Ontario Civil

Civil Procedure

No rational relationship between identified class and proposed common issues

Appellants appealed Divisional Court’s decision upholding refusal to certify proceeding as class action. Appellant was problem gambler. He signed self-exclusion form that was provided by respondent. Respondent undertook to use best efforts to deny appellant entry to facilities, but it excluded liability if it failed to do so. Appellant returned to respondent’s facilities on regular basis for over three years to gamble and he lost significant sums of money. Appellant claimed that respondent failed to exercise best efforts to exclude him from facilities. Causes of action included breach of contract, negligence and occupiers’ liability. Appellants sought to certify action under Class Proceedings Act, 1992 (Ont.). Motion judge concluded that proposed class action disclosed cause of action but failed to satisfy other criteria required for certification. Fatal problem identified was that, at core, claims all rested on proposition that each class member was vulnerable, pathological problem gambler, which was something that could only be determined on individual, case-by-case basis. On appeal, Divisional Court agreed with motion judge that requirements for certification were not met. Appeal dismissed. Need for individualized inquiry was so pervasive that it overwhelmed appellants’ attempt to treat it as case of systemic wrong. Claims advanced inevitably required individual inquiry into nature, degree and consequences of each class member’s gambling propensity. This was not case where class action would be appropriate procedure to deal with systemic wrong. Issue of respondent’s fault could not be usefully or fairly determined in abstract and without reference to circumstances of each individual class member. Proposed class definition was over-inclusive. There was no rational relationship between identified class and proposed common issues. Significance of any determination as to respondents alleged wrongful conduct was trumped by need to focus on individual issues of vulnerability and would not amount to substantial ingredient of class member’s claim. Class action was not preferable procedure. Litigation plan was inadequate.

Dennis v. Ontario Lottery and Gaming Corp. (Jul. 31, 2013, Ont. C.A., K.M. Weiler J.A., Robert J. Sharpe J.A., and Paul Rouleau J.A., File No. CA C55923) Decision at 209 A.C.W.S. (3d) 498 was affirmed.  229 A.C.W.S. (3d) 644.

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