Major Mack Hotel v. Mabley

Major Mack Hotel v. Mabley Collection Decisions of the Court of Appeal Date 1999-04-30 Docket numbers C21043 Judges Catzman, Marvin Adrian; Osborne, Coulter Arthur Anthony; Austin, Allan McNiece Subject Civil Decision Content DATE: 19990430 DOCKET: C21043 COURT OF APPEAL FOR ONTARIO RE: MAJOR MACK HOTEL (Appellant) v. JANET MABLEY (Respondent) and the LIQUOR LICENCE BOARD OF ONTARIO (Respondent) BEFORE: CATZMAN, OSBORNE AND AUSTIN JJ.A. COUNSEL: Morris Manning, Q.C. and T. R. Simone For the appellant Dennis W. Brown, Q.C., Michel Helie and Richard Kulis For the respondent, the Liquor Licence Board of Ontario HEARD: April 26, 1999 On appeal from the judgment of the Divisional Court (O’Driscoll, Steele and White JJ.), dated December 19, 1994 ENDORSEMENT [1] Major Mack Hotel appeals from the decision of the Divisional Court on December 19, 1994, dismissing the appeal of the hotel from the decision of June 16, 1994 by the Liquor Licence Board of Ontario revoking the Hotel’s liquor licence. [2] The factual bases of the Hotel’s complaints are errors alleged to have been made by the Board in the procedure it followed and in the conclusions it reached, which conclusions, with one exception were accepted by the Divisional Court. [3] It is argued that although particulars were given to the Hotel of the disciplinary offences with which it was charged, such as serving under-age persons, inadequate disclosure was made with respect to the matters which led to the revocation of its licence. [4] A review of the uncontradicted facts persuades us that adequate disclosure was provided. This disclosure came through a letter from a municipal councillor which was forwarded by the Board, from discussions with the councillor and from the representations made by local residents at the hearing held by the Board. Those residents were available for cross-examination at the outset of that hearing. They were also available for cross-examination for many months thereafter had counsel for the Hotel so wished, the hearing having spanned over one year. [5] It was also argued that the Board erred in reversing the onus. This complaint is made in the context of the Board having said in its reasons that: Residents called on behalf of the licence holder indicated that the operation was acceptable or of no concern. There was no evidence called to indicate any support for the establishment. The Board does not find any real attempt to respond to the residents’ concerns. [6] The Hotel’s argument ignores the history of criminal prosecutions against hotel personnel and the plethora of complaints respecting grossly anti-social behaviour on the part of the hotel’s customers. The Board’s comments did not place any onus upon the hotel; those comments simply noted that there was no evidence that the hotel had taken any steps to avoid the repetition of such behaviour in the future. [7] It was also argued that while the Liquor Licence Act, R.S.O. 1990, c.L-19 ss. 8(4)(a) and 9, provide for a “public meeting” to receive the representations of residents when the issuance of a licence is applied for, there is no provision in the Act for the holding of a public meeting to consider a proposal to revoke a licence. Accordingly, it is argued that the Board’s holding of a meeting was ultra vires. [8] We agree with the Board and the Divisional Court that what was held was not a meeting under s.8 or s.9, but a hearing, as authorized by s.23 of the Act. Accordingly, there is no merit in this complaint. [9] The Hotel argues, in the alternative, that assuming arguendo that what occurred was a hearing rather than a meeting, the residents had no standing at that hearing and the Board had no power to hear their objections. As support for this argument, it is pointed out that the Act sets out a procedure for the hearing of representations of residents on an application for a licence but no procedure is prescribed for the involvement of residents in the event of a proposal by the Board to revoke a licence. [10] Section 23(7) of the Act provides that: The Board may, in such manner as it considers advisable, give notice of a hearing to such other persons as it considers appropriate. Here notice of a proposal by the Board to revoke the hotel’s licence was given to the local councillor and to the community at large. Amongst the grounds which may be considered on such an occasion are the past conduct of the persons having responsibility for the management or operation of the business and “the public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located”. (Section 6(2)(h)). The representations of the residents who attended the meeting were received in order to determine their needs and wishes and their expression of the public interest. [11] Having regard to the purpose of the hearing and the circumstances which gave rise to it, the course of action taken by the Board is unobjectionable. It appears to us to be at least implicit, if not express, in the Act. In any event, it was a fair and effective means of carrying out to the provisions of the Act. To accept the Hotel’s submission, that at a hearing to consider a proposal to revoke a licence, the residents of the area have neither rights nor voice, would be to emasculate the Act. [12] It is argued that the Board erred in assuming that all of the 70 residents at the hearing were opposed to the hotel when only 11 of them made representations. That assessment is surely a matter properly made by those in attendance at the meeting, in this case, the two members of the Board who conducted the hearing. [13] A further ground of appeal was based on s.46 of O. Reg. 546/90. It reads as follows: The holder of a licence that applies to outdoor premises shall not permit noise that arises directly or indirectly from entertainment on the premises or from the sale and service of liquor to disturb persons who reside near the premises. [14] It was argued that because there is no parallel prohibition with respect to licenced indoor premises such as those of the appellant, the Board erred in considering the noise made by its exiting customers. On questioning, counsel extended this argument to everything that occurred outside of the walls of the licenced premises including noise, disturbance, profanity, parking infractions, driving infractions, fighting, violent behaviour, urinating, defecating, vomiting and passing out on public streets and on private property and littering same, such litter including needles and condoms. Insofar as these matters had occurred and were occurring beyond the walls of the licenced premises, it was argued that they were beyond the consideration of the Board on this hearing and the Board had exceeded its jurisdiction in hearing evidence on them and in considering them. [15] We do not accept this proposition. Section 6 of the Act deals with applications to the Board for licences to sell liquor. Section 6(2)(h) is one of the matters the Board is required to consider. [16] In our view, all of the matters set out in the preceding paragraph could be relevant to consideration under s.6(2)(h) on an application for a licence as well as on a proposal to revoke a licence. The weight to be attached to each item would, of course, vary according to the circumstances. [17] The main argument advanced on behalf of the hotel is that the expressions “in the public interest” and “needs and wishes” are so vague and imprecise as to be meaningless and that accordingly s.6(2)(h), the foundation of the revocation order, is void for vagueness. [18] This argument was made before the Divisional Court. After referring to Nova Scotia Pharmaceutical Society v. The Queen (1992), 74 C.C.C. (3d) 289 (S.C.C.), and R. v. Morales (1992), 77 C.C.C. (3d) 91 (S.C.C.), the Divisional Court said: In this case, no substantive Charter issue has been raised. Since no right or freedom has been infringed, s.1 of the Charter does not come into play. Therefore, there is no constitutional ground to consider the possible invalidity of the law on the basis of its vagueness. We agree. [19] Even if void for vagueness were a free-standing principle, we are of the view that it has no application in the present circumstances. “The public interest having regard to the needs and wishes of the residents of the municipality in which the premises are located” is not so uncertain or imprecise a concept as to be beyond legal debate. This ground of appeal must therefore fail. [20] The Divisional Court set aside one finding of the Board having to do with two incidents of drunkenness, violent or disorderly conduct on January 31, 1992. No argument was delivered in this court with respect to that matter. [21] The appeal from the Divisional Court is therefore dismissed with costs. “M. A. Catzman J.A.” “C. A. Osborne J.A. “Austin J.A.”