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The Alcohol and Gaming Commission of Ontario (AGCO) was established February 23, 1998 under s. 2(1) of the Alcohol and Gaming Regulation and Public Protection Act, 1996.

Purpose – An Explanation of the AGCO

The purpose of the AGCO. was established after the enactment of the Alcohol and Gaming Regulation and Public Protection Act, 1996. Section 3(1) of the Act gave the AGCO responsibility for the administration of Liquor Licence Act, 1990 and the Gaming Control Act, 1992, making the Liquor License Board of Ontario (LLBO) and Ontario Gaming Commission (OGC) obsolete; with all regulations falling under the umbrella of the AGCO. Currently the AGCO is responsible for the administration of:

The Liquor Licence Act, 1990
The Gaming Control Act, 1992
The Wine Content and Labelling Act, 2000
The Liquor Control Act (Section 3(1) b, e, f, g and 3(2)a)
Charity Lottery Licensing Order in Council 1413/08[1]

Thus the purpose of the Alcohol and Gaming Commission of Ontario stated broadly is to regulate the alcohol and gaming industries of the province of Ontario and to ensure that these sectors abide current legislation. The standards enforced by the AGCO and the services that the Commission provides are meant to preserve public interest and order.

Function(s) of the AGCO

The ACGO performs a variety of functions: it is at once a regulatory, investigatory and adjudicatory body.

The regulatory functions of the AGCO include: licensing and overseeing the actions of a variety of provincial sectors involved in the serving, selling, distribution, manufacture and delivery of alcoholic beverages as well as the licensing of games of chance, approving rules of play for games of chance, registering suppliers and retailers of the Ontario Lottery and Gaming Corporation (OLG), governing the charity lottery licence process, and excluding certain persons (i.e. minors) from accessing gaming premises.

The investigatory functions of the AGCO include ensuring that licensed establishments comply with The Liquor Licence Act, 1990 regulations, supervising casinos, gaming establishments and retailers of the Ontario Lottery Gaming Corporation to ensure that vendors adhere to regulations and meet licensing requirements. Additionally, the AGCO engages in surveillance and the monitoring of security systems for gaming locations and OLG retailers. Finally, the AGCO is directly involved in the examination and approval of gaming equipment.

The adjudicatory functions of the Commission primarily involve conducting hearings and providing subsequent reports on these hearings that are available for public view on the “Hearings & Appeals” section of the AGCO website. The AGCO “Key Activities” webpage lists the types of hearings as the most prevalent of the AGCO’s adjudicatory activities:

Hearings on proposed disciplinary actions under the Liquor Licence Act, 1990and the Gaming Control Act, 1992
Hearings on Registrar’s refusal to register or licence under the Liquor Licence Act, 1990and Gaming Control Act, 1992
Compliance order hearings
Hearings on the wine authority’s refusal to grant an approval or suspend, revoke or refuse to renew an approval to use the terms, descriptions and designations established by the wine authority under the Vintners Quality Alliance Act, 1992
Public interest hearings to determine eligibility for, or revocation of liquor licences or additions to liquor licensed premises where the public files objections in response to a public notice advising of the request for a licence or amendment thereof[2]

Structure

Chair, Vice-Cairs, Board, Hearings Section, Chief Executive Officer, Center of Gaming Excellence, Corporate Policy and Communications Branch, Legal Services Branch, Corporate Services Branch, Sector Liaison Branch, Licensing & Registration Branch, Investigation & Enforcement Bureau, Electronic Gaming Branch, Audit & Gaming Compliance Branch, Risk Management and Internal Audit Section. [3]

Procedural Stages Flow Chart

Enabling Legislation

The jurisdiction and authority of the AGCO is defined by its enabling legislation the Alcohol and Gaming Regulation and Public Protection Act, 1996 (AGRPPA). The AGCO is empowered by the following legislation:

The Liquor Licence Act, 1990
The Gaming Control Act, 1992
The Wine Content and Labelling Act, 2000
The Liquor Control Act (Section 3(1) b, e, f, g and 3(2)a)
Charity Lottery Licensing Order in Council 1413/08

For the purposes of this assignment, I will be focusing on the enabling legislation (AGRPPA) and the two main empowering legislations of the AGCO (the Gaming Control Act, 1992 and the Liquor Licence Act, 1990).

