CITATION: D. Michael Goldlist v. Registrar, Alcohol, Cannabis and Gaming Regulations and Public Protection Act, 1996 2022 ONSC 2505
DIVISIONAL COURT FILE NO.: 296/21
DATE: 20220427
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McWatt A.C.J.S.C.J. and Backhouse and P. Sutherland JJ.
BETWEEN:
D. MICHAEL GOLDLIST
Appellant
– and –
REGISTRAR, ALCOHOL, CANNABIS AND GAMING REGULATIONS AND PUBLIC PROTECTION ACT, 1996
Respondent
Martine S.W. Garland and Justin M. Jakubiak, for the Appellant
Heather Burnett and Ju Yeon (Ashley) An, for the Respondent
– and –
LICENCE APPEAL TRIBUNAL
Intervenor
Matthew Peachey, for the Intervenor
HEARD at Toronto (by videoconference): March 30, 2022
McWatt A.C.J.S.C.J.
REASONS FOR DECISION
OVERVIEW
[1] This is an appeal of the decision of Member Jennifer Friedland (the “Member”) of the Licence Appeal Tribunal (the “LAT” or “Tribunal”) dated April 13, 2021 (the “Decision”). The Decision confirmed the proposal of the Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996 (“the Registrar”) to refuse the Appellant’s application for a cannabis retail manager licence (“CRM”) on the basis that there were reasonable grounds for belief that the Appellant will not, in acting as a CRM, act in accordance with the law or with integrity, honesty, or in the public interest.
[2] The Member found that the Registrar’s proposal to refuse the Appellant’s licence on the basis of the Applicant’s nondisclosure in his application did not provide grounds to deny the licence. However, following a de novo hearing, the Member found that there were the following reasonable grounds to deny the licence and confirm the Registrar’s proposal:
i) the Appellant’s implausible explanation of his 2008 conviction for the possession of cannabis for the purpose;
ii) the Appellant’s forced entry into an illegal dispensary and removal of a surveillance system; and
iii) the Appellant’s involvement in a pending lawsuit involving allegations of bad faith conduct made against him.
[3] The Appellant argues that the Decision should be set aside on the basis that the Tribunal erred in law and denied him procedural fairness. The Appellant seeks an order directing the Registrar to refuse to carry out its Notice of Proposal to refuse his application for a licence.
[4] For the reasons set out below, the appeal should be dismissed.
ISSUES RAISED ON THIS APPEAL
[5] The Appellant raises the following issues on this appeal:
- Did the Tribunal err in law by making findings of fact based on irrational inferences and/or irrelevant evidence?
- Did the Tribunal deny the Appellant procedural fairness?
COURT’S JURISDICTION
[6] This court has jurisdiction over this appeal pursuant to s. 11(1) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G (“LATA”). Pursuant to s. 11(3) of the LATA, an appeal may be made on a question of law only.
STANDARD OF REVIEW
[7] This appeal is restricted to questions of law, which are reviewable on a correctness standard. There is no standard of review applicable to issues of procedural fairness. This court must determine whether the proper level of procedural fairness was afforded the Appellant.
BACKGROUND
Statutory Scheme
[8] The statutory scheme for the regulation of the sale of recreational cannabis in Ontario is set out in the Cannabis Licence Act, 2018 c. 12, Sched. 2 (the “Act”) and O. Reg. 468/18, General (the “Regulation”) made under the Act. The Alcohol and Gaming Commission of Ontario (“AGCO”) is responsible for administering the Act and the Regulation.
[9] Cannabis may only be sold at an authorized retail store. In general, each authorized retail store requires at least one CRM. There are various responsibilities that can only be performed by a CRM, though a CRM licence is not required for an individual to work at an authorized store.
[10] Section 5(4) of the Act provides that an applicant is not eligible for a CRM licence in certain circumstances, including where there are “reasonable grounds to believe that the applicant will not, in acting as a cannabis retail manager, act in accordance with the law, or with integrity, honesty or in the public interest, having regard to the past or present conduct of the applicant.”
