Canada: Boston Pizza V Registrar, Alcohol And Gaming: Standard Of Review Applicable To Decision Of The License Appeal Tribunal Is Reasonableness

The Divisional Court's decision in 2193145 Ontario Inc. o/a Boston Pizza v Registrar, Alcohol and Gaming, 2016 ONSC 3552 clarifies that the standard of review from the decision or order of the License Appeal Tribunal ("LAT") is reasonableness. Justice Horkins noted that uncertainty in the authorities on the correct standard necessitated further explanation on this issue.

Background

Shortly after leaving the appellant's restaurant establishment where he was overserved, an intoxicated patron was struck by a vehicle and died. The Registrar, Alcohol and Gaming issued a Notice of Proposal to Suspend the appellant's Liquor Licence. The Tribunal found that the appellant breached s. 29 of the Liquor Licence Act by selling liquor to a person who was or appeared to be intoxicated, and s. 45(1) of Ontario Regulation 719/90 by allowing drunkenness on its premises. The appellant's appeal to the LAT was dismissed. The appellant then appealed to the Divisional Court, which also dismissed the appeal, holding that the decision was reasonable.

Divisional Court's Analysis

Justice Horkins began by first setting out the correct standard for review for decisions of the LAT. She accepted and adopted Justice Sachs' basis for the standard of review in 2130845 Ontario Inc. v. Ontario, 2014 ONSC 3595 quoting the decision at length. In that particular case, Justice Sachs rejected the view that the LAT is a generalist tribunal and that the sufficiency of its reasons should be reviewed on a correctness standard:

While it is true that [...] the Licence Appeal Tribunal reviews decisions arising under twenty-one different statutes, it does not follow that it lacks expertise relating to licensing issues in this province. The twenty-one statutes specified in LATA are similar in substance and structure. For example, ten of them contain provisions similar to s. 6(2)(d) of the Act. Thus, unlike the courts, the LAT is an adjudicative body that has developed specialized expertise in substantively-related licensing issues across the various regulatory schemes implemented by the Legislature.

In light of this analysis, Justice Horkins concluded "...it is clear from the reasoning provided by Sachs J. that the proper standard of review is reasonableness."

Justice Horkins then applied this standard of review to the case current case. Beginning with an analysis under s. 29 of the Liquor License Act, the appellant challenged the Tribunal's interpretation of the provision and the evidence used to support it. Justice Horkins rejected the appellant's contention and found that the Tribunal correctly identified the legal test under s. 29 and applied it as it was required to do so. The test in this case was that "no person shall sell or supply liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated."

According to Justice Horkins, the Tribunal's application of s. 29 of Liquor License Act was consistent with direction of the Supreme Court of Canada, noting that "where the court stated that the 'words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.'"

The Tribunal fairly reviewed and considered evidence of intoxication in light of the properly identified legal test. Additionally, the Tribunal had ample evidence to support the finding that the deceased was served liquor when he appeared to be intoxicated.

Justice Horkins also found the Tribunal's decision pertaining to s. 45(1) of the Regulation reasonable. The Tribunal, once again, had ample evidence that the appellant permitted drunkenness in its premises, thereby breaching the Ontario Regulation.

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