The AGRPPA, 1996

According to s. 2 (1), titled Commission established, of the Alcohol and Gaming Regulation and Public Protection Act,1996, a commission was created in the form of a corporation without share capital known in English as the Alcohol and Gaming Commission of Ontario. According to s. 2 (2) of the AGRPPA a board of directors was appointed under subsection (3); subsection (3) states that the Lieutenant Governor in Council is responsible for the appointment of board members and that there must be at least five members appointed to a board. According s. 2 (6) of the AGRPPA the Lieutenant Governor in Council is responsible for designating one board member as the Board Chair and may designate one or more members as vice-chairs. According to s. 2(7) of the AGRPPA the chair shall preside over the meetings of the board; in the event that the chair is absent or unavailable to preside over a meeting, s. 2(8) states that, a vice-chair shall act as and have all the powers of the chair. According to s. 2(9) the AGRPPA, the Corporations Act and the Corporations Information Act do not apply to the Commission. According to s. 3(3) of the AGRPPA, the Commission is responsible for exercise its powers and duties in accordance with public interest and with the principles of honesty, integrity, and social responsibility. Section 10(1) of the AGRPPA states that the chair may designate that a hearing be held before a panel consisting of one or more members of the board of the Commission. According to s.4 of the AGRPPA, the board of the Commission may establish guidelines governing the exercise of any of the powers and duties that are provided under the AGRPPA and the Liquor Licence Act, 1990, the Gaming Control Act, 1992, and the Wine Content and Labelling Act, 2000. According to s. 5 of the AGRPPA, the board of the Commission may delegate in writing any of its powers and duties to any person or persons employed by the Commission and any such delegation is subject to any conditions set out in the delegation. Section 6(1) of the AGRPPA establishes the position of the Registrar of Alcohol and Gaming for the purposes of enforcing the AGRPPA, the Liquor Licence Act, 1990 and the Gaming Control Act, 1992 and the regulations made under them. Section 10(4) of the AGRPPA lists the parties to the hearing as the Registrar, the person who requested the hearing and any such other persons as the panel may specify. According to s. 10(6) of the AGRPPA the board has jurisdiction to determine all questions of fact or law that arise in matters before it. According to s. 11(1) of the AGRPPA, a party to a hearing before the board may appeal from the board’s decision to the Divisional Court in accordance with the rules of court, but according to subsection (2) an appeal under this section may be made on a question of law only.

According to s. 3(1) of the AGRPPA which lists the duty of commission, the Commission is responsible for the administration of the Liquor Licence Act, 1990, the Gaming Control Act, 1992, the Wine Content and Labelling Act, 2000 and the regulations made under those Acts. According to s. 3(2) in addition to its powers and duties under the AGRPPA, the AGCO is responsible for fulfilling the powers and duties found in the Liquor Control Act and the regulations made under the Liquor Control Act that are assigned to the AGCO by the Lieutenant Governor in Council.

The Liquor Licence Act, 1990

According to s. 15 (1) of the Liquor Licence Act, 1990, the Registrar may issue a proposal to revoke or suspend a licence to sell liquor or refuse to renew such a licence for any ground under subsection 6 (2), (4) or (4.1) that would disentitle the licensee to a licence if the licensee were an applicant or if the licensee has contravened this Act, the regulations or a condition of the licence. Section 47 (1) of the Liquor License Act, provides a police officer (where according to s. 47. (0.1) a “police officer” includes a conservation officer) with the discretion to seize any thing, including liquor, if it is associated with an offence under the Liquor Licence Act, 1990. Section 21(1) of the Liquor Licence Act, 1990 provides the Registrar with the powers to issue a Notice of Proposal (NOP) and states that the Registrar shall serve notice of the proposal together with written reasons on the applicant or licensee.

