ONSC 1096
COURT FILE NO.: DIV-CV-20-51
DATE: 2022/02/28
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
B E T W E E N:
Douglas Gordon Dunbar and Frederick Winston Woolford
Joshua D. Shields, Counsel for the Plaintiffs, (Respondents)
Plaintiffs (Respondents)
- and -
Ontario Gaming West GTA Limited Partnership aka Elements Casino Brantford
Stephen Schwartz, Counsel for the Defendant, (Appellant)
Defendants (Appellants)
HEARD: January 21, 2022
JUDGMENT
The Honourable Justice R. J. Harper
Issues
[1] This is an Appeal from the decision of Deputy Judge Richard Campbell of the Small Claims Court, dated February 3, 2020, wherein he awarded that the Plaintiff, Woolford, receive the sum of $9,450.00 and the Plaintiff, Dunbar, the sum of $700.00 from the Defendant, Ontario Gaming West GTA Limited Partnership, also known as Elements Casino Brantford (“Elements”).
[2] The issue in this case is whether the Plaintiffs were entitled to receive a payout from a poker hand in a game of Pai Gow Poker played by them at Elements Casino Brantford on January 15, 2019, with the odds set at 1000:1 vs. odds set at 100:1.
Background
[3] On January 15, 2019, the Plaintiff, Woolford, and the Plaintiff, Dunbar, were playing a game of Pai Gow Poker at the subject Casino. They were both at the same gaming table. Each table had maximum of 6 players. There were other players at the table in addition to the Plaintiffs.
[4] Before a hand is dealt to a player, the player must place a bet. No further bet can be placed after a hand is dealt. On the evening in question, Woolford placed a bet of $10.00 and Dunbar placed a bet of $10.00, in what is referred to as an “Envy Bet”.
[5] An Envy Bet is a bet that any player can make, and the player would be entitled to a bonus regardless of which player is dealt a “qualifying hand”. The player dealt the qualifying hand would receive a much higher payout for the hand itself. That payout is expressed as a multiple of the amount that was bet.
[6] At the material time, there was a Legend that was imprinted on the felt table surface of this Pai Gow poker table at Elements. That Legend set out the payout that would be given by the Casino depending on the hand that was dealt to that player.
[7] The parties agreed at trial that the table they were playing at had the following Payout Legend imprinted on the felt table surface:
DYNASTY BONUS HAND PAYOUT ENVY 7
Card Natural Straight Flush - 2500 to 1 - Envy $1000
Royal Flush with AQ Suited - 1000 to 1 - Envy $750
7 Card Straight Flush with Joker - 750 to 1 - Envy $250
5 Aces - 250 to 1 - Envy $100
Royal Flush - 125 to 1 - Envy $50
Straight Flush - 50 to 1 - Envy $20
4 of a Kind - 25 to 1 - Envy $5
Full House - 5 to 1- Envy $0
Flush - 4 to 1 - Envy $0
3 of a Kind - 3 to 1 Envy $0
Straight - 2 to 1 – Envy $0
[8] A further feature of the Pai Gow poker game was that all players and the dealer were dealt 7 cards. Of the 7 cards, 5 must be placed into a “high hand” and 2 into a “low hand”. The former must be higher than the lower and the player’s hands must be greater than the dealer’s hand. The Joker is a wild card.
[9] Woolford was dealt the following hand:
Joker (wild card), 4 of Spades, and 10, J, Q, K and A of Clubs.
[10] Woolford understood that he met the conditions of a qualifying hand as shown on the Legend for a 1000 to 1 payout. He had a Royal Flush with Ace and Queen of the same suit. Dunbar agreed and he took the position that Woolford had that qualifying hand that entitled him the Envy payout of $750.00 Some of the players at the table agreed with the Plaintiffs.
[11] Neither the dealer at the table nor the pit boss or floor manager were able to rule on the hand, and the matter was taken to the shift manager, Sheri Joseph. Ms. Joseph eventually ruled that the payout would only be 125:1. She took the position that in order to get the 1000:1 payout, he would need a Royal Flush in his high hand plus an Ace and Queen of the same suit in the low hand. She also ruled as a result, Mr. Dunbar was only entitled to a payout for the Envy bet in the amount of $50.00 and not the $750.00 he felt that he was entitled to.
[12] The Deputy Judge ruled for the Plaintiffs.
[13] The Deputy Judge found that the contract that was entered into by the Plaintiffs and the Defendant consisted of the offer by the Casino of paying out the 1000:1 odds when a player had a hand that consisted of a Royal Flush “with” an Ace and Queen (“AQ”) of the same suit. He ruled that the ordinary meaning of “with” is “including”.
