Powerhouse Corporation v. Registrar of Alcohol, Gaming and Racing

CITATION: Powerhouse Corporation v. Registrar of Alcohol, Gaming and Racing 2021 ONSC 4116

DIVISIONAL COURT FILE NO.: DC-590-18

DATE: 2021-06-14

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Pattillo, Penny, and Kurke JJ.

BETWEEN:

Powerhouse Corporation Appellant Respondent on the Cross-Appeal

• and -

Registrar of Alcohol, Gaming and Racing Respondent

-and-

York Quay Neighbourhood Association, Toronto Island Noise Committee Queen City Yacht Club Objectors/Respondents

• and -

City of Toronto Respondent Appellant on Cross-Appeal

• and -

Licence Appeal Tribunal Intervenor

COUNSEL:

J. Bunting and A. Hassan, for the Powerhouse Corporation (“Powerhouse”)

R. Khan, for the Registrar (Alcohol aad Gaming Commission of Ontario) (the “Registrar”)

E. Hore, for York Quay Neighbourhood Association (“YQNA”)

R. Tanner, for Toronto Island Noise Committee and Queen City Yacht Club (“TINC”)

C. Henderson and M. Crawford, for the City of Toronto (the “City”)

V. Crystal and B. Blumenthal, for Licence Appeal Tribunal (the “LAT”)

Heard at Toronto by videoconference: March 24, 2021

DECISION ON APPEAL

KURKE, J.:

Overview

[1] In May 2015, Powerhouse applied to the Registrar for a liquor licence under the Liquor Licence Act, R.S.O. 1990 c. L19 (the “Act”) for the indoor Rebel night-club (“Rebel”) and the outdoor Cabana pool bar (“Cabana”) on Polson Pier in Toronto (collectively, the “venue”). The venue at that time had a liquor licence that permitted it to sell liquor to over 6,000 people between the two locations. Objections were made to the application and the Registrar issued a Notice of Proposal to Review the Application. Powerhouse appealed that Notice to the Licence Appeal Tribunal (the “LAT”) and a hearing was held to determine whether it would be contrary to the “public interest” to issue Powerhouse a liquor licence under s. 6(2)(h) of the Act.

[2] The history at the venue, however, complicates things. In 2006, after unsuccessful attempts by the City for years to work with the then-operator of the venue to stop disturbing nearby residents with loud music, the venue’s liquor licence was revoked following a lengthy hearing. After three trips to Divisional Court and while an appeal was pending at the Ontario Court of Appeal, the new operator of the venue agreed in 2008 to detailed conditions in a new licence (the “2008 licence”), to mitigate the noise problems. Conditions included a limitation on the hours during which the venue could play amplified music outdoors, and others aimed at controlling noise reaching neighborhood residents, particularly those on Algonquin and Ward’s Islands (collectively “Toronto Island”).

[3] In May 2015, Powerhouse, the venue’s newly incorporated owner, chose to apply for a new liquor licence under a new corporate banner rather than to seek to remove conditions that it found overly restrictive from the 2008 licence, which remained valid. On August 20, 2018, the LAT released a decision in which it ordered the Registrar to issue Powerhouse a licence subject to conditions that included a prohibition against any amplified music at any time being played at Cabana or directed towards any outdoor area or patio at the venue.

[4] Powerhouse appeals pursuant to s. 11(1) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, seeking an order removing the condition in the venue’s licence prohibiting amplified music, or in the alternative, a new hearing before the LAT on the basis that the LAT erred in imposing so restrictive a condition on its licence. Powerhouse also argues that it was denied procedural fairness in that the LAT failed to record or poorly recorded some of Powerhouse’s evidence, which compromises its ability to conduct its appeal. It seeks to adduce fresh evidence to explain what was contained in the non-recorded evidence. Powerhouse also complains that it was not made aware in advance of TINC’s and YQNA’s position that the venue should not be permitted to play music on its patio, so it was unable to properly respond.

[5] The City cross-appeals the LAT’s decision, and argues that the LAT should have refused Powerhouse a liquor licence altogether, on the ground that Powerhouse’s application for a new licence was abusive of the licensing process, since it sought to circumvent public interest protections in the Act, and was therefore contrary to the public interest.

[6] The following reasons explain why I would dismiss both appeals.

Facts

[7] The venue has been a licensed establishment on the Toronto waterfront for many years. In former incarnations it was called “Sound Academy” and before that “The Docks by Cherry”. Its location on Lake Ontario situates it close to residents on Toronto Island. Noise from the venue has been the source of complaints, prosecutions, hearings and numerous court decisions during the term of the venue’s existence.

Earlier history

[8] As “The Docks,” the venue first applied for a liquor licence in 1996. Objections were filed on behalf of Toronto and numerous Toronto Island residents, on the basis that the licence would not be in the public interest. The application came forward for a hearing before the Ontario Liquor Licence Board in May 1996. On the day of the hearing the venue’s operator agreed to conditions to its licence, including that the venue agree to implement and comply with a noise containment strategy and that music at the venue comply with the strategy and have sound level limits. Toronto Island residents would have a public complaints line available to them: Docks by Cherry (Re), [1996] O.L.L.B.D. No. 159, at para. 9.

[9] Ongoing noise complaints proved the ineffectiveness of the conditions that were added in 1996. A lengthy hearing was held in 2005 to determine whether the venue should lose its liquor licence. Evidence at that hearing was remarkably similar to that at the hearing of Powerhouse’s appeal before the LAT: an onslaught of sound from the venue felt by residents of Toronto Island, half-hearted efforts to control the noise by those in charge of the venue, and ineffective containment strategies. Ultimately, the Board of the Alcohol and Gaming Commission found that the residents had met their “heavy onus” to link their noise complaints with the venue, and that there was no alternative short of revocation of the venue’s liquor licence to address the problem: Docks by Cherry (Re), [2006] O.A.G.C.D. No. 341.

[10] On the basis of fresh evidence before Divisional Court, the matter was remitted for rehearing: 1132165 Ontario Ltd. v. Ontario (AGC), [2007] O.J. No. 954 (Div. Ct.). The City and the Registrar appealed to the Ontario Court of Appeal. However, before the hearing in the Court of Appeal a new owner, Polson Pier Entertainment Inc. (“PPEI”), applied for a new liquor licence while the venue was still licensed by The Docks, and entered into a settlement agreement with the City, the Registrar, and TINC. On consent, the Registrar issued the 2008 licence for the venue which contained more detailed conditions than those in the 1996 licence: Polson Pier Entertainment Inc. (Re), [2008] O.A.G.C.D. 153, at para. 9. Conditions attaching to the licence included that:

a. no sound, amplified by any means, emanating from the venue would be audible to the human ear of any person on Toronto Island;

b. a noise monitor was to be present on Toronto Island when the venue was emitting sound to detect audible sound from the venue and receive and respond to complaints from residents;

c. the venue was to be immediately responsive to complaints by reducing volume by every possible means;

d. no outdoor amplified music or sound was permitted from 11 p.m. to 11 a.m.;

e. no outdoor musical events, including concerts, were permitted at the venue;

f. a detailed noise containment strategy was to be complied with; and

g. TINC and the City would receive timely notice of any applications to transfer or vary the terms of the licence.

[11] At Powerhouse’s hearing before the LAT, witness Lynn Robinson, chair of TINC, described a cooperative relationship with the venue for some five years, from 2008 to 2013. During this time there were few noise complaints and open lines of communication between the venue and Toronto Island residents.

More recent history

[12] In 2013, Maya Corp. (“Maya”) applied for the transfer of the venue’s liquor licence from PPEI. Pending the transfer from PPEI, the Registrar issued an authorization to PPEI for Maya to sell liquor at the venue. In May 2014 PPEI applied to remove the conditions from the 2008 licence, pursuant to s. 14(2) of the Act, which requires an applicant to show “a change in circumstances” from the time the conditions were imposed. The Registrar transferred the 2008 licence to Maya on June 4, 2014 and on June 9 issued a “Notice of Proposal to Refuse to Remove Conditions” from the 2008 licence. PPEI appealed the Notice to the LAT, even though Maya by then held the 2008 licence. The City, TINC, and now YQNA were given standing as objectors before the LAT.

[13] Ultimately, a seven-day hearing at the LAT was scheduled to begin March 5, 2015. In February 2015, a new investor entered into an agreement with Maya to become a part owner of the business, and Powerhouse was created. Maya holds a 75% stake in Powerhouse. Maya and Powerhouse have substantially overlapping ownership, directors, and management, and Tony Grossi, who had been President of PPEI and was a managing partner at Maya, was also intended to become managing partner at Powerhouse. Mr. Grossi had also been general manager of the venue for many years leading up to the 2006 licence revocation. Two days before the March 5, 2015 date to commence the hearing, Maya withdrew its application to remove the conditions from the 2008 licence, which Maya still holds.

The current application

[14] On May 28, 2015, Powerhouse filed an application for a new liquor sales licence at the venue without direct notice to the City or TINC. Powerhouse ultimately sought an increase in capacity to be able to serve 4,583 people indoors and 3,500 outdoors (an increase of 820 and 990 people respectively over the 2008 licence). Powerhouse sought a licence without most of the conditions that had been agreed to in the 2008 licence, proposing instead to reference objective decibel limits for the venue in licence conditions, in accordance with Toronto by-laws to be enforced by the City of Toronto.

