Walsh v. Atlantic Lottery Corp. et al., 2015 NSCA 16

Judge:MacDonald, C.J.N.S., Oland and Farrar, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:February 13, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSCA 16;(2015), 355 N.S.R.(2d) 384 (CA)
 
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Walsh v. Atlantic Lottery Corp. (2015), 355 N.S.R.(2d) 384 (CA);

    1123 A.P.R. 384

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Temp. Cite: [2015] N.S.R.(2d) TBEd. FE.022

Bernard Patrick Joseph Walsh (appellant) v. The Atlantic Lottery Corporation Inc., The Nova Scotia Gaming Corporation, The Nova Scotia Alcohol and Gaming Authority and the Attorney General of Nova Scotia (respondents)

(CA 423106; 2015 NSCA 16)

Indexed As: Walsh v. Atlantic Lottery Corp. et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Oland and Farrar, JJ.A.

February 13, 2015.

Summary:

The plaintiff, a former gambling addict, brought a negligence action for damages against the defendants (province and regulatory authorities), alleging that the 1991 decision to introduce video lottery terminals (VLTs) in Nova Scotia, and the manner in which that decision was carried out, exposed him to the unreasonable risks associated with VLTs. The plaintiff also claimed that the province was liable for breach of fiduciary duty and was strictly liable for his losses, as VLTs were "inherently deceptive and dangerous". The defendants moved for summary judgment under rule 13.03, arguing that the plaintiff's claims disclosed no reasonable cause of action and were certain to fail.

The Nova Scotia Supreme Court, in a judgment reported (2013), 338 N.S.R.(2d) 248; 1071 A.P.R. 248, granted summary judgment dismissing the action. The court held that the plaintiff's real complaint was that the province introduced a form of gambling that it knew presented a higher risk of addiction and that it elected not to warn the public of this increased risk or implement other safeguards. Two of the defendants (province and Alcohol and Gaming Authority) sought $1,000 costs under Tariff C. The plaintiff opposed paying costs on the grounds that this was public interest litigation and because he was impecunious.

The Nova Scotia Supreme Court, in a judgment reported (2014), 344 N.S.R.(2d) 234; 1089 A.P.R. 234, awarded the defendants $500 costs. The plaintiff appealed the dismissal of his action.

The Nova Scotia Court of Appeal dismissed the appeal.

Crown - Topic 1563

Torts by and against Crown - Negligence by Crown - Breach of statutory duty - [See Torts - Topic 9167 ].

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Policies or "policy" decisions - [See Torts - Topic 9167 ].

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - The plaintiff, a former gambling addict, brought a negligence action for damages against the defendants (province and regulatory authorities), alleging that the 1991 decision to introduce video lottery terminals (VLTs) in Nova Scotia, and the manner in which that decision was carried out, exposed him to the unreasonable risks associated with VLTs - The plaintiff's real complaint was that the province introduced a form of gambling that it knew presented a higher risk of addiction and that it elected not to warn the public of this increased risk or implement other safeguards - Apart from negligence, the plaintiff claimed breach of fiduciary duty by the province - The trial judge granted summary judgment dismissing the action for failing to disclose a cause of action (rule 13.03) - The Gaming Control Act imposed a duty on the province and its agents to act in the best interests of the public - Nothing in the Act could be construed as imposing any degree of responsibility on the province to protect the plaintiff's interest - Such a burden would be at odds with the province's duty to act in the best interests of the public at large - There was no undertaking by the province to act in the plaintiff's best interests - The Nova Scotia Court of Appeal affirmed the decision.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See Torts - Topic 9167 ].

Torts - Topic 79

Negligence - Duty of care - Factors limiting or reducing scope of duty of care - [See Torts - Topic 9167 ].

Torts - Topic 89.2

Negligence - Duty of care - To gambling addicts - [See Torts - Topic 9167 ].

Torts - Topic 9167

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Regulators - The plaintiff, a former gambling addict, brought a negligence action for damages against the defendants (province and regulatory authorities), alleging that the 1991 decision to introduce video lottery terminals (VLTs) in Nova Scotia, and the manner in which that decision was carried out, exposed him to the unreasonable risks associated with VLTs - The plaintiff's real complaint was that the province introduced a form of gambling that it knew presented a higher risk of addiction and that it elected not to warn the public of this increased risk or implement other safeguards - The trial judge granted summary judgment dismissing the action for failing to disclose a cause of action (rule 13.03) - The governing statutes (Lottery Act, Video Lottery Regulations) did not give rise to a relationship of sufficient proximity to establish a prima facie duty owed by the defendants to the plaintiff or a positive duty to warn the plaintiff of the risks associated with VLTs and/or implement other safeguards - The province's authority respecting allowable gambling activities was limited only by its statutory duty to exercise its functions in a manner consistent with the public good - There were no private law tort duties to individuals or distinct segments of the population who may be adversely affected by introducing any particular form of gambling - The province's relationship with the plaintiff was indistinguishable from the province's relationship with the public at large - The plaintiff's responsibility for his autonomous choice to use VLTs further weighed against a finding of proximity - In any event, if proximity had been established, such a duty would have negatived at the second stage of the Anns test for overriding policy reasons, including indeterminate liability - Introducing VLTs was a policy decision based on economic, social and political factors - Absent bad faith, or a decision that was irrational or unreasonable, which was either not pleaded or not established, the policy decision was unassailable - The Nova Scotia Court of Appeal affirmed the decision.

Cases Noticed:

Burrell v. Metropolitan Entertainment Group et al. (2010), 297 N.S.R.(2d) 228; 943 A.P.R. 228; 2010 NSSC 476, affd. (2011), 309 N.S.R.(2d) 375; 979 A.P.R. 375; 2011 NSCA 108, refd to. [para. 15].

Counsel:

Appellant, in person;

Selina Bath and James Boudreau, for the respondent, The Atlantic Lottery Corp. Inc.;

Duane Eddy, for the respondent, The Attorney General of Nova Scotia.

This appeal was heard on November 18, 2014, at Halifax, N.S., before MacDonald, C.J.N.S., Oland and Farrar, JJ.A., of the Nova Scotia Court of Appeal.

On February 13, 2015, MacDonald, C.J.N.S., delivered the following judgment for the Court of Appeal.

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