[14] The Rules of the Game that were accessed by Ms. Joseph were worded differently than the Legend at the table. The Rules of the Game read: “Royal Flush + AQ suited”. That wording would have an ordinary meaning of: “in addition to”.
[15] Before her ruling, Ms. Joseph consulted the Rules of the Game and the Standard Operating Procedure (“SOP”). It should be noted that Ms. Joseph had to access those documents on her computer. Most significantly, the SOP was marked “confidential” and no player would have access to that document.
[16] There were no signs posted in the Casino that a player could consult with or review the Rules of the Games that governed the Pai Gow Poker game at the Elements Casino. The only payout reference was contained in the Legend imprinted on the felt at the table.
[17] It is also significant to note the Casino changed the game display Legend after the date of the controversial game that is the subject matter of these proceedings. The Legend now reads: “+ AQ suited” as opposed to its reading on the day of the bet in the Legend being: “with AQ suited”.
[18] The trial judge found that the contract was ambiguous, and he set about to make a determination as to the intent of the parties.
The Law and Analysis
Standard of Review
[19] I agree with Favreau J. in Shea v. Huang, 2021 ONSC 5141 at para. 15:
[15] The appellate standard of review applies to an appeal from a Small Claims Court judgment to the Divisional Court. Errors of law are reviewed on a standard of correctness and errors of fact or mixed fact and law are reviewed on a palpable and overriding standard.
[20] This case turns on the interpretation of the contract that was entered into between Elements and Woolford and Dunbar.
[21] With respect to the interpretation of contract, the Supreme Court of Canada in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, commencing at para. 46, states:
[46] The shift away from the historical approach in Canada appears to be based on two developments. The first is the adoption of an approach to contractual interpretation which directs courts to have regard for the surrounding circumstances of the contract — often referred to as the factual matrix — when interpreting a written contract (Hall, at pp. 13, 21-25 and 127; and J. D. McCamus, The Law of Contracts (2nd ed. 2012), at pp. 749-51). The second is the explanation of the difference between questions of law and questions of mixed fact and law provided in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 35, and Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 26 and 31-36.
[47] Regarding the first development, the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding” (Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, [2006] 1 S.C.R. 744, at para. 27, per LeBel J.; see also Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, at paras. 64-65, per Cromwell J.). To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning:
No contracts are made in a vacuum: there is always a setting in which they have to be placed. . . . In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.
[48] The meaning of words is often derived from a number of contextual factors, including the purpose of the agreement and the nature of the relationship created by the agreement (see Moore Realty Inc. v. Manitoba Motor League, 2003 MBCA 71, 173 Man. R. (2d) 300, at para. 15, per Hamilton J.A.; see also Hall, at p. 22; and McCamus, at pp. 749-50). As stated by Lord Hoffmann in Investors Compensation Scheme Ltd. v. West Bromwich Building Society, [1998] 1 All E.R. 98 (H.L.):
The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. [p. 115]
[49] As to the second development, the historical approach to contractual interpretation does not fit well with the definition of a pure question of law identified in Housen and Southam. Questions of law “are questions about what the correct legal test is” (Southam, at para. 35). Yet in contractual interpretation, the goal of the exercise is to ascertain the objective intent of the parties — a fact-specific goal — through the application of legal principles of interpretation. This appears closer to a question of mixed fact and law, defined in Housen as “applying a legal standard to a set of facts” (para. 26; see also Southam, at para. 35). However, some courts have questioned whether this definition, which was developed in the context of a negligence action, can be readily applied to questions of contractual interpretation, and suggest that contractual interpretation is primarily a legal affair (see for example Bell Canada, at para. 25).
[50] With respect for the contrary view, I am of the opinion that the historical approach should be abandoned. Contractual interpretation involves issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix.
[22] However, the legal pathway for contractual interpretation does not end there. This is made clear from the Court of Appeal for Ontario in Fuller v. Aphria Inc., 2020 ONCA 403. The Court stated the following, commencing at para. 48:
(a) The Standard of Review
[48] As the application judge correctly noted, the issue of whether the Options had expired at the time of their exercise is a question of contractual interpretation. The interpretation of a non-standard form contract by a judge at first instance is generally subject to a deferential standard of review on appeal, as it involves matters of mixed fact and law: Sattva, at paras. 50-52. It is “an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix”: Sattva, at para. 50.
