather than the word “radius”, his “shortest distance on publicly available walkways” approach would be used to implement the school distance requirement rather than a straight line measurement. In cross-examination, however, Mr. Bertucci admitted that right before the definition in Merriam’s of “distance” which he says he relied on, was a definition which read: “An extent of area or an advance along a route measured in a straight line” (emphasis added).
[26] Mr. Bertucci also claims to have relied on “common sense” and his experience as a contractor, although it is not clear, in either case, what relevance that had or the basis upon which those factors would support his “impression.” In any event, in November 2018 the Applicant entered into a lease for its proposed location and shortly thereafter, commenced extensive renovations.
[27] After the Government announced in December 2019 that it would move to an open application system, the Applicant applied for a ROL on February 14, 2020. He also, for the first time, went to the iAGCO portal to create a draft application for a RSA. On February 26, 2020, the Applicant applied for a RSA through the portal but was “hard stopped”. The Applicant received an online message through the portal that, “The Premises Physical Address is within a School Buffer Zone.”
[28] This is when the Applicant, for the first time, contacted the AGCO by e-mail stating that the proposed location was 262 metres from the property line of the nearby school.
[29] The AGCO treated the Applicant’s emails as a request for a manual review which was completed by an AGCO Eligibility Officer. To review the proposed location, the Eligibility Officer manually reviewed the AGCO’s school exclusion zone map against the Applicant’s proposed location. The exclusion zone map indicated that the buffer extending 150 metres from the property line of the school overlaid the Applicant’s proposed location.
[30] The Eligibility Officer also reviewed the school and the proposed location using Google’s Street View function to determine the closest point of the retail space and the closest point of the school’s property line. Using the Google Maps distance calculator, the Eligibility Officer drew a straight line between these points, which measured at 120 metres, well within the 150 metre exclusion zone.
[31] On March 3, 2020, the Eligibility Officer informed the Applicant that its proposed location was ineligible. On March 3 and March 4, 2020, the Applicant requested that the AGCO reconsider its use of the straight-line method of measurement and also included a map that incorrectly stated that the distance measured by straight line was 186 metres. On March 5, 2020, the AGCO responded to the Applicant, outlining the method the AGCO uses to calculate distance to schools, the mechanics of the iAGCO portal’s hard stop, and an overview of the steps taken during the manual review.
[32] On March 13, 2020, the Applicant requested a further reconsideration in a letter addressed to the Registrar. This letter and the material relied upon to conduct the manual review were provided to the Deputy Registrar. On March 25, 2020, the Deputy Registrar reaffirmed the result of the manual review. The Deputy Registrar rejected the Applicant’s request to use a method of measurement other than the straight-line method.
The Issues
[33] The Applicant argues that the Registrar’s Decision is unreasonable in four basic respects:
(1) the Decision suffers from a “fatal” lack of transparency;
(2) the Decision is inconsistent with principles of statutory interpretation, the scheme of the CLA and with common law interpretations of the meaning of “distance”;
(3) the Registrar fettered its discretion when it made the decision not to issue the Applicant a RSA on the basis of an unpublicized, straight-line measurement for the school distance requirement; and
(4) the Decision fails to take into account the effect of the decision on the Applicant (having invested significant amounts of time and money into its proposed location).
Analysis
[34] Before turning to the Applicant’s arguments, I will deal with a preliminary, evidentiary issue raised by the Respondent. The Respondent objects to the admission of evidence from Mr. Bertucci. The evidence explains the history of the matter from the Applicant’s perspective and describes the “due diligence” efforts undertaken by the Applicant to satisfy itself that its proposed location complied with the school distance requirement.
[35] The Respondent argues that the Applicant’s due diligence is irrelevant to the issues on the application for judicial review. The Respondent also submits that, as a general rule, affidavit evidence containing material that was not before the decision-maker is not admissible on judicial review unless it: a) provides non-argumentative background information; b) demonstrates that the decision-maker decided an essential point without any evidence; or, c) demonstrates the decision-maker breached the rules of natural justice.
[36] I would admit the evidence.
[37] This was a somewhat unusual process. There was no “hearing” before the Registrar in the normal sense of the word. The process was somewhat informal and took place, essentially by email, over a short period of time.
