Monday, January 14, 2013

The Ineffectively Excluded Win the Right to Sue as a Class

Back in August, 2012, Self-Exclusion noted that the Ontario (Canada) Supreme Court was willing to hear an appeal from self-excluded gamblers as to whether they could proceed with a class-action suit. The class would consist of gamblers who placed themselves on the excluded list, but who subsequently broke their exclusion order by returning to a casino to gamble.
But Ontario is not the only province in Canada that is facing this issue. The British Columbia Supreme Court now has spoken on a similar case, ruling that the gamblers may indeed proceed with their class-action suit. In this instance, however, the class is not simply those who continued to gamble after self-excluding. Rather, the class is a subset of those stealthy gamblers who at some point were not allowed to collect a jackpot that they had won, once it was learned they were on the excluded list.

One of the complicating factors in this case is that originally, the forfeiture of winnings was not an element of the self-exclusion system in British Columbia. This feature was added on April 1, 2009, as a method of increasing the deterrence of gambling for those on the excluded list. The named plaintiffs in the current case self-excluded before jackpot denial was an element of the exclusion plan, but won their jackpots after the implementation of the scheme. (Though they won a few (denied) jackpots, in overall terms, both of the gamblers lost quite a bit of money gambling while excluded.)

The court decision re-iterates that the British Columbia exclusion system was constantly being tested by excluded gamblers. (Self-Exclusion noted this issue some years ago.) One of the plaintiffs was caught attempting to gamble in breach of his order some 15 times. Here is the section of the Court opinion entitled "Enforcement of the VSE Program":
[39]         As of October 2011, there were approximately 6,300 persons enrolled in the VSE program.

[40]         Until mid-June 2009, BCLC’s primary means of enforcing the VSE Program was to rely on the ability of security staff at gaming facilities to recognize VSE Program participants by sight.

[41]         In June 2009, BCLC started using license plate recognition to identify VSE Program participants. Since its introduction, this technology has led to almost 4,000 entry denials or removals of VSE Program participants.

[42]         From 2007 until October 2011, VSE Program participants were denied entry or removed from gaming facilities on more than 36,750 occasions.

[43]         Between April 1, 2009, and June 3, 2010, Jackpot Prizes were withheld from 105 VSE Program participants on 113 different occasions.

[44]         Between June 4, 2010, and July 4, 2012, a total of 187 Jackpot Prizes were withheld from VSE Program participants.
Incidentally, the jackpots that are withheld from excluded gamblers are not kept by the casino; rather, they are donated to a third party.

Note that the recent court decision remains a far cry from requiring that the old jackpots be given to excluded gamblers; it only allows them to form a class to try their luck in court. They still must show that the British Columbia Lottery Corporation breached a contract with the excluded gamblers, or behaved in an unconscionable fashion.

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