[11] Pursuant to s. 5(5) of the Act, however, s. 5(4) “does not prevent the issuance of a cannabis retail manager licence to an applicant if the applicant has been convicted of or charged with a prescribed offence under the Controlled Drugs and Substances Act (Canada) in relation to cannabis.” Those prescribed offences include possession, trafficking, production, and possession or sale for use in production or trafficking of cannabis.
[12] If the Registrar intends to refuse to issue a licence, it must issue a Notice of Proposal to the applicant with written reasons. Pursuant to s. 14(2) of the Act, an applicant may request a hearing before the Licence Appeal Tribunal within 15 days of being served with the Notice of Proposal; otherwise the Registrar may carry out the proposal. Pursuant to s. 15(2) of the Act, the Tribunal may confirm or set aside the Registrar’s proposal or direct the Registrar to take any action specified by the Tribunal that it considers appropriate.
Appellant’s Application for a CRM Licence
[13] The Appellant has worked in the cannabis industry since 2004 and has been an owner or shareholder in several corporations involved in the sale or distribution of smoking accessories. He is a 50% owner of MAGG Gifts Inc. (“MAGG”), which operates two stores in Toronto. The Appellant is also a 50% shareholder in 2358013 Ontario Inc. (“235”), which owns a property at 282 Eglinton Avenue West in Toronto (the “Property”).
[14] Alan Gloshuk is the Appellant’s business partner and is the other 50% shareholder in both MAGG and 235. The Appellant and Mr. Gloshuk had a falling out in late 2017 and are now engaged in litigation with one another over ownership of MAGG.
[15] On January 5, 2020, the Appellant applied to the Registrar for a CRM licence. On June 8, 2020, the Registrar issued a Notice of Proposal which proposed to refuse to issue the Appellant a CRM licence under s. 5(4) of the Act on the basis that he will not act, in acting as a CRM, in accordance with the law, or with integrity, honesty or in the public interest, having regard to the Appellant’s past or present conduct. On June 12, 2020, the Appellant appealed the Notice of Proposal and requested a hearing before the Licence Appeal Tribunal.
[16] Particulars of the allegations were set out in the original Notice of Proposal, an Amended Notice of Proposal dated October 19, 2020, and a Notice of Further or Other Particulars dated November 9, 2020 (together, the “Notice”). The particulars asserted in the Notice included the following:
The Appellant responded “no” to a question asking if he had ever been involved in any capacity in the production, distribution, or selling of cannabis and/or products containing cannabis. a. The Notice set out that the Appellant had previously been convicted of possession of a scheduled substance for the purpose of trafficking. b. The Appellant indicated he had a 50% ownership interest in 235 and in MAGG. In August 2019, 235 was convicted under the municipal Planning Act for allowing an illegal marijuana dispensary to operate on the premises. The Notice asserted that the Appellant misrepresented his knowledge and involvement in the illegal dispensary and that he had knowledge of the illegal dispensary and was involved in its operation for a period of time.
The Appellant responded “no” to questions asking whether the Appellant was involved in any claim or lawsuit based in whole or in part on fraud, deceit, misrepresentation, breach of trust or similar conduct, whether successfully made in the past or ongoing. a. The Notice asserted that the Appellant was at the time engaged in civil litigation against his business partner, Mr. Glushko, MAGG, and 235 and other related corporations, and that the action involved allegations of fraud, deceit, misrepresentation, breach of trust or similar conduct. b. The Notice also set out that the Appellant was previously named in another lawsuit making allegations of this nature, and the Appellant failed to accurately disclose this in his application.
Decision
[17] The thrust of the Appellant’s argument on appeal is that he was denied procedural fairness when the Tribunal considered the substance of issues in a manner that exceeded the particulars set out in the Notice and the argument presented by the Registrar at the hearing.
[18] In a decision dated April 13, 2021, Member Jennifer Friedland confirmed the Registrar’s proposal to refuse to issue the Appellant a CRM licence.
