Alcohol and Gaming Commission of Ontario: Tribunal Practice and Procedure

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ALCOHOL AND GAMING COMMISION OF ONTARIO

PURPOSE

The Alcohol and Gaming Commission of Ontario (AGCO) was established on February 23, 1998 under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996.

The AGCO is a regulatory agency reporting to the Ministry of the Attorney General (MAG).The AGCO is responsible for regulating the alcohol, gaming sector, horse racing sector and cannabis retail. The AGCO is also responsible of the administration of the Liquor Licence Act, Gaming Control Act, 1992, Horse Racing Licence Act, 2015 and the Cannabis Licence Act, 2018. And finally, the AGCO administers sections of the Wine Content and Labelling Act, 2000 and the Liquor Control Act [sections 3(1)(b), (e), (f), (g) and 3(2)(a)] as well as the charity lottery licensing Order-in-Council 1413/08.

HISTORY

The Liquor Licence Board of Ontario was established in 1947 under the Liquor Licence Act, and was responsible for regulating the sale, service and consumption of beverage alcohol in Ontario to promote moderation and responsible use.

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The Gaming Control Commission was established under the Gaming Control Act, 1992 in 1994 and was responsible for the regulation of charitable and casino gaming, for ensuring that those people and companies involved in casino and charitable gaming complied with honesty, integrity and financial responsibility, and that games of chance were conducted fairly.

Ontario Racing Commission was established in 1950 under the Racing Commission Act, and was responsible for regulating the horse racing industry in the public interest and looking for the accomplishment of the principles of honesty, integrity, and social responsibility. In year 2000, the Government of Ontario passed a new legislation called the Racing Commission Act, 2000, which converted the Commission to a self-financing regulatory agency with a governing board. 

On February 23, 1998, the AGCO assumed responsibility for the administration of legislation before administered by the Liquor Licence Board of Ontario and the Gaming Control Commission. Also, on April 1, 2016, the AGCO assumed responsibility for regulating horse racing under the Horse Racing Licence Act, 2015. And, on September 25, 2018, the AGCO assumed responsibility for regulating privately run recreational cannabis retail stores under the Cannabis Licence Act, 2018.

 FUNCTION

 The AGCO regulatesOntario’s alcohol, gaming, horse racing and cannabis retail sectors:

  • Licensing and regulating establishments that sell or serve liquor.
  • Administering the Special Occasion Permit program.
  • Authorizing grocery stores to retail alcohol to the public.
  • Registering operators, suppliers, retailers/sellers and gaming assistants in the lottery and gaming sectors.
  • Licensing games of chance at fairs and exhibitions.
  • Approving rules of play or changes to rules of play for games of chance conducted and managed by the Ontario Lottery and Gaming Corporation (OLG).
  • Excluding people from accessing gaming premises in Ontario pursuant to the Gaming Control Act, 1992.
  • Regulating the conduct of horse racing and exercising authority for the overall governance of horse racing in Ontario.
  • Promoting safety and consistency for both horse racing participants and the equine athletes.
  • Licensing individuals and businesses involved in the horse racing industry.
  • Licensing eligible Cannabis Retail Store Operators and Managers.
  • Authorizing Cannabis Retail Stores.
  • Approving Cannabis retail employee training programs.
  • Regulating the sale of recreational cannabis through privately run stores.
  • Inspecting and monitoring licensed establishments to ensure compliance with the Liquor Licence Act and regulations.
  • Inspecting and monitoring authorized grocery stores for compliance with the Liquor Licence Act.
  • Inspecting and monitoring casinos, charitable gaming events/facilities and retail locations where Ontario Lottery and Gaming Corporation (OLG) lottery products are sold.
  • Testing, approving and monitoring slot machines and gaming and lottery management systems.
  • Investigating alleged horse racing violations, horse abuse, race fixing or other racing and rule infractions, including horse deaths.
  • Ensuring an Official Veterinarian is in attendance to supervise live racing and confirm that horses are healthy and fit to race.
  • Monitoring and enforcing the Equine Medication and Drug Control Program.
  • Administering and overseeing the Human Alcohol and Drug Program designed to detect and deter substance abuse and to offer programs of intervention, rehabilitation and support to those identified as having substance abuse problems.
  • Supporting the health and welfare of horses and horse racing participants.
  • Hearing appeals of rulings made by Judges, Stewards and Racing Officials under the Rules of Racing, these appeals come from the Horse Racing Appeal Panel, which is an independent adjudicative tribunal, and its the members are appointed by the AGCO Board.
  • Conducting arbitration of lottery disputes.
  • Providing education to all sectors and to those who are regulated, to increase their understanding of regulatory obligations and to improve overall compliance.