The Gaming Control Act, 1992 gives the AGCO the authority to mandate registration (i.e. gaming corporations, casinos) and enforce compliance with the law. According to the Gaming Control Act, 1992, a term of registration is that every registered supplier and registered gaming assistant is required to facilitate investigations under the Gaming Control Act, 1992. According to s. 31(1) of the Gaming Control Act, 1992 the Registrar may appoint any person to be an investigator for the purpose of determining whether there is compliance with the Gaming Control Act, 1992, the regulations, the terms of a licence or the terms of a registration. According to s. 31 (2) the Registrar shall issue to every investigator a certificate of appointment, bearing the Registrar’s signature or a facsimile of it. According to s. 31(3) police officers, by virtue of their office are investigators under the Gaming Control Act, 1992 and do not require a certificate of appointment.

Rules of Practice for the AGCO

Under the “Hearings & Appeals” section of the AGCO website, the AGCO provides its Revised Rules of Practice (2008):

The Rules outline the general, procedural, and administrative matters that apply to hearings before the Board of the Alcohol and Gaming Commission of Ontario. All participants in proceedings before the Board are expected to comply with the Rules. These Rules have six Parts. The Table of Contents sets out the Parts and identifies the individual rules within each Part. Parts I, II, III, IV and VI apply generally to all proceedings before the Board except Public Meetings. Part V contains Rules which apply to specific types of proceedings: Public Meetings, Public Interest Hearings, Discipline Hearings and Combined Public Interest and Discipline Hearings. (The Alcohol and Gaming Commission of Ontario: Revised Rules of Practice, 2008, p. 1)

For the purposes of creating a profile of the AGCO, the rules that are of interest are those found in Part I – The Rules of General Matters that come before the AGCO. The rules that I will focus on are rules 2, 3, 5 and 7. Rule 2 refers to the rules governing Board Powers. According to Rule 2.2 the AGCO Board has the power to amend its own rules from time to time. The Board also has the power to limit or revoke the participation of certain parties in the proceedings. Rule 2.5 outlines circumstances when the Board may dismiss proceedings (e.g. for unreasonable delay or non-compliance with Orders, directions, conditions, undertakings, or written requests from the Board). Rule 3 is of particular interest because it outlines the Board’s Rule of Non-compliance (a rule that is pertinent to Board Powers as well). Rules 3.1 and 3.2 outline what occurs where a party fails to comply with the rules of the Board (i.e. by not properly submitting evidence or failing to appear to a hearing). According to the Rules of Non-compliance, the Board may impose conditions on the party, may bar the party from presenting certain evidence or may proceed with a hearing without the presence of the party. Rule 5 outlines the rules that parties must follow in their communications with the board, for example, Rule 5.1 states that all communications that occur outside of the hearing must be made in writing. Rule 5 also outlines the provisions of communicating with the Board in French. Finally, Rule 7 outlines the rules regarding public hearings. This rule is important because it maintains the transparency and public interest functions of the AGCO by stating that all Board hearings must be public. Rules 7.1 and 7.2 list the only circumstances under which AGCO hearings can be made private (i.e. matters involving public security, matters of an intimate personal or financial nature that would be inappropriate to disclose).

Additionally, Rule 24, found in Part IV of the AGCO’s Rules of Practice, may be of interest. Rule 24 outlines the process of Appeals and Judicial Review. Rule 24 specifies when a Notice of Application for judicial review must be served and when a Notice of Appeal must be issued.

Policies and Practice Directions

The AGCO has an accessibility policy: The Accessibility Standards for Customer Service, 2008, Ontario Regulation 429/07[4], which aims to ensure full compliance with the Charter of Rights & Freedoms, the Ontario Human Rights Code, the Ontarians with Disabilities Act 2001, and the Accessibility for Ontarians with Disabilities Act 2005. Staff of the AGCO are trained to be aware of the special requirements of disabled persons, including the use of and need for special devices and the use of service animals and special support persons who assist their clients in personal matters.

The AGCO overlooks hearings for a number of matters including alcohol licensing, lottery disputes, gaming registration and lottery licensing. Pursuant to section 25.1 of the Statutory Powers Procedure Act the AGCO has rules that aim to ensure procedural fairness (Rule 1.1, AGCO). The AGCO does not provide explicit practice directions, however the AGCO’s Revised Rules of Practice, 2008, have corresponding forms that further elucidate how rules of practice will be enforced. Forms 1 through 5 are common to alcohol licensing, lottery disputes, gaming registration and lottery licensing hearings. Below I will outline each of these forms and the rules of practice that mandate the forms’ usage.