[19] The Member dismissed the Registrar’s argument that the Appellant had made inadequate disclosure on his application or that that fact supported a finding that there were reasonable grounds for belief. However, the Member agreed with the Registrar that the Appellant should not be issued the licence after she heard evidence about the Appellant’s past conduct and involvement in litigation that she found established reasonable grounds to believe that the Appellant will not, in acting as a CRM, act in accordance with the law or with integrity, honesty, or in the public interest.
1. Appellant’s prior involvement in the cannabis industry
[20] The Member found that the Appellant was involved in an illegal marijuana dispensary that operated out of a rental unit at the Property owned by 235 from approximately 2016 or 2017 to 2018. The Member found that the Appellant was involved “on the periphery at the planning stages” and found that he had worked at the illegal dispensary on, at most, “a few days.”
[21] On May 31, 2018, the Appellant took steps to “evict” the illegal dispensary. The Appellant testified that when his passcode to the unit did not work, he entered the unit by prying open the door. He removed the stored recordings from the store’s video surveillance. He also removed boxes of cannabis and derivatives, which he handed over to the police. The Appellant testified that he took this action to shut down the illegal dispensary and that Mr. Glushko (the equal shareholder in the landlord corporation) had refused to cooperate.
[22] The dispensary later re-opened and was raided by police. In September 2018, charges were laid against 235 under the Planning Act for allowing the premises to be used for an impermissible purpose. The Appellant did disclose this charge on his application.
[23] The Member agreed with the Registrar that the Appellant’s peripheral involvement in the illegal dispensary ought to have prompted the Appellant to answer “yes” to the question asking whether he had prior involvement in the production, distribution, or selling of cannabis. However, the Member found that it was “less the non-disclosure of involvement in the illegal dispensary that troubles me as it is the late-night break-in and taking of video equipment that gives me pause.”
2. Appellant’s prior charges and convictions
[24] The Member noted that the Appellant had disclosed on his application a 2008 conviction for possession for the purpose of trafficking cannabis. The Registrar argued that this conviction was another reason why the Appellant should have answered “yes” in respect of his prior involvement in the cannabis industry. However, the Member held this was not a concern because the Appellant had fully disclosed the conviction and it was reasonable for the Appellant to have understood the question about involvement in the cannabis industry as referencing involvement other than in the criminal context that he had already disclosed.
3. Prior lawsuits
[25] The Registrar argued that the Appellant ought to have answered “yes” to a question asking about his involvement in any lawsuit based in whole or in part on fraud, deceit, misrepresentation, breach of trust or similar conduct that had successfully been made against him. While the Appellant answered “no” on the application, he did disclose two past lawsuits from 2013 and 2018 that he stated were for “business/monetary reasons.”
[26] The Registrar argued that one of these past lawsuits involving MAGG included allegations that the Appellant had guaranteed MAGG business contracts using an alias. The Member found that while the Appellant was named in the action because he has signed the contract guaranteeing payment under a nickname, there was no allegation that this was a misrepresentation. She found that it was to the Appellant’s credit that he had disclosed the previous lawsuits.
4. Current litigation
[27] The Appellant had also answered “no” to a similar question asking whether he was involved in any outstanding claims based in whole or in part on fraud, misrepresentation, deceit, etc. The Appellant did however provide details of the litigation with Mr. Glushko, which he asserted had “nothing to do with fraud, deceit, misrepresentation, breach of trust or similar conduct”, but rather was an ownership dispute over MAGG. The Registrar had argued that this litigation did include such allegations and the Appellant ought to have answered “yes” to the question. In support of this allegation, the Registrar relied on a factum filed by Mr. Glushko in response to a motion brought by the Appellant within that litigation for the sale of the Property.
[28] The Appellant had objected to the admission of the court documents from this litigation (which included an affidavit sworn by the Appellant, a transcript of his cross-examination on the affidavits sworn by him, Mr. Glushko’s factum on the motion, and the endorsement of the presiding judge, Penny J.). The Member rejected the Appellant’s argument that the documents were not relevant, noting the Appellant had referred to the civil proceedings in his application. The Member admitted the court documents under the Tribunal’s broad powers to receive hearsay evidence under s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”).
