Dennis et al. v. Ontario Lottery and Gaming Corp., (2013) 307 O.A.C. 377 (CA)

• Judge: Weiler, Sharpe and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 15, 2013
• Jurisdiction: Ontario
• Citations: (2013), 307 O.A.C. 377 (CA);2013 ONCA 501

Dennis v. Lottery & Gaming (2013), 307 O.A.C. 377 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JL.030

Peter Aubrey Dennis and Zubin Phiroze Noble (plaintiffs/appellants) v. Ontario Lottery and Gaming Corporation (defendant/respondent)

(C55923; 2013 ONCA 501)

Indexed As: Dennis et al. v. Ontario Lottery and Gaming Corp.

Ontario Court of Appeal

Weiler, Sharpe and Rouleau, JJ.A.

July 31, 2013.

Summary:

The plaintiffs (Dennis and Noble), moved for certification of an action under the Class Proceedings Act (CPA). They sought to represent a primary class of approximately 10,000 individuals who signed "self-exclusion" forms provided by the Ontario Lottery and Gaming Corporation (OLGC) between December 1, 1999 and February 10, 2005 (the class period). The OLGC was an agent of the provincial Crown. The action was brought to recover gambling losses subsequently incurred as a result of OLGC's alleged failure to exercise its best efforts, and to take care, to exclude them from its gambling venues. There was a secondary class consisting of family members who had claims under s. 61 of the Family Law Act. The plaintiffs sought declarations and damages against OLGC for negligence, occupiers' liability and breach of contract. In the alternative, the plaintiffs sought a disgorgement of revenues, net income or profits derived by OLGC from the class members.

The Ontario Superior Court, in a decision reported [2010] O.T.C. Uned. 1332, denied the motion for certification. The plaintiffs appealed, taking issue with the motions judge's treatment of the plaintiffs' common issues (CPA, s. 5(1)(c)) and his determination that a class action was not the preferable procedure (s. 5(1)(d)).

The Ontario Divisional Court, Wilson, J., dissenting, in a decision reported 286 O.A.C. 329, dismissed the appeal. The plaintiffs appealed. The OLGC cross-appealed a finding that the cause of action requirement in s. 5(1)(a) of the CPA had been met.

The Ontario Court of Appeal dismissed the appeal. The court held that the motions judge and the majority of the Divisional Court correctly concluded that this was not a proper case for certification as a class action (ss. 5(1)(c) and 5(1)(d)). The court also dismissed the cross-appeal, holding that it was not persuaded that the motions judge erred in concluding that the claim survived the minimal scrutiny for substantive adequacy mandated by s. 5(1)(a).

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The plaintiffs moved for certification of an action (Class Proceedings Act) on behalf of 10,000 primary class members who signed Ontario Lottery and Gaming Corp. (OLGC) "self-exclusion" forms between 1999 and 2005 - They sought to recover gambling losses incurred because the OLGC failed to exercise its best efforts to exclude them from its gambling venues - There was also a secondary class of family members (Family Law Act claims) - The plaintiffs sought declarations and damages (incl. punitive damages) against OLGC for negligence, occupiers' liability and breach of contract, and, alternatively, disgorgement of revenues, net income or profits derived from the class members - A motions judge denied the certification motion essentially on the ground that all significant issues of liability turned on proof that individual class members were vulnerable, pathological problem gamblers who returned to the OLGC facilities despite signing the self-exclusion form - The Divisional Court agreed - The plaintiffs appealed again - The Ontario Court of Appeal dismissed the appeal, holding that the courts below correctly determined that this was not a proper case for certification - There was no rational relationship between the class identified by the plaintiffs and the proposed common issues and the class definition was overly inclusive - In any event, a class action was not the preferable procedure - See paragraphs 47 to 71.

Cases Noticed:

Fulawka v. Bank of Nova Scotia (2012), 293 O.A.C. 204; 111 O.R.(3d) 346; 2012 ONCA 443, refd to. [para. 54].

Fresco v. Canadian Imperial Bank of Commerce (2012), 293 O.A.C. 248; 2012 ONCA 444, refd to. [para. 54].

Lambert v. Guidant Group (2009), 72 C.P.C.(6th) 120 (Sup. Ct.), refd to. [para. 54].

Markson v. MBNA Canada Bank (2007), 224 O.A.C. 71; 85 O.R.(3d) 321; 2007 ONCA 334, refd to. [para. 54].

Cassano et al. v. Toronto-Dominion Bank (2007), 230 O.A.C. 224; 87 O.R.(3d) 401; 2007 ONCA 781, refd to. [para. 54].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 73 O.R.(3d) 401 (C.A.), refd to. [para. 54].

Hickey-Button v. Loyalist College of Applied Arts & Technology (2006), 211 O.A.C. 301; 267 D.L.R.(4th) 601 (C.A.), dist. [para. 64].

Kumar v. Mutual Life Assurance Co. of Canada - see Williams v. Mutual Life Assurance Co. of Canada et al.

Williams v. Mutual Life Assurance Co. of Canada et al. (2003), 170 O.A.C. 165; 226 D.L.R.(4th) 112 (C.A.), refd to. [para. 69].

Statutes Noticed:

Class Proceedings Act, S.O. 1992, c. 6, sect. 5(1) [para. 20].

Counsel:

Jerome R. Morse and Hassan Fancy, for the appellants;

James Doris and Matthew Milne-Smith, for the respondent.

This appeal was heard on April 15, 2013, before Weiler, Sharpe and Rouleau, JJ.A., of the Ontario Court of Appeal. The following decision was released for the court by Sharpe, J.A., on July 31, 2013.