Mr. Michael StephensSelf-Exclusion, Responsible Gambling and the Courts:A Discussion of Self-Exclusion and Prior Judicial ...
Self Exclusion, Responsible Gambling And TheCourts: A Discussion of Self-Exclusion and Prior               Judicial Decisi...
Overview
Overview: Part I• Around the world, casino operators  have been the subject of legal  proceedings in connection with  gamb...
Overview: Part II• Survey existing body of case law from  those jurisdictions (Australia, Great  Britain, the U.S., and Ca...
Australia
Australia• Courts in Australia have generally  found that casino operators owe no  duty of care to protect problem  gamble...
Reynolds v. Katoomba RSL All Services    Club Limited, [2001] NSWCA 234In rejecting Mr. Reynolds’ claim and dismissing his...
Foroughi v. Star City Pty Limited,             [2007] FCA 1503• Dismissed claim by plaintiff for economic losses arising a...
Kakavas v Crown Limited & Anor,            [2007] VSC 526• Gambler sought in damages from Casino  claiming unconscionable ...
Kakavas v Crown Melbourne Limited &         Ors, [2009] VSC 559• Court dismissed Mr. Kakavas’ claim• Decision was affirmed...
Great Britain
Great Britain• Great Britain has produced a leading  decision in the area of self-exclusion  litigation
Calvert v. William Hill Credit Ltd.[2008] EWHC 454 (Ch Div); affirmed on appeal          [2009] 2 W.L.R. 1065 (CA)Justice ...
Calvert (continued)• At trial, plaintiff was found to be a pathological  gambler• Justice Briggs rejected the existence of...
Calvert (continued)• Justice Briggs was satisfied that Plaintiff’s gambling  disorder was so compulsive, and that the othe...
The United States
The United States• New Jersey and Indiana have been a  source of litigation involving self-excluded  and compulsive gamblers
I/M/O Petition of S.D. for Removal from the  Voluntary Self-Exclusion List, 943 A.2d 188  (N.J.Super.A.D. 2008), 399 N.J. ...
I/M/O Petition of S.D. for Removal from the    Voluntary Self-Exclusion List (continued)The Court upheld the Commission’s ...
Taveras v. Resorts International Hotel,   Inc., et al, 2008 U.S. Dist. LEXIS 71670• Plaintiff brought an action against si...
Merrill v. Trump Indiana, Inc.,            320 F.3d 729 (7th Cir. 2003)• A compulsive gambler, alleged that the riverboat ...
Stulajter v Harrah’s Indiana Corp.,    808 N.E.2d 746 (Ind.App. 2004)• Self-exclusion context• Court finds gaming statutes...
Ceasars Riverboat Casino, LLC v Kephart,    903 N.E. 2d 117 (Ind.App. 2009),        2009 Ind. App. LEXIS 514• Casino broug...
Ceasars Riverboat Casino, LLC v Kephart,943N.E.2d 1120 (Ind. 2010), 2010 Ind. LEXIS 560• On appeal to the Supreme Court of...
Ceasars (continued)• “In this case, not only does the statutory scheme  cover the entire subject of riverboat gambling, bu...
Canada
Canada•   Legal landscape in Canada is still in    development•   A number of cases involving self-excluded    gamblers ar...
Edmonds v Laplante,          [2005] OJ No 6454 (SCJ)• Not directly involving self-exclusion or  compulsive gambling litiga...
Dennis v Ontario Lottery and GamingCorporation, 2010 ONSC 1332, 101 OR (3d) 23,aff’d 2011 ONSC 7024, 344 DLR (4th) 65 (Div...
Dennis (continued)• Justice Cullity’s discussion of the plaintiff’s claims  involves a preliminary assessment of whether a...
Dennis (continued)• Justice Cullity allowed the claim in occupier’s  liability to stand until a trial on the basis of the ...
Haghdust v British Columbia Lottery    Corporation, 2013 BCSC 16• Jackpot entitlement rule self-exclusion  program• Plaint...