[15] The Registrar initially refused to process the application on the ground that Maya was substantially related to Powerhouse, and that permitting Powerhouse to proceed with a new licence application would be contrary to the public interest. The proper procedure, according to the Registrar, was for Powerhouse to apply to receive the transfer of Maya’s licence, and then to bring an application to remove the conditions of the 2008 licence. Powerhouse sought review from the Divisional Court.

[16] A panel of Divisional Court stated that it did not disagree with the Registrar that the manner of proceeding engaged in by the venue’s recent owners was “contrary to the public interest,” but it held that the Registrar nevertheless had no authority to refuse to receive Powerhouse’s application given the structure of the Act. The proper process was to refuse a licence on the “public interest” ground under s. 6(2)(h) of the Act, which would require that the Registrar issue a Proposal to Refuse the Application under s. 8(4)(b.1) of the Act, thereby permitting Powerhouse the right of a hearing (Powerhouse Corp. v. Ontario (Registrar, Alcohol and Gaming Commission), 2016 ONSC 2549 (“the 2016 decision”), at paras. 44-54. The matter was remitted to the Registrar to consider Powerhouse’s application.

[17] Accordingly, Powerhouse’s application was processed, and objections were filed by community members represented by TINC and by YQNA; those who file objections may take part in the hearing before the LAT as “objectors”. The City, which passed a municipal resolution against Powerhouse’s application, became an added party at the LAT hearing. The Registrar issued a Notice of Proposal to Review an Application focused on the issue of whether it was in the public interest to issue the licence under s. 6(2)(h) of the Act. The Registrar did not issue a Notice of Proposal to Refuse the Application, which was an option available to it, or indicate any other paragraph under s. 6(2) of the Act as a ground for reviewing the application. Neither the City nor any objector sought review at Divisional Court of those decisions by the Registrar.

Evidence at Powerhouse’s LAT hearing concerning noise

[18] The LAT hearing into Powerhouse’s application for a licence to sell liquor at Polson Pier was held over 17 days from March 20 to November 20, 2017. Parties at the hearing included Powerhouse, the Registrar, and TINC, YQNA, and the City as objectors or added parties.

[19] At the hearing of Powerhouse’s appeal before the LAT, there was substantial evidence from residents and Powerhouse witnesses relating to noise issues. Indeed, it appears that from 2013, Maya repeatedly violated the 2008 licence conditions, even while the LAT hearing was ongoing. Maya employees gave evidence of efforts to control the noise from the venue but admitted that Maya’s sound control systems were frequently ineffective and sometimes deliberately overridden by order of the owners and management of the venue or by performers. There was also evidence that Maya regularly and deliberately violated the prohibition against outdoor musical events. The City had commenced noise-related prosecutions against the operator of the venue, but the problem remained.

[20] The City’s sound expert, Dalila Giusti, explained that given the venue’s unique shoreline location and the reflective surface of the water, “noise attenuation [from the venue] is difficult and may be impossible.” That view was amplified by the many Toronto Island residents who gave viva voce evidence of significant direct noise disturbance from the venue during the period 2013 to 2017. These residents all kept noise logs on which they were cross-examined. This evidence was supported by many contemporaneously written logs from other residents who were not called as witnesses. There were extensive representations filed from persons, community associations, committees, and the Queen City Yacht Club opposed to the removal or variation of conditions in the 2008 licence.

[21] The LAT was impressed with the efforts made by Toronto Island residents, in keeping their noise logs, to take steps to ensure that the source of the noise complained of was the venue, rather than other sources, such as charter boats, Sugar Beach, Cherry Beach, or Ontario Place, among other places. It was acknowledged that there were many significant sources of noise affecting those on Toronto Island, including also Billy Bishop Airport, the Gardiner Expressway, Lakeshore Boulevard, and rail traffic.

[22] Lynn Robinson, a long-time resident of the Toronto Island community, was the person to whom the residents sent their logs. In order to isolate the source of noise disturbance that she experienced, she would walk to the lake and ensure that she could pinpoint the noise as coming from Polson Pier, the physical location of the venue. Generally, the residents were careful to explain that they had made a positive identification of the venue as the source of the noise. Noise disturbances from 2013 on tended to occur on weekends when Cabana hosted celebrity DJ events. The noise included thumping bass, the amplified voice of the DJ, crowd noise, and music. Powerhouse witnesses pointed out that there were sometimes other sources of noise for which the venue was clearly not responsible but for which the logs blamed it.

[23] The impact of the noise was substantial. Many resident witnesses described inescapable noise characterized by a deep vibrating or thumping bass emanating from the venue. The sound interfered with their ability to concentrate, have conversations and enjoy their homes, outdoor spaces, and communities on summer weekend afternoons and evenings. Driven inside, they could still not escape the noise, even with their windows closed.

[24] One 90-year-old Toronto Island resident gave evidence that she could feel deep vibration from the venue in her head and through the couch she sat on. She explained that the noise was intolerable and inescapable, and persisted even if she closed her windows and turned on her television. The television would be drowned out by the noise from the venue. Another resident could feel the noise from the venue throbbing through her doors and windows.

[25] Some residents expressed concern about the effect of the noise on their families. One resident had children who complained that they could not sleep as their home was flooded with bass, which even shook her faucets. Another resident could only get relief by wearing earplugs, a situation which caused her to fear that she might not hear her elderly mother calling out for assistance. One woman’s son was distressed at being unable to focus on studying for an exam the next day given the noise.

[26] One Toronto Island resident logged noise from the venue on eleven different occasions between June 2015 and May 2017. The combined noise from the venue and another source was imposing enough to disturb his child’s piano recital. His daughter, who had suffered a concussion, had to wear industrial-style ear protection in the home because of the noise. The bass noise vibrated in his house on one occasion throughout the dinner hour. On another occasion he described the sound as a “wall of noise hitting my house”, and it was “so obnoxious it was hard to think.” Another witness was unable even to spend summer weekends in a relatively new home that was equipped with noise attenuation features.

[27] Ms. Robinson acknowledged that TINC had failed to advise Island residents of the monitoring process from 2008 to 2016 which set up a process by which to contact a monitor in their community or at the venue to make complaints. From 2013, TINC instead advised residents to complain to the City and the Registrar. Complaints to the City required the City to send out noise inspectors after the fact to investigate. The result was noise charges rather than relief. Noise logs provided to the Registrar at the end of the outdoor season resulted in discussions between the Registrar and the venue in which the venue promised no further disturbance that season, a promise that was, it seems, easy to keep at that point in time.

[28] In addition, the council of the City of Toronto passed a resolution to advise the AGCO that “the issuance of a new liquor licence for the [venue] is not in the public interest.” Pursuant to s. 7.1(1) of R.R.O. 1990, Regulation 719 (“Reg. 719/90”), a regulation promulgated under the Act, the Registrar was to consider such a resolution, in the absence of evidence to the contrary, “as proof of the needs and wishes of the residents of the municipality for the purposes of clause 6(2)(h) of the Act”. The resolution was based on the council’s concerns about “noise impacts” on Toronto Island residents such as those that resulted in the venue’s 2006 licence revocation, if Powerhouse should be successful in acquiring a licence with less restrictive conditions relating to noise control than those in the 2008 licence.

[29] There was also evidence at the hearing of the venue’s efforts to control the noise, but other evidence of significant failures on the part of the venue staff and management. There was no expert evidence presented by Powerhouse on the issue.

[30] Maya employee and sound technician Themmy Pappas gave evidence about his efforts at noise reduction by speaker placement and noise override strategies.

[31] Maya employee and Toronto Island resident Thomas Rutherford monitored the noise that reached Toronto Island from the venue. He would radio the venue to advise that the noise was too loud, and to turn it down. Another venue employee, Jason Chan, who was stationed at the venue, produced logs showing many contacts from the Toronto Island monitor, who was obviously active in reporting noise issues, or confirming that there was no noise to report or that noise had been remediated. When there was a noise issue, Mr. Chan would act on it and ask for the sound technicians to take appropriate steps, although the sound technicians were not initially obliged to act on Mr. Chan’s requests. Moreover, performers paid little attention to noise control equipment, and either overrode controls or used their own uncontrolled sound equipment.

[32] Evidence indicated that although the sound was turned down at Mr. Chan’s request, it was a persistent problem that the noise would initially be turned down, but would then be turned back up again, leading to further complaints. Sometimes monitor complaints were not even acted upon at all, and Maya’s sound control procedures were ineffective to meet the terms of the 2008 licence. Such evidence came from several employees. One e-mail afforded proof that Maya management and owners ordered the music to be turned back up after a noise issue was raised.

[33] Logs maintained by Mr. Chan record that on July 20, 2013 it took four calls from the monitor over a two-hour period from 3:59 p.m. to get the sound turned down, and that a further three calls that day had to be made to turn the sound down later. On June 4, 2014 there were 13 separate noise reports between 1:00 p.m. and 9:32 p.m. The records indicated that the bass was booming loudly, and requests were being made to turn the sound down, but without response until 9:20 p.m. On Sunday June 12, 2016, Maya’s monitor, Mr. Rutherford, advised a resident at about 5:00 p.m. that he had been trying to get the sound turned down since noon.

[34] Maya’s managing partner, Tony Grossi, admitted that from 2013 to 2017 Maya regularly held outdoor musical events in direct contravention of a condition of the 2008 licence. He was also compelled to admit that his testimony that there were no noise complaints from residents or anyone else from 2013 to the date of his cross-examination was false. Mr. Grossi also admitted that it was Powerhouse’s intention to make use of whichever licence proved more favourable. It was hoped that a new licence, if granted, would have less restrictive conditions. If the new licence application was rejected, then Powerhouse would make use of the 2008 licence, still held by Maya.