[29] The Member noted that while the factum “cannot be taken for the truth of its contents” it was evidence that allegations of bad faith conduct had been made against the Appellant, which was confirmed in the endorsement of Penny J. in respect of that motion. Penny J. stated, “There are also many allegations and counter allegations by each side ascribing acts of oppression and bad faith in the conduct of the affairs of MAGG and 235.”
[30] The Member nevertheless found that it did not weigh against the Appellant that he did not answer “yes,” to the question about outstanding litigation, noting that the Registrar did not produce Mr. Glushko’s actual pleadings and, absent the claim itself, alleging fraud, misrepresentation, or breach of trust, it was reasonable for the Appellant to answer “no.”
[31] However, the Member observed that “while I do not fault him for not answering yes…[t]he allegations against him nonetheless remain a concern” and that it would be “worth waiting to learn” whether those findings are made out against the Appellant in the civil litigation before allowing him to obtain a CRM licence.
5. Overall conclusions
[32] The Member found that while the case was “initially presented as a case about non-disclosure,” she was not persuaded that the Appellant’s answers afforded reasonable grounds to believe that he will not, in acting as a CRM, act in accordance with the law or with integrity, honesty, or in the public interest. The Member was unable to conclude that the Appellant had attempted to mislead the Registrar by his manner of answering questions on the application, noting that he had disclosed various of the matters at issue elsewhere in his application (such as his 2008 conviction, his involvement as landlord of the Property from which the illegal dispensary was operating, and his involvement in the past and present litigation).
[33] However, the Member found there were “other concerns raised by the evidence” that amounted to reasonable grounds. These included:
- The Appellant’s “implausible explanations” for the circumstances surrounding the offence that was the subject of the 2008 conviction.
- The Appellant had described on his application that the drugs were for personal use and use by his sister and girlfriend, which the Member found implausible based on the quantity (2lbs of cannabis and 6lbs of psilocybin mushrooms). While a prior conviction did not prevent the Appellant from gaining a CRM licence, being dishonest about the circumstances of that conviction weighed against him. The Member noted that by itself, however, this 14-year-old conviction alone would not render him ineligible for a licence.
- The Appellant’s “breaking into the illegal dispensary and taking video recordings.”
- The Member observed that even if the facts were as the Appellant described, “it nonetheless strikes me as wrong that he pried open the door, took this equipment and then emptied the dispensary of its product.” Even if he gave the cannabis to the police, this was still “concerning conduct for a potential licensee.”
- The Appellant’s outstanding litigation.
- The Member did not take issue with the Appellant’s disclosure but held the allegations were “relevant” and “if the appellant is found to have committed half of what is alleged against him in that factum, he would not qualify for a licence.”
[34] The Member held that when combined with the other factors identified as causing concern, as long as the Appellant’s civil suit against Mr. Glushko remained outstanding and until the matter settled or findings of fact were made, there were reasonable grounds to believe that the Appellant will not, in acting as a CRM, act in accordance with the law or with integrity, honesty or in the public interest. The Member confirmed the Registrar’s proposal to refuse to issue the CRM licence.
ANALYSIS
A. Did The Tribunal Err in Law?
[35] The Tribunal did not err at law. It did not make irrational inferences, nor did it rely on irrelevant or no evidence.
The Burden and the Standard of Proof before the Tribunal
[36] The standard of proof applicable to the Tribunal proceedings is reasonable grounds for belief. Subsection 5(4)1 of the Cannabis Licence Act, 2018 requires the Tribunal to assess an Appellant’s past or present conduct to determine if there are reasonable grounds to believe that the applicant will not, in acting as a CRM, act in accordance with the law, or with integrity, honesty or in the public interest.
[37] The standard of proof is satisfied “where there is an objective basis for the belief which is based on compelling and credible information.” (Mugesera v Canada (Minister of Citizenship and Immigration, [2005] 2 SCR 100, 2005 SCC 40 at para 114). The onus of proof is on the Registrar.