Form 1 – The Declaration of Representative:

According to the AGCO’s Rules of Practice, the Manager of Hearings must have a record of all the representatives participating in a hearing.

Rule 6.1 of the AGCO’s Rules of Practice, 2008, states:

With the exception of the Registrar’s representative, licensed and unlicensed representatives appearing in a proceeding must complete a Declaration of Representative (Form 1), deliver a copy to all parties within three days of being named as a representative and file it with the Manager of Hearings. (The Alcohol and Gaming Commission of Ontario: Revised Rules of Practice, 2008, p. 6)

Form 1 stipulates:

This declaration [of Representative] must be filed with the Manager of Hearings and a copy delivered to all parties within 3 days of being named as a representative. If you wish to withdraw as a party’s representative or cease to represent that party, you must immediately advise the Manager of Hearings and all other parties in writing. Only persons licensed by the Law Society of Upper Canada or who fall within the exceptions or exemptions below may represent a party before the Board of the Alcohol and Gaming Commission of Ontario. The Board has the authority to exclude a representative who is not licensed and who does not fall within one of the exempted categories below from a hearing. (The Alcohol and Gaming Commission of Ontario: Form 1 Declaration of Representative, 2010).

Form 2 – Certificate of Delivery

Rule 9 of the AGCO’s Rules of Practice, 2008, lists the rules for the delivery and filing of documents. Rule 9.5 specifically references Form 2 with instructions for correspondences between a party and the Board.

Rule 9.5 of the AGCO’s Rules of Practice, 2008, states:

Correspondence from a party to the Board must be copied to all other parties in the proceeding. Documents filed with the Board must be delivered to all other parties in the proceeding. When filing a document with the Board the party must attach a Certificate of Delivery (Form 2) setting out the date and manner of delivery on the other parties. (The Alcohol and Gaming Commission of Ontario: Revised Rules of Practice, 2008, p. 8)

Form 2 states:

The purpose of this certificate is to verify that a copy of a document was delivered to a party. A Certificate of Delivery must be completed before a document is filed with the Hearings Department. Depending on the manner of delivery, you may be required to produce a copy of the facsimile transmission record, a copy of the electronic mail showing the date and time of its transmission, or the courier or postal receipt as evidence to support the Certificate. (The Alcohol and Gaming Commission of Ontario: Form 2 Certificate of Delivery, 2010)

Form 3 – Pre-hearing Statement of Issues

PART III of the AGCO’s Rules of Practice refers to Pre-hearing conferences. The Board may call pre-hearing conferences in order to meet a variety of objectives. One such objective as stated in Rule 14.1(d) of the Rules of Practice, is to identify and clarify the issues that will be brought before the Board in the hearing. In order for the aforementioned objective to be met, there must be some advance notice of the issues the parties are disputing; Rule 14.2 specifies the procedure for providing such advance notice for a pre-hearing conference.

Rule 14.2 of the of the AGCO’s Rules of Practice, 2008, states:

At least five days in advance of the pre-hearing conference, the parties shall deliver a Pre-Hearing Statement of Issues (Form 3) to each other and file it with the Manager of Hearings. Where a party has made disclosure in accordance with the Rules and is of the opinion that review of some or all those documents would assist the prehearing Member to better achieve the purposes of the pre-hearing conference, the party may file those documents with the Manager of Hearings. (The Alcohol and Gaming Commission of Ontario: Revised Rules of Practice, 2008, p. 11)

According to Form 3:

Unless the parties agree, the Pre-Hearing Statement of Issues, and any documents attached to the Pre-Hearing Statement, do not form part of the Board’s record. The Pre-Hearing Statement of Issues may not be introduced or referred to at the hearing before the Board including for the purposes of impeaching the credibility of a witness. This statement will be returned to the parties at the completion of the Pre-Hearing unless the parties consent to it becoming part of the Board’s record. All communications within the Pre-Hearing are deemed to be confidential and without prejudice. The notes or records of the Pre-Hearing Member are not compellable in any proceeding before the Board or any other process. Please see the Board’s Rules for specific instructions on the conduct of Pre-Hearings. (The Alcohol and Gaming Commission of Ontario: Form 3 Pre-hearing Statement of Issues, 2010)