The LAT decision

[35] Powerhouse had been seeking a liquor licence with increased attendance capacities indoors in Rebel, and outdoors at Cabana. It wanted fewer sound restrictions than the 2008 licence. On its application, Powerhouse had a qualified right to receive a liquor licence under s. 6(2) of the Act, subject to the assessment of various factors in that section. Before the LAT, the Registrar took no position on the issuance of a licence but did submit that conditions should attach to the licence pursuant to s. 6(2)(h) of the Act, relating to “the public interest having regards to the needs and wishes of the residents of the municipality in which the licensee will operate.”

[36] The City and objectors opposed the issuance of a licence to Powerhouse on two grounds. First, they argued that Powerhouse’s manner of proceeding with a new application was abusive as circumventing its responsibility under the Act and its burden to prove a change in circumstances in order to get conditions removed. They argued that s. 6(2)(h) was broadly worded enough to permit such an argument. In the alternative, the objectors submitted that a licence with less-restrictive conditions and permitting greater capacity at Cabana was not in the “public interest,” and that more restrictive conditions would be appropriate.

[37] In its lengthy decision of August 20, 2018, the LAT granted Powerhouse a liquor licence for the venue. It refused to give effect to the abuse argument. The LAT found that it was confined by the Registrar’s Notice to consider only the “public interest” in s. 6(2)(h) of the Act. It permitted an increase in attendance capacity in Rebel, but not in Cabana, whose capacity was maintained at 2510 persons. Most importantly, the LAT was not persuaded that noise from Cabana could be contained so as not to disturb Toronto Island residents. Accordingly, it imposed a condition on the licence that “[t]here shall be no amplified music on or directed towards any outdoor area or patio.”

[38] In what follows, I will first consider the City’s cross-appeal, as raising the more fundamental issue of whether Powerhouse should even be granted a licence at all. After that, I will consider Powerhouse’s appeal against the “no amplified music” condition.

I. THE CITY’S CROSS-APPEAL

[39] The City argues that the LAT erred in law by ordering the Registrar to issue Powerhouse a licence at all.

[40] The City seeks an order that the Registrar be directed to refuse a liquor licence to Powerhouse as not being in the public interest under s. 6(2)(h) of the Act. Again, that provision provides that an applicant has a qualified right to a licence, except “if the licence is not in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located.”

[41] The City argues that it is abusive, and therefore contrary to the public interest, to permit Powerhouse to evade the burden of proof that the Act would impose upon it to get conditions removed from the 2008 licence and other public interest protections afforded by the Act, and to accomplish the elimination of conditions to which the 2008 licence is subject, simply by engaging in a corporate reorganization and applying for a new liquor licence as a new entity.

Standard of review

[42] At para. 15 of its decision the LAT held that this issue involved a legal question. Where there exists a statutory right of appeal on a question of law, as here, the presumption in administrative proceedings that deference is owed to a tribunal’s interpretation of its home statute is rebutted, and a standard of correctness applies: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 17, 36-37. When the standard is correctness, the court is free to substitute its opinion for that of the tribunal in the case of error: Housen v. Nikolaisen, 2002 SCC 33, at para. 8.

The LAT’s decision

[43] Before the LAT, the City and objectors adopted and advanced unsuccessfully the Registrar’s argument before the Divisional Court in 2016. The LAT dealt with this argument by the City mainly in a section of its decision entitled “Public Interest and Process” (paras. 18-30).

[44] The LAT saw the abuse argument as seeking to create a procedural dimension to the definition of the “public interest” in s. 6(2)(h). However, the LAT’s view was that the focus of s. 6(2)(h) was not on the public interest writ large, but as qualified contextually by the additional words in the provision “…having regard to the needs and wishes of the residents of the municipality in which the premises are located.” In the LAT’s view based on its earlier jurisprudence, this wording requires a balancing of Powerhouse’s qualified right to a licence against the needs and wishes of the residents of the municipality: Matador Corp. (c.o.b. Matador Ballroom) (Re), [2015] O.L.A.T.D. No. 265, at para. 132. Section 6(2)(h) “focusses our enquiry on the public interest as it relates to the impact of the licence on the residents of the local municipality and not on the process by which the appeal ended up before” the LAT (para. 30).

[45] The LAT considered the negotiated settlement that resulted in the 2008 licence and its conditions. It referred to s. 14(2) of the Act and the onus on the licence holder to prove a change in circumstances before a condition could be removed. It considered the application by Maya to remove conditions from the 2008 licence and the Registrar’s refusal that led to the 2016 decision of this Court. The LAT referred to para. 54 of that decision where the Court commented that the machinations involved in and leading up to the new licence application were “contrary to the public interest.”

[46] Apparently taking to heart the reasoning of this Court in the 2016 decision that a Board must follow legislative dictates, the LAT held that in considering provisions relating to an appeal of a decision by the Registrar, the LAT must focus on its specific authority to act (para. 25):

“…Reading these provisions together, it is clear that our authority to craft a remedy is defined by the process invoked by the Registrar. In the current case, our authority is limited to determining the public interest as that term is qualified by s. 6(2)(h).”

[47] The LAT rejected any suggestion that the words “public interest” gave it a “mandate to embark on a far-reaching consideration of the public interest as a general concept.” The LAT did not accept that this Court’s use of the words “contrary to the public interest” in the 2016 decision must somehow guide the LAT’s interpretation of them, as the Divisional Court’s interpretation of those words was “not critical to its ultimate decision,” even if revealing of its disagreement with the conduct in question. It was the LAT’s view that legislative change would be required to address the situation (para. 28).

The City’s argument

[48] In the City’s submission, s. 6(2)(h) of the Act should be interpreted in such a way as to prevent applicants for liquor licenses from evading safeguards in the statutory scheme, for those safeguards represent the public interest. Relevant licensing provisions include the following:

a. Section 6(2) grants an applicant prima facie entitlement to a licence unless an enumerated exception applies;

b. Section 8(2) allows the public to object to a new liquor licence, in which case the Registrar may issue a Notice of Proposal to refuse or review the application, unless the Registrar decides the objections are frivolous or vexatious;

c. Sections 8(4), 21 and 23 require a LAT hearing on an applicant’s appeal from the decision of the Registrar with respect to the issuance of a licence. The onus lies on public objectors to establish that issuance of a licence is not in the public interest;

d. Section 23(12) permits the LAT to direct the Registrar to issue or refuse a licence, and to attach conditions that are necessary to give effect to the purposes of the Act;

e. By ss. 23(12) and 14 the LAT can impose conditions after a hearing, even without consent. To remove conditions, the licensee must apply to the LAT. If there are public interest objections to the removal of conditions, there again is a LAT hearing, at which s. 14(2) of the Act places the onus on the licensee to establish that there has been a change in circumstances that justifies the removal of conditions.

f. A failed application for a new licence on the basis of the public interest in s. 6(2)(h) prevents further applications for the same premises for two years from the date of the refusal (s. 12(3)), thus protecting residents from being worn down by repeated re-applications.

[49] The City argues that s. 6(2)(h) should be interpreted in a way that does not permit any bypassing of the protections in s. 14(2) (the onus on the applicant) and in s. 12(3) (the two-year freeze on reapplication). It argues that if its cross-appeal is not granted, there will be nothing to stop an applicant such as Powerhouse from continuing to pursue the same tactic, of operating premises under an old licence while pursuing a new licence under a different corporate structure, repeatedly until objectors are worn down and their resources exhausted. Therefore, section 6(2)(h) should be interpreted to further the goals of the legislation, regardless of its exact wording. To refuse to use such a “consequential” analysis will nullify the protections in the Act, yielding an absurd result. Accordingly, the restrictive wording that defines the public interest in s. 6(2)(h) should be read expansively, to promote the purpose of the legislation, and thwart avoidance: Sullivan on the Construction of Statutes, 6th ed. (Markham, LexisNexis), 2014, at 337, 395.

Analysis

[50] As did the 2016 panel of this Court, I agree in principle with the sentiment espoused by the City in its appeal. However, I must reject the argument. In my view, the LAT was correct to consider as obiter the comments in para. 54 of the 2016 decision concerning “contrary to the public interest.” The issue before that Court was whether the Registrar had the jurisdiction to refuse to accept Powerhouse’s licence for consideration, and not the interpretation of s. 6(2)(h) of the Act. The issue before this Court is one of statutory interpretation.

[51] The modern rule of statutory interpretation requires that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; ATCO Gas & Pipelines Ltd. v. Alberta, 2006 SCC 4, at para. 37. This rule does not extend to the ability to disregard the clear words of a provision in a statute in favour of a tortured construction, on the basis that the consequences of following the words of the statute would lead to absurdity: Bedwell v. McGill, 2008 BCCA 526, at para. 31; R. v. McIntosh, 1995 124 (SCC), [1995] 1 S.C.R. 686, at para. 34. Rather, every word in a statutory provision is to be given meaning, and should be interpreted in a way that does not frustrate the plain meaning of the legislator: Young Men’s Christian Assn. of Greater Toronto v. Municipal Property Assessment Corp., 2015 ONCA 130, at para. 14. In my view, the focus and meaning of the words in s. 6(2)(h) is clear.