LEGISLATION

As mentioned before the AGCO was established on February 23, 1998 under the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996. However, the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996 is not the only piece of relevant legislation related to the AGCO. The following is a list of acts, regulations, standards and rules applicable to the AGCO:

a)      Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996 with regulation O Reg 141/01.

b)      Cannabis Licence Act, 2018 with regulation O Reg 468/18.

c)      Gaming Control Act, 1992 with regulation O Reg 78/12.

d)     Liquor Licence Act with regulations:

O Reg 58/00

O Reg 718/90

O Reg 719/90

O Reg 720/90

O Reg 70/09

O Reg 783/94

O Reg 389/91

e)      Wine Content and Labelling Act, 2000 with regulation O Reg 659/00.

f)       Liquor Control Act, Sections 3(1)b, e, f, g and 3(2) a with regulation O Reg 232/16.

g)      Horse Racing Licence Act, 2015

h)      Order in Council 1413/08

i)    Information Bulletin No. 72 – Registrar’s Standards for Gaming (2013).

j)       Registrar’s Standards for Cannabis Retail Stores.

k)      Rules of Standardbred Racing.

l)       Rules of Thoroughbred Racing.

Application and Appeal Process for the AGCO

Preface

 The Government of Ontario has a quasi-judicial agency by the name of Licence Appeal Tribunal. This Tribunal is an independent body which possesses the jurisdiction to hold hearings, resolve disputes, and adjudicate decisions relating to several Licences, Authorizations, and compensation claims. Although the LAT is independent of the Alcohol and Gaming Commission of Ontario, it carries the jurisdiction to hear all matters under the Liquor Licence Act, Cannabis Act, and Gaming Control Act independently of their regulator; AGCO. 

When filing an appeal or application at the LAT, an individual must follow the specified time limitations, filing fees, and ensure that all forms necessary are appropriately filled out and filed in writing. All specifications, if any, are outlined in Notice of Appeal forms for the corresponding application. The Applicant must provide all necessary details such as full name, address, contact numbers, whether a representative has been retained with their full information, and a copy of the Notice of Proposal, Authorization or Monetary Order being appealed. Any errors in documentations filed to the LAT will cause undue delays for the Tribunal and the Applicant. A case Management Officer from the Tribunal is responsible for reviewing all documents in the appeal to ensure that it has been filed correctly. Accordingly, if any additional information is needed, incorrect, or needs to be amended, the Case Management Officer contacts the Applicant for that purpose. Furthermore, upon a request from a member of the public, an Applicant’s documentation can be released to them, so long as they request for the documentation consequent to the specified exceptions.

 

 Moreover, an Applicant may also withdraw an appeal or application prior to the commencement of the hearing at the LAT. In order to carry out the withdrawal, the Applicant must serve all parties, including the LAT, with a notice in writing stating explicitly that they wish to withdraw with the Notice of Withdrawal form. If an Applicant chooses to withdraw their appeal at the time of the hearing or case conference, they must also do so there after informing the adjudicator.

Applications to Appeal for Alcohol Matters

If an individual owns a business and has a valid Alcohol Licence, under the Liquor Licence Act, they may be served with three documents. The first document that they may be served with, is called the Notice of Proposal (NOP). This document is served when the Registrar wants to revoke, suspend, or refuse a licence to an individual. It must provide reasons outlining the proposed action. Any licensee which disagrees with the NOP can appeal the proposal to the License Appeal Tribunal and request a hearing, so long as it is done within 15 days. If the LAT does not receive the appeal within 15 days, the proposed action or final Order will be issued and executed. 

An interim suspension of a liquor licence can also be issued by the Registrar. This suspension is carried out immediately and is issued in the best interest of the public. This is to disallow the distribution of alcohol through serving and selling by licensees that have allegedly committed severe offences. Once in immediate effect, the interim suspension can remain for 15 days subsequent to the Notice of Appeal. Throughout the duration of this period, members of the LAT are more than capable of extending or rescinding the suspension on the licensee. 

The third document is called the Order of Monetary Penalty (OMP). The OMP must be served to the licensee outlining all the allegations against him or her in the Order, including all the details of the alleged infractions. Just like the NOP, any licensee which disagrees with the OMP can appeal the Order to the LAT and request a hearing, so long as it is done within 15 days and in writing. If the LAT does not receive the appeal within 15 days, the Order served on the licensee will get pressed. Furthermore, in addition to no response from the licensee, if there is also no payment, further action will be taken.

It is important to remember that once any individual has been served with either of these documents, they understand that they then obtain the right to seek an appeal and/or hearing before the Licence Appeal Tribunal. Any licensee who disagrees with the NOP can appeal the proposal to the License Appeal Tribunal and request a hearing within 15 days. If the LAT does not receive the appeal within 15 days, the proposed action or final Order will be issued and executed. 

