Toronto bar owners take AGCO to court over bizarre incident with liquor inspector
In what must be one of the more unusual cases to come across an Ontario Superior Court judge's desk this year, several Toronto business owners are taking legal action against The Alcohol and Gaming Commission of Ontario over the restrictions imposed upon them after a liquor inspector was compared to Aunt Lydia from the hit TV show "The Handmaid's Tale."
Let me break this down a bit.
Anthony Greene, former owner of Castro's Lounge on Queen Street East, sent an (admittedly) ill-advised, late-night Facebook message to the personal (but public) account of a liquor inspector he'd dealt with occasionally in the past.
According to an application for judicial review filed by Greene, two other business owners and The Dakota Tavern, "the inspector left an impression on Mr. Greene, who would periodically hear from other owners of licensed establishments who were continuing to deal with the inspector."
Needless to say, the impression was not a good one — on either side of the fence.
"Late in the evening of June 13, 2018, Mr. Greene was at home watching a TV program called the Handmaid's Tale. This triggered a recollection of his prior dealings with the Inspector which resulted in the Incident," reads the court document.
"In what is acknowledged by Mr. Greene to have been a lapse in judgement, intended as a criticism of the perceived imbalance of power which regulated entities frequently experience at the hands of their regulator, Mr. Greene sent a Facebook message to the Inspector forwarding an image of two characters in the Handmaid's Tale."
Greene wrote the following in his message to the female inspector:
"I'm watching The Handmaid's Tale and the character Aunt Lydia totally reminds me of you. A person who takes great pleasure in exerting power over others and someone who ultimately enjoys making people suffer."
It was nearly a full week before the inspector opened and read Greene's message on the evening of June 19, 2018.
According to Greene et al.'s lawyers, the inspector "proceeded to immediately contact the Toronto Police Service to make a criminal complaint."
"In support of her criminal complaint, the inspector informed the police that each time that she attended at Castro's Lounge, she claimed that Mr. Greene was aggressive towards her; that he was short tempered, very blunt and wanted the inspector to get out as fast as possible," reads the court filing.
"Notably, while the inspector's claim that Mr. Greene had a history of being aggressive towards her in the period 2007 to 2011 may have served to encourage the police to arrest, charge and detain Mr. Greene, this information was false."
Regardless, a TPS detective asked Greene to come down to 55 Division at 11 p.m. on June 19, 2018, "regarding an allegation of intimidation made against him."
Greene went willingly to the police station as requested, but says he was "placed under arrest and charged with the criminal offence of intimidation" before he could even make a statement.
"Furthermore... Mr. Greene was held in custody, only to be released by the court the following day on his own recognizance," reads the filing.
By August, the charges against Greene had been dropped. An independent Crown assessment of the case conculded that there was "was no reasonable basis to conclude that Mr. Greene had threatened [The Inspector] in any way, let alone by threats that violence will be done."
Still, a few weeks later, the ACGO informed Greene and his business partner, Dr. Stephen Reid, that it intended to "impose conditions to the Castro's Lounge liquor license prohibiting Mr. Greene from entering or being adjacent to the premises."
"In short, solely as a consequence of the Incident, the AGCO proposed to ban Mr. Greene, the co-owner and manager of Castro's Lounge, from entering the business he owned and operated" reads the court filing.
To prevent any business losses, Greene gave up his stake in Castro's and stepped away. But the AGCO wasn't finished.
Not only did the Crown agency ban him from Castro's, they subsequently banned him from another business (The Dakota Tavern) all the way across town.
Requests to get the ban overturned went unanswered and un-addressed, prompting Greene, his spouse Elizabeth Marshall, and Reid (who co-owns the already-struggling Dakota with Marshall) to take legal action.
The notice of application for judicial review, obtained by blogTO, asks the court to review the "unreasonable" decisions made by the Alcohol and Gaming Commission of Ontario on September 23, 2020.
These decisions, based exclusively on Greene's beef with the liquor inspector he likened to Aunt Lydia, include keeping Greene completely away from both Castro's and the Dakota Tavern — which is tricky, given that the business is owned by his wife and close friend.
According to the conditions set by the AGCO, the Dakota could lose its liquor license for allowing Greene to even enter the premises. He is also forbidden from having any sort of "beneficial or financial interest in the business or ongoing operations" — which is kind of a tough ask given that his wife owns the bar and they've got three kids to provide for.
Greene and his co-applicants believe that the AGCO exercised its statutory powers of decision "in an unreasonable and abusive manner" and are asking court to "quash" the conditions handed down upon The Dakota Tavern.
"In the circumstances, it is submitted that there is no reasonable or rational basis for the Registrar to have relied on the Incident as a basis to impose the conditions banning Mr. Greene from either Castro's Lounge, or subsequently the Dakota Tavern," reads the application for judicial review.
"Rather, the condition banning Mr. Greene is a punitive measure that has nothing to do with public safety, the public interest or non-compliance with the law, as a direct consequence of Mr. Greene daring to criticize the conduct of an AGCO official."
What irks Greene more than anything at this point is that he and his partners have been forced to take the AGCO to court at all.
"The AGCO doesn't have to give a person a chance to defend him or herself or even give them an opportunity to appeal," he told blogTO. "We have found no other regulatory agency with powers comparable to the AGCO permitting the imposition of conditions on a license without at a minimum a right of appeal."
Greene said that he and his co-applicants had asked the AGCO to reconsider its position prior to commencing court action, but to no avail.
When asked for comment on the case, an AGCO spokesperson told blogTO that "we are aware of the statements being made and certainly don't agree with their characterization."
"The AGCO is not in the business of taking unnecessary enforcement action against licensees. In fact, our whole regulatory approach is, wherever possible, to work with, support and educate licensees to operate safely and in compliance with the law," the spokesperson said.
"Since an application for a Judicial Review has been filed on this matter - which is entirely within this individual's rights - it is now before the courts, and we are not able to comment further on the specifics of this case."
Greene et al. take up issue with the provincial regulator's claim.
"I believe the AGCO is using its considerable powers to unfairly punish me for having criticized the conduct of one of their officials and doing so by using a process where we have no opportunity to be heard, or right of appeal," says Greene, who has also raised a complaint under Canada's Charter of Rights and Freedoms against the AGCO.
"All Canadians have the constitutional right to criticize government officials," he says. "We should be free to exercise that right without fear that the government will improperly use its powers to seek retribution, which is exactly what has occurred in this case."
The application has been scheduled to be argued in court on September 29, 2021. Until then, Greene must keep away from his own former bar, and those belonging to his wife and best friend for fear of getting their liquor licenses revoked.
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