‘Voluntary self-exclusion’
agreements at issue in
B.C., Ontario cases
JEREMY HAINSWORTH
Class actions by problem gamblers seeking to recoup losses and
winnings will continue after a
pair of rulings in British Columbia and Ontario courts, lawyers
involved in the cases say.
At issue is the responsibility of
gaming authorities toward gamblers who sign voluntary self-exclusion (VSE) agreements. In
B.C. and in Ontario, authorities
say the onus is on the gamblers to
stay away from gaming establishments once they have signed an
agreement.
B.C. Court of Appeal Justice
Ian Donald declined to grant B.C.
Lottery Corp. (BCLC) leave to
appeal the lower court’s dismissed summary judgment
application to throw out a class
action suit brought by people
who signed VSEs.
“The judge did not think a
just determination of the questions of law could be made without a broader factual enquiry,”
Justice Donald said in Haghdust
v. British Columbia Lottery Corporation, 2012 BCCA 120, issued
March 13.
In Ontario, Superior Court
Justice Maurice Cullity declined
in Dennis v. OLG, 2010 ONSC
1332, to certify, citing problems
in determining who would be a
problem gambler for class inclusion. Jerome Morse, representing
Peter Dennis and Zubin Noble,
told The Lawyers Weekly that
leave to appeal has been filed
with the Ontario Court of Appeal.
Dennis and Noble seek to represent a class of over 10 thousand
individuals who signed Ontario
Lottery and Gaming Corporation
(OLGC) self-exclusion forms
between Dec. 1, 1999 and Feb. 10,
2005. The suit claims damages of
$3.5 billion against OLGC for
negligence, occupiers’ liability
and breach of contract.
“The action is 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,” Cullity wrote
in Dennis.
Of the exclusion program,
Cullity said: “I believe it suffi-
ciently discloses an intention of
OLGC to offer an accommoda-
tion, or service, to assist the
problem gambler while exclud-
ing any legal responsibility that
might otherwise arise if it failed
to do so.”
He added: “The words of the
(VSE) form reveal an intention to
exclude OLGC from liability even
in circumstances where, as here,
it is alleged to have failed to per-
form its contractual obligation to
exercise its best efforts.”
“I accept the submission of
plaintiffs’ counsel that a relation-
ship of proximity between OLGC
and Mr. Dennis could be found to
have arisen from the former’s
repeated representations of its
commitment to assist problem
gamblers and the specific steps it
undertook to implement the self-
exclusion program for his bene-
fit,” the judge ruled.
“Is this a binding contract?”
Morse asked. “Is there a tort duty
and was it breached?”
He said problem gambling has
the potential to cause bankrupt-
cies and divorces, undermining
the social safety net and costing
all taxpayers, he said.
In B.C., Hamidreza Haghdust and Michael Lee were
refused jackpot prizes of
$35,000 and $42,484, respectively, at a B.C. gaming facility
because of their participation in
the VSE program.
The corporation said the
plaintiffs’ claims to recover their
winnings are precluded by the
rules of B.C.’s standard VSE
agreement they signed.
At the time of Haghdust and
Lee’s signing of their VSE agreements, there was nothing in the
document about forfeiting winnings during self-exclusion.
But in April 2009, BCLC
added a new clause to its VSE
agreements stating that winnings by anyone enrolled in the
program would go to a third
party. Donald’s ruling noted that
neither Haghdust nor Lee
signed a VSE Form containing
the new clause.
The plaintiffs claim the rules
are unenforceable because they
are a penalty and ultra vires the
Gaming Control Act, unconscionable under the Business
Practices and Consumer Protection Act, cannot be applied
retroactively to the VSE Program participants, and are
inoperative because they conflict
with recent provisions of the
Gaming Control Act.
“The next step is certification,”
suggested lawyer Mark Mounteer, adding there is the possibility of appeal. “Once that’s delivered, we’ll move to a trial.” n
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No risk to justice from use of smartphones
Technology
Continued From Page 5
That leaves whether the act of
tweeting from a gallery creates a
risk. Imagine a high profile case
that would attract reporters or
interested citizens. A full gallery
and possibly a sketch artist are
all present. Are we really to
believe that someone silently
composing a message on a smartphone creates a risk? Is our justice system that fragile?
In terms of the correct legal
test for a discretionary limitation
on openness—known as the
Dagenais/Mentuck test — the
threshold question is whether it
creates a genuine risk to the
administration of justice. The
test does not permit limitations
on expression because one per-
son or another places a low value
on the expression.
Some have raised concerns
about whether non-journalists
might inadvertently breach publication bans that journalists are
trained to know about. This is an
important issue, but not one that
is restricted to Twitter or solved
by banning tweets from inside
the courtroom. In the Internet
era, a much larger segment of the
population now publishes to
wide audiences. Some of the new
publishers are court watchers.
Education about publication
bans, and better mechanisms for
notifying the public about the
specifics of bans, are essential if
courts expect compliance. Some
provinces have made good
progress on electronic notifica-
tions, while others are far behind
in this important area.
Daniel Burnett practises with
Owen Bird Law Corp. in Vancouver, teaches media law at the
University of British Columbia
and is president of Canadian
Media Lawyers Association. His
Twitter feed is @dwbmedialaw
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