The Second Opinion: Ontario Court of Appeal Dismisses 'Problem Gambler' Class Action

In an important new ruling released Wednesday, the Ontario Court of Appeal has declined to certify a class action by problem gamblers against the Ontario Lottery and Gaming Corporation ("OLG"). The decision in Dennis v. Ontario Lottery and Gaming Corporation, 2013 ONCA 501 marks only the seventh time since the introduction of the Class Proceedings Act, 1992 ("CPA") twenty years ago that the Ontario Court of Appeal has denied certification based on one of the criteria in ss. 5(1)(b)-(e) of the CPA (the other cases being Hollick v. Toronto (City) (1999), 46 O.R. (3d) 257, aff'd, [2001] 3 SCR 158; Chadha v. Bayer Inc. (2003), 63 O.R. (3d) 22; Kumar v. Mutual Life Assurance Company Of Canada (2003), 226 D.L.R. (4th) 112; Zicherman v. Equitable Life Insurance Company Of Canada (2003), 226 D.L.R. (4th) 131; Lacroix v. Canada Mortgage and Housing Corporation, 2012 ONCA 243; and McCracken v. Canadian National Railway Company, 2012 ONCA 445). Like its decisions in Lacroix and McCracken, the Dennis decision continues the Court's recent trend towards a rigorous scrutiny of the certification record.

At the root of the Dennis class action was the allegation that OLG failed to exercise its best efforts to exclude the putative class members from its gambling facilities, as required under the voluntary self-exclusion forms they signed with OLG in their capacities as problem gamblers. The action - which involved breach of contract, negligence, occupiers' liability and dependant's relief claims - was denied certification at both first instance and by the Divisional Court on the ground that all of the significant issues of liability turned on an individual issue, i.e., proof that each class member was a vulnerable problem gambler who returned to OLG facilities despite signing the self-exclusion form.

The Court of Appeal, per Sharpe J.A. (Weiler and Rouleau JJ.A. concurring), agreed with both levels of court below that certification should be denied, finding that "the claims advanced in this case and the allegations of fault against OLG are so heavily infused with the issues of individual vulnerability that resolution of those allegations in terms of a generalized systemic wrong would not significantly advance the claims of the individual class members". (para. 58) Three aspects of the Court's reasons are particularly noteworthy.

First, Sharpe J.A. found that the plaintiffs failed to satisfy s. 5(1)(b) since their proposed class definition was "fatally...