Peter Aubrey Dennis, et al. v. Ontario Lottery and Gaming Corporation

(Ontario) (Civil) (By Leave)


Civil procedure - Certification.


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Class proceedings — Certification of action as class proceeding — Whether there is a principled distinction between the instant case and Rumley v. British Columbia, [2001] 3 S.C.R. 184 — Whether vulnerability can be inferred from self-exclusion — Whether this action should have been certified as a class proceeding — Whether this case should be remanded for reconsideration in light of Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2013 SCC 58, and Infineon Technologies AG v. Option consommateurs, 2013 SCC 59.

Mr. Dennis was a problem gambler. He signed a self-exclusion form provided by the Ontario Lottery and Gaming Corporation (“OLG”). The form indicated that OLG undertook to use its “best efforts” to deny signatories entry to its facilities, but excluded liability if it failed to do so. Despite signing the form, Mr. Dennis continued to attend and gamble at OLG facilities on a regular basis for over three years and lost significant sums of money. He claimed that OLG failed to exercise its best efforts to exclude him from its facilities, framing an action in breach of contract, negligence, occupiers’ liability and, on behalf of his spouse, Ms. Noble, for damages under s. 61 of the Family Law Act, R.S.O. 1990, c. F.3. Mr. Dennis and Ms. Noble seek certification of their claims under the Class Proceedings Act, 1992, S.O. 1992, c. 6. Mr. Dennis seeks to represent a primary class of approximately 10,428 individuals (Class A Members), defined as residents of Ontario and the United States who signed a self-exclusion form between December 1, 1999, and February 10, 2005, or their estates.

The motions judge refused certification. The Divisional Court and the Court of Appeal both dismissed appeals.