Shooters Sports Bar Inc. v. Alcohol and Gaming Commission (Ont.), (2008) 238 O.A.C. 9 (DC)

• Judge: Ferrier, Molloy and Van Melle, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: March 18, 2008
• Jurisdiction: Ontario
• Citations: (2008), 238 O.A.C. 9 (DC)

Shooters Sports Bar v. Alcohol & Gaming (2008), 238 O.A.C. 9 (DC)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. JN.030

Shooters Sports Bar Inc. (appellant) v. The Registrar of the Alcohol and Gaming Commission (respondent)

(506/06)

Indexed As: Shooters Sports Bar Inc. v. Alcohol and Gaming Commission (Ont.)

Court of Ontario

Superior Court of Justice

Divisional Court

Ferrier, Molloy and Van Melle, JJ.

May 27, 2008.

Summary:

The Board of the Alcohol and Gaming Commission suspended a bar's liquor licence for 10 days for having permitted drunkenness on its premises. The bar appealed.

The Ontario Divisional Court allowed the appeal, set aside the decision and stayed the notice of proposal that gave rise to the hearing.

Administrative Law - Topic 2443

Natural justice - Procedure - Notice - Delay - The Board of the Alcohol and Gaming Commission suspended a bar's liquor licence for 10 days for having permitted drunkenness on its premises - The bar appealed - At issue included whether the delay in giving the bar notice of the allegations against it unfairly prejudiced its ability to make full answer and defence - The Ontario Divisional Court stated that there was no one point in time at which a line could be drawn - Whether a delay in serving notice resulted in unfairness depended on the particular circumstances of a given case - Generally speaking, the longer the delay, the greater the danger of unfairness - Conversely, the greater the particularity in the notice given, the less likely the delay would result in unfairness - These two factors worked in tandem - Likewise, it was reasonable to consider the actions of the bar owner to take reasonable steps to maintain records - For example, a bar owner who kept no record of which employees worked on a given night would have difficulty maintaining that his ability to recollect who was working on the night of an alleged offence was prejudiced by the delay - See paragraph 59.

Administrative Law - Topic 2443

Natural justice - Procedure - Notice - Delay - The Board of the Alcohol and Gaming Commission suspended a bar's liquor licence for 10 days for having permitted drunkenness on its premises - The bar appealed, asserting that the Board breached the rules of procedural fairness and natural justice by failing to hold that the 103 day delay in giving the bar notice of the allegations against it unfairly prejudiced its ability to make full answer and defence - The Ontario Divisional Court agreed - The Board was conducting a hearing akin to a civil or quasi criminal trial - At stake was the bar's right to carry on business, a matter of considerable importance - These factors required a greater degree of procedural safeguards in order to achieve fairness - It was a legitimate expectation that sufficiently prompt notice would be given to enable the bar to properly investigate the allegations and mount a defence, if appropriate - The Commission asserted that, absent a limitation period and improper motives that would give rise to an abuse of process, there could be no breach of fairness by virtue only of delay in giving notice - While that might be the case, it was a different matter where the delay caused prejudice and interfered with the bar's ability to defend the charges, particularly where there was no justification for the delay - The bar presented evidence of actual prejudice as a result of delay and lack of particularity in the notification which prevented it from identifying the allegedly drunk patrons - No explanation for the delay was given - Further, the Board made no mention of the issue in its reasons - See paragraphs 52 to 75.

Administrative Law - Topic 2444

Natural justice - Procedure - Notice - Contents and sufficiency of notice - [See both Administrative Law - Topic 2443 ].

Administrative Law - Topic 2449

Natural justice - Procedure - Notice - Requirement that defects result in prejudice to party attacking notice - [See second Administrative Law - Topic 2443 ].

Administrative Law - Topic 2450

Natural justice - Procedure - Notice - Legitimate expectation of notice doctrine - [See second Administrative Law - Topic 2443 ].

Liquor Control - Topic 4283

Licensing - Denial, suspension, transfer or termination of licence - Notice of allegations or charges - [See both Administrative Law - Topic 2443 ].