[49] However, where errors made in the course of contractual interpretation give rise to extricable questions of law, deference will not be owed. Such legal errors include the application of an incorrect principle, the failure to consider a required element of a legal test, or a failure to consider a relevant factor: Sattva, at para. 53. Appellate courts should be cautious before characterizing something as an extricable question of law in disputes over contractual interpretation: Sattva, at para. 54. Nevertheless, the failure to apply the appropriate principles of contractual interpretation, especially where it results in an interpretation inconsistent with the wording of the relevant provisions, can give rise to an extricable error of law and displace deference: MacDonald v. Chicago Title Insurance Company of Canada, 2015 ONCA 842, 127 O.R. (3d) 663, leave to appeal refused, [2016] S.C.C.A. No. 39, at paras. 64-66, 72. [bold emphasis added]
[50] In Resolute FP, the majority of the Supreme Court agreed with the dissenting reasons in this court of Laskin J.A. in concluding that there were reversible errors in the motion judge’s interpretation of the scope of a contractual indemnity: Resolute FP, at para. 26. Laskin J.A. found the following errors to justify appellate intervention: palpable and overriding errors of fact that affect the interpretation; a failure to properly, accurately, and fully consider the context in which a contract was made, which is an error of law; and a failure to consider the contract as a whole, by focussing on one provision without giving proper consideration to other relevant provisions, which is also an error of law: Weyerhaeuser, at para. 211 (Laskin J.A. dissenting reasons); Resolute FP, at paras. 26-27, 30 and 32-34.
[23] Put another way, the Court of Appeal for Ontario stated in Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., 2017 ONCA 293, 135 O.R. (3d) 241 at para. 19:
[19] First, Sattva holds, at para. 53, that in rare cases the correctness standard of review will apply to questions of contractual [page 247] interpretation where it is "possible to identify an extricable question of law from within what was initially characterized as a question of mixed fact and law" (citation omitted). Justice Rothstein, writing for the Supreme Court, explained in Sattva, at para. 53, that "extricable questions of law" include legal errors involving "the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor" (citation omitted).
[24] Did the Deputy Judge apply an incorrect principle of law or fail to consider a required element of a legal test or fail to consider a relevant factor? I must determine if this is one of those rare cases that involve the application of an incorrect principle of law or failure to consider an element of a legal test or relevant factor.
[25] In this case, did the Deputy Judge fail to consider the legal requirement of the Casino to create Rules of the Game that were to be approved by the Alcohol and Gaming Commission of Ontario (“AGCO”) and, once approved, become the rules that govern a particular game? In my view, that is the extricable question of law that is at the core of this case. The Standard of Review is correctness.
[26] In this case, the Casino did create Rules of the Game that were submitted to AGCO and received approval. The next question becomes whether or not those rules are incorporated by reference into a contract that a player may enter with the Casino by placing a bet at a particular game. If they are not incorporated by reference, do the Rules of Game govern in any event?
[27] In order to make that determination, the legislative framework must be examined. The Court of Appeal has clearly set out that framework in Moreira v. Ontario Lottery and Gaming Corporation, 2013 ONCA 121, Commencing at para. 21:
[21] In Ontario, the authority to regulate lottery schemes is vested in the AGCO, a quasi-judicial regulatory agency established under the Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c. 26, Sched.
[22] The AGCO regulates lottery schemes through the administration of the Gaming Control Act. The Gaming Control Act, and O. Reg. 385/99, enacted under the Gaming Control Act, set out the statutory framework for regulating the conduct and management of lottery schemes.
[23] Under s. 3 of the Alcohol and Gaming Regulation and Public Protection Act, the AGCO is required to exercise its powers and duties under the Gaming Control Act “in the public interest and in accordance with the principles of honesty and integrity, and social responsibility.”
[24] In contrast to the regulatory power exercised by the AGCO, the authority to conduct and manage lottery schemes on behalf of the province is vested in the OLGC, a Crown agency established under the Ontario Lottery and Gaming Corporation Act, 1999, S.O. 1999, c. 12, Sched. L. Section 0.1 of that Act indicates that the purposes of the Act are: a) to enhance the economic development of the province; b) to generate revenues for the province; c) to promote responsible gaming; and d) to ensure that anything done for one of the other three purposes is also done for the public good and in the best interests of the province.
[25] Importantly, s. 3.7 of the Gaming Control Act authorizes the AGCO to “approve in writing rules of play for the playing of lottery schemes conducted and managed by the [OLGC] if the regulations have not prescribed rules of play.”
[26] Section 22(2) of the Gaming Control Act requires that casino operators ensure that lottery schemes are played in accordance with the rules of play approved by the AGCO:
- (2) No registered supplier who provides services related to the operation of the gaming site maintained for playing a lottery scheme conducted and managed by the [OLGC] … shall permit the playing of a lottery scheme on the site except in accordance with,
(b) the rules of play approved in writing by the [AGCO] for lottery schemes, if none have been prescribed by the regulations.