[38] The Court of Appeal has set out that the “test entails an examination of the past and present conduct of the person seeking to acquire…the privilege of carrying on an activity authorized by the state…The purpose of the examination is to see if there are reasonable grounds for belief that the person will, in future, carry on the activity in a way that is not contrary to the public interest.” ((Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157 at para 26).
[39] The LAT assessed the totality of the evidence to determine whether the Appellant met the test for eligibility for a licence. The assessment included evidence regarding his past charges and conviction, the misrepresentation of allegations of misconduct in his civil dispute, as well as the late-night break-in and taking of video equipment from the illegal dispensary.
[40] The Tribunal hearing was de novo. It owed no deference to the decision of the Registrar but made its findings on the entirety of the evidence before it. The Notice of Proposal particularized and provided notice of the Registrar’s concerns. The Tribunal was not bound by the four corners of the Proposal in coming to its decision (Ontario (Registrar, Motor Vehicle Dealers Act) v Shine Car Sales, 2003 11437 (ON SCDC) at para 10).
Findings of Fact on the Civil Litigation
[41] The LAT exercised its broad discretion under the SPPA, s 15(1), when it admitted the Civil Litigation Documents. They were produced as evidence demonstrating that the Appellant had previously admitted to working in the illegal dispensary and proof of his involvement in the dispensary. They were also produced in relation to the Proposal’s particulars, which stated that the civil litigation involved allegations of bad faith.
[42] The LAT did not rely on the Civil Litigation Documents to make findings about that civil dispute. It only referred to the documents to determine if there were allegations of bad faith conduct against the Appellant. The Tribunal referred to the Responding Factum of Mr. Glushko and the endorsement of Justice Penny and found at paragraphs 85 to 87 of the decision that:
[85] The Registrar submits that this civil litigation also includes allegations of fraud, deceit, misrepresentation, breach of trust or similar conduct… As proof of this, the appellant relies on the factum of AG filed in support of the appellant’s motion for the sale of the Eglinton property. The facts detailed in that factum allege all manner of bad faith conduct on the part of the appellant.
[85] While a factum cannot be taken for the truth of its contents, I do agree that the factum is evidence that such allegations have been made against the appellant.
[87] The endorsement of Penny J. following the appellant’s motion for the sale of the Eglinton property confirms that the allegations of bad faith have been made against the appellant (and vice versa). In describing the dispute, Justice Penny writes,
“There are also many allegations and counter allegations by each side ascribing acts of oppression and bad faith in the conduct of the affairs of MAGG and 235.”
[43] At the hearing before the Tribunal, the Appellant was also questioned about the allegations in the civil litigation. He was argumentative and disputed the substance of the allegations. The LAT drew inferences and made factual findings from his testimony and the other evidence before it about the litigation.
[44] There is no basis for the Appellant’s claim that the findings of facts regarding the civil litigation are based on no evidence or irrational inferences.
[45] The Tribunal found that allegations of bad faith made against the Appellant were a concern. However, its concerns regarding the civil litigation were but one factor, along with the Appellant’s late-night break in and taking of the surveillance videos from the illegal marijuana dispensary and the Appellant’s representations about his 2007 charges and conviction.
Findings of Fact on the Late-Night Break-In and Taking of Surveillance
[46] The Tribunal considered the totality of the Appellant’s conduct in breaking into the illegal dispensary and concluded that this conduct was “wrong”. This includes evidence he broke into the dispensary late at night; pried open the door to gain access; and took some furniture, marijuana, the DVR and the surveillance footage.
[47] In spite of an extensive explanation by the Appellant to justify his decision to enter the dispensary and take items from it, the Tribunal did not accept his evidence. The Tribunal did not find as fact that the dispensary belonged to Mr. Glushko or that the Appellant broke-in and removed its contents on the advice of the police.
[48] The Tribunal did not make irrational inferences in finding that the Appellant’s conduct was “wrong”. It assessed the totality of the evidence regarding the Appellant’s conduct in finding that there are reasonable grounds to believe that the Appellant will not act as a CRM in accordance with the law, or with honesty or integrity or in the public interest.