Applications to Appeal for Cannabis Matters

If an individual owns a business and has a valid Cannabis Licence, under the Cannabis Licence Act, they may be served with several Notices and Orders, to which they can appeal to. The following are a list of those documents:

1.    Notice of Proposal to Refuse to Issue a Licence

2.    Notice of Proposal to Impose a Condition(s) on a Licence or Authorization

3.    Notice of Proposal to Refuse to Renew a Licence or Authorization

4.    Notice of Proposal to Revoke or Suspend a Licence or Authorization

5.    Suspension Order on a licence or authorization (Immediate)

6.    Revocation Order on a licence or authorization (Immediate)

7.    Order of a Monetary Penalty (OMP)

If the Registrar issues a Notice of Proposal on an individual, they acquire the right to appeal and seek a hearing before the LAT. A NOP is issued and served when the Registrar is concerned with an individual’s Retail Operator Licence, Retail Manager Licence, or Retail Store Authorization. This is when the Registrar wants to take an action to suspend, revoke, or refuse either of those Licences/Authorizations. The NOP which is served on the Licensee must outline all grounds that the proposed action has been taken upon. Once an individual decides that they want to appeal the NOP and request a hearing, they must immediately do so within 15 days before the LAT. However, if a Licensee fails to appeal in that time mark, the final Order or Notice of Proposal is executed on the grounds that it is deemed accepted by the individual it’s served upon. Additionally, a Cannabis Retail Store Authorization can also be refused or issued against a Licensee by the Registrar. When this happens, that adjudication is final, unless applied for Judicial Review at the Superior Court of Justice where the decision can have a chance to be overturned. 

The Registrar may suspend or completely revoke a Retail Operator Licence, Retail Store Authorization or Retail Store Manager Licence from a Licensee under the Cannabis Licence Act. A suspension is carried out immediately and is issued in the best interest of the public. This is to disallow the selling of Cannabis by licensees that have allegedly committed severe offences. A revocation of a Licence or Authorization however, occurs when a Licensee has been convicted of selling Cannabis to an under aged person and is executed immediately. 

 Application Process for Gaming License Disputes

If an individual/business carries or operates a Gaming Business and registered under the Gaming Control Act, 1992 and with the Alcohol and Gaming Commission of Ontario (AGCO). They may receive one of the two documents in a disputed situation, which is a Notice of Proposed Order (NOPO) or Order of Monetary Penalty (OMP). When served with these notices, and individual has the right to a hearing and/or appeal before the License Appeal Tribunal (LAT).

In the circumstances, a registrar of the AGCO is seeking to refuse, revoke or suspend a license/registration, and has issued an Order of Monetary Penalty than an individual has the right to appeal and dispute. They have the option of requesting a hearing before the LAT within fifteen (15) days of receiving one of the notices. Therefore, if the business operator or individual receives a Notice of Proposed Order (NOPO) which is if the Registrar proposes to refuse, revoke or suspend the registration, the Registrar will serve a Notice of Proposed Order (NOPO) on the applicant/registrant, indicating the reasons why the proposed action took place. Applicants/registrants who dispute a NOPO issued by the Registrar may appeal this proposal. If an individual receives a NOPO by the registrar and wish to request a hearing, they have fifteen (15) days to submit a written request form for a hearing with the LAT. If a written request is not received within fifteen (15) days, the Registrar will carry out the proposed action and/or a final order which will be issued on the applicant/registrant.

In a condition where there are serious allegations or violations, that is in the interest of the public to take immediate action, the registrar may issue an immediate suspension to the registration under the Gaming Control Act, 1992. An immediate suspension may take effect immediately after being served on the registrants. Registrants have the option to appeal the mediate suspension to LAT, although the immediate suspension remains in validity until the LAT makes a decision on the Appeal.

Application Process for Lottery Ticket Disputes

 

If an individual has a conflict about their right to a prize or portion of the Ontario Lottery and Gaming Corporation (OLG), on a lottery prize over $10,000, they may have the option to apply to have the dispute resolved through the arbitration of the AGCO. These Rules apply to every adjudication initiated pursuant to subsection 11.2(4) of the Ontario Regulation 198/00 which is made under the Ontario Lottery and Gaming Corporation Act, 1999 as amended.  Consecutively, an individual also has the right to start a proceeding in the Ontario courts. In order to apply for a dispute with the Ontario Lottery and Gaming Corporation (OLG) you must ensure all required questions and forms are completed. Any incomplete, inadequately completed or unsigned applications will be returned to applicant for further review. Applications will not be accepted by email. To retrieve the forms, paper copies, they are available without a fee from the Office of the Chair located at Alcohol and Gaming Commission of Ontario – Office of the Chair, Suite 300 (3rd floor) 90 Sheppard Avenue East, Toronto, Ontario M2N 0A4.

Thereafter, the Chair will establish a fee schedule to recover the expenses and costs of the arbitration. The fee schedule is established part of the Rules 4.2. The fees must be paid to the AGCO at the time specified in the Rules or when directed by Tribunal. Fees may be paid by money order, cash, Canadian draft or certified cheque. The Applicant must pay the initial Filing Fee at the time of filing the Notice of Dispute. The office of the Chair would not accept or process a Notice of Dispute without retrieving an Initial Filing Fee of Rule 4.4. The responding party must also pay the Initial Filing Fee at the time of filing a response. Furthermore, the office of the Chair will not accept or process a Response without the Filing Fee and arbitration will not proceed further until the fee is paid in full.

