Dennis v. Ontario Lottery and Gaming Corporation

Dennis v. Ontario Lottery and Gaming Corporation

The appeal was dismissed because the proposed class definition was over-inclusive and the plaintiffs' allegations of systemic wrong were inextricably bound up with individualized issues of vulnerability, conduct, causation and quantum such that common issues could not be defined that would significantly advance the litigation; statistical evidence could not substitute for individual proof of liability, so certification was properly refused.

Citation
2013 ONCA 501
Parties
Plaintiff (appellant): Peter Aubrey Dennis; Plaintiff (appellant): Zubin Phiroze Noble; Defendant (respondent): Ontario Lottery and Gaming Corporation
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
31 July 2013
Procedural Posture
Civil Class Certification Appeal / Appeal to Court of Appeal From Divisional Court Decision on Certification (cross Appeal by Respondent)
Outcome
Appeal and cross-appeal dismissed; certification not granted (motion judge and Divisional Court majority upheld)
Legal Topics
Self Exclusion Programs, Duty of Care, Certification Criteria Under CPA S.5, Causation, Aggregate Damages, Release/exclusion Clauses, Statistical Evidence in Class Proceedings
Source Language
English
Civil Class Actions Contract Negligence Occupiers' Liability Family Law Self Exclusion Programs Duty of Care +5 more

Case Brief

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Parties

Peter Aubrey Dennis

Plaintiff (appellant)

Zubin Phiroze Noble

Plaintiff (appellant)

Ontario Lottery and Gaming Corporation

Defendant (respondent)

Procedural Posture

Civil Class Certification Appeal / Appeal to Court of Appeal From Divisional Court Decision on Certification (cross Appeal by Respondent)

Legal Issues

  1. 1 Whether the proposed class is identifiable and not over-inclusive under CPA s.5(1)(b)
  2. 2 Whether the claims raise common issues suitable for certification under CPA s.5(1)(c)
  3. 3 Whether a class proceeding is the preferable procedure under CPA s.5(1)(d) and whether the plaintiff produced a workable litigation plan under s.5(1)(e)

Ratio Decidendi

The appeal was dismissed because the proposed class definition was over-inclusive and the plaintiffs' allegations of systemic wrong were inextricably bound up with individualized issues of vulnerability, conduct, causation and quantum such that common issues could not be defined that would significantly advance the litigation; statistical evidence could not substitute for individual proof of liability, so certification was properly refused.

Court Disposition

Appeal and cross-appeal dismissed; certification not granted (motion judge and Divisional Court majority upheld)

Orders

  • Appeal dismissed
  • Cross-appeal dismissed