The LAT Found That the Appellant’s Evidence Lacked Credibility
[49] The Tribunal had significant concerns about the Appellant’s credibility.
[50] At paragraphs 98 to 100 of the Decision, Member Friedland set out the following:
[98] … there are other concerns raised by the evidence that in my view amount to reasonable grounds to believe – at present – that he will not act as a CRM in accordance with the law, or with honesty or integrity or in the public interest.
[99] For example, I am troubled by the appellant’s implausible explanations for what he was doing in 2007 when police found him surrounded by 2 lbs. of cannabis, cannabis resin, 6 lbs of mushrooms, scales, baggies and over $4000 in cash. The appellant claimed the drugs were all for personal use and the cash and paraphernalia were for use in his business. Yet it was an online business, the currency for which could not have been cash. Add to this milieu the robbery at gunpoint for the cannabis he had just purchased, and the context suggests that he was not forthright about his involvement in dealing drugs at the time.
[100] A prior conviction for cannabis does not prevent the appellant from gaining his licence. But being dishonest about the circumstances of that conviction does weigh against him…
[51] Assessments of credibility are factual determinations and flow from a consideration of the entirety of the evidence. The LAT made specific and interrelated credibility findings against the Appellant. None can be separated from the other. The Tribunal analyzed the evidence, drew inferences, engaged in a reasoning process and made findings.
[52] This Court has no jurisdiction to interfere with those findings.
B. Was There a Breach of Fairness or Procedural Fairness by the Tribunal?
[53] There was no breach of the Appellants rights to procedural fairness before the Tribunal.
[54] Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 1999 699, at paragraphs 23 to 28, provides a flexible framework to address practical issues of procedural fairness. The Supreme Court enumerated the following non-exhaustive list of factors to be considered when determining the procedural protections mandated by the duty of fairness:
- The nature of the decision and the process followed in making it;
- The nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
- The importance of the decision to the individual or individuals affected;
- The legitimate expectations of the person challenging the decision; and
- The choice of procedure made by the agency.
[55] This panel must determine whether the appropriate level of procedural fairness was afforded (Brooks v Ontario Racing Commission, 2017 ONCA 833 at para 5).
[56] We find that the record discloses no denial of procedural fairness. The Appellant had an opportunity to know the issues and respond to them.
[57] The Tribunal was alive to the potential impacts of the regulatory process on the appellant, and it fulfilled its obligations to safeguard procedural fairness in this case.
[58] Baker, at paragraph 24, explains that the level of procedural fairness owed is elevated when a decision is determinative of the issue, further requests cannot be submitted, and no appeal procedure is provided in the statute.
[59] The Appellant submits that he is owed greater procedural fairness because “the Decision arises from a statutory right of appeal and takes place in the form of a hearing de novo”.
[60] However, the Appellant exercised his right of appeal in having a hearing de novo before the LAT. He then had a right to request a reconsideration of the Tribunal’s Decision which finally disposes of an appeal as well as a right of appeal to this Court on questions of law.
[61] The Appellant was aware of the case he had to meet. During the hearing de novo, he raised new issues and produced new evidence. Submissions were made with respect to the totality of the evidence. The LAT properly considered and weighed the evidence and submissions.
[62] Baker, at paragraph 25, sets out that, in the context of employment, “a high standard of justice is required when the right to continue in one’s profession or employment is at stake…” In the Appellant case, however, has never been licensed, nor legally employed, as a CRM. As a result, the impact of this decision on the Appellant’s continued employment is minimal to non-existent. The Decision has little to no impact on the Appellant’s employment. The Tribunal decision does not impact his right to work or his future employment in the cannabis industry.
[63] There is also no evidence that the Appellant’s ability to work in the cannabis industry would be significantly impacted by the absence of a CRM licence. The Appellant testified at length that he has maintained continuous employment as an entrepreneur in the cannabis industry since 2004. Since then, he established and operated several businesses, including headshops that sell and distribute cannabis and smoking accessories. He gave evidence before the Tribunal, though, that a CRM licence would allow him to share and build upon his experience and knowledge in the cannabis industry.