Liquor Control - Topic 4286.1

Licensing - Denial, suspension, transfer or termination of licence - Reasons for decision - The Board of the Alcohol and Gaming Commission suspended a bar's liquor licence for 10 days for having permitted drunkenness on its premises - The bar appealed, asserting that the Board failed to provide adequate reasons and, in particular, failed to make any findings of credibility respecting any of the witnesses who testified - The Ontario Divisional Court agreed - The suspension of a liquor licence was a matter of some significance - This had been recognized by the Legislature and the Board, which was why a full hearing was required, with procedural safeguards, before such a sanction could be imposed - In these circumstances, it was incumbent upon the Board to provide reasons to explain its findings - The Board's reasons consisted solely of a recitation of the undercover inspector's testimony and a statement that she had sufficient opportunity to observe - There was no reference to the evidence of defence witnesses - Although it was open to the Board to accept the inspector's evidence, it was required to find that the evidence was credible and reliable and to fairly consider the contrary evidence presented by the defence - It was impossible to tell whether the Board went through that process - This was particularly problematic given the Board's misstatement of some of the evidence - Further, the Board completely ignored the bar's argument that it was unable to defend the charges because of a delay in providing notice - See paragraphs 43 to 51.

Liquor Control - Topic 4288

Licensing - Denial, suspension, transfer or termination of licence - Evidence and proof - The Board of the Alcohol and Gaming Commission suspended a bar's liquor licence for 10 days for having permitted drunkenness on its premises - The bar appealed, asserting that, inter alia, it was prejudiced by the Commission's failure to call the two police officers who had accompanied the Commission's undercover inspector - The Ontario Divisional Court stated that there might well be situations where the failure of the prosecution to call important and relevant witnesses, such as police officers who made observations of the very matters at issue, could be unfairly prejudicial to the defence - However, the defence here had production of the officers' notes and had some reasonable expectation of what the officers might say if called to testify - One of the officers was present on the first day of the hearing and available to testify, but defence counsel consented to his being released without testifying - The second officer was unavailable on the first day of the hearing - When it was apparent that the hearing could not finish on the first day, counsel for the Commission requested an adjournment at about the lunch hour so that arrangements could be made to have the second officer testify on the next return date - However, counsel for the bar objected and requested that the hearing proceed as long as possible that day, including calling some of the defence evidence - The Board acceded to his request - It still would have been open to the defence to call the officers as its own witnesses on the return date, but it elected not to do so - In these circumstances, the defence could not complain that the officers' testimony was not before the Board - See paragraph 22.

Liquor Control - Topic 4288

Licensing - Denial, suspension, transfer or termination of licence - Evidence and proof - The Board of the Alcohol and Gaming Commission suspended a bar's liquor licence for 10 days for having permitted drunkenness on its premises - The bar appealed, asserting that, inter alia, the Board improperly restrained cross-examination of the Commission's undercover inspector (Glen) with respect to the contents of the notes made by the two undercover police officers who had accompanied her to the bar - The Ontario Divisional Court rejected the assertion - The police officers' notes were not admissible through Glenn - In cross-examining Glenn, it was appropriate to put matters to her that were contained in the officer's notes - If she agreed with the contents, then it would have been part of her testimony - If she did not, it would not have become evidence - To get it into evidence, it would have been necessary to call the officers - The Board did restrict the cross-examination on the officers' notes somewhat more than was necessary - However, since Glenn persistently claimed to have no knowledge or memory of what was in the officers' notes, and no memory of the amount of alcohol that they bought or consumed, and little memory of anything that was not in her own notes, a more fulsome cross-examination would not have yielded more helpful evidence - The defence made the strategic decision not to have the officers testify - Without the officers, the defence was simply unable to prove what was in the officers' notes - Accordingly, while the cross-examination was somewhat restricted, it caused no prejudice to the defence - See paragraph 23.

Liquor Control - Topic 4288

Licensing - Denial, suspension, transfer or termination of licence - Evidence and proof - The Board of the Alcohol and Gaming Commission suspended a bar's liquor licence for 10 days for having permitted drunkenness on its premises - The Ontario Divisional Court allowed an appeal, holding that the board erred by, inter alia, misapprehending the evidence of a key defence witness (MacDonald) - In the section of the decision setting out the Board's findings, MacDonald's evidence was not mentioned - No reasons were given for discounting MacDonald's evidence - It appeared that the misapprehension of evidence caused the Board to make its decision based solely on the testimony of the prosecution's one witness (the Commission's undercover investigator) without any regard at all for the defence evidence - At the very least, MacDonald's evidence needed to be considered, assessed and weighed in the balance as against the evidence of the inspector and the other evidence at the hearing - This was crucial evidence for the defence and the Board's failure to understand and/or consider it constituted a palpable and overriding error - The error went to the heart of the defence and warranted setting aside the decision on that basis alone - See paragraphs 30 to 39.