[52] It is evident that the full definition of “public interest” in s. 6(2)(h) of the Act represents a legislative intent to narrow the interpretation of those words in that provision. Elsewhere in the Act and its Regulation, the words “public interest” simpliciter are used (s. 6(4.2), s. 8.1, s. 15(6), s. 19.1, and s. 34.1(e) of Reg. 719/90) and may permit a broader interpretation. The legislature must be presumed to have made a deliberate choice to circumscribe the latitude of “public interest” in s. 6(2)(h) by adding wording that immediately focuses attention on the “needs and wishes of the residents of the municipality in which the premises are located.”

[53] Another important context is dictated by s. 8(4)(b) of the Act, the Registrar’s Notice of Proposal to Review an Application. The Notice from the Registrar on Powerhouse’s application for a licence referenced s. 6(2)(h) of the Act, and not any of the other paragraphs in s. 6(2). In the Registrar’s Notice, none of the procedural issues raised now by the City or mentioned in the 2016 decision of this Court were referred to. By the terms of ss. 21, 23(10)-(12) of the Act, the LAT may direct the Registrar to carry out a Proposal in whole or in part or with any changes that the LAT considers appropriate. But the appeal is governed by the Registrar’s Notice. If a party is dissatisfied with the Notice that has been issued, its recourse is to Divisional Court to review the Registrar’s decision to issue the Notice and its terms: Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 6(1).

[54] The LAT correctly observed in its decision (para. 5) that because the Registrar issued the Notice under s. 6(2)(h) rather than under some other paragraph in s. 6(2) of the Act, the LAT’s scope for decision-making was limited to the concerns identified in s. 6(2)(h). The LAT was limited to a consideration of the impact of the proposed licence on residents in the municipality. This stance recognizes that a tribunal’s jurisdiction is limited to powers expressly granted by statutory provision or by necessary implication: ATCO Gas, at para. 38. The LAT’s caution properly reflects the Supreme Court of Canada’s concern that “public interest” conditions in administrative enabling legislation not be given overly expansive interpretations that would give a board “total discretion over its limitations”: ATCO Gas, at para. 46.

[55] Is there then no way for the City’s concerns to be considered on Powerhouse’s application for a liquor licence? At para. 28, the LAT opined that legislative change would be necessary, and it would not appear difficult to craft a provision in the Act preventing a single establishment from having more than one valid liquor licence. History suggests another option.

[56] Although past experience encourages caution here, the concerns advanced by the City may be more appropriate for consideration under s. 6(2)(d) of the Act, which limits the entitlement to a licence to sell liquor if “the past or present conduct of the persons referred to in subsection (3) affords reasonable grounds for belief that the applicant will not carry on business in accordance with the law and with integrity and honesty.” Subsection (3) refers to the applicant, an officer or director of the applicant, and a manager or operator of the business of the applicant. The wording of s. 6(2)(d) of the Act may permit the City or other objectors, on another occasion, to raise with the Registrar specific concerns about the conduct of companies controlling or managing the venue, if the City can convince the Registrar that the issues fit within the scope of s. 6(2)(d). This provision was a focus of the litigation concerning the venue in both 1996 and 2006: Docks by Cherry (Re), [1996] O.L.L.B.D. No. 159, at para. 9; Docks by Cherry (Re), [2006] O.A.G.C.D. No. 341, at paras. 2, 4, 175.

[57] In oral argument, the City argued that its position was in fact based on the full definition of the public interest in s. 6(2)(h) of the Act. It submits that the LAT erred by narrowing its own authority and failed to consider the needs and wishes of the residents of the municipality. In its decision, the LAT noted (at para. 38) that many of the Toronto Island residents gave evidence that they were not opposed to the issuance of a licence to Powerhouse, so long as the venue operator remained subject to the conditions of the 2008 licence. On the City’s argument, such evidence would permit the LAT to rule that Powerhouse’s alleged machinations to acquire a new licence (that was not subject to 2008 licence limitations) did fit squarely within s. 6(2)(h). Had the LAT interpreted the provision and evidence properly, it would have refused the licence.

[58] I do not accept this argument. It is based on a convenient reconfiguring of the City’s argument as a position representing the needs and wishes of the residents of the municipality, and it relies on evidence that is far from sufficient to ground the relief it seeks. It asks this court to order the LAT to do indirectly what the plain meaning of s. 6(2)(h), as I have discussed above, prevents it from doing directly. This would permit a boundless expansion of the meaning of “public interest” in s. 6(2)(h), subject only to the nature of objections that are made to the Registrar by residents of a municipality, and would fall afoul of the direction of the Supreme Court in ATCO Gas.

[59] In any event, the LAT stated that it did consider the relationship between the venue and residents in determining that it was appropriate to issue a licence, but with conditions. In para. 100, the LAT noted Powerhouse’s qualified right to a licence, and took into account, among other things “the long history of dealings between the various establishments operating on the site and the community.” The LAT’s assessment undoubtedly included (and appropriately so) the history of noise disturbance issues between the venue and the community.

[60] The LAT’s solution to the problem of Powerhouse’s application for a second licence for the venue was two-fold. It suggested (para. 28) that it was for the Legislature to decide if changes to the legislation were required to prevent the ills highlighted now by the City in its cross-appeal. It also decided that a licence should be issued with conditions, of which one is the subject matter of Powerhouse’s appeal. The licence that was issued, as it turns out, is not what Powerhouse wanted.

[61] In the result, the LAT made no error in granting Powerhouse a licence. It did, however, send a clear message embodying the cautionary note to be careful what you wish for.

Conclusion

[62] For the above reasons, I would dismiss the City’s cross-appeal.

II. POWERHOUSE’S APPEAL

[63] In its August 20, 2018 decision, the LAT ordered that a liquor licence be issued to Powerhouse for the venue, but it added conditions that limited the capacity at Cabana to 2,510 patrons, and directed that “[t]here shall be no amplified music on or directed towards any outdoor area or patio” (para. 115 a) and b)).

[64] Powerhouse appeals for an order directing either the removal of the condition in the licence ordered by the LAT that relates to amplified music, or that a new hearing be ordered before the LAT.

[65] Powerhouse argues that the LAT made legal errors in its decision that justify relief. Those legal errors mainly revolve around its use and interpretation of s. 46 of Reg. 719/90, a Regulation promulgated under the Act. The LAT referenced s. 46 in the context of the “public interest” inquiry pursuant to s. 6(2)(h) of the Act. For ease of reference, the two provisions read:

Section 6(2)(h) of the Act: “Subject to subsection (4) or (4.1), an applicant is entitled to be issued a licence to sell liquor except if, …(h) the licence is not in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located.”

Section 46 of Reg. 719/90: “The holder of a licence that applies to outdoor premises shall not permit noise that arises directly or indirectly from entertainment on the premises or from the sale and service of alcohol to disturb persons who reside near the premises.”

[66] In relation to s. 46 of Reg. 719/90 Powerhouse makes interrelated arguments that:

a. The LAT erred by using s. 46 to define the public interest inquiry that it undertook under s. 6(2)(h) of the Act. In so doing, the LAT failed to engage in the process required by s. 6(2)(h), which was to “balance the interests of the community residents and those of the Appellant”;

b. The LAT interpreted the word “disturb” in s. 46 in an entirely subjective manner, when it should have employed an “objective reasonable person test” in assessing whether noise is causing an “unreasonable disturbance”; and

c. The prior two errors caused the LAT to require that no local resident could ever be disturbed by noise from the venue, which skewed the balancing process in which the LAT was required to engage, and caused it to fundamentally misapprehend or ignore evidence about the nature of amplified music from the premises and the ability of the venue operator to control the noise and the impact of noise on local residents.

[67] Powerhouse also argues that its right to natural justice and procedural fairness was breached at the hearing before the LAT in that:

a. the LAT failed to keep a proper record of the proceeding before it in that recordings of two days of evidence do not exist. These were days on which portions of evidence from three Powerhouse witnesses was taken. Further, the transcripts that do exist show many missing answers and indications that answers were inaudible or indiscernible. The result is that Powerhouse has been unable to advance its appeal and show that the LAT fundamentally misapprehended the evidence in the case; and

b. Powerhouse was not given sufficient notice from the responding parties at the LAT hearing that they were seeking a complete prohibition of amplified music on Cabana as a condition of the licence.

[68] I would not give effect to any of these grounds of appeal. The LAT did not misuse s. 46 of Reg. 719/90 in its analysis of the “public interest” and did a proper analysis of the “public interest” issue based on the evidence that was before it. Moreover, Powerhouse has not demonstrated that it has been unable to advance its appeal based on any issues with the recording of evidence, and it had ample notice of the respondents’ position concerning a “no amplified music” condition.

Standard of Review

[69] As in the case of the City’s cross-appeal, the standard of review in the case of Powerhouse’s appeal of alleged errors by the LAT in determining the noise disturbance issue under s. 6(2)(h) of the Act is that of correctness. I would add here, however, that the failure to discuss a relevant factor in depth, or even at all, is not sufficient to permit a reviewing court to reconsider the evidence, unless the reviewing court arrives at a reasoned belief that the hearing tribunal forgot, ignored, or misconceived evidence in a way that affected its conclusion: Housen, at para. 39.