Thus Rule 14.2 requires:

“At least five days in advance of the pre-hearing conference, the parties shall deliver a Pre-Hearing Statement of Issues (Form 3) to each other and file it with the Manager of Hearings.” (The Alcohol and Gaming Commission of Ontario: Revised Rules of Practice, 2008, p. 11) AND

“Unless the parties agree, the Pre-Hearing Statement of Issues, and any documents attached to the Pre-Hearing Statement, do not form part of the Board’s record. The Pre-Hearing Statement of Issues may not be introduced or referred to at the hearing before the Board including for the purposes of impeaching the credibility of a witness.” (The Alcohol and Gaming Commission of Ontario: Form 3 Pre-hearing Statement of Issues, 2010)

Form 4 – Notice of Motion

Rule 16 of the of the AGCO’s Rules of Practice broadly refers to motions and the procedures that must be followed when a party brings a motion before the Board. The rules for making a motion can be found in rules 16.1, 16.2, 16.3, and 16.4. Rule 16.1 stipulates that motions can be made at any time but that the Board must first receive a Notice of Motion from the party making the motion. Rule 16.2 itemizes the components that a motion must address. Rule 16.3 outlines the practices for delivering and filing the notice of motion and finally, Rule 16.4 outlines the practices for the party responding to the motion.

16.1 A motion shall be made by a Notice of Motion (Form 4) to the Board at any time in a proceeding. The party bringing the motion shall first obtain a date for its hearing from the Manager of Hearings or the panel.

16.2 The motion shall:

(a) state the precise relief sought;

(b) state the grounds to be argued and identify any statutory provision, rule, or case law relied on; and,

(c) attach all documents to be used on the motion.

Evidence shall be presented through sworn statements unless the Board permits otherwise.

16.3 The motion, with all supporting materials, shall be delivered to all parties at least 4 days before the motion is to be heard. The notice of motion shall be filed, with a Certificate of Delivery (Form 2) on each party, with the Manager of Hearings at least 3 days before the motion is to be heard.

16.4 A responding party shall deliver any materials it intends to rely on in response to the motion to all parties and file them, together with a Certificate of Delivery on each party, with the Manager of Hearings at least 2 days before the motion is to be heard. (The Alcohol and Gaming Commission of Ontario: Revised Rules of Practice, 2008, p. 13)

Form 4 again reinforces the practice directions for delivery and filing of the Notice of Motion:

[A party] must obtain a date for your motion from the Manager of Hearings before [it] deliver[s] the Notice to the parties and file it with the Hearings Department. Certificates of Delivery on the parties to the proceeding must accompany the Notice of Motion when it is filed. (The Alcohol and Gaming Commission of Ontario: Form 4 Notice of Motion, 2010).

Form 5 – Notice of Constitutional Question

Rule 17 of the of the AGCO’s Rules of Practice outlines the procedure that parties must abide by if seeking to challenge the constitutional validity or applicability of any law or regulation. The procedure for raising constitutional questions can be found in Rule 17.1 and its corresponding Form.

The directions for submitting and filing a constitutional challenge according to Form 5 are:

Where a party intends to challenge the constitutional validity or applicability of any law, regulation or rule the party must deliver a Notice of Constitutional Question to all parties in the proceeding as well as the Attorneys General of Ontario and Canada and file it, together with Certificates of Delivery, with the Manager of Hearings at least 15 days before the day on which the challenge is to be argued before the Board. (The Alcohol and Gaming Commission of Ontario: Form 5 Notice of Constitutional Question, 2010).