Liquor Control - Topic 4290

Licensing - Denial suspension, transfer or termination of licence - Appeals or judicial review - Scope or standard of review - The Board of the Alcohol and Gaming Commission suspended a bar's liquor licence for 10 days for having permitted drunkenness on its premises - The bar appealed - The Ontario Divisional Court stated that prior to the Supreme Court of Canada's 2008 decision in New Brunswick (Board of Management) v. Dunsmuir, there was a consistent body of case law holding the Board to a standard of correctness - Given that the appeal from the Board was solely on a question of law, the correctness standard was not affected by Dunsmuir - There was no privative clause and the issues to be determined by the Board did not require any special expertise relative to that of the court - The nature of the question at issue was whether the evidence established that the bar on a specific date had permitted drunkenness on its premises and should therefore be subject to sanctions and possible cancellation of its liquor license - The situation did not bring into play the rationale underlying the change in the law established in Dunsmuir - There was no reason to depart from the established case law - In any event, there were no issues of legal interpretation raised on the appeal and very limited questions of law at all - Rather, the main issues raised related to abuse of process, the fairness of the hearing and the adequacy of the reasons, to which the standard of review did not apply - See paragraphs 19 to 21.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 20].

Alcohol and Gaming Commission (Ont.) v. Hosseini-Rad (2004), 185 O.A.C. 68 (Div. Ct.), refd to. [para. 20].

1166134 Ontario Inc. v. Alcohol and Gaming Commission (Ont.) et al. (2006), 215 O.A.C. 70 (Div. Ct.), refd to. [para. 20].

London (City) v. Ayerswood Development Corp. et al. (2002), 167 O.A.C. 120 (C.A.), refd to. [para. 21].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 21].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 38].

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.), refd to. [para. 38].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 40].

Kane v. University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 41].

Megens v. Ontario Racing Commission (2003), 170 O.A.C. 155; 64 O.R.(3d) 142 (Div. Ct.), refd to. [para. 44].

Kalin v. College of Teachers (Ont.) (2005), 198 O.A.C. 201; 75 O.R.(3d) 523 (Div. Ct.), refd to. [para. 44].

Gray v. Disability Support Program (Ont.) (2002), 158 O.A.C. 244; 59 O.R.(3d) 364; 212 D.L.R.(4th) 353 (C.A.), refd to. [para. 44].

Howe v. Institute of Chartered Accountants (Ont.) (1994), 74 O.A.C. 26; 19 O.R.(3d) 483; 118 D.L.R.(4th) 129 (C.A.), refd to. [para. 54].

Human Rights Commission (Ont.) v. House et al. (1993), 67 O.A.C. 72 (Div. Ct.), refd to. [para. 54].

Markandey v. Board of Ophthalmic Dispensers (Ont.), [1994] O.J. No. 484; 46 A.C.W.S.(3d) 775 (Gen. Div.), refd to. [para. 54].

Gage v. Ontario (Attorney General) (1992), 55 O.A.C. 47; 90 D.L.R.(4th) 537 (Div. Ct.), refd to. [para. 54].

Waxman et al. v. Ontario Racing Commission (2006), 216 O.A.C. 353; 53 Admin. L.R.(4th) 271 (Div. Ct.), refd to. [para. 55].

Cocamo, Re, [1995] O.L.L.B.D. No. 70 (Liq. Lic. Bd.), refd to. [para. 71].

Counsel:

Clive Preddie, owner of appellant corporation, on behalf of the appellant (with leave of the court);

Phillip Morris and Sujia Chan, for the respondent.

This appeal was heard on March 18, 2008, before Ferrier, Molloy and Van Melle, JJ., of the Ontario Divisional Court. Molloy, J., released the following decision on May 27, 2008, for the court.