J. Q.B.G. A.D. 1998 No. 2295 J.C.S. IN THE QUEEN`S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: MAWSON HOTELS LTD. and SASKATCHEWAN LIQUOR AND GAMING AUTHORITY AND SASKATCHEWAN LIQUOR AND GAMING LICENSING COMMISSION RESPONDENTS Richard W. Danyliuk for the applicant Rodger W. Linka for the respondent FIAT LAING J. November 16, 1998 [1] The applicant seeks an order staying the hearingscheduled by the respondent Commission for November 19, 1998to review a decision of the respondent Authority to suspendthe applicant`s "tavern permit" for a period of three days,until criminal charges arising out of the same facts aredisposed of. [2] The applicant is the owner of the Sutherland Hotel in Saskatoon, in which it operates beverage room. It is criminally charged with five breaches of s. 112(1) of The Alcohol and Gaming Regulation Act, S.S. 1988-89, c. A-18.01 of failing to demand proof of age from minors on three days in February in 1998. trial took place in Provincial Court on one of the charges, and the applicant was convicted. The remaining charges are being held in abeyance pending an appeal on the one conviction. The hearing of such appeals is several months away. [3] On June 4, 1998, the respondent Authority pursuant to s. 18(1) of The Alcohol and Gaming Regulation Act, supra, imposed three-day suspension of the appellant`s liquor permit for the period June 25-27, 1998 as result of the allegations outlined in the previous paragraph. The applicant has exercised its right to have the decision reviewed by the respondent Commission which is the hearing scheduled for November 19, 1998. [4] The applicant requests the stay on the basis: (1) It alleges that for the Commission hearing to proceed would prejudice its defence on the criminal charges because it will be necessary for it to call similar defence evidence with respect to each proceeding; (2) It states "it would be manifestly unfair to have decision for potential penalty imposed (sic) by the Commission which may be contradictory to finding of fact and determination of guilt on the same facts and information before the Provincial Court." [5] The second ground raises a substantive issue asopposed to a procedural one, and in any event is effectivelydisposed of by R. v. Wigglesworth, 1987 CanLII 41 (SCC), 1988] W.W.R. 193 (S.C.C.). As noted by Wilson J. in this case at p. 210, the word "offences" as used in s. 11 of the Charter: is to be distinguished from private, domestic or disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within limited private sphere of activity: There is also fundamental distinction between proceedings undertaken to promote public order and welfare within public sphere of activity and proceedings undertaken to determine fitness to obtain or maintain licence. Where disqualifications are imposed as part of scheme for regulating an activity in order to protect the public, disqualification proceedings are not the sort of "offence" proceedings to which s. 11 is applicable. Proceedings of an administrative nature instituted for the protection of the public in accordance with the policy of statute are also not the sort of "offence" proceedings to which s. 11 is applicable. [6] In this case the respondent Authority and Commission have statutory jurisdiction to administer The Alcohol and Gaming Regulation Act, supra, and the powers of the Commission are restricted to dealing with licenses or permits, to the exclusion of any other type of penalty. There is nothinginconsistent with the respondent Commissionconsidering a form of disqualification of theapplicant`s license or permit, while the stateexercises its criminal law power with respect to thesame set of facts. [7] With respect to the issue of procedural fairness, this Court has the jurisdiction to exercise discretion to stay civil or administrative proceedings pending the conclusion of criminal proceedings when it would be fair to do so, or in the negative, when it would be unfair not to do so. As noted in Leier v. Shumiatcher, (1962) 39 W.W.R. 446 (Sask. C.A.) at p. 447: the right to exercise discretion should not be curtailed by any inflexible rule of law, but should be guided in each instance by the merits of the matter under review. The exercise of the discretion must not, of course, be capricious or arbitrary, but must have as its foundation admissible evidence of record from which the judge may reasonably draw conclusions. [8] It follows from the foregoing, and as noted by Miller, C.J.M. in Rowe v. Brandon Packers Ltd. et al., (1961) 1961 CanLII 340 (MB CA), 35 W.W.R. 625 (Man. C.A.), at p. 629, quoted with approval by Zuber J. in Stickney v. Trusz (1973), 1973 CanLII 423 (ON SC), 45 D.L.R. (3d) 275 (Ont. H.C.), at p. 279: am unable to subscribe to any principle which would indicate that the mere fact there are criminal proceedings pending at the same time as civil proceedings is ground for either stay or an adjournment of the civil proceedings. [9] When an application such as this is brought, the onus is on the applicant to show degree of prejudice if the civil proceedings are not stayed. (Vide: Kendall and Dolphin Ventures Ltd. v. Hunt et al., 1978 CanLII 2686 (BC SC), [1978] W.W.R. 295 at p. 297 per Kirke Smith J. quoted with approval by Maher J. in Jocelyn and Atamenenko v. Machula (1982), 1982 CanLII 2541 (SK QB), 16 Sask. R. 439 (Q.B.), at p. 441.) The prejudice must exist after taking into account that evidence to be given by the party in the civil proceeding has available the protection offered by the Canada Evidence Act, R.S.C. 1985, c. C-5 (s. 5(2)) and The Saskatchewan Evidence Act, R.S.S. 1978, c. S-16, s. 37(2) (Vide: Jocelyn v. Atamenenko, supra.). It is suggested that when prejudice will normally be found is where the evidence to be given by party in civil examination for discovery or trial could result in adverse information being made available to the Crown that it does not or would not otherwise have, thereby conscripting such party against himself or [10] In this matter there is no obvious prejudice to the applicant in allowing the Commission`s hearing to proceed, and certainly none is attested to. Thedisclosure of any defence in the Commission hearing,even if it should become known to the Crown, is notgoing to result in any new facts that are notalready known to it. Because the Commission is not relying on conviction, it will have the onus of adducing evidence related to the alleged breaches of s. 112(1) of The Alcohol and Gaming Regulation Act, and presumably the defence will consist of denying one or more of the elements implicit in the allegations. The applicant has failed to show anyprejudice to its criminal defence if the Commissionhearing is allowed to take place as scheduled. [11] The application is dismissed with costs.
FIAT. The applicant hotel was charged with five breaches of s.112(1)of the Alcohol and Gaming Act for failing to demand proof of age from minors. The hotel was convicted on one charge and the remaining charges were held in abeyance pending its appeal. The hotel sought an order staying the hearing scheduled by the Commission to review a decision of the Authority suspending the applicant's tavern permit for three days, pending disposal of the criminal charges. Grounds for a stay were that the Commission's hearing would prejudice its defence on the criminal charges because it will be necessary to call similar defence evidence with respect to each proceeding; secondly, it would be manifestly unfair to have a decision for a potential penalty imposed by the Commission which may be contradictory to a finding of fact and a determination of guilt on the same facts and information before the Provicial Court. HELD: The application was dismissed with costs. 1)The second ground raised a substantive issue and in any event was effectively disposed of by R. v. Wigglesworth. There was nothing inconsistent with the Commission considering a form of disqualification of the applicant's license or permit, while the state exercises its criminal law power with respect to the same set of facts. 2)The applicant failed to show any prejudice to its criminal defence. The disclosure of any defence in the Commission hearing will not result in any new facts that were not already known to the Crown.