Feds reply to statment of defenceCourt File No. 03 CV 244812 CM1 ONTARIO B E T W E E N: and THE UNIVERSITY OF WATERLOO REPLY 2. The Plaintiff denies the allegations contained in paragraphs 8, 21, 22, 24, 25, 26, 27, 30 (the characterization is denied), 32, 36, 37, 38, 39, 40, 41 (the characterization of the letter is denied), 46, 47, 49 (the second sentence) and 51 to 60, inclusive. of the statement of defence. 3. The Plaintiff has no knowledge in respect of the allegations contained in paragraphs 9 (second sentence), 17 (2nd and 3rd sentences), 18, 19, 20, 23, 31, 33, 43, 44, 45, 48 and 50 of the statement of defence. 4. The Plaintiff states that it at all material times took proper, timely and reasonable measures to ensure compliance with the Liquor Licence Act and its regulations, as well as reasonable and prudent business practices. In addition, the Plaintiff took all proper and reasonable measures to comply with University policy in relation to the sale and service of alcohol and was diligent in communicating with the University and acting in a receptive manner to reasonable suggestions and concerns. 5. As part of the Plaintiff’s active desire to address issues, suggestions and concerns, the Plaintiff took numerous measures, including the following steps, from the fall of 2001: a. It created and enforced a control and counting method in the area known as Ground Zero, located next to the Bombshelter Pub. 6. The Plaintiff fully and responsively participated in the Alcohol Use and Education Committee meetings. But those meetings were sporadic with lengthy intervals. For example, the meeting of January 9, 2002 referred to in paragraph 23 of the Defence, was next followed by a meeting on February 12, 2003, some 13 months later. The meeting of January 9, 2002 dealt with many issues, including the upcoming double cohort year and issues at other establishments not run by the Plaintiff. No discussion took place about overcrowding concerns, and any suggested policies were presented for discussion and feedback. 7. Had the Plaintiff not acted responsibly and responsively, the Plaintiff states that there would have been more meetings in the interval stated above. In fact, relative to the issue of the sign in procedure, representatives of the Plaintiff and Bud Walker met in August 2003 to discuss improving the viability of special events by allowing more guests from the greater community to attend Federation Hall. Mr. Walker was not opposed to this. 8. The Plaintiff states that the operation of the establishments continued to be enhanced by on going due diligence and states that the level of diligence far exceeds that of other licenced establishments in the greater community, and on the University of Waterloo campus, including events involving the University and its administration. As one example, the Plaintiff undertook the expense of approximately $22,000.00 to purchase handheld identification verification devices to proactively address the issues of underage students, the double cohort and fraudulent identification. 9. At the time of the incident on January 1, 2003, there were 6 campus officers inside or outside of Federation Hall. The Plaintiff states that these University officers took no diligent or proactive steps to deal with the situation. At approximately 12:30 a.m., at a time of sub-degree temperatures outside, approximately 1,000 patrons were forced to leave the premises. The campus police watched and took no steps to assist. Any altercations that took place that day took place outside Federation Hall, the jurisdiction over which was the responsibility of the University and its campus police. 10. The Plaintiff states that when altercations took place, the Federation staff was obliged to step in to assist in the situation, mitigate it, render assistance and control it because of the negligence, nonfeasance and inactivity of the campus police. The Plaintiff asked the campus police to contact the Waterloo Regional Police, but the campus police did not act. The Plaintiff contacted the Police instead. 11. The Plaintiff further states that had the sign in procedure referred to in paragraphs 24 and 25 of the Defence been implemented on that night, the individuals involved would have been allowed in pursuant to that procedure. 12. The Plaintiff further states that at all material times it acted appropriately and responsibly on the evening in question on the basis of, among other things, the following: a. Federation Hall was not overcrowded. b. Patrons were not allowed to over-consume alcohol. c. Potential patrons who appeared intoxicated who wanted entry, were denied entry. d. The sign in procedure was not in effect due to the meeting with Bud Walker in August 2003 referred to in paragraph 7 hereof. e. Though not University policy, Federation staff conducted selective searches of patrons. f. The staff went above and beyond duty to ensure orderly conduct of patrons inside and outside of the establishment. g. The event was more than adequately supervised by staff and management. In fact Bud Walker was aware that night as to who was managing and offered no concerns. 