The Ontario Superior Court of Justice dismissed the appeal by the Registrar of the Alcohol and Gaming Commission of Ontario from a decision of the Board of the Alcohol and Gaming Commission of Ontario approving the application of the respondent for a liquor licence. The Board correctly noted that a criminal conviction or administrative sanction did not disqualify an applicant for a liquor licence.

Administrative law – Decisions of administrative tribunals – Liquor Licensing Board – Permits and licences – Public interest – Previous criminal conviction – Judicial review – Failure to provide reasons

Ontario (Alcohol and Gaming Commission) v. Arena Entertainment (C.O.B. Circa), [2008] O.J. No. 1167, Ontario Superior Court of Justice, Divisional Court, March 25, 2008, Lietch, Lane, and Swinton JJ

The respondent applied for a liquor licence for a facility called Circa in August, 2006. After considering the application and written objections, the Registrar issued a Notice of Proposal to review the application. Of concern to the appellants was the fact that officers of the respondent company were also officers of  companies which held liquor licences for night clubs in New York City that were revoked because of disorderly conduct and drug use in the premises. One of the respondents was also convicted of three criminal offences in the state of New York for tax related charges relating to one of the night clubs. The other officer was a practicing lawyer who was also an officer and director of a corporation that held a liquor licence for a venue in Toronto for which the Board suspended the licence for seven days and eighteen days in 2005 for breaches of the Act and its regulations. At the hearing, objections were also raised by the Residents’ Association that the issuance of the liquor licence was not in the public interest.

On the public interest issue, the Board held that the Residents’ Association’s objections were not bona fide and that they did not sufficiently consider this particular application, nor did they negotiate or meet with the respondents or attempt to propose conditions on the licence.

With respect to past and present conduct, the Board held that previous sanctions or convictions were not prima facie proof that a business would not be operated in accordance with the law. The Board found that the officers of the respondent company were candid about their past conduct and appeared highly motivated to run a business with integrity, and also understood the need for an excellent security team.

The issue raised on appeal was whether the Board failed to give adequate reasons for its conclusions and simply repeated the evidence without analysis. Specifically, the issue was whether the officers of the respondent company’s past and present conduct was a factor that would disentitle the respondent to a liquor licence.

The court was satisfied that the Board properly applied the relevant tests, and that evidence was extensively reviewed and weighed with regard to the respondent officers’ past conduct. The court held that the Board correctly noted that a criminal conviction or administrative sanction does not disqualify an applicant for a liquor licence.

With respect to the public interest issue, the court held that the onus is on those objecting to prove, on a balance of probabilities, that it is not in the public interest to issue a licence. The court accepted the Board’s finding that the objections raised were not based on Circa’s operations, and instead the objectors had sought a blanket prohibition of any new night clubs in the area. It was held that the Board considered the evidence in support of the application and was reasonable in finding that the objections were not persuasive. Accordingly, the appeal was dismissed.

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