To file a dispute these are the Arbitration of Lottery Dispute Forms below:

  • Notice of Dispute (Form 1)
  • Certificate of Delivery (Form 2)
  • Response (Form 3)
  • Notice of Resolution (Form 4)
  • Refusal of Mediation (Form 5)

Application Process for Horse Racing License Disputes

To dispute or appeal a decision under the Horse Racing Licence Act, 2015 an individual must follow the LAT procedures. On December 10, 2015, the Ontario Legislature passed the Horse Racing Licence Act, 2015, by altering the appeals of horse racing decisions adjudicated in Ontario. Therefore, the legislation produced a new adjudicative body called the Horse Racing Appeal Panel (HRAP). This is responsible for hearing appeals of decisions made under the Rules of Racing. Although, the adjudicative responsibility is to deal with matters that are proposed refusals, suspensions and revocations of licenses pursuant to the Notice of proposed orders (NOPO) it is transferred over to the License Appeal Tribunal (LAT).

As of April 1st 2016, Horse Racing Licenseesthat wish to appeal a decision or matter related to:

  • The Rules of Racing (e.g. related to on-track and conduct violations, positive test cases and related decisions made by Judges and Stewards) are obligated to file a Notice of Appeal to the Horse Racing Appeal Panel (HRAP). 
  • A Notice of Proposed Order (e.g. relating to the issuance, renewal, suspension or revocation of a horse racing license) are obligated to file a Notice of Appeal to The License Appeal Tribunal (LAT). 

Further useful resources or links

If you wish to obtain legal advice, on how to appeal a decision you should consult a person licensed by the Law Society of Upper Canada (www.lsuc.on.ca).

For questions regarding settlement, disclosure or narrowing an issue prior to the hearing/appeal the decision you may contact the Registrar’s Legal Counsel prior to a hearing/appeal. You may contact Counsel, by phone at 416-326-5531, or by fax at 416-326-5574.

For further information about the Cannabis related appeals you may refer to the Information Sheet on Cannabis-related appeals to the Licence Appeal Tribunal.

For Liquor licencing matters or Gaming License disputes or appeals you may refer to the information Sheet on Appealing a Notice of Proposal, Notice of Proposed Order or Order of Monetary Penalty issued by the Alcohol and Gaming Commission of Ontario (AGCO).

PARTIES AND PARTICIPANTS 

All matters regarding: Alcohol, Lottery and Gaming, Horse Racing and Cannabis are heard before the Licence Appeal Tribunal (LAT). However, matters regarding Lottery Ticket Disputes are heard at the AGCO. 

When an individual has a dispute about his or her right to a prize or portion of an Ontario Lottery and Gaming Corporation (OLG) lottery prize over $10,000, he or she may apply to have the dispute resolved through arbitration at the AGCO. 

Rule 2 of the Rules of Procedure for Arbitration of Lottery Disputes made pursuant to the Ontario lottery and gaming corporation Act, 1999, defines parties and participants as follows:

  • “Participant” means a person who has or claims to have an interest in a disputed prize or portion of the disputed prize, but does not include the OLG.
  •  “Party” means a participant in the lottery scheme who is the Applicant or any Responding Party.
  • “Responding Party” means the person or persons who respond to a Notice of Dispute and a “Response” is the Form completed by a Responding Party;
  • “Applicant” means a person, or persons, who initiates an arbitration by delivering and filing a Notice of Dispute.

THE HEARING PROCESS

The responsibility for the hearing of AGCO matters, lies in the hands of the License appeal tribunal. After an application has been filed within 15 days, with no frivolous aspect to it, the settlement of the dispute usually starts with a case conference. This is also known as a pre-hearing and the purpose of the case conference is to discuss the likelihood of settlement without a need for a hearing.  All parties or their legal representative must be present at this stage and it is the job of the Conference facilitator to inform the parties about the appeal process, along with facilitating discussions to clarify and narrow down issues. In some situation, it results into the case been solved. However, where such does not occur, the facilitator pushes the matter towards a hearing. Typically, hearing dates, location and time are usually discussed at this stage.

They also discuss and set the dates for which important hearing documents such as expert witness list must be produced by each party. The case conference also resolves whether there would be a need for an interpreter, or whether it would be a French or bilingual proceeding, along with figuring out the estimated time of the hearing.

The possible outcomes of the case conference are firstly that, the matters are settled between the parties, or the application is withdrawn and if not, a hearing is set for a later date. If a party decides that he wants to withdraw his appeal, he must do that by calling and writing the tribunal at least 5 days before the hearing date. In such writing, it must unequivocally clear that you are withdrawing.  Another likelihood result is that the case conference is adjourned due to the insufficiency of time on that day. All parties or legal representative must come prepared to attend the next scheduled case conference and where they cannot attend, the LAT would only allow a reschedule, only for serious matters. The party or legal representative must make sure an adjournment is requested in time. The rules mandate that if such would be requested, reasons for cancellation/postponement be given, along with a proof agreement from all parties consenting to a reschedule. Lastly, there should be alternatively 3 days from the 30 days of case conference date which agreeable by all parties.

