Paton Estate et al. v. Ontario Lottery and Gaming Corp. et al., (2016) 349 O.A.C. 106 (CA)

• Judge: Hoy, A.C.J.O., Pardu and Roberts, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 02, 2016
• Jurisdiction: Ontario
• Citations: (2016), 349 O.A.C. 106 (CA);2016 ONCA 458

Paton Estate v. Lottery & Gaming (2016), 349 O.A.C. 106 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. JN.015

The Estate of Ollie John Paton, deceased, by his Estate Trustee during Litigation, Ronald McKay and the Estate of Eva Paton deceased by her Estate Trustee During Litigation, Ronald McKay (plaintiffs/appellants) v. Ontario Lottery and Gaming Corporation, c.o.b. as Fallsview Casino Resort and as OLG Casino Brantford (defendant/respondent)

(C60606; 2016 ONCA 458)

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

Ontario Court of Appeal

Hoy, A.C.J.O., Pardu and Roberts, JJ.A.

June 10, 2016.

Summary:

The plaintiffs were two estates that were defrauded of large sums by an addictive or problem gambler. The plaintiffs sued the Ontario Lottery and Gaming Corporation (OLGC), a Crown agency, carrying on business in the name of two gambling casinos in Ontario. The plaintiffs sought damages of $950,000 and aggravated damages of $500,000. They asserted causes of action of negligence, unjust enrichment, conversion and knowing receipt of trust funds. OLGC did not file a statement of defence. Rather, it brought a motion to dismiss the action under rule 21.01 of the Rules of Civil Procedure on the ground that the statement of claim disclosed no reasonable cause of action.

The Ontario Superior Court, in a decision with neutral citation 2015 ONSC 3130, granted the motion and struck the statement of claim, holding that it plain and obvious that the action could not succeed. The plaintiffs appealed, arguing that their claims for knowing receipt of trust funds, unjust enrichment, and negligence should be allowed to proceed to trial.

The Ontario Court of Appeal, Hoy, A.C.J.O., dissenting, allowed the appeal and dismissed the motion to strike the action. The court stated that while the action was by no means certain to succeed, nor was it necessarily certain to fail.

Equity - Topic 3652

Fiduciary or confidential relationships - Breach of fiduciary relationship - Liability of third parties or accessories (incl. doctrines of knowing receipt or assistance) - See paragraphs 15 to 20.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - See paragraphs 4 to 45.

Restitution - Topic 62

Unjust enrichment - General - What constitutes - See paragraphs 21 to 30.

Torts - Topic 81

Negligence - Duty of care - Requirement that duty be owed to plaintiff - See paragraphs 31 to 44.

Torts - Topic 89.2

Negligence - Duty of care - To gambling addicts - See paragraphs 31 to 44.

Counsel:

Don Morris and T. Andrew Sprung, for the appellants;

Matthew Milne-Smith and Bryan McLeese, for the respondent.

This appeal was heard on February 2, 2016, before Hoy, A.C.J.O., Pardu and Roberts, JJ.A., of the Ontario Court of Appeal. The decision of the court was delivered on June 10, 2016, including the following opinions:

Pardu, J.A. (Roberts, J.A., concurring) - see paragraphs 1 to 48;

Hoy, A.C.J.O., dissenting - see paragraphs 49 to 156.