OLG’s Duty of Care to Victims of Problem Gambler

Ace-King in hand at the poker table

The Court of Appeal of Ontario has recently determined that a claim brought against the Ontario Lottery and Gaming Corporation (OLG) should move forward after the victims of a gambling addict, who stole over $4 million dollars to feed her habit, sued the gaming authority.

Shellee Spinks was a law clerk from Hamilton who stole the money from the appellants – the Paton Estate –among others. Spinks, pretending to be a lawyer, gambled away about $3,000,000 in OLG casinos between 2006 and 2008, and shared about $200,000 with her mother.  The Defendant, the Ontario Lottery and Gaming Corporation, is being sued for damages of $950,000 and aggravated damages of $500,000. The estates claim that OLG knew that Spinks was a problem gambler and knowingly received trust funds from her.

The motion judge, Superior Court Justice Hambly, struck down the claim, citing that it did not have a reasonable cause of action, and that it was “plain and obvious” that the lawsuit would have no chance of success. He concluded that the casinos did not know Spinks was gambling with trust funds and that casinos do not owe a duty of care to those who lose their money gambling at their establishments.

However, Justice Pardu and Justice Roberts of the Court of Appeal for Ontario reversed the decision, citing that it is not “plain and obvious” that the claim would have no chance. Associate Chief Justice Hoy dissented.

The Majority of the Court of Appeal allowed claims for “knowing receipt of trust funds” and for unjust enrichment to proceed. It noted with respect to the alleged negligence claims asserted by the plaintiffs, that while casinos could not conduct an individualized assessment of each of their customers, “more may be expected when an individual is obviously addicted to gambling and out of control”. Using an analogy of the commercial service of alcohol, the Court argued that if a commercial host served alcohol, intoxicating a patron, and said patron were to drive and injure a third party, there would be a recognized duty of care to both the intoxicated patron and the third party. The injury was reasonably foreseeable and there is a sufficient degree of proximity. It referenced the commercial host-drunk driving case of Childs v. Desormeaux, 2006 SCC 18 (CanLII), [2006] 1 S.C.R. 643, at paras. 17-23, in which the Court established that if the Defendant is a commercial enterprise that offers a service to the general public, it has responsibilities to act with special care to reduce risk.

The Court of Appeal quoted out of Childs v Desormeaux: “Unlike the host of a private party, commercial alcohol servers have an incentive not only to serve many drinks, but to serve too many. Over-consumption is more profitable than responsible consumption. The costs of over-consumption are borne by the drinker him or herself, taxpayers who collectively pay for the added strain on related public services and, sometimes tragically, third parties who may come into contact with intoxicated patrons on the roads. Yet the benefits of over-consumption go to the tavern keeper alone, who enjoys large profit margins from customers whose judgment becomes more impaired the more they consume. This perverse incentive supports the imposition of a duty to monitor alcohol consumption in the interests of the general public.” It then held that these comments apply with equal force to casino operators.

Justice Hoy dissented, arguing that, in this particular action, the damages being claimed are pure economic loss and commercial host liability does not impose a duty on servers of alcohol to ensure their patrons “drink away their earnings”.

Problem gambling is a well-recognized problem and organizations such as the Centre for Addiction and Mental Health (CAMH) provide valuable resources and support to gamblers and their family. While the Court has not yet definitively concluded on whether casinos owe a duty of care to third party victims, the door is open for a further discussion and interpretation of the concepts of duty of care, negligence, and foreseeability.

 

For more information about problem gambling:

 

https://www.problemgambling.ca/gambling-help/about-us/default.aspx

http://www.problemgamblinghelpline.ca/Home/Links

http://www.problemgamblinghelpline.ca/Directory/Organization/1472

https://www.camh.ca/en/hospital/health_information/a_z_mental_health_and_addiction_information/problemgambling/Pages/default.aspx

https://canadasafetycouncil.org/community-safety/gambling-addiction

http://healthydebate.ca/2013/03/topic/health-promotion-disease-prevention/problem-gambling

Roelf Swart
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Roelf A.M. Swart is very pleased to have joined Elkin Injury Law as an associate lawyer in 2009. Roelf’s practice consists plaintiff personal injury law with a focus on tort, accident benefits and long term disability disputes. Roelf enjoys successfully assisting people with their cases and bringing their cases to a successful resolution.