Use of s. 46 of Reg. 719/90 to define the test under s. 6(2)(h) of the Act

[70] As a preliminary matter, Powerhouse argues that s. 46 of Reg. 719/90 is an inappropriate consideration in the analysis under s. 6(2)(h) of the Act, as s. 46 is a condition that attaches to all licenses after they are granted. Powerhouse claims to advance a “contextual analysis” from the Act and the Regulation to bolster this argument:

a. Section 46 of Reg. 719/90 refers to “the holder of a licence for outdoor premises”, indicating it applies after a licence has been granted, while section 6(2)(h) of the Act, on the other hand, looks to whether an applicant should be permitted to receive a licence [emphasis added];

b. Section 22 of Reg. 719/90 states that sections 23 to 56 of the Regulation apply with respect to “liquor sales licenses”, but does not mention the public interest inquiry under s. 6(2)(h) of the Act; and

c. Section 6(2)(h) of the Act is part of a scheme to protect public health and welfare by regulating the consumption of alcohol, by requiring those who would sell liquor to first obtain a licence, a process under the control of the Registrar. Noise regulation is not part of the Registrar’s primary functions. Section 46 of the Regulation is only a “limited enforcement tool” to be used by the Registrar on a case-by-case basis once a licence is issued.

[71] I reject these arguments. In my view, the distinction between noise issues that can be anticipated during the inquiry into the issuance of a licence and noise control at premises to which a licence has been issued is artificial and nonsensical. The issues are two sides of the same coin and cannot reasonably be considered in isolation from each other. As the Ontario Court of Appeal explained in Major Mack Hotel v. Ontario (LLB), [1999] O.J. No. 1418 (C.A.), at paras. 13-16, outdoor noise and other matters covered by various sections in the Regulation are relevant considerations under s. 6(2)(h) “on an application for a licence as well as on a proposal to revoke a licence”. No purpose is served in hiving off the one from the other. I note as well that s. 46 was previously used as a tool to interpret s. 6(2)(h) and revoke a liquor licence in Docks by Cherry (Re), [2006] O.A.G.C.D. No. 341, at paras. 174-176.

[72] Section 46 of Reg. 719/90 is an entirely appropriate tool to use in determining the content of the public interest with respect to noise issues under s. 6(2)(h).

Noise that disturbs

[73] Powerhouse argues that the LAT made a critical error in its decision by using s. 46 of Reg. 719/90 to “define the public interest enquiry”, and thereby to require Powerhouse to prove that music from the premises would “never disturb any resident of the Toronto Island Community.” According to Powerhouse, by using s. 46 of Reg 719/90 with its focus on noise that “disturbs,” the LAT imported a subjective standard into an inquiry that demanded an objective and balanced analysis.

[74] In Powerhouse’s argument, this subjectivity is shown by the LAT’s assertion (in para. 42) that “s. 46 places an onus on A to ensure that, if A wants to have loud music in an outdoor licensed area, A must do so in such a manner that B is not disturbed, period.” It also points to the LAT’s conclusion (in para. 109) that “[r]eviewing all the noise evidence we are left in doubt if it is possible for the appellant to implement a workable protocol to ensure that noise from Cabana does not disturb the residents of the island community.”

[75] Powerhouse appears to argue that the test should focus on “noise that is likely to disturb”, which it calls an objective standard, rather than on “noise that disturbs” as constructed by s. 46, as the word “disturb” is capable of idiosyncratic subjective interpretations, depending on the sensibilities of the individual auditor. According to Powerhouse, in applying a subjective standard from s. 46 of Reg. 719/90, the LAT fundamentally erred, as noise issues have historically required an objective legal analysis.

[76] I disagree with Powerhouse’s construction of this issue. Not only does the jurisprudence cited by Powerhouse not support its position, but when the LAT’s decision is read in its entirety, it is clear that the LAT employed an appropriate objective analysis in considering the issue of noise disturbance.

[77] In support of its argument with respect to a “likelihood” requirement for an objective legal standard with respect to noise disturbance issues, Powerhouse refers to the decision in R. v. Highland Packers Ltd., [1978] O.J. No. 658 (Div. Ct.), which, it argues, held that it was an error to use a subjective standard in determining whether noise caused a disturbance. Respectfully, Highland Packers offers no assistance to Powerhouse. Rather, the decision merely states (at paras. 5-10) that when enabling legislation permits municipalities to enact by-laws to prohibit noise “likely to disturb,” a municipality exceeds its jurisdiction by passing by-laws that prohibit “noise that disturbs.” Similarly distinguished are other cases cited by Powerhouse that likewise hinge on the additional word “likely” in the enabling or governing legislation: Jaukovic v. The Blue Mountains (Town), 2002 49417 (ON SC), [2002] O.J. No. 182 (Sup. Ct.); Toronto (City) v. Hard Luck Inc., 2015 ONCJ 51. “Disturbance,” not “likelihood of disturbance,” is the appropriate focus.

[78] The LAT began its analysis of the “public interest” by instructing itself on the proper approach to take. At paras. 19 and 36 of its decision, the LAT referred to the public interest test from Matador Corp. (c.o.b. Matador Ballroom) (Re), [2015] O.L.A.T.D. No. 265, at para. 132, as requiring a balancing exercise that weighs the interests of community residents and a licence applicant. The onus to dis-establish the applicant’s qualified right to a licence lay on objectors. The nature of that balancing is inherently objective:

In assessing the needs and wishes of the residents, the Tribunal must consider the totality of the evidence to determine if their concerns are bona fide, which includes determining whether these concerns are supported on a valid and objective basis.

[79] For its argument that the LAT, after citing this test, nevertheless applied a subjective standard, Powerhouse points to the evidence of City witness Dalila Giusti, a sound expert. The LAT referred at para. 41 to this witness’ evidence that she found the word “disturb” too subjective, in that neighbours might be disturbed by music they did not like, if it was played at any volume. Therefore, Ms. Giusti opined that “disturb” should involve a definition that limited noise during sleeping hours, so that neighbours could at least “enjoy a night’s sleep”.

[80] The LAT did not agree with how the issue was constructed by Ms. Giusti, or in setting “some arbitrarily reasonable time” by which the noise must stop. Rather, in a passage impugned by Powerhouse, the LAT viewed s. 46 of Reg. 719/90 as requiring that loud music on outdoor premises not “disturb” its neighbors: “The focus is on the impact of the noise on” a neighbor (para. 42). A review of the LAT decision demonstrates that the LAT was scrupulous to give objective content to its interpretation of the word “disturb” in s. 46 of Reg. 719/90, in its assessment under s. 6(2)(h) of the Act. My reading of the decision allows me to conclude that by looking for “bona fide” concerns, the LAT was careful to ensure that there was evidence of sufficient weight to give objective force to the evidence that it heard from residents.

[81] I do not agree with Powerhouse’s further submission that the LAT’s conclusion in para. 109 (above, para. 74) effectively placed an onus on Powerhouse to establish that no noise from the venue would be heard by the residents on Toronto Island. This is to take passages from the decision out of context and make claims that are not supported by the evidentiary record. The issue was not simply “noise” but “noise disturbance”. Powerhouse’s argument ignores the substantial evidence put forward by the City and the objectors that was considered in the LAT’s decision about noise, noise disturbance, and the effect of noise on neighbouring residents.

[82] In its decision, the LAT used the words “disturb” or “disturbance” in discussions of the noise evidence. Its usage of these words gives content and meaning to its understanding of the term “disturb” in s. 46 of Reg. 719/90 and its connotation. It is apparent that the LAT’s consideration of “disturb” was not at all focused on personal idiosyncrasies as had been the concern of Ms. Giusti and Powerhouse’s submission, but rather on situations that reasonably and severely affected Toronto Island residents:

a. In paras. 32 and 34, the LAT accepted as evidence of the needs and wishes of the residents the resolution of Toronto City Council opposing the issuance to Powerhouse of a licence, as not being in the public interest, pursuant to s. 7.1(1) of Reg. 719/90;

b. In paras. 49-51, the LAT carefully assessed the bona fides of Toronto Island residents and their noise logs, which were central to the LAT’s factual findings concerning noise disturbance. The LAT commented on the care taken by residents to ensure that the venue was the source of the noise disturbances they experienced;

c. In para. 51, the decision speaks of noise incidents that disturbed residents from 2013 onwards, clustering around celebrity DJ events at Cabana. The evidence was of aspects of thumping bass, the amplified voice of a DJ, crowd noise, and music in general disturbing Toronto Island residents;

d. The impact of the noise often drove people inside on summer weekends instead of allowing them to enjoy the fresh air outside. A witness described no longer being able to enjoy her newly built sound-insulated house on Toronto Island because of noise issues (para. 52);

e. The LAT found, concerning evidence of noise experienced on Toronto Island: “Viewing the evidence of the noise logs in its totality, we are satisfied that the operation of the Cabana Pool Bar has been a source of noise disturbance to residents of the Island community.” The noise had been “sufficiently disturbing” to deny residents the right to enjoy their gardens and outdoor areas during summer evenings when Cabana was operating (para. 54);

f. At para. 103 the LAT stated that the “major irritant for the residents of the Island community is sound from the Cabana Pool Bar”. It rejected Powerhouse’s subjectivity argument that residents had become “more sensitive” to noise because of difficulties with prior owners of the venue. As the LAT saw it, this argument “ignores the copious evidence led by TINC about the impact of Maya Corp’s operation on the Island community. It was not an echo from The Docks that drove people indoors, it was noise from Cabana Pool Bar”.

[83] A brief examination of the LAT’s assessment of issues of noise to the north of the venue and how noise might affect future developments near the venue demonstrates that the LAT was concerned to consider only objectively sustainable concerns.