Burrell v Metropolitan Entertainment         Group, 2010 NSSC 476,          aff’d 2011 NSCA 108Court summarily dismissed t...
Burrell (continued)In declining to find a duty of care undercommon law, the Court noted the absenceof cases in Canada and ...
Burrell (continued)The decision was upheld on appeal to theNova Scotia Court of Appeal:“Mr. Burrell’s losses precede his r...
• Other cases before courts
HUNTER LITIGATION CHAMBERSLaw CorporationSuite 21001040 West Georgia StreetVancouver, British Columbia V6E 4H1Phone:     6...
We’re on Twitter @HorizonsRGJoin the conversation by using          #HRGC13
Michael Stephens - Self-Exclusion, Responsible Gambling and the Courts
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Michael Stephens - Self-Exclusion, Responsible Gambling and the Courts

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Michael Stephens' presentation "Self-Exclusion, Responsible Gambling and the Courts". Part of a panel discussion at the New Horizons in Responsible Gambling conference. Jan 28-30, 2013 in Vancouver BC.

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Michael Stephens - Self-Exclusion, Responsible Gambling and the Courts

  1. 1. Mr. Michael StephensSelf-Exclusion, Responsible Gambling and the Courts:A Discussion of Self-Exclusion and Prior Judicial DecisionsConcerning Casino Gaming.Ms. Constance LadellModerator
  2. 2. Self Exclusion, Responsible Gambling And TheCourts: A Discussion of Self-Exclusion and Prior Judicial Decisions Concerning Casino Gaming January 2013 K. Michael Stephens and Kimberley Knapp Hunter Litigation Chambers Law Corporation
  3. 3. Overview
  4. 4. Overview: Part I• Around the world, casino operators have been the subject of legal proceedings in connection with gambling activity (both within the self-exclusion context and beyond)
  5. 5. Overview: Part II• Survey existing body of case law from those jurisdictions (Australia, Great Britain, the U.S., and Canada), and highlight key aspects of those cases
  6. 6. Australia
  7. 7. Australia• Courts in Australia have generally found that casino operators owe no duty of care to protect problem gamblers against economic losses
  8. 8. Reynolds v. Katoomba RSL All Services Club Limited, [2001] NSWCA 234In rejecting Mr. Reynolds’ claim and dismissing hisappeal, Chief Justice Spigelman stated:“…Save in an extraordinary case, economic loss occasionedby gambling should not be accepted to be a form of loss forwhich the law permits recovery. I make allowances for anextraordinary case, without at the present time being ableto conceive of any such case…”
  9. 9. Foroughi v. Star City Pty Limited, [2007] FCA 1503• Dismissed claim by plaintiff for economic losses arising after he had self-excluded from casino• Self-exclusion form contained a provision by which plaintiff acknowledged that it was his responsibility not to enter or gamble within the casino• Court held that there was nothing in the Casino Control Act to support a private right of action additional to the obligations imposed upon casino operators• The Court also rejected the claims of misleading or deceptive and unconscionable conduct under the Trade Practices Act
  10. 10. Kakavas v Crown Limited & Anor, [2007] VSC 526• Gambler sought in damages from Casino claiming unconscionable conduct, deceptive and misleading conduct, negligence and restitution• Several of plaintiff’s claims did not survive motion to strike
  11. 11. Kakavas v Crown Melbourne Limited & Ors, [2009] VSC 559• Court dismissed Mr. Kakavas’ claim• Decision was affirmed on appeal, but leave has been granted for further appeal to the High Court of Australia
  12. 12. Great Britain
  13. 13. Great Britain• Great Britain has produced a leading decision in the area of self-exclusion litigation
  14. 14. Calvert v. William Hill Credit Ltd.[2008] EWHC 454 (Ch Div); affirmed on appeal [2009] 2 W.L.R. 1065 (CA)Justice Briggs began by noting that it was the firsttime an English court had been required toconsider the question: “...whether a bookmaker who has, at the customers request, undertaken to prohibit the customer from gambling for a specified period, owes the customer a duty to take reasonable care to enforce that prohibition, so as to protect the problem gambler from the risk of gambling losses during the specified period”
  15. 15. Calvert (continued)• At trial, plaintiff was found to be a pathological gambler• Justice Briggs rejected the existence of a broad duty of care to problem gamblers generally• Justice Briggs accepted a duty of care to enforce the prohibition on gambling that it had given at plaintiff’s request• Nevertheless, he dismissed the action on the ground that the breach did not cause plaintiff’s financial losses
