Ontario compulsive gamblers are getting one more shot at rolling the dice for the big jackpot they could never win on their own.
The province’s highest court has decided to allow problem gamblers led by Peter Dennis to appeal two lower court decisions that refused to certify their $3.5-billion class-action lawsuit against the Ontario Lottery and Gaming Commission.
“We survived to fight another day,” says their lawyer, Jerome Morse.
On behalf of more than 11,000 addicts, they allege the OLG allowed them to continue betting away millions between 1999 and 2005 even after they signed “self-exclusion” contracts asking to be barred from Ontario casinos for their own good.
“We say that we identified ourselves as problem gamblers and we were in need of being kept out of your gambling venues and yet you did virtually nothing,” their lawyer explains. “You took photos that went into books that gathered dust. How do you keep track of 11,000 self-excluded gamblers when you have millions coming in? No one can argue these were your best efforts.”
Since 2011, the OLG now has facial recognition software at each site to scan the face of everyone who enters against a database of more than 16,500 problem gamblers who have voluntarily banned themselves. But this lawsuit predates that era when there was no central database and staff were somehow expected to memorize thousands of pictures and spot self-excluders.
At the heart of the proposed class action is Dennis, 52, who lost his job, his house and nearly his family. According to his statement of claim, the Markham account manager became addicted to playing the slots at Woodbine Racetrack and gambled away $350,000 between 2000 and 2004. After an 11-week binge, the depressed and anxious father of two admitted he had a problem and signed a self-exclusion contract believing it would keep him away from his addiction.
But Dennis claims he was stopped only once in the following three years.
He would go on to blow through another $200,000 and in April 2005, the bank foreclosed on his home. He was fired that year from a data management firm because he owed money to a client and in September 2007, gambling cost him his second home. He was bankrupt and his family so fractured that one child tried to commit suicide and the other fell far behind in school.
But who’s to blame — the addict or the pusher?
The proposed class action will argue that the OLG owes a duty of care to compulsive gamblers — like a bar that has to stop serving a patron who’s had too much to drink, the gaming venue had a responsibility to step in and actually enforce the self-exclusion contract.
Should the OLG be expected to be their babysitter? “The self-exclusion program is not a policing program,” argues spokesman Rui Brum. “The onus is on the self-excluder to keep themselves out of OLG sites.”
So far, Dennis and his bid for a class action lawsuit has crapped out twice.
In 2010, Ontario Superior Court Justice Maurice Cullity ruled their case was more suited to individual lawsuits and refused to certify it as a class action. To that point, nine individual lawsuits against the OLG had been settled with an average pay out of $167,000 and another four lawsuits were pending.
Last year, the Divisional Court reached the same conclusion and wouldn’t allow a class action to go ahead, although one of the three judges disagreed.
Now this decision by the Ontario Court of Appeal Thursday will allow them one last chance to argue their case for certification. While the court gave no reasons as to why they will hear the appeal, the gamblers’ lawyer believes that it certainly satisfies the requirement that it be of wider public interest, especially now with OLG’s-plan to increase provincial gambling revenues by a staggering 75%. “The need for responsible gaming and self-exclusion will be very important,” he warns.
As for Dennis, he’s working again and piecing his life back together. He’s sworn off gambling save for one last bet — that he can bring his class-action lawsuit to trial and hold the province responsible for his downfall.