[84] With respect to noise experienced by those living north of the venue, the LAT found the evidence to be unsatisfactory. The LAT described one witness’ evidence as “not specific”. A YQNA representative testified to never having been herself disturbed by noise from the venue, though having heard of others who had been. Two witnesses described a few occasions of experiencing noise or vibrations, though one of them admitted that sound from the venue was “unusual”. City Inspectors who attended north of the venue in response to complaints from Toronto Island residents described hearing no sound on the street. Overall, the LAT found that the impact of noise in this area was “scant” (paras. 62-68).

[85] Likewise, the LAT declined to take into account the issue of noise disturbance that could be expected for residents of future developments in areas near the venue, holding that the evidence of potential effect on those who might reside in these developed areas was “completely speculative” (paras. 69-76).

[86] In conclusion, I see no basis for Powerhouse’s claim that the LAT applied an improper subjective standard in assessing s. 6(2)(h) of the Act. It is apparent that far from using a subjective standard to define the kinds of “disturbance” intended to be caught by s. 46 of Reg. 719/90, the LAT was drawn to evidence of noise that, in its totality, was objectively capable of disturbing anyone. The LAT’s importation of standards from s. 46 of Reg. 719/90 was appropriate and correctly applied.

A balanced approach

[87] Powerhouse complains that the LAT’s subjective analysis caused it to fail to conduct a balanced analysis regarding the “public interest” under s. 6(2)(h), leading it to fundamentally misapprehend or ignore evidence about the positive response of many persons to the venue, the nature of amplified music from the venue and the ability of the venue operator to control the noise and its impact on nearby residents. According to this argument, the LAT must have failed to appropriately balance the competing interests at play because it imposed a condition prohibiting outdoor music in the face of evidence that outdoor music “was not universally opposed” and that the venue “could be operated” without causing a disturbance, and indeed had been so operated from 2008 to 2013.

[88] It would appear that by this argument Powerhouse asserts that the LAT’s subjective assessment of the “public interest” caused it to disregard evidence that favoured Powerhouse, including the venue’s efforts to control noise.

[89] I would not give effect to this argument.

[90] At para. 37 of its decision, the LAT clearly stated its duty to “look at the objections and concerns raised and balance them against the appellant’s qualified right to a licence.” I have already considered how the LAT instructed itself in its task in assessing the “public interest” in s. 6(2)(h) to consider the totality of the evidence to determine if objectors’ concerns were bona fide and validly and objectively supported, and to balance objections against Powerhouse’s qualified right to a licence.

[91] The LAT took into account that the many invitees who attended the venue and the success of its events were proof that “a substantial number of community members” supported the venue’s entertainments (para. 35). The LAT acknowledged that such interests were to be accounted for in determining what was in the public interest: Ontario Historical Society (Re), [2007] O.L.A.T.D. No. 61, at para. 71. Moreover, the LAT also noted that residents expressed a measured position that they were not opposed to the venue if it would stick to the conditions in the 2008 licence so that their “quiet enjoyment of their property can be protected” (para. 38).

[92] And indeed, the LAT considered in some detail the noise control efforts by management of the venue relating to noise at the venue, including the following aspects of the evidence:

a. It observed that for five years after the 2008 licence was issued there were few noise complaints by residents (para. 48);

b. It noted that the 2008 licence contained conditions that noise not be audible on Toronto Island and that Maya Corp. maintain a monitor on Toronto Island to advise if noise was audible (para. 55);

c. The LAT placed some responsibility for the difficulties experienced by residents on TINC for not properly alerting Toronto Island residents to the appropriate means of dealing with noise issues. Complaints to the City and the Registrar led to formal investigations that did little to alleviate immediate concerns (paras. 56-58);

d. Thomas Rutherford, the Toronto Island noise monitor, was sympathetically presented as a man who wanted to help Island residents by doing his part to monitor noise and who was generally diligent in alerting the venue to get the sound turned down (para. 59);

e. Jason Chan’s evidence was covered in a balanced fashion. His own logs showed that he attended to reports of noise from the monitor, reported issues, and sought to reduce noise. However, sound technicians did not always do anything about Mr. Chan’s requests, though by the time of the hearing they had been instructed to be responsive to complaints (para. 60). Moreover, there was evidence of sound briefly turned down, only to be turned up again, and of “a particularly damning email” in which Maya managers ordered the sound turned up again (para. 61).

[93] Although the LAT considered evidence of the venue’s strategies for noise reduction to balance its concerns about noise disturbances, it noted at para. 105 that it was hindered in dealing with the amplified noise issue by Powerhouse’s failure to produce expert evidence about the effectiveness of its noise control efforts. There was also no evidence offered to counter the expert opinions of Ms. Giusti.

[94] This was the only burden placed on Powerhouse by the LAT, and it was merely an evidentiary one based on the issues in the case. Powerhouse witness Themmy Pappas had described his intended use of smaller speakers at Cabana angled to reduce noise and of control mechanisms to prevent DJs from turning up the volume. However, there was no evidence as to the effectiveness of these modifications, and the LAT referred back to the Registrar’s decision from July 24, 2006 concerning the venue (when it was The Docks) in which similar technological efforts had been made to reduce noise, but as it turned out, to little effect (paras. 106-107).

[95] After the LAT had reviewed all the evidence about noise reduction, it expressed (in para. 109) its doubt that Powerhouse could implement “a workable protocol” to ensure that noise from Cabana did not disturb residents in the Toronto Island community. The LAT held that the current monitoring system had been effective on occasion, but that it had also been ignored by the venue or by DJs. No testing for effectiveness had been conducted on Mr. Pappas’ new sound system: “We know its design and its aims but not its effectiveness.”

[96] Powerhouse’s argument about a skewed exercise by the LAT in conducting the balancing required of it is not made out on a plain reading of the LAT’s decision. There was significant evidence of noise disturbance to residents of Toronto Island, and of deeply flawed noise control efforts by the venue. An untested new sound system, the enjoyment of the venue by its visitors, and the reasonable tolerance expressed by some residents could not overcome the respondent objectors’ evidence. Accordingly, the LAT imposed the “no amplified music” condition on the licence.

Other Powerhouse complaints

[97] In its diffuse submissions, Powerhouse also complains that the evidence of Ms. Robinson from TINC of the many sources of uncontrolled noise to which Island residents were subjected demonstrates that the refusal to permit all amplified music at Cabana is draconian and unfair, and holds Powerhouse to a “higher standard” than other premises. I reject this argument as irrelevant and purely rhetorical. Many of the other sources of noise about which Ms. Robinson spoke, such as rail traffic, the Billy Bishop Airport and the Gardiner Expressway, are not similarly subject to the strictures of conditions attaching to a liquor licence, and other licensed premises and evidence about their own operations were not issues before the LAT: see, e.g., QII (Bacchus Lounge)(Re), [2003] O.A.G.C.D. No. 283, at para. 33.

[98] However, contrary to Powerhouse’s assertions, the condition restricting outdoor music is not unique to the venue. There are many examples of liquor licenses granted to premises with conditions prohibiting outdoor amplified music or sound: see, ee.g., QII (Bacchus Lounge)(Re), [2003] O.A.G.C.D. No. 283, at para. 42; 2340054 Ontario Inc. (c.o.b. Marquis of Granbury Pub)(Re), [2014] O.L.A.T.D. 107, at para. 73; 2148855 Ontario Inc. (c.o.b. Margaret)(Re), [2009] O.A.G.C.D. No. 326, at para. 71; 7th Wave Bistro (Re), [1998] O.A.G.C.D. No. 326, at para. 62; Greene Slate Inn (Re), [2006] O.A.G.C.D. No. 633, at para. 48; 2034233 Ontario Inc. (c.o.b. Inter Steer Restaurant), [2009] O.A.G.C.D. No. 130, at para. 78; Andy Poolhall Inc. (c.o.b. Andy Poolhall), [2008] O.A.G.C.D. No. 299, at paras. 178-179; Wellington St. Tartan Pub & Grill (Re), [2005] O.A.G.C.D. No. 339, at para. 30; Bert n Ernie’s Fun Food Eatery (Re), [2001] O.A.G.C.D. No. 2, at para. 40; 2109889 Ontario Inc. (c.o.b. Harlem 1920)(Re), [2008] O.A.G.C.D. No. 264, at paras. 34-35; Brydec Consulting Corp. (Re), [2008] O.A.G.C.D. No. 201, at paras. 28-29; Black Cat Pub and Grill Inc. (c.o.b. Black Cat Pub and Grill)(Re), [2011] O.A.G.C.D. No. 108, at paras. 96-97; Pastizza Corp. (c.o.b. Pastizza)(Re), [2013] O.L.A.T.D. No. 251; RJ’s Boom Boom Saloon (Re), [1997] O.L.L.B.D. No. 479, at para. 35.

[99] Powerhouse further complains that the LAT should have used in conditions on the licence the objective standards found in noise guidelines within the Toronto Municipal Code Chapter 591, which are based on durations of amplified music and decibel levels that are capable of measurement by a sound level meter. The LAT (in para. 83) held that such a standard did not address the real question, which was: “given all the evidence of noise disturbing residents of the Island, is amplified music at [Cabana] in the public interest?” In my view, this was the proper focus for the LAT, and I reject Powerhouse’s argument as seeking to attach an irrelevant regime of noise control to the liquor licensing scheme. As s. 46 of Reg. 719/90 has already been determined to be appropriate guidance for determinations under s. 6(2)(h) of the Act, I do not accept that a potentially more permissive standard in the Toronto Municipal Code offers a suitable or appropriate alternative.