The LAT would usually, like any judicial system rely on evidence to make its decision. Therefore, parties are expected to have their mind ready to present their evidence. It could be in document form or photographs as long as it presents the parties argument in the right light. 

The LAT refuses any information that is presented to the tribunal but not to the other party. The party when corresponding to the tribunal, must copy the other party. As mentioned earlier disclosures are usually discussed at case conferences for the purposes of the hearing, and the dates for the disclosure depends on both parties. The tribunal mandates any document that would be relied on during trial should have been filed and disclosed to the other party.

In addition, the tribunal would usually at the case conference require that you provide a list of witness and a brief description of the witnesses anticipated testimony. However, if there is a problem with getting the witness to come to the hearing, the tribunal can provide for a summon, so it can be issued to the individual to compel them to testify. It is the job of the party obtaining the summons to serve this summons properly and make payment for attendance.

Apart from the identification of the expert witness in writing, the party has to provide a signed statement from the expert witness which would bind him or her to a duty of providing opinions that are directly related to his or her field, otherwise he would be an unreliable witness. The signed statements would also require a duty from him to provide a fair and objective opinion on whatever is asked. Lastly, this statement would bind him to a duty to provide further assistance which would reasonably guide the tribunal to a decision. The party, concerning the expert witness must also provide her field, training education and qualifications.

 The party must also provide a signed report of the instructions given to the witness concerning the case along with the witnesses’ written conclusions or findings on it. They are to also provide a concise summary of agreed facts and those in dispute as well as experts findings on it. If a party with reason, wants to challenge the qualification of an expert witness or a report of his, the party must challenge the request 14 days before the hearing and file it with the tribunal.

The case conference usually occurs by a telephone but that’s not set in stone. However, the hearing can occur in a few different ways. It could be through a written format, a teleconference, an in person hearing or a combination of all three. This would usually depend on the location of the parties.

 At the beginning of an oral hearing, all parties have to be in attendance. the adjudicator would usually ask those in attendance to introduce themselves, he will then go ahead to explain the procedure and to deal with any preliminary issue. This refers to any concern one party might have towards another, concerning each of their disclosure.  Afterwards, he will ask each party to make their opening statements. Each party or legal representative can present their evidence and have their witnesses called up for examination. Before the witness testifies, they are asked to take an oath which binds them to telling nothing but the truth. After the party examines their witness, then the other party has a chance to cross examine the other party’s witness.

This is where the adjudicator would direct the parties to make their closing remarks. This closing remarks is much briefer than the opening statement as it involves a summary of their individual arguments and why the application should either be dismissed or granted. This is an opportunity for each party to persuade the tribunal based on evidences mentioned at the hearing. No one can introduce a new evidence during the closing statement. It would not be admitted. The tribunal is not bound by its own decision on previous cases which are similar. They make their decision based on a case by case basis. However, they are bound by case law and courts interpretation of statute. The decision is normally given in writing by the tribunal member who hear the case, shortly following the hearing. This decision can be either sent to the party or to the legal representative of the party.

Rule 13.1 regarding access to hearings, allows the public, access to in person hearings subject to section 9 of the SPPA unless the tribunal orders otherwise. On the other hand, if a party does not want all or part of a hearing be open to the public, he or she can make that request.[12]This restriction also extends to documents of a hearing, as parties can make request of the tribunal to restrict the public from accessing certain documents or records in a hearing[12]. However, discretion is left to the tribunal to grant such access and restrict the manner in which it is used. The rules also permit the tribunal to make certain orders for the purpose of protecting certain confidential or sensitive information as it deems fit without any request from a party.[1] There is room for the video recording of a hearing. The rules give parties the right to request for such in writing. If it is granted, the grantee must comply with all restrictions placed on it by the tribunal. The rules mandate that such request must be made 14 days prior to the date of the hearing along with the request being copied to the other party. The other party can make submissions on their stance to the granting of such request. Initially if granted, the recording is not a property of the hearing, but a copy must be given to the other party. In addition, once it is requested by the tribunal, it must be given to them.

On the other hand, the case conference also has its own confidential issues. It is quite possible that whenever issues can’t be resolved at a case conference, and it goes to trial, whatever is disclosed at the pre hearing could be prejudicial to the potential case of a party at the hearing. This is especially if it is the same adjudicator that resides in both proceedings. However, rule 14.3 mandates that, unless it has been agreed by both parties, the case conference facilitator cannot be the same judge that resides at the hearing.  The documents produced at the pre-conference hearing according to rule 14.4, are considered confidential because the pre hearing is held on a ‘without prejudice’ basis. The information in the documents shall not be communicated to the hearing judge or relied on at the hearing.

According to rule 22.1, In a public interest proceeding that is related to the liquor license act, the tribunal usually gives objectors notice to the case conference. This are those whom they have their complete mailing address. In addition, if an objector wants to be a part of a proceeding, he or she must appoint a representative before the case conference or at the case conference with their contact information. Based on rule 22.2, after an objector has been given notice of the case conference and they do not appear without a request for an adjournment, or without appointing a representative to take their place, the tribunal proceeds with the proceedings and a binding settlement in some cases can be reached without them. Where it’s not settled, there is the possibility that an order could be given entitling them to no further notice of the proceedings.