[38] Given the informal and abbreviated process that took place and having reviewed the affidavit, I do not find the Bertucci affidavit inadmissible on the application for judicial review. It provides background on the Applicant’s perspective and on what the Applicant perceives as the issues. Its relevance, weight and utility can and will be addressed in the context of the merits of the Applicant’s application.
1. Lack of Transparency
[39] The Applicant submits that reasonableness review is not a “rubber-stamp” or a means of sheltering administrative decision-makers from accountability. Reasonableness, as the Supreme Court of Canada held in Vavilov remains “a robust form of review” and is concerned with the existence of justification, transparency and intelligibility within the decision-making process. In particular, the Applicant relies on a passage from Vavilov in which the Supreme Court said that it is unacceptable for a decision-maker to provide a party with formal reasons that fail to justify its decision and “expect that its decision [will] be upheld on the basis of internal records that were not available to that party”, Vavilov, para. 95.
[40] In this case, the Applicant submits that the main flaw of the Decision is that the Registrar’s method for determining the school distance requirement was never transparent to the Applicant, or to the general public, until after the Applicant had invested significant time and money in its proposed location. By not publicly disclosing that the school distance requirement would be determined using a straight-line measurement, coupled with the AGCO’s disclosure of this method after the Applicant’s application for a RSA had been rejected, the Registrar’s Decision was “arbitrary and opaque”. In the absence of the method of measurement being publicized, it was not reasonable to expect the Applicant to know that a straight-line approach would be employed.
[41] I do not accept this argument. The Applicant’s submission that the Decision suffers from a “fatal lack of transparency” misunderstands the Supreme Court’s requirement of transparency and overlooks the Applicant’s own failure to take basic steps to exercise due diligence and ascertain the AGCO’s method of measuring the school distance requirement.
[42] The concept of transparency as it is used in Vavilov refers to transparency of the reasons and the decision itself, not transparency of the regulator’s internal institutional decision-making process. The issue of whether the AGCO publicly announced the straight-line method is irrelevant to the issue of whether the AGCO’s interpretation of the CLA and Regulations is reasonable.
[43] It is, in any event, simply inaccurate for the Applicant to state that the AGCO failed to disclose its use of a straight-line method of measurement until March 2020. The straight-line method has been utilized in the iAGCO portal since January 14, 2019. In the Second Allocation Lottery FAQs published on July 23, 2019, prospective entrants to the Second Lottery were advised they could use the iAGCO portal to ensure their proposed location met the school distance requirement. The evidence is that individuals who contacted the AGCO about the school distance requirement were advised that the iAGCO portal could be used to check whether a proposed location satisfied this requirement and the method used to measure the 150 metre distance. Thus, the details of the AGCO’s interpretation were always publicly available to anyone who explored the iAGCO portal. Any prospective retailer who wanted to know and was prepared to make reasonable, prudent enquiries could have learned of the AGCO’s straight-line method of measurement as early as January 2019.
[44] The fact that the AGCO did not issue a stand-alone public announcement about the straight-line method does not mean that its interpretation of the school distance requirement was, as the Applicant argues, “arbitrary and opaque”.
[45] On the record before the Court, it is clear that the Applicant failed to take simple, available steps to ascertain whether its proposed location satisfied the school distance requirement. Mr. Bertucci knew there was a school near his proposed location. He knew that the Merriam’s dictionary definition of “distance” on which he says he relied included, as the first definition, “an extent of area or an advance along a route measured in a straight line” (emphasis added). In spite of this, Mr. Bertucci relied on his experience in the construction industry to form the “impression” that the AGCO would interpret “distance” in this case, as measured by “the body of path [sic?] travelled without obstruction”. He never made any enquiry of any kind to the AGCO about this issue and did not review the iAGCO portal until long after he had had acquired and renovated the proposed location. This was an entirely unreasonable basis upon which to reach any conclusion in the circumstances.
[46] For these reasons, I would not give any effect to the Applicant’s argument based on an alleged lack of transparency.
2. Principles of Statutory Interpretation
[47] The Applicant argues that the AGCO’s interpretation of the school distance requirement is unreasonable and that the AGCO failed to consider the purposes for which the legislative scheme was enacted.