Additionally, the subsections found in Rule 17.1 of the Rules of Practice state the requirements for submitting the constitutional challenge:

(i) obtain a date for argument of the challenge from the Manager of Hearings:

(ii) complete and deliver a Notice of Constitutional Question (Form 5) to the parties and the Attorneys General for Ontario and Canada; and,

(iii) file the Notice of Constitutional Question with a Certificate of Delivery on each party and the Attorneys General. (The Alcohol and Gaming Commission of Ontario: Revised Rules of Practice, 2008, p. 13)

Some Rules have practice directions without accompanying forms. An important practice direction can be found in Rule 18.1 of the AGCO’s rule of practice. Parties can make requests for adjournment and Rule 18.1 states the protocol for submitting such a request:

18.1 A request for an adjournment must be in writing and must include the following:

(a) written consent to the adjournment from any, or all, other parties or their representative;

(b) the reasons for the request; and,

(c) at least 2 alternative hearing dates within 60 days of the date to be adjourned. (The Alcohol and Gaming Commission of Ontario: Revised Rules of Practice, 2008, p. 13)

Additionally, there are times when individuals need to make applications to the Board, for example for licences, but the Board decides not to grant a licence. The individual can then choose to file an appeal as recourse. The Registrar of Alcohol and Gaming can issue a Notice of Proposed Order (NOPO)/Notice of Proposal (NOP) and an Order of Monetary Penalty (OMP). The procedure for requesting a hearing or appeal of either the NOPO/NOP or OMP requires that the individual or party must submit a written request for a hearing or/appeal by mail or fax to the AGCO within fifteen (15) days from the date of receiving the NOP or OMP. The AGCO website provides a ‘Hearing Request’ form and a ‘Filing an Appeal’ form for those who wish to request a hearing or make an appeal.[5]

However, a party cannot appeal the Board’s decision after a hearing has taken place due to the privative clause of the AGCO, which can be found in its enabling legislation, the Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, Chapter 26, Schedule 1, wherein section 14(7) states that “A decision of the board under subsection (6) is final and not subject to appeal to the Divisional Court under section 11.” Subsection (6) of the AGRPPA refers to circumstances under which a monetary penalty has been applied and confirmed upon completion of the hearing. Therefore, once the Board has confirmed that a monetary penalty must be paid by the party, the party has no further avenue of appeal.

Literature by the body

The AGCO provides the public with publications and resources to increase public awareness and understanding of the liquor laws, changes in gaming policies, AGCO procedures and regulations as well as decision summaries from public hearings.[6] One example of a publication made available by the AGCO is its resource Guide for Staff Liquor Sales Licensed Establishments. The 2010 publication entitled “You and The Liquor Laws” serves as a learning and teaching aide for employees of liquor sales licensed establishments to ensure that they abide all laws and regulations set out by the AGCO. The guide also highlights the discretionary powers of AGCO officers and the duties of licensed establishment staff.

Works Cited

Alcohol and Gaming Commission of Ontario. (2011). Retrieved from

http://www.agco.on.ca/en/home/index.aspx

Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, Chapter 26.

Retrieved from

http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_96a26_e.htm

Gaming Control Act, 1992, S.O. 1992, Chapter 24. Retrieved from

http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_92g24_e.htm

Liquor Licence Act, R.S.O. 1990, Chapter L.19. Retrieved from

http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90l19_e.htm#BK73

[1] From “About: Overview”, Alcohol and Gaming Commission of Ontario (2011).

[2] From “About: Key Activities”, Alcohol and Gaming Commission of Ontario (2011).

[3] From “About: Organizational Structure”, Alcohol and Gaming Commission of Ontario (2011).

[4] From “Accessibility: Ontario Public Service Accessible Customer Service Policy”, Alcohol and Gaming Commission of Ontario (2011).

[5] From “Hearings & Appeals: Alcohol Hearings/Appeals; Gaming Hearings/Appeals”, Alcohol and Gaming Commission of Ontario (2011).

[6] From “AGCO Publications”, Alcohol and Gaming Commission of Ontario (2011).

Explanation of the the A.G.C.O

Zack Steel

Table of Contents

The Alcohol and Gaming Commission of Ontario (AGCO) 1

Purpose. 1

Function(s) of the AGCO.. 1

Structure. 2

Procedural Stages Flow Chart.

Enabling Legislation. 4

The AGRPPA, 1996. 4

The Liquor Licence Act, 1990. 5

Rules of Practice for the AGCO.. 5

Policies and Practice Directions. 6

Form 1 – The Declaration of Representative:. 7

Form 2 – Certificate of Delivery. 7

Form 3 – Pre-hearing Statement of Issues. 8

Form 4 – Notice of Motion. 9

Form 5 – Notice of Constitutional Question. 10

Literature by the body. 11

Works Cited.. 12