Motions

 

A “Motion” is a request for a decision or an order that a LAT to 

a) rule upon its jurisdiction; 

b) give directions concerning its procedures; or 

c) make an order for any other purpose necessary to carrying out its functions.

The party making a motion is called “moving party” and the party that responds to the motion is called “respondent”.

Motions are carried out in a written format. The License Appeal LAT (LAT) Rules of Practice and Procedure of 2016 is used to determine the surroundings of the correct procedure of motions on appeals for a license that was denied by AGCO.

According to Rule 15 from the which is the Notice of Motion has to be brought for a motion to be made. Motions can be made at any time of the proceeding, its important to point out that before the Notice of Motion is filed, the moving party must get a date for hearing the motion from the Manager of Hearings or the panel.

The motion has to state:

a) what relief is to be sought;

b) the grounds on which the motion is relied on for argument and any law coming from statutes, regulations or case law; and,

c) attach all documents to be used as evidence to the motion

d) The proposed format of the motion

Otherwise directed by the LAT the way of presenting evidence for a motion has to be through sworn statements. A party may have a motion heard at a case conference or hearing or any other date scheduled by the LAT. All the supporting material and the Notice of Motion have to be served to all the parties in the proceeding and filed with the LAT, at least 10 days before the established date.

The responding party has to serve any and all material that are intended to be used to respond to the motion has to be filed with the LAT accompanied with a Certificate of Service, for each party served, at least 5 days before the motion is to be considered by the LAT.

Examples of motions heard before the Board:

A motion against another party to limit or revoke their rights of participating in a proceeding, this is unless the other party is not an applicant, licensee, registrant or other persons that by law are allowed to be part of a proceeding.

A motion for when a party brings into the proceeding and discloses documentation that may have financial or personal and intimate information or information related to public security, a motion can be made to seal those documents for the purpose of restricting public access. Unless the LAT decided otherwise about this motion, the documents will remain private and not available to public.

Where disclosure provided by any of the parties in a proceeding is incomplete or is not adequate so that adjudication can be over a full and fair dispute, a party can bring a motion for further disclosure.

How are the AGCO and LAT going to issue their decisions?

According to the current legislation the AGCO when issuing a Notice of Proposal, has to give written reasons and stating the legal grounds on these reasons, on the applicant or authorization holder on the following matters:

  1. Suspend or revoke an authorization.
  2. Refuse to renew an authorization.
  3. Refuse to approve a transfer of an authorization.
  4. Refuse to approve a change in store location to which an authorization applies.

The notice of the proposed order shall inform the applicant or registrant that the person is entitled to a hearing before the LAT, to request a hearing, the person shall serve a written request on the Registrar and the LAT within 15 days after the Registrar serves the notice of the proposed order.  The LAT will review the Notice of Proposal and decide over.

Regarding the Gaming Control Act, if a person is refused registration or who is refused renewal of a registration or whose registration is revoked by the Registrar would have to wait 2 years in order to reapply. Related to this the Registrar, without giving written reasons, can reject another application made after two years if, in the opinion of the Registrar, the application discloses no substantial new evidence or no material change in circumstances since the refusal, revocation or suspension took effect.

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The LAT will only give written reasons on their decisions when dismissing an Appeal without a hearing (notice), in any other cases (where a hearing is held), the Rules of the LAT do not mention written reason should be given. 

Dismissal without a Hearing are to be given on the grounds and only if:

a) The appeal is frivolous, vexatious, commenced in bad faith, or is otherwise an abuse of process;

b) The appeal relates to matters that are outside the LAT’s jurisdiction;

c) Any of the statutory requirements for bringing the appeal have not been met; or

d) The party filing the appeal has abandoned the proceeding.

Therefore, before the LAT dismisses an appeal according to the rules, the LAT has to:

a) A notice of intention has to be given to the parties;

b) Provide the reasons for its intended decision to dismiss; and

c) Inform the parties of their right to make written submissions to the LAT within the time limits set out in the notice, which shall be at least 10 days.

The applicant can then, make submissions and the LAT after reviewing a submission made, may:

a) Request more information or additional submissions;

b) Accept the appeal; or

c) Dismiss the appeal.

The LAT has to notify again the parties of this decision and with this notification give written reasons.

Rule 17 states that the LAT may at any time:

1. Correct a typographical error, an error of calculation or similar error in its order or decision;

2. Clarify an order or decision that contains a misstatement or ambiguity, which is not substantive and does not change the order or decision.

Reconsideration of A LAT Decision

Rule 18 states that in order to request a reconsideration to the LAT, the Executive Chair of LAT may, upon their own initiative or by request made by the party request a reconsideration of a decision made by LAT.