[28] At para. 68, the Court of Appeal went on to state:
[67] Considered in context, in my opinion, the requirement to provide a complete description of the “rules of the game” is a requirement to describe the rules by which the game is played and which ensure the integrity and fairness of the game assuming it proceeds in the ordinary course.
[29] At para. 71, the Court stated:
[71] Towards those ends, the legislature requires that casino operators submit to the AGCO for its approval a complete description of each game of chance they intend to offer, including the “rules of the game”, and that casino operators and staff ensure that each game of chance is played in accordance with the approved rules of play. This allows the legislature to strictly control gambling operations that may otherwise exploit individual gamblers or harm the broader public interest.
[72] In order to achieve this objective, the legislature requires the regulator to review rules such as (i) the objectives of the game, (ii) the wagers that may be made, (iii) the chances of winning, and (iv) the advantages of the operator in relation to each wager. All of these rules are integral to the fairness and integrity of games of chance and failure to regulate these items would undermine the remedial function of the legislation.
[30] Section 22(1) of the Act now reads differently, but the same intention remains:
Rules of play
22 (1) No registered supplier who provides a gaming site, other than a gaming site maintained for playing a lottery scheme conducted and managed by the Ontario Lottery and Gaming Corporation or by the lottery subsidiary, and no registered gaming assistant who provides services to the registered supplier shall permit the playing of a lottery scheme on the site except in accordance with the rules of play and other standards and requirements that are prescribed by the regulations or established by the Registrar under section 3.8. 2011, c. 9, Sched. 17, s. 11; 2020, c. 36, Sched. 18, s. 10 (1). [bold emphasis added]
[31] In this case, Elements did provide Rules of the Game of Pai Gow Poker to the AGCO and obtained their approval.
[32] However, the Rules of the Game that were approved differed in their wording to the Legend that was posted on the game table that Woolford and Dunbar placed their bets on the night in question.
[33] The Legend read that a player is entitled to a 1000:1 pay out if they had a hand that contained a: “Royal Flush with AQ suited”. This game is played by each player being dealt 7 cards. They must arrange the cards in a 5 card “High Hand” and a 2 card “Low Hand.”
[34] The Legend also reads that a player that was dealt a Royal Flush was entitled to a payout of 100:1. Since the Joker was wild, that winning combination would entitle a player to use the Joker to complete the Royal Flush. That is not the case with the 1000:1 pay out: a Joker cannot form part of that Qualifying Hand.
[35] Both Woolford and Dunbar claim that they are entitled to the 1000:1 payout as Woolford’s hand contained a 10, Jack, Queen, King, Ace, all of the same suit.
[36] Elements claims that the Rules of the Game that have been approved by the AGCO govern and they read:” Royal Flush + AQ suited”.
[37] The Deputy Judge found that there was ambiguity in the contract that was entered into by Woolford, Dunbar, and the Casino. As a result of such ambiguity, the legal principle of contra proferentem applies.
[38] The Deputy Judge found that the ordinary dictionary meaning of “within” could be “including” or “in addition to”. Whereas the Rules of Game showing a + sign after Royal Flush meant that the AQ needed to be suited and in the low hand.
Interpretation of The Contract
a. Did the Contract between the Elements and Woolford and Dunbar include the documents entitled: Rules of the Game and Standard Operating Procedure (“SOP”), or was it solely based on the Legend imprinted on the gaming felt table?
b. Do the Rules of Game, authorized by regulations allowed by a statute, form part of a contract, or is there a requirement to incorporate them by reference?
c. What is the ordinary meaning of the word “with” that is shown in the Legend imprinted on the felt of the table?
d. If the Legend differed in wording from the Rules of Game, what is the impact on the contract?
e. If the contract was ambiguous, can the doctrine of contra proferentem be applied?
[39] In order to determine the extent to which documents, other than the Legend, may have formed part of the contract, I find the comments of Stinson J. in Tal v. Ontario Lottery Corporation/Loto 6/49 OLG, 2011 ONSC 644 to be helpful.
[40] The facts of that case are outlined by Stinson J. in paras. 1-3 of his decision as follows:
[1] In the October 1, 2008 draw of the Lotto 6/49 game, the plaintiff, David A. Tal, matched four out of the six numbers selected. The total amount of the applicable prize pool was over $1.3 million. Mr. Tal believes he is entitled to the full amount of that prize pool. Unfortunately for Mr. Tal, over twenty thousand other people in the October 1, 2008 draw also matched four out of the six drawn numbers. As a result, the defendant, Ontario Lottery and Gaming Corporation ("OLGC"), paid Mr. Tal what it believes is his share of the prize pool, $66.90.