  16. 16. Calvert (continued)• Justice Briggs was satisfied that Plaintiff’s gambling disorder was so compulsive, and that the other gambling opportunities available to him were so extensive, that defendant’s negligence contributed to his losses only by accelerating what would probably have occurred in any event• The decision of Justice Briggs was affirmed on appeal solely on the basis of lack of causation
  17. 17. The United States
  18. 18. The United States• New Jersey and Indiana have been a source of litigation involving self-excluded and compulsive gamblers
  19. 19. I/M/O Petition of S.D. for Removal from the Voluntary Self-Exclusion List, 943 A.2d 188 (N.J.Super.A.D. 2008), 399 N.J. Super. 107, 2008 N.J. Super. LEXIS 65• A gambler who had placed himself on the Casino Control Commission’s lifetime self- exclusion list petitioned to have himself removed from the list after he had learned that out-of-state casinos affiliated with the state casinos would also exclude him from their gaming facilities
  20. 20. I/M/O Petition of S.D. for Removal from the Voluntary Self-Exclusion List (continued)The Court upheld the Commission’s decision todeny the gambler’s petition for removal, findingample basis for the decision in fact, law and publicpolicy. In doing so, the Court noted: In essence, self-exclusion is designed as a means to help problem gamblers help themselves; it places responsibility squarely on self-excluded persons themselves to refrain from prohibited activities, albeit with the assistance and cooperation of the casinos. …
  21. 21. Taveras v. Resorts International Hotel, Inc., et al, 2008 U.S. Dist. LEXIS 71670• Plaintiff brought an action against six New Jersey casinos alleging, among other things, that the casinos had breached their duty of care and contractual obligations to her, that they were strictly liable in respect of the “abnormally dangerous activity” of gambling, and that they had intentionally inflicted emotional distress - after having received notice that she was a compulsive gambler• Court dismissed the action• The Court declined to find any outrageous or extreme conduct necessary for the intentional infliction claim
  22. 22. Merrill v. Trump Indiana, Inc., 320 F.3d 729 (7th Cir. 2003)• A compulsive gambler, alleged that the riverboat casino failed to prevent him from gambling after he had asked to be evicted from the casino if he entered• Federal Court of Appeals held that there was no statutory or common law duty of care• The Court concluded that neither the Indiana gaming statute, nor regulations, imposed a duty upon the casino to eject a gambler who requested to be placed on the casino’s eviction list – at most, it imposed a duty upon the casino operator to the State through the Indiana Gaming Commission – not to the individual gambler
  23. 23. Stulajter v Harrah’s Indiana Corp., 808 N.E.2d 746 (Ind.App. 2004)• Self-exclusion context• Court finds gaming statutes and regulations did not create a private cause of action against casino operator
  24. 24. Ceasars Riverboat Casino, LLC v Kephart, 903 N.E. 2d 117 (Ind.App. 2009), 2009 Ind. App. LEXIS 514• Casino brought an action against a compulsive gambler after her cheques were not honoured; the gambler counterclaimed alleging that the casino took advantage of her known pathological gambling condition to unjustly enrich itself• The trial court denied the casino’s motion to dismiss the counterclaim
  25. 25. Ceasars Riverboat Casino, LLC v Kephart,943N.E.2d 1120 (Ind. 2010), 2010 Ind. LEXIS 560• On appeal to the Supreme Court of Indiana, the majority of the court found it unnecessary to decide whether casino operators had a common law duty to refrain from attempting to entice or contact gamblers that it knew or should have known were compulsive gamblers, holding instead that the legislature had by implication abrogated any common law claim that casino patrons might otherwise have against casinos for damages resulting from enticing patrons to gamble and lose money at casino establishments
  26. 26. Ceasars (continued)• “In this case, not only does the statutory scheme cover the entire subject of riverboat gambling, but the statutory scheme and Kephart’s common law claim are so incompatible that they cannot both occupy the same space. …”• “The legislature did not require casinos to identify and refuse service to pathological gamblers who did not self-identify. Kephart’s claim directly conflicts with the legislature’s choice.”