[100] Powerhouse also submits that the LAT’s focus on the 2008 licence as an interpretive tool is misplaced and an error. At para. 102 of the decision, the LAT described the 2008 licence and conditions as “a strong statement of the public interest as it applies to” the venue, and the balance struck between the Island community and the venue. It stated that the intent of that agreement should be maintained unless a condition is not working, or new concerns have been identified. Powerhouse asserts that the LAT viewed the 2008 licence as providing that “no noise should be heard from [the venue] on the Island” (App. factum, at para. 54).

[101] I do not accept that this approach by the LAT was erroneous. As I have already discussed, the LAT’s concern was on noise disturbance on Toronto Island, and not simply noise. The LAT decision tracks both the overwhelming evidence of noise disturbances, and the significant failures of the venue to control those disturbances for a variety of reasons, all while the venue was bound by the conditions of the 2008 licence that permitted some noise on the patio but required noise mitigation efforts to limit audible sound from the venue on Toronto Island.

[102] It was only after the LAT had reviewed all of this evidence that it concluded that there must be a condition prohibiting amplified noise. I find no error in how the LAT reached this conclusion. Noise mitigation efforts by the venue, as required by terms of the 2008 licence, had failed to curb noise disturbances, and the LAT correctly concluded that the venue simply could not bring an end to or control such disturbances on the evidence that was before it.

[103] The condition of “no amplified music” was an appropriate addition to the venue’s licence.

Natural Justice: The Record

[104] On Powerhouse’s argument, the LAT “fundamentally misapprehended the evidence before it” in imposing an unreasonable condition on its liquor licence. Powerhouse complains, however, that it is unable properly to prosecute its appeal as a result of a missing or defective record, and that it is therefore entitled to a new hearing. Moreover, it argues that the situation was aggravated by the LAT’s promise that the proceedings would be recorded.

[105] Missing from the record are recordings of two days of Powerhouse evidence, including the re-examination of witness Tony Grossi, the examination-in-chief of Jason Chan, and the entire testimony of Thomas Rutherford. In many places in the transcripts that have been made, short passages of evidence have not been transcribed, and have been noted as inaudible or indiscernible. These defects and gaps in the record, according to Powerhouse, raise a “serious possibility” that Powerhouse cannot adequately prosecute an appeal of this ground, therefore depriving Powerhouse of natural justice and necessitating a new hearing.

[106] The question for this court is: “is there a serious possibility that Powerhouse is unable to advance a ground of appeal that the LAT materially misapprehended Powerhouse’s evidence, as a result of issues with the record of the case that was presented before the LAT?”

[107] I would answer this question in the negative and reject this ground of appeal.

Right of appeal

[108] Powerhouse has the right to appeal to this court from a decision of the LAT only with respect to errors of law: Licence Appeal Tribunal Act, s. 11(1).

[109] In this case, Powerhouse asserts that the LAT fundamentally misapprehended Powerhouse’s evidence. Such an error of fact can only amount to an error of law if a tribunal completely misapprehends evidence or completely fails to take relevant and important evidence into account: Shooters Sports Bar v. Ontario (Alcohol and Gaming Commission) (2008), 2008 25052 (ON SCDC), 238 O.A.C. 9 (Div. Ct.), at para. 38.

Standard of Review

[110] With respect to allegations of breach of procedural fairness, there is no standard of review analysis. Rather the reviewing court must determine whether the requirements of procedural fairness have been met: Brooks v. Ontario Racing Commission, 2017 ONCA 833, at para. 5. In making this determination in the administrative law context, courts should adopt a deferential attitude towards the choice of procedures adopted by a tribunal, particularly where legislation leaves to a decision-maker with expertise in an area the ability to choose its own procedure: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 27; Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, at para. 231; Rogers Communications Partnership v. Ontario Energy Board, 2016 ONSC 7810, at paras. 17-18.

Transcripts and administrative tribunals

[111] By governing legislation and at common law, the LAT may keep a transcript of proceedings, but is not required to do so: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 20(e); Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, s. 6(3); 168774 Ontario Inc. v. Registrar of Alcohol and Gaming, 2017 ONSC 3579 (Div. Ct.), at para. 15; Canadian Union of Public Employees, Local 301 v. Montreal (City), 1997 386 (SCC), [1997] 1 S.C.R. 793, at paras. 75-76.

[112] Even so, the absence of a complete transcript of a hearing can result in a denial of natural justice if there is the “serious possibility” that it prevents an appellate court from being able to consider a ground of appeal. The issue is whether the record that is before the appellate court still permits it to properly dispose of the appeal. This is so, even if the tribunal promised to make a recording of the proceeding: Canadian Union of Public Employees, Local 301, at paras. 72, 81. The onus of demonstrating the serious possibility that a ground of appeal cannot be pursued lies on the appellant: 168774 Ontario Inc. (c.o.b. Swazzees Restaurant and Bar) v. Ontario (Alcohol and Gaming Commission, Registrar), [2017] O.J. No. 2967 (Div. Ct.)(“Swazzees”), at para. 15(d).

[113] Moreover, it is not enough simply to raise the mere possibility of prejudice from the failure of the record; hypothetical or speculative possibilities of prejudice do not suffice: Advocacy Centre for Tenants Ontario v. The Landlord and Tenant Board, 2013 ONSC 7636 (Div. Ct.), at para. 8. This aligns with the principle that where a breach of procedural fairness is “inconsequential, trivial or merely technical in nature”, a request for a rehearing may properly be denied: Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856, at paras. 66-67. In other words, something more than a mere generalized claim of prejudice is required: Aliai v. Canada (Minister of Citizenship and Immigration), 2017 FC 82, at para. 23.

[114] Aspects of an appeal or the record on appeal can obviate the need for a full transcript. Where the right of appeal is limited to questions of law, the absence of a transcript of evidence is unlikely to deprive parties of the ability to argue a ground, particularly when the tribunal has provided full reasons for its decision: Billion v. Vaillancourt, 2016 ONSC 5820 (Div. Ct.), at para. 7; 554846 Ontario Ltd. (c.o.b. as the Wine Cellar U-Brew) v. Ontario (Alcohol and Gaming Commission), [2004] O.J. No. 438 (Div. Ct.), at para. 2. Prejudice from gaps in the recording of evidence can be compensated for by evidence summarized in submissions from a party in support of its position: Swazzees, at para. 15(c).

Discussion

[115] In its submissions to this court, Powerhouse states that the LAT “fundamentally misapprehended the evidence before it, especially in regard to the nature of amplified noise from the premises, the ability of the venue operator to control noise, and the impact of the noise on the Objectors (or some of them)” (App. Factum, para. 65). It asserts that the evidence of the missing witnesses was somehow “critical” to its case on these issues, and it seeks to offer “fresh evidence” in the form of an affidavit from its counsel before the LAT attesting to the importance of the unrecorded evidence of witnesses Rutherford, Chan, and Grossi in relation to these issues.

[116] But it offers no content to these claims. The nature of what these various witnesses had to say is offered in various sources on the record before this court and in the detailed decision of the LAT. I would note the following:

a. The LAT was hardly oblivious to the evidence of Mr. Rutherford and Mr. Chan. It considered Mr. Rutherford’s evidence specifically at paras. 59 and 61 of its decision. Mr. Chan’s evidence features in para. 60 and in para. 61. This is in the section of the decision entitled “The Monitoring System” (paras. 55-61), and relates specifically to the venue’s noise control efforts;

b. Powerhouse’s extensive written submissions of January 19, 2018 on the hearing before the LAT are part of the record before this court. I can only believe that counsel for Powerhouse in his written submissions to the LAT put forward his case at its highest for consideration by the tribunal. Those submissions stretch to 106 pages. The submissions from responding parties totalled a further 132 pages;

c. Of all those pages of Powerhouse’s submissions to the LAT, pages 86 to 93 focus on the evidence of Powerhouse witnesses. Mr. Chan’s evidence as a lynchpin of Powerhouse’s case boils down to a claim that his job has “evolved” from one in which he receives complaints from the monitor and asks that the sound be turned down, to one in which he can demand that sound be turned down (pages 89-90 of the submission). Indeed, para. 60 of the LAT decision offers deeper analysis of Mr. Chan’s evidence than does Powerhouse’s submission;

d. Mr. Rutherford’s contribution to Powerhouse’s case (page 90 of the submission) was stated to be his devotion to his task of helping to alleviate the sound concerns of Toronto Island residents from within the community even in the face of their hostility to him. This submission informs the discussion of Mr. Rutherford’s evidence in the LAT decision. Mr. Rutherford’s place in that submission and the LAT decision are virtually co-extensive;

e. Powerhouse complains that the re-examination of witness Tony Grossi is entirely missing. I would note that re-examination evidence by its very nature can hardly be vital to the case that Powerhouse was presenting, as such evidence is only permitted in response to unanticipated matters raised in cross-examination. Nevertheless, in its submission (pages 86-89), Powerhouse describes Mr. Grossi’s evidence as showing the efforts that have been made, some of them historical, to put a Toronto Island monitor in place and to ensure that money is spent on staffing, renovations, and speaker placement, all to ensure that noise is reduced. All of these issues were discussed in the LAT decision.

[117] For the sake of completeness, I note that nowhere in its Factum does Powerhouse assert that anything from the evidence of Powerhouse sound technician Themmy Pappas was lost or ignored or misconstrued by the LAT. Indeed, Powerhouse’s submissions regarding this witness’s efforts at noise attenuation on the Cabana patio are faithfully reflected in the LAT decision.