[48] The Applicant submits that while protecting youth is one objective of the CLA, another objective is combatting the illegal cannabis market. In selecting a straight-line approach in this case, the AGCO has effectively given primacy to one legislative objective (protecting youth) at the expense of another (combatting the illegal market). This is because the broader the limits of the excluded school zones, the fewer the number of eligible locations there are, which limits the number of retail stores and, therefore, undermines the objective of combatting the illegal market.
[49] The Applicant submits that the shortest publicly available route approach assists in combating the illegal market by expanding the number of eligible locations and allowing the Applicant’s store to open, while having no adverse impact on the policy objective of protecting youth by virtue of the fact that it is impossible for youth to access the proposed location from the nearby school along the 150 metre straight-line drawn by the AGCO.
[50] The Applicant also argues that a straight-line measurement of distance has been rejected as “illogical” and “absurd” for the purpose of calculating a distance between two points to determine a taxpayer’s eligibility for moving expenses under the Income Tax Act.
[51] In Giannakopoulos v. Canada, 1995 3517 (Fed. C.A.), the Federal Court of Appeal reversed years of jurisprudence calculating distance for moving expenses under the Income Tax Act by way of a straight-line, “as the crow flies” measurement. The Court favoured a pragmatic, realistic approach in which distance is calculated using ordinary routes of public travel. This approach was echoed by the Tax Court of Canada in 2007 in Nagy v. Canada, [2007] T.C.J. No. 244 (T.D.). Nagy emphasizes a “common sense” approach to measurement under the Income Tax Act over one which promotes “mechanical irrationality”.
[52] The Applicant’s first argument misconstrues the nature of the exercise in a judicial review.
[53] The onus of proving unreasonableness falls upon the Applicant. Decision-makers will often be confronted with multiple possible solutions or choices, all of which would be consistent with the applicable law that guides their decision. The ultimate choice, however, rests with the decision-maker. Their decisions on such matters are entitled to the greatest deference.
[54] The use of non-specific language in the governing legislation suggests a legislative intention that the decision-maker has the authority to decide which interpretation best furthers the statutory mandate. It is not enough for a party seeking judicial review to establish that a competing interpretation is reasonable, or even that a competing interpretation may be preferable. An applicant is required to establish that the interpretation chosen by the decision-maker is unreasonable, Pong Marketing and Promotions Inc. v. Ontario Media Development Corp., 2018 ONCA 555 at paras. 22 and 23.
[55] While the Applicant’s proposed approach to the school distance requirement may be theoretically “feasible”, that does not mean that the AGCO’s chosen approach is unreasonable. Even if the Court were to accept the Applicant’s contention that the Registrar’s interpretation is “inferior,” that would be still be insufficient to find that the Registrar’s interpretation is unreasonable.
[56] Further, a reasonable interpretation of legislation may draw on industry knowledge and recognized practical limitations. In Canada Post Corp. v. CUPW, 2019 SCC 67, the Supreme Court of Canada upheld a decision-maker’s interpretation of the Canada Labour Code. The decision-maker’s interpretation was that the Code did not require Canada Post to conduct annual safety inspections of all postal routes. The Court held, amongst other reasons, that the decision-maker’s interpretation appropriately bore in mind the “practical limitations of a workplace spanning 72 million kilometres of postal routes.”
[57] Given day to day experience with its own administrative scheme, a statutory decision-maker often has superior expertise, relative to the Court, in deciding how to balance competing concerns and priorities. This is especially so where the governing legislation presents multiple goals, in which case the decision-maker’s decision regarding which goals to prioritize and how should be given the greatest deference.
[58] The AGCO is entitled to interpret the CLA and Regulation in a manner that bears in mind the “practical limitations” of its mandate. Those working day to day in the implementation of frequently complex administrative schemes (like the regulation of retail recreational cannabis sales) have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime, Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 49.
[59] As to the Applicant’s second argument, relying on the interpretation of a distance-based requirement under the Income Tax Act, the tax cases themselves recognize that the interpretation of the words of an enactment must have regard to underlying legislative purpose. The deductibility of travel expenses for tax purposes arises out of a legislative purpose which is decidedly different from the purpose of the CLA. Under the CLA, legislative purpose is equally, if not better, served by straight-line measurement of the school distance requirement.