13. The Plaintiff states that no effort was made on the part of the Defendant to work with the Plaintiff and management of Federation Hall to deal with specifics of the events that took place on January 1, 2003. Rather, the University began a course of conduct that ignored the Plaintiff’s interests and rights and those of their staff, failed to disclose pertinent information and discussions and failed to disclose that the University had knowledge that it was in violation of the Liquor Licence Act having contracted out the sale and service of alcohol. 14. The Plaintiff further states that subsequent to January 1, 2003, the Defendant began to dictate, rather than have productive discussions, how the Plaintiff should operate its businesses, all the while threatening the closing of the operations if there were not complete compliance with University demands. 15. The Plaintiff states that the University advised at a meeting on or about January 3, 2003, that it wanted to appoint Mark Murdoch, the Director of Food Services for the University to evaluate the operations of the Federation establishments. No agreement was entered into, rather, the Plaintiff was responding to University dictates and the threat of closure. What was entered into was an interim arrangement whereby the Plaintiff was attempting to respond to the concerns of the University and the threat of closure in the context of the University denying the Federation participation in the information gathering relative to the incident and the discussions it was having with the police, the AGCO and others, all of which impacted directly on the Plaintiff, its staff, the Agreements and the students of the University of Waterloo. 16. The Plaintiff states that at the January 3, 2003 meeting and subsequently, it raised the Federation’s deep concerns about the poor conduct of the campus police, which concerns were ignored. 17. On or about January 6, 2003 the University presented the Federation with a draft agreement in the form of a dictate. The Federation was told that University control henceforth, despite the agreements, would be extreme and the time period permanent. The Federation was not prepared to accede to this demand without being privy to all relevant information, proper consideration and legal advice. 18. The Plaintiff states that in or about the middle of January 2003 the University appointee Mark Murdoch reported his findings to the Committee on his investigation and review of the Federation establishments and reported that they were “run very well, the staff were well trained” and that he “did not see a problem with either operations”. He went on to state that these establishments were “the safest and best places for our students to be and was run better than any operation in the Kitchener-Waterloo area”. In addition, he reported that when he attended Federation Hall on January 6, 2003, the thought “too few patrons” were let in and that “it looked empty”. In fact, when he attended at Federation Hall on January 6, 2003 he encouraged the staff to let more patrons in but the staff refused. 19. The Plaintiff states that the meetings and attempt to have meetings referred to in paragraphs 39 and 40 were in the context of the University dictating times without advising as to the agenda and in disregard of the Federation’s counsel’s schedule. The University was attempting to force the Federation to have meetings and agree to matters without information and without legal counsel, something the Federation was not prepared to do in the circumstances. 20. The Federation states that the University knew as early as January 3, 2003 that the University was in breach of the Liquor Licence Act by contracting out the sale and service of alcohol and that the discussions, meetings, draft agreements and dictates were driven by the University’s unlawful conduct rather than malfeasance on the part of the Federation staff or the events of January 1, 2003. 21. The Federation further states that proposals made by the University to the Federation for a new arrangement to deal with the contracting out problem were related to the AGCO for comment by the University. The Plaintiff states that contrary to the University’s public pronouncements and media statements, the AGCO in or about the month of February 2003 advised the University’s counsel that any plan whereby the equivalent of net revenue or profit would be remitted to the Federation, would still be contracting out and a violation of the Liquor Licence Act. April 11, 2003 Jerry Levitan (20684F) Counsel for the Plaintiff TO:HICKS MORLEY HAMILTON STEWART STORIE LLP Christopher G. Riggs, Q.C. Solicitors for the Defendant FEDERATION OF STUDENTS -and- UNIVERSITY OF WATERLOO Court File No. 03 CV 244812 CM1 ONTARIO PROCEEDING COMMENCED AT TORONTO REPLY
Jerry Levitan (20684F) Counsel for the Plaintiff |