Skilled Representation at the Alcohol and Gaming Commission

Canlii Citation: 2009canlii47539

Anatomy of a Win: How a Skilled Paralegal Beat the AGCO

Few paralegals have had as much success as Peter Swales at the License Appeals Tribunals, Alcohol and Gaming Commission, or Provincial Offences Courts in Ontario.

For any pub, bar, or restaurant in Ontario, a notice from the Alcohol and Gaming Commission of Ontario (AGCO) can be a daunting prospect. An alleged violation of the Liquor Licence Act can lead to severe penalties, including a suspension of the establishment’s license. However, as a 2009 case involving the Olde Stone Cottage Pub & Patio demonstrates, a charge is not a conviction. With skilled and strategic legal representation, a licensed establishment can successfully defend its reputation and livelihood.

This case highlights the exceptional advocacy of paralegal Peter Swales and serves as a crucial lesson on the importance of having a competent litigator in your corner.

The Allegation: A “Classic” Case of Intoxication

On July 18, 2008, two AGCO inspectors visited the Olde Stone Cottage Pub & Patio in Scarborough. During their inspection, they observed a male patron on the patio who they alleged was showing “classic signs of intoxication.”

The inspectors’ evidence painted a seemingly clear picture of a violation:

• The patron was unsteady on his feet and swaying back and forth.
• He was allegedly seen vomiting into his hand, laughing, and then dropping the vomit on his feet.
• One inspector claimed the patron had slurred speech.
• Another noted his eyes were closing and he was leaning on a friend for support.

Based on these observations, the Registrar of the AGCO issued a Notice of Proposal to suspend the pub’s liquor license for violating subsection 45(1) of Ontario Regulation 719/90.

The Defence: Deconstructing the Evidence

Representing the pub, Peter Swales’ strategy focused on meticulously dissecting the inspectors’ testimony through cross-examination, revealing critical inconsistencies and a lack of concrete proof.

Under questioning, the initial, confident observations from the inspectors began to unravel:

• The “Vomit”: A key piece of the AGCO’s case was the act of the patron vomiting. However, under cross-examination, Inspector Baird admitted he did not see any vomit in the patron’s hand, only the “action.” He also did not see vomit on the ground, nor did he smell anything. Inspector Hetherington testified that the patron made a “gagging motion” but admitted he turned away and did not see what happened to the contents of the patron’s hand. Crucially, he stated he did not see any vomit come out of the patron’s mouth, nor did he see or smell any on the ground because he “did not look.”
• The “Slurred Speech”: One inspector claimed the patron’s speech was slurred. However, the other inspector testified that he could not hear the patron speak at all due to loud music. This stark contradiction undermined the reliability of the observation.
• Contradictory Behaviour: The inspectors presented conflicting accounts of the patron’s overall demeanor. One described him as “fooling around” and playfully trying to grab a straw from a friend’s mouth. The other described him as having trouble staying awake, with his eyes closing. These two descriptions paint very different pictures.

Swales’ effective cross-examination transformed what seemed like damning evidence into a series of unconfirmed assumptions and contradictory statements.

The Finding: Insufficient and Unreliable Evidence

The pub’s manager, Sandra Hollyoak, and a security staff member, Jim Boyd, also testified. They stated that after the inspectors pointed the patron out, they investigated. Both employees confirmed they saw no signs of vomit and smelled nothing on the patron’s breath or on the ground. They testified that the patron did not appear to be intoxicated.

In its final decision, the AGCO Board sided with the licensee. The Board noted the numerous discrepancies in the inspectors’ testimony, particularly regarding the alleged vomiting and slurred speech.

The Board agreed with Mr. Swales’ submission that a person being unsteady on their feet, on its own, is not enough to conclude intoxication. It found the issue of vomiting to be “inconclusive,” as neither inspector could confirm they actually saw any vomit.

Ultimately, the Board dismissed the allegation, stating that “there is insufficient consistent and reliable evidence to make a finding of intoxication.”

The Lesson for Licensees

The Olde Stone Cottage Pub case is a powerful example of why skilled legal representation is not a luxury but a necessity when facing the AGCO. Peter Swales’ performance demonstrates the profound impact of a paralegal litigator who can:

1. Challenge the Narrative: He did not allow the inspectors’ official accounts to go untested, exposing weaknesses through pointed and precise questioning.
2. Highlight Inconsistencies: He skillfully pitted the testimony of the two inspectors against each other, effectively neutralizing their combined evidence.
3. Build a Credible Defence: He presented the licensee’s evidence in a clear and convincing manner, showcasing the professionalism and due diligence of the staff.

For hospitality business owners, this case underscores a critical point: an allegation is not a final verdict. The ability to challenge evidence and present a strong defence can mean the difference between exoneration and a damaging license suspension. Investing in a knowledgeable and tenacious paralegal litigator is an investment in the protection of your business.