[60] The AGCO and the Registrar relied upon a reasonable interpretation and implementation of the school distance requirement when measured against both statutory and common law principles. The AGCO’s approach to the school distance requirement is founded on a plain reading of the language of the CLA and Regulation in the context of the multiple policy objectives which underpin the legislative framework. It allows for consistency of application to the public at large and for efficient processing of retail store applications. It is at least a reasonable, if not the most reasonable, interpretation of the school distance requirement under the CLA and Regulations.
[61] I would give no effect to the Applicant’s arguments on the issue of statutory interpretation.
3. Fettering of Discretion
[62] The Applicant argues that the AGCO’s measurement of the school distance requirement on a straight-line basis constitutes an arbitrary exercise of discretion because the AGCO did not make the straight-line measurement method known to the public prior to the Applicant applying for the RSA.
[63] Fettering of discretion occurs when a decision-maker limits its exercise of discretion by some pre-determined or improper factor or consideration. Here, the school distance requirement is expressly mandated by the legislative framework. The issue is not the exercise of discretion but statutory interpretation - what does the school distance requirement of a minimum of 150 metres mean?
[64] The Applicant’s “fettering” argument effectively relies upon the same grounds as the first two arguments, merely applied to a different legal label. For the reasons already articulated above, there is nothing arbitrary about the adoption, by the AGCO and the Registrar, of the straight-line method of measuring the school distance requirement. There was no fettering of discretion. The AGCO’s and the Registrar’s conclusions on the interpretation and practical application of the school distance requirement were reasonable.
[65] I would not give any effect to the Applicant’s argument based on an alleged fettering of discretion.
4. Effect of the Decision on Applicant
[66] The Applicant argues that the Registrar was aware by March 3, 2020 that the Applicant had spent “hundreds of thousands of dollars securing and preparing” its proposed location. The Registrar was, therefore, aware of the effect the imposition of the straight-line measurement would have on the Applicant and its ability to operate a retail cannabis store at the proposed location. Yet the Decision makes no mention of, and ignores, the negative financial impact that the straight-line method would have on Applicant.
[67] Contrary to the Applicant’s submission, there was no obligation on the AGCO or the Registrar to “grapple” with the impact the Decision would have on the Applicant in terms of time or financial investment. These are not relevant considerations within the statutory scheme; consideration of such factors would be extraneous and irrelevant to whether to grant a RSA on the basis of the school distance requirement and would run counter to the public protection purpose of the regulatory framework and objectives of the CLA.
[68] While the Applicant has perhaps suffered an adverse financial impact from the Decision at issue, this impact is the consequence of having made a financial commitment without appropriate due diligence. RSAs are not guaranteed by the Registrar and the statute provides no right or entitlement to a RSA. A RSA is granted to those that meet the eligibility and application requirements. The burden of ensuring those requirements are met, and the risk of not meeting them, are both borne by the Applicant.
[69] I would not give effect to the Applicant’s argument that the Registrar’s Decision and the AGCO’s interpretation and application of the school distance requirement are unreasonable because they failed to consider the negative financial impact of the Decision on the Applicant.
Conclusion
[70] For all these reasons, the application for judicial review is dismissed.
Costs
[71] The Applicant submitted that an appropriate order for partial indemnity costs, regardless of who were to prevail, is $42,000. The AGCO sought $49,000. In my view, partial indemnity costs to the AGCO of $45,000 is an appropriate award in all of the circumstances, and it is so ordered.
Penny J.
I agree _______________________________
Swinton J.
I agree _______________________________
Lederer J.
Released: October 9, 2020
CITATION: Sticky Nuggz Inc. v. Alcohol and Gaming Commission of Ontario, 2020 ONSC 5916
DIVISIONAL COURT FILE NO.: CVD-TO-8-20JR
DATE: 20201009
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Lederer, Penny JJ
BETWEEN:
STICKY NUGGZ INC.
Applicant
– and –
ALCOHOL AND GAMING COMMISSION OF ONTARIO AND THE ATTORNEY GENERAL OF ONTARIO
Respondents
REASONS FOR JUDGMENT
Penny J.
Released: October 9, 2020