Dennis v. Ontario Lottery And Gaming Corporation, 2013 ONCA 501

On July 31, 2013, the Ontario Court of Appeal released its decision in Dennis v. Ontario Lottery Gaming Corporation.1 Justice Robert Sharpe, writing for a unanimous panel, upheld the previous decisions by Justice Cullity of the Ontario Superior Court of Justice and a Divisional Court majority to dismiss the plaintiffs' motion to certify their action as a class proceeding. The proposed class consisted of individuals who signed a "self-exclusion" form at an OLG gaming facility between December 1, 1999, and February 10, 2005.2

Background

"Self-exclusion" is a voluntary program offered by OLG by which patrons consent to being denied entry at an OLG gaming facility. Self-exclusion is a self-help tool to help individuals control their gambling.

The self-exclusion form at issue directed OLG to use "best efforts" to deny entry to OLG facilities. However, the form specifically provided that the gambler accepted that OLG was not liable for any losses if he or she continued to gamble and that the gambler released any such losses.

Peter Dennis, the appellant, claimed to have gambled in breach of his self-exclusion form on multiple occasions until he obtained treatment and stopped gambling in September 2007. He commenced the proceeding on behalf of those who had signed the same self-exclusion form.

Section 5(1) of the Class Proceedings Act3 requires plaintiffs to meet a five-part test in order to obtain certification of an action as a class proceeding: there must be (1) a valid cause of action; (2) on behalf of an identifiable class; (3) raising common issues; (4) for which a class proceeding would be the preferable procedure; and (5) the named plaintiff(s) and counsel...