Ontario Superior Court Denies Certification in OLG “Self-Exclusion” Case

Justice Maurice Cullity released his decision in Dennis v. Ontario Lottery and Gaming Corporation, 2010 ONSC 1332, denying the plaintiffs' motion to certify the case as a class proceeding on March 15, 2010.

Peter Dennis had brought a proposed class proceeding against Ontario Lottery and Gaming Corporation (OLG) on behalf of a proposed class of individuals who signed a “self-exclusion” form provided by OLG between December 1, 1999 and February 10, 2005. Dennis alleged that OLG breached a contractual and common-law duty to use “best efforts” to deny the proposed class members entry to all its gambling venues during the term of their self-exclusion. Dennis's wife, Zubin Noble, brought a claim under the Family Law Act on behalf of family members of the primary class.

Justice Cullity held that the plaintiffs had failed to satisfy the required element of commonality for class certification. Specifically, he concluded that the proposed class was overbroad insofar as the plaintiffs' claims were predicated on the vulnerability of class members, but vulnerability was not a condition of class membership. This problem of over-inclusiveness could not be resolved by the use of statistical evidence and as a result the claims of class members could only be resolved by an examination of their individual circumstances. In such a case, there was no rational connection between the proposed class definition and the proposed common issues, and the plaintiffs had not satisfied the requirements of a proper class definition and commonality.

Finally, Justice Cullity concluded that given the preponderance of individual issues, a class proceeding would not be the preferable procedure for resolution of the proposed class members' claims. Certification would not advance judicial economy, access to justice is available to individual claimants, and OLG's efforts to improve its self-exclusion program in 2007 to 2008 had already addressed any concern for behaviour modification.

Justice Cullity refused to order any costs against the representative plaintiffs.

Davies Ward Phillips & Vineberg LLP acted for OLG with a team that consisted of James Doris, Matthew Milne-Smith and Shelby Austin.

The plaintiffs were represented by Jerome Morse and Lori Stoltz of Adair Morse LLP and Hassan Fancy of Fancy Barristers, P.C.