[118] The difficulty for Powerhouse in the LAT decision does not appear to lie in what was omitted by the LAT, but in what was not offered in evidence by Powerhouse and in the facts that were developed by opposing parties from Powerhouse witnesses. Mr. Chan’s testimony brought with it evidence that sound technicians at the venue had not felt bound to accept Mr. Chan’s direction about turning down the sound. There was evidence of the sound being turned down, and then being turned back up, even at the direction of management of the venue (para. 61). Moreover, the LAT was unable to accord much weight to the evidence of Mr. Pappas, as there was no evidence that his efforts at limiting noise spillover from the Cabana patio had been tested or certified by someone with expertise to determine their effectiveness (para. 105).

[119] What is entirely lacking in Powerhouse’s submission to this court is anything beyond the mere conclusory assertion of the vital importance of any missing days of recording or of inaudible portions of the recordings that were made. The onus lies on Powerhouse to satisfy this court regarding the centrality of missing evidence to an issue so as to show that the missing evidence raises a serious possibility that it is prevented from prosecuting a ground of its appeal.

[120] Powerhouse offers no suggestion of the factual details in relation to which evidence was misapprehended or ignored. It does not seek to demonstrate how those facts fit into its arguments in its case before the LAT, or the place of such facts in the decision that the LAT had to make, and the realistic possibility that such facts, had they been taken into account, might have affected the decision. Facts persuade. It is not sufficient to assure us that we will enjoy the meal. Rather, give us the recipe and the ingredients, and permit us to cook it ourselves. Powerhouse’s written submissions before the LAT must be presumed to contain reference to the relevant evidence in support of its arguments, and those submissions demonstrate that the LAT was responsive to Powerhouse’s issues.

The fresh evidence

[121] Powerhouse seeks to adduce fresh evidence on this appeal in the form of an affidavit of Richard Kulis, former counsel for Powerhouse at the LAT hearing, and now retired.

[122] Powerhouse asserts that this evidence is receivable as relevant to the validity of the trial process, as confirming what evidence is missing, what the missing evidence contained, and how it was germane to issues at the hearing and before this court. Powerhouse argues that the unrecorded evidence favoured its position and told against any “no amplified music” condition. It asserts that the fresh evidence will permit this court to find that there is a serious possibility that Powerhouse is prevented by the state of the record from pursuing its ground of appeal that the LAT fundamentally misapprehended its evidence.

[123] I would not receive this evidence.

[124] The guiding decision concerning fresh evidence remains R. v. Palmer and Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, whose four criteria for admissibility of fresh evidence are often cited. The fresh evidence should not be admitted if by due diligence it could have been put forward at the original hearing; the proposed evidence must be relevant as bearing upon a potentially decisive issue; it must be credible; and if received, it must be capable of affecting the result.

[125] Concerning the fresh evidence, I observe that the affidavit of Mr. Kulis promises much, but says very little:

a. At para. 10, he claims that the non-recorded evidence of Mr. Rutherford, Mr. Chan, and Mr. Grossi, “rebutted or put in perspective the complaints of the Island residents about sound coming from the premises.” He does not assert any particular portions of that evidence that the LAT neglected to take into account in its decision;

b. At paras. 11-17, Mr. Kulis discusses generally the evidence of Mr. Rutherford, which offers some further detail than his submissions to the LAT, but nothing of which the LAT was apparently unaware. Mr. Kulis was particularly concerned with Mr. Rutherford’s evidence that “sounds were generally reduced in short order,” which was considered by the LAT, but smothered by evidence of the venue’s frequently ineffective or half-hearted strategies with respect to noise;

c. At paras. 18-22, Mr. Kulis discusses the evidence of Mr. Chan, with even less detail than in his submission to the LAT or than what the LAT included in its decision;

d. At para. 26, Mr. Kulis discusses the re-examination of Tony Grossi, which I repeat in its entirety:

During re-examination Mr. Grossi clearly demonstrated an understanding of the Island residents concerns and was particularly imaginative in developing measures to effectively address these concerns. The loss of Mr. Grossi’s re-examination is significant. Without the re-examination the reviewing court will be left with an incomplete and inaccurate record of the evidence for Powerhouse;

e. At para. 28, Mr. Kulis opines that Powerhouse’s efforts to prevent sound from reaching Toronto Island residents were “bona fide and successful”, without any indication of what those efforts were that the LAT ignored.

[126] I need refer here only to the fourth factor in the Palmer test. In my view, the evidence in the affidavit of Mr. Kulis could not have affected the result, as there is no indication in that evidence that the LAT misapprehended or disregarded any evidence of significance from the testimony of Mr. Rutherford, Mr. Chan, or Mr. Grossi, regardless of lapses in the record of proceedings. Mr. Kulis’ opinions about the importance of that evidence, or his admiration for the exercise of Mr. Grossi’s imagination to deal with the noise issue, are of no value or assistance without their basis: R. v. Council of Canadians, 2015 ONSC 4219, at paras. 7-9.

[127] Accordingly, I would dismiss Powerhouse’s application to admit fresh evidence on this appeal.

Conclusion on the issues relating to the record

[128] Powerhouse has done no more than show the speculative possibility of some prejudice from the incomplete record, and that only in relation to the evidence of its witnesses which has not been recorded. No argument was even advanced about those portions of transcripts that were unintelligible. The fresh evidence offers no further assistance on this score. I am unable to conclude that there is any possibility, let alone a serious possibility, that Powerhouse has been denied a ground of appeal as a result of portions of the record of the proceeding before the LAT being unrecorded or poorly recorded: see, e.g., Swazzees, at paras. 12-15; Bart v. McMaster University, 2016 ONSC 5747, at paras. 175-176. Rather, it is clear from an examination of the LAT’s thorough decision that it was soundly based on all the evidence that was before it. Powerhouse has not shown neglect or misapprehension by the LAT of any of its evidence or its arguments in arriving at its decision, and the LAT’s pathway to its conclusion that the “no amplified music” condition was necessary, is clear.

Natural Justice: Notice of the respondents’ proposed condition

[129] Powerhouse complains that it was not afforded fair or reasonable notice of the “alternative” position taken by TINC and YQNA. It was the position of each that if the LAT did grant Powerhouse a liquor licence, a condition for no amplified music on the patio should be added to that licence. Powerhouse asserts that this position was only advanced by these parties after the close of evidence, and that it therefore had no sufficient opportunity to respond or lead evidence about the effect of such a condition on its business at the venue.

[130] I reject Powerhouse’s argument on this point.

[131] Civil lawsuits are to be decided based on what parties have indicated in their pleadings, evidence, or stated positions. This rule ensures that moving parties know the case that they must meet and that they are given a fair opportunity to meet that case: Colautti Construction Ltd. v. Ashcroft Development Inc., 2011 ONCA 359, at para. 42; Labatt Brewing Company Limited v. NHL Enterprise Canada, L.P., 2011 ONCA 511, at para. 5.

[132] The hearing of this matter before the LAT consumed 17 days, from March 2017 through September and November. Powerhouse did not open its case until September 11, 2017, the eleventh day of the hearing. As early as March 20, 2017, the first day of the hearing, counsel for YQNA stated its position that if the LAT granted a licence to Powerhouse, “the only condition that would work … is that there be no outdoor amplified music. So that’s our alternative position” (Transcript, Vol. 1, p. 24, ll. 11-14). The process before the LAT does not include pleadings; this opening statement by YQNA was its earliest formal opportunity to make its position known.

[133] Moreover, this position also came up in the evidence of TINC witness Lynn Robinson, who testified on June 14, 2017 that if the LAT granted a licence, she would “argue for no amplified outside sound at all” (Transcript, Vol. 2, p. 612, ll. 13-14). The testimony of Registrar witness Sgt. Heather Thompson of the O.P.P. also encouraged a condition that there be “no amplified sound on or directed to an outdoor patio” (Transcript, Vol. 4, p. 1481, ll. 1-10), which would be acceptable to the Registrar as an enforceable condition.

[134] Powerhouse therefore had some six months in which to consider and prepare to respond to submissions for the condition for “no amplified music”, which was offered in opening submissions by counsel for YQNA, and in evidence led by at least two other parties long before Powerhouse was called upon to open its case and respond. It received fair and sufficient notice of the condition that was sought in the alternative by YQNA and TINC, and imposed by the LAT. Moreover, if Powerhouse truly felt prejudiced by the manner or timing of the proposals for the “no amplified music” condition, there are no indications in the record before this Court that it made any efforts to address its concerns before the LAT by way of a motion to reopen and lead further evidence.

[135] I can only conclude that Powerhouse had reasonable notice that the responding parties planned to seek a “no amplified music on the patio” condition well in advance of closing submissions.

Conclusion

[136] For these reasons, Powerhouse’s appeal of the licence with conditions ordered by the LAT on August 20, 2018 is dismissed.

Costs

[137] With respect to costs, the LAT, YQNA, and the Registrar seek none. The City, Powerhouse, and TINC each agree to fix their costs at $20,000, all-inclusive. Accordingly, the costs for Powerhouse and the City are offsetting on their unsuccessful appeals. Powerhouse will pay TINC $20,000 costs, all-inclusive, as the successful respondent on its appeal.

A.D. Kurke J.

I agree ________________________________

L.A. Pattillo J.

I agree ________________________________

M.A. Penny J.

Released: June 14, 2021