[64] Nonetheless, a CRM licence will not prevent the Appellant from continuing in his career of working and owning headshops, selling and/or distributing cannabis accessories, sharing his knowledge or expanding upon his cannabis related knowledge. It also does not prevent the Appellant from being employed in an authorized retail cannabis store and assisting and educating customers on various cannabis products.
[65] The Decision only prevents the Appellant from supervising or managing employees of a cannabis store; overseeing or coordinating the sale of cannabis; managing compliance issues in relation to the sale of cannabis; and having signing authority to purchase cannabis, enter into contracts and make offers of employments.
[66] In addition, after a two-year period from his being denied a CRM licence, the Appellant is eligible to re-apply for one.
[67] The Act sets out the regulatory model for the responsible, safe and lawful sale of cannabis in Ontario. The Act aims to protect the public by requiring that retail sales are carried out with honesty, integrity, in accordance with the law and in the public interest. In the case of Sticky Nuggz Inc. v Alcohol and Gaming Commission of Ontario, 2020 ONSC 5916 at paragraph 67, this Court held that the adverse impacts of a refusal under the Act are extraneous considerations within that statutory objective.
[68] Finally, given that hearings before the LAT are hearing de novo, there was no legitimate or reasonable expectation that the Tribunal would not consider the totality of the evidence. The Tribunal is not limited to the particulars set out in the Proposal.
[69] The Appellant is presumed to know the law and understand that the task before the LAT involves a consideration of the totality of the Appellant’s past and present conduct.
[70] The Proposal put the Appellant’s honesty, integrity, and his ability to act in compliance with the law and the public interest squarely at issue. The Appellant was aware that the allegations in the Proposal involved, amongst other things, misrepresentations regarding the nature of his civil litigation and his involvement in the illegal cannabis dispensary. He also received disclosure related to these particulars before the hearing commenced.
The Break-In and Taking of the DVR
[71] The Appellant chose to produce a video of his late-night break-in and the removal of the DVR surveillance system from the illegal dispensary in the middle of the hearing. This was the first time that the Registrar learned that such surveillance existed at this location and that the Appellant took the DVR player. Details regarding the taking of the DVR were solely within the Appellant’s knowledge. In addition to raising this relevant evidence for the first time in cross-examination, the Appellant had an opportunity to respond to any issues raised by this new evidence in reply.
The Civil Litigation
[72] The Proposal further put the Appellant’s honesty and integrity at issue by alleging that he mispresented the nature of the civil litigation, i.e., that the dispute involves allegations of fraud, deceit, misrepresentation, breach of trust or similar conduct. The Appellant received disclosure in respect to this allegation.
[73] The LAT did not make any findings on the substance about the civil litigation between the Appellant and his former partner, Mr. Gloshuk. It did find that the Appellant engaged in a civil litigation dispute that involved serious allegations of misconduct.
[74] The duty of procedural fairness was met in this case.
DISPOSITION
[75] The appeal is dismissed.
COSTS
[76] On agreement between the parties and the success on this appeal of the Respondent, the Appellant shall pay $7500.00 in costs to the Respondent, all inclusive. The LAT sought no costs.
McWatt A.C.J.S.C.J.
I agree _______________________________
Backhouse J.
I agree _______________________________
P. Sutherland J.
Released: April 27, 2022
CITATION: D. Michael Goldlist v. Registrar, Alcohol, Cannabis and Gaming Regulations and Public Protection Act, 1996 2022 ONSC 2505
DIVISIONAL COURT FILE NO.: 296/21
DATE: 20220427
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
McWatt A.C.J.S.C.J. and Backhouse and P. Sutherland JJ
BETWEEN:
D. MICHAEL GOLDLIST
Appellant
– and –
REGISTRAR, ALCOHOL, CANNABIS AND GAMING REGULATIONS AND PUBLIC PROTECTION ACT, 1996
Respondent
– and –
LICENCE APPEAL TRIBUNAL
Intervenor
REASONS FOR Decision
Released: April 27, 2022