Ontario Court Interprets Exclusion Clause, Denies Motion for Class Certification

On March 15, 2010, Justice Cullity of the Ontario Superior Court of Justice issued his decision in Dennis v. Ontario Lottery and Gaming Corporation.1 Justice Cullity's decision declined to certify as a class proceeding an action brought on behalf of individuals who signed a "self-exclusion" form at an OLG gaming facility2 between December 1, 1999 and February 10, 2005. The decision offers important guidance on the interpretation and applicability of "exclusion of liability" clauses, and on the requirement in class proceedings that there be a rational connection between the class definition and the proposed common issues.

Background

Since casino gambling was introduced in Ontario in 1994, the Province of Ontario has recognized, and adopted various measures to address, the social costs of gambling. Among those measures has been a "self-exclusion" program whereby gamblers consent to being denied entry to OLG gaming facilities. Self-exclusion is a service offered by many North American casinos. It is intended to be a self-help tool that lets patrons acknowledge and take positive steps to address problems that they may be experiencing associated with gambling.

The self-exclusion form at issue in the Dennis case stated that self-exclusion would direct OLG "to use their best efforts to deny you entry, as a service, to all of OLGC's gaming venues in the province of Ontario". The form then went on to disclaim and release any liability to OLG if the self-excluded individual continued to gamble:

The OLGC and commercial casino operators accept no responsibility, in the event you fail to comply with the ban, which you voluntarily requested.

...

I release and forever discharge the OLGC, and the commercial operators or any of the operator's parent companies, shareholders, subsidiaries or affiliates, or successors, as well as any and all of their directors, officers and employees, from any and all liability, causes of action, claims and demands whatsoever in the event that I fail to comply with this voluntary ban.

Peter Dennis signed a self-exclusion form on May 23, 2004. He soon returned to gambling in breach of his self-exclusion, until ultimately retaining counsel, obtaining treatment and stopping gambling in September 2007. Soon thereafter he commenced this proceeding on behalf of all individuals who had signed the same self-exclusion form. His wife was named as a plaintiff on behalf of family members of self-excluded class members.

Section 5(1) of Ontario's Class Proceedings Act3 ("CPA") sets out a five-part test that a plaintiff must meet 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 must adequately represent the class. The test is a procedural one that asks whether the action should be...