In Dennis v. Ontario Lottery and Gaming Corporation, 2013 ONCA 501, the Ontario Court of Appeal dismissed the appeal of an unsuccessful certification motion. The class action was commenced on behalf of residents of Ontario and the United States, or their estates, who signed self-exclusion agreements with the Ontario Lottery and Gaming Corporation (“OLG”) between December 1, 1999 and February 10, 2005. Under the self-exclusion agreements, OLG was required to use its “best efforts” to prevent these individuals from entering its premises – with the intention of preventing these “problem gamblers” from engaging in their compulsive gambling behaviour. Despite these agreements, some individuals returned to the facilities, entered, and lost money ranging from small amounts to large amounts, allegedly resulting in financial ruin.
The Court of Appeal in this case denied certification because, in its view, each individual claim turned on whether or not the individual plaintiff was sufficiently vulnerable to ground recovery. The Court of Appeal found that plaintiffs who signed self-exclusion agreements but returned to a casino and suffered losses would not be automatically entitled to damages. To be entitled to damages, each plaintiff would have to prove that he or she “suffers from vulnerability produced by the affliction of pathological gambling.” In other words, it was not OLG’s unilateral action which caused a breach of duty and the subsequent loss, but rather, its actions combined with any particular plaintiff’s individual state of mind. The individual nature of such inquiry, as well as the variegated nature of the claimants’ mindsets, led the Court of Appeal to conclude that the action could not be certified as a class proceeding. In the Court of Appeal’s view, the facts did not disclose an identifiable class of plaintiffs, or issues of sufficient commonality, or that the class action was the preferred mode of proceeding.
At the core of the Court of Appeal’s decision is its agreement with Justice Cullity that there were so many individual variables at play in a “problem gambler’s” psychopathology such that there was insufficient commonality amongst the class members.
In relation to Section 5(1)(b) of the Class Proceedings Act, 1992 (“CPA”) – the requirements that the plaintiffs constitute an identifiable class of persons – the Court of Appeal held that the proposed class definition was fatally over-inclusive, as the class contained both plaintiffs who would possess the vulnerabilities requisite to ground recovery and those who would not. In looking at the common issues requirement under Section 5(1)(c) of the CPA, the Court of Appeal again emphasized the problematic dependence on individual issues of vulnerability. The Court of Appeal held that such reliance offended the proposition in Singer v. Shering-Plough Canada Inc., 2010 ONSC 42, which provides that “[a] common issue cannot be dependent upon individual findings of fact that have to be made with respect to each individual claimant.” Since, in the Court of Appeal’s view, the success of the present claims depended on such individual inquiries, the common issues requirement of certification was not made out. Finally, the Court of Appeal held that the plaintiffs failed to establish that the class action was the preferred procedure for the claims’ adjudication, pursuant to Section 5(1)(d) of the CPA. The fact that each claim turned on the respective plaintiff’s mental state would cause, in the Court of Appeal’s view, the class action to break down into “protracted individualized proceedings.”
The Court of Appeal also endorsed the majority of the Divisional Court’s finding that certification in this case did not engage important class action policy objectives. The likelihood that proceedings would break down into individual inquiries, the large amount of money at issue for every plaintiff, and the fact that the OLG had already administered better policies to deal with problem gamblers suggested, in the Court of Appeal’s view, that considerations of judicial economy, access to justice, and behaviour modification were not engaged.
Leave to appeal was denied by the Supreme Court of Canada on February 13, 2014.