When this request for reconsideration is made by any party is has to be served on all parties pertaining the proceedings and must include:

a. Reasons for the request, specifying applicable criteria under Rule 18.2;

b. Notification if the party is seeking judicial review or pursuing an appeal in relation to the decision; and

c. Remedy or relief sought.

Criteria for Granting Reconsideration (Rule 18.2)

A request made for reconsideration cannot be granted if the Executive Chair is satisfied that the flowing criteria is met:

a) The LAT has violated the rules of natural justice and/ or procedural fairness and acted outside its jurisdiction;

b) There has been a significant error of law made by the LAT and that this error might had implied a different outcome on their decision;

c) There was evidence that was discovered to be misleading or not true after the hearing that affected the result provided by a party or witness; or

d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

Its important to mention that the Executive Chair will allow first for all parties to make submissions before taking a request for reconsideration. When consideration of a request for reconsideration, the Executive Chair may:

a) Dismiss the request;

b) After providing all parties an opportunity to make submissions,

  • Confirm, vary, or cancel the decision or order; or
  • Order a rehearing on all or part of the matter.

Rule 19 talks about the procedure for costs requests. If a party in a proceeding thinks that another party acted in a way that was not reasonable, in a frivolous, vexatious or acted in bad faith, the party can make a request to LAT to get costs. The request for costs can be made in writing or orally at a case conference to LAT, this can be made at any time before the decision or order is released. 

The LAT according to this same rule, can make an order requesting orally that a party provides written submissions to all parties and to the LAT, this within the next 7 days. Submissions on the costs request should be over the reason of the request and state the particular conduct of the other party that is alleged to be unreasonable, frivolous, vexatious, or in bad faith. 

As the appeals heard by LAT about AGCO are most of the times over decisions regarding the suspension or revocation of an authorization, about refusing  to renew an authorization, to refuse to approve a transfer of an authorization or to refuse to approve a change in store location to which an authorization applies, any other award other than the rectification of the AGCO might be unlikely. Depending on the individual case costs would be awarded.

RELEVANT DECISIONS

Case # 01

Case Citation:

3234720 Canada Inc. (Raxx Billiards & Bar) (Re), 2008 CanLII 6167 (ON AGC)[1]

Parties:

Registrar, Alcohol and Gaming Commission Ontario                                       Registrar

3234720 Canada Inc. O/A Raxx Billiards & Bar                                                  Licensee

Facts:

 RAXX BILLIARDS & BAR, operated business under licence number 804926, represented in this case by Joel Kuchar. Registrar is represented by Richard Kulis. On February 17 and February 18, 2017, a person named Mr. Paquette was alleged to be intoxicated after coming out of the licensee’s premises. On February 17, 2018, police took him to police station after being called by people who saw them when he was trying to drive his vehicle away. Mr. Paquette had breathalyser test at the police station and was charged with impaired driving. On February 2018, police officer took Mr. Paquette to police station after being informed by an employee who worked as security guard at the licensee’s premises. Officer stated that Mr. Paquette was involved in an incident. His car had gone in ditch. His speech was slurred, feet were unsteady and had alcohol in breath. Police officer took him to station in cruiser and the male fell asleep in the cruiser and was snoring. The officer to sample of breath and it was found to be 243 per 100 ml which is 3 times the allowable limit. Paquette also told the police officer that he consumed 18 beers at home and at bar. He said that he started at 10 and he had the last beer about half an hour before arrest. The registrar issued a Notice of Proposal dated June 28, 2007 to suspend the liquor licence of RAXX BILLIARDS & BAR on the basis of alleged violation of subsection 45(1) of Ontario Regulation.[2] Mr. Kuchar moved an application to dismiss the allegation in notice of proposal on the basis of no evidence being presented by the registrar. 

Legal Issues:

1.   Whether the licensee permitted drunkenness and violated subsection 45(1)?

2.   Whether the motion to dismiss allegation in notice of proposal be allowed or not?

Reasons for decision:

1.      Whether the licensee permitted drunkenness and violated subsection 45(1)?

 The Board found that Mr. Paquette was identified by an employee of the licensee’s premises to be intoxicated when he drove his car into the ditch. Mr. Paquette’s blood was also tested approximately 2 to 2 1/2 hours after the closing time of the Premises. All of which leads to the conclusion that Mr. Paquette was clearly intoxicated while in the Premises and this should have been noticed by Licensee’s staff. The failure to do so or say nothing if they did notice the condition of Mr. Paquette, cannot be ignored by the Board and thus they permitted drunkenness in the premises.

2.      Whether the motion to dismiss allegation in notice of proposal be allowed or not?

Mr. Kuchar brought a motion to dismiss the allegation in notice of proposal that the licensee permitted drunkenness on his premises. Mr. Kuchar contended that the Registrar has not presented any evidence regarding Mr. Paquette’s behaviour in Raxx, what time he got there, how many beers were served to him in Raxx. There was no evidence regarding interaction with staff at Raxx. Furthermore, the incident took place in the parking lot and not in Raxx.

Mr. Kulis, representative of the registrar referred to Salty Dawg’s decision [3] at Para 44 to 47 and said that the Board can extrapolate that something happened and it occurred in the premises.

