To the Point

In a fifteen-paragraph endorsement, Ontario’s Divisional Court reinforced several principles of procedural fairness: Ramirez v. Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 2023 CanLII 119157 (ON SCDC).

A nightclub owner holding a liquor licence sought judicial review of a tribunal’s decision upholding a $1,500 monetary penalty for having 39 people on a patio authorized to have only ten.

The Court upheld the tribunal’s refusal of an adjournment to permit the owner’s new counsel more time to prepare for the hearing despite the Registrar’s consent to it. The Court held there was no unfairness because this was the second adjournment request and the owner was aware of the need to retain available legal counsel (i.e., the grounds for the adjournment could have been anticipated and avoided). The Court noted that the hearing was straightforward and that the consequences to the owner were not serious.

The owner also suggested that they had not been given proper disclosure. The Court observed that this issue was not raised at the original hearing, as it should have been if there were concerns. In any event, the evidence was that the owner had been given early and repeated disclosure such that there was no unfairness.

The owner also asserted that they had not been given an adequate opportunity to investigate and argue that the complainant, the municipality, was acting in bad faith as part of a campaign to remove the owner’s liquor licence. The Court expressed the view that the motivation of the complainant was irrelevant to the issue of whether the owner complied with the patio requirement.

The Court also found that there was no basis to establish an appearance of bias on the part of the tribunal.

A decision a party does not agree with is not in itself evidence of bias. A party does not have an automatic right to an adjournment upon request. Tribunal members enjoy a strong presumption of impartiality. Bald assertions of bias are not sufficient.

Reasons for decision do not need to be lengthy to explain a decision, even one covering many issues.

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