  27. 27. Canada
  28. 28. Canada• Legal landscape in Canada is still in development• A number of cases involving self-excluded gamblers are working their way through the Canadian courts• To date, to our knowledge there has been no decision on the full merits of a claim by a self- excluded gambler, although some preliminary decisions have been issued
  29. 29. Edmonds v Laplante, [2005] OJ No 6454 (SCJ)• Not directly involving self-exclusion or compulsive gambling litigation• Plaintiff alleged, and the Court accepted, that the Gaming Corporation owed him a duty of care to implement non-negligently the policy that it had undertaken in respect of “insider-win investigations”
  30. 30. Dennis v Ontario Lottery and GamingCorporation, 2010 ONSC 1332, 101 OR (3d) 23,aff’d 2011 ONSC 7024, 344 DLR (4th) 65 (Div Ct) • Self-exclusion case • Court considered a motion for certification in proposed class proceedings in Ontario • The claim alleged negligence, occupiers’ liability and breach of contract, and sought damages or disgorgement of profits derived by OLGC from class members
  31. 31. Dennis (continued)• Justice Cullity’s discussion of the plaintiff’s claims involves a preliminary assessment of whether a cause of action has been pleaded. It is not a consideration or determination on the merits of the case• On the negligence claim, Justice Cullity held that the plaintiff should be permitted to have the duty of care tried on the basis of evidence without being “driven from the judgment seat” at the preliminary stage
  32. 32. Dennis (continued)• Justice Cullity allowed the claim in occupier’s liability to stand until a trial on the basis of the sufficiency of the pleadings• The decision of Justice Cullity denying certification affirmed on appeal to the Divisional Court, but leave for further appeal to the Ontario Court of Appeal has been granted
  33. 33. Haghdust v British Columbia Lottery Corporation, 2013 BCSC 16• Jackpot entitlement rule self-exclusion program• Plaintiffs applied to have their actions consolidated and certified as a class proceeding• The certification was granted by BC Supreme Court
  34. 34. Burrell v Metropolitan Entertainment Group, 2010 NSSC 476, aff’d 2011 NSCA 108Court summarily dismissed the plaintiff’saction against the Nova Scotia GamingCorporation, the Attorney General and thecasino operator, alleging a duty of care toensure appropriate steps were taken toprevent plaintiff’s gambling
  35. 35. Burrell (continued)In declining to find a duty of care undercommon law, the Court noted the absenceof cases in Canada and the rejection ofsuch a broad duty in Australia, the UnitedKingdom, and the United States
  36. 36. Burrell (continued)The decision was upheld on appeal to theNova Scotia Court of Appeal:“Mr. Burrell’s losses precede his request for exclusion and theprohibition notice under the Protection of Property Act. Hisclaim asserts the existence of the broad duty of care that wasrejected in Calvert, was not considered in Dennis, and isunsupported by the Australian and American cases. Mr. Burrellcites no authority that has accepted a duty of care to problemgamblers who have neither self-excluded nor been lured byindividually targeted promotion.”
  37. 37. • Other cases before courts
  38. 38. HUNTER LITIGATION CHAMBERSLaw CorporationSuite 21001040 West Georgia StreetVancouver, British Columbia V6E 4H1Phone: 604-891-2400Fax: 604-647-4554Website: http://www.litigationchambers.com
  39. 39. We’re on Twitter @HorizonsRGJoin the conversation by using #HRGC13

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