The Board observed that a bouncer/security guard, encountered Mr. Paquette in the parking lot and called police, reported an altercation and that a vehicle was in the ditch. The behaviour of employee indicated to the panel that he acted in a position of authority and responsibility on behalf of the Licensee. This indicates that there was a strong link between Mr. Paquette and the Premises of the Licensee. Therefore, the motion to dismiss was denied. 

Decision:

The Board decided that the type of ignorance exhibited by the Licensee is a matter for both specific and general deterrence, and a suspension of the Licensee is appropriate in these circumstances. On the other hand, the clear record of the Licensee since 2002 should also be taken into account by the Board and ordered the license to be suspended for a period of seven (7) consecutive days. 

Decision followed as precedent in following cases:

1.   2027980 Ontario Limited (Jack’s) (Re), 2008 CanLII 35217 (ON AGC)[4]

Board stated in Para 25 that, “As a matter of specific and general deterrence, a suspension is appropriate, but the length of the suspension should take into account the past clean record of the Licensee and its principal, Mr. Dehu.”

2.   Coco’s Place Restaurant & Bar Ltd. (Coco’s Place) (Re), 2009 CanLII 78672 (ON AGC)[5] 

Case # 02

Case Citation:

2148855 Ontario Inc. (Margaret) (Re), 2009 CanLII 70937 (ON AGC)[6]

Parties:

Registrar, Alcohol and Gaming Commission of Ontario                          Registrar

2148855 Ontario Inc. operating as Margaret                                            Applicant

Janet McKay                                                                                                Objector

Facts:

 The applicant operated as MARGARET under liquor licence number 811914 and applied to get permission for additional area for Patio. The Registrar of the Alcohol and Gaming Commission of Ontario issued Notice of Proposal, dated July 15, 2009 to review an application for an additional outdoor area for 33 persons,on the basis that the AGCO had received written objections to the application from residents of the municipality. A hearing of the application was held on August 13, 2009 in the City of Toronto.

Legal Issues:

Whether granting application for a liquor licence is in the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located?

Reasons for Decision:

The objectors’ main concern was that licensing the patio will create a noise problem in the municipality. Also, the Objectors believe that it was the wrong kind of patio in the wrong place because it was very close to many homes. As well, the Objectors ask the Board to make note of the numbers of residents that attended the hearing to object to this application as well as the number of letters of objection filed against it.

The Applicant submitted that she wanted to compromise solution and hoped that something can be found that can work for all. The Applicant had worked hard to build a business, but it had reached a plateau and required a patio for it to compete with the surrounding licensed businesses. The applicant contended that if the she is given a chance, the neighbours concerns will be put to rest. 

The Board found that the Objectors were credible witnesses and does not doubt that the concerns they expressed about noise are genuine or not. However, the Board cannot make a decision based on conjecture and speculation about potential negative impacts of a licensed patio.

Decision:

The Board approved the application for an additional outdoor area for 33 persons by 2148855 Ontario Inc., operating as MARGARET.

Decision followed as precedent in following cases:

1.   9594 v Registrar of Alcohol and Gaming, 2015 CanLII 89166 (ON LAT)[7]

2.   7510 v. Registrar of Alcohol and Gaming, 2012 CanLII 44793 (ON LAT)[8]

SOURCES OF INFORMATION

 

https://www.agco.ca/about-us

1)     Overview

2)     Background

3)     Key Activities

4)     Compliance Activities

5)     Appeals

6)     Arbitration

7)     Legislation and Compliance:

  1. Acts and Regulations
  2. Standards
  3. Rules of Racing and Directives

8)     AGCO, Hearings and Appeals - (2006). Retrieved July 26, 2019, from https://www.agco.ca/about-agco/hearings-and-appeals/hearings-and-appeals-alcohol

9)     About the LAT. (2016). Retrieved July 26, 2019, from https://slasto-tsapno.gov.on.ca/lat-tamp/en/ © Queen’s Printer for Ontario

10) Rules of Procedure for Arbitration of Lottery Disputes (pp. 1-16, Tech.). (2012). Doi: Made pursuant to the ONTARIO LOTTERY AND GAMING CORPORATION ACT, 1999 and its Regulation 198/00, as amended

11) Safety, Licensing Appeals and Standards Division (SLASTO). (2016). Retrieved July 26, 2019, from https://slasto-tsapno.gov.on.ca/en/ © Queen’s Printer for Ontario

12) Rule 13.4

13) 2008 CanLII 6167 (ON AGC)

14) O Reg 719/90.

15) [2002] O.A.G.C.D. No. 21

16) 2008 CanLII 35217 (ON AGC)

17) 2009 CanLII 78672 (ON AGC)

18) 2009 CanLII 70937 (ON AGC)

19) 2015 CanLII 89166 (ON LAT)

20) 2012 CanLII 44793 (ON LAT)

21) 2015 CanLII 89166 (ON LAT)

22) 2012 CanLII 44793 (ON LAT)

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