[2] Mr. Tal is unhappy about this and has sued OLGC for breach of contract as a result. In this lawsuit, Mr. Tal is claiming for $3,182,667.81 in damages, which he says is the amount to which he was really entitled in the October 1, 2008 draw, as well as an additional $35.3 million in punitive and exemplary damages. His position in this litigation is that he is contractually entitled to the entire prize pool set aside for those who matched four out of the six drawn numbers, instead of just a share of this pool.
[3] OLGC disagrees and asserts that the rules of the Lotto 6/49 game, by which Mr. Tal is contractually bound, provide that the prize pool in question is to be divided on a pari-mutuel basis among all players who matched four out of six numbers. As a result, Mr. Tal has received his full entitlement.
[41] Justice Stinson then reviews how a contract is formed when it relates to lotteries. Commencing at para. 43:
[43] I turn now to the claim as pleaded, and the proper characterization of the legal relationship between the parties and the terms that govern. It is well established that the general law of contract applies to lotteries played in Canada. This is because a contractual relationship is formed between the lottery organization that runs a lottery game and the players who play the game. This relationship is formed as follows: (i) a lottery organization makes an offer to the public to play a lottery game, the terms of which are contained in the written rules that govern the game in question; and (ii) a member of the public accepts the offer, and agrees to its terms as set out in the rules for the lottery game, by purchasing a ticket for the game (the purchase price of the ticket is consideration for obtaining a chance to win a prize). The terms of the resulting agreement are found in the written rules that govern the lottery game: see Soron v. Southland Canada Inc., [1996] S.J. No. 18 at paras. 8-9 and 12-13 (Sask. Q.B.); Lajoie v. Ontario Lottery Corp., [1999] O.J. No. 3237 at paras. 21-22 (S.C.J.); Thierman v. Western Canada Lottery Corp., [1995] 9 W.W.R. 253 at paras. 18-25 (Sask. Q.B.); McCorkell v. Ontario Lottery Corp. (1992), 8 O.R. (3d) 1 at pp. 7-10 (Div. Ct.).
44] Additionally, s. 9(2) of O. Reg. 198/00 (enacted pursuant to subsection 15.1(1) of the OLGC Act), confirms that players are contractually bound by the rules of lottery games. That provision states that “[i]t is a condition of participating in a lottery scheme that the participant agrees to be bound by the game rules governing the scheme." It is therefore clear that, by participating in the lottery, Mr. Tal was entering into a contractual relationship with OLGC, and that he was agreeing to be bound by the game rules.
[42] In this case, Elements had the Legend noted above embedded in the felt of the subject Pai Gow Poker table. There was no footnote or other indication on the Legend that informed a player that there were other Rules of the Game that applied could be accessed by a player at any time.
[43] Counsel for Elements submitted that the Tal case is guidance for me with respect to the issue of Rules of the Game applying to a particular game of chance. I find that the Tal Case is very informative. However, that case accentuates my concern with respect to whether or not a Casino must provide some clear notification that there are other rules that apply and are incorporated into any contractual arrangement that might be entered into between the Casino and a player. This is significant if the Casino, as did Elements, posts what any reasonable person would understand to be the rules of the game.
[44] The Tal case was dealing with a ticket that was purchased to play the lottery game of “Lotto 6/49”. That ticket clearly indicated on the back of the ticket that other rules of the game applied and could be accessed.
[45] I find that it is significant that the neither the dealer of the hand nor the pit boss nor the pit boss’ floor manager knew what to do. The matter had to be presented to the night manager. Only after the night manager accessed the Rules of the Game and the confidential document entitled “SOP”, that were on her computer, did she make a ruling that Woolford and Dunbar were only entitled to a pay out of 100:1 given the wording of the Rules of the Game that she accessed.
Incorporation by Reference
[46] Elements takes the position that there is no need for any form of notification that other Rules of the Game exist and govern how the game is to be played.
[47] The legislation and authorized regulations do set out a path that must be followed by the Casino in creating and getting approval of Rules of the Game.
[48] The duty to ensure that Rules of the Game are approved and followed is on the Casino. However, if the Casino posts a document or other form of notice that can be reasonably construed by a member of the public to govern the rules of the game, that differ for the approved rules, this creates a deflection to any prospective player. By posting that Legend without any notification that the Legend cannot be taken as the Rules of the Game, it is reasonable for a player to rely on the Legend. This is especially so when there is no notification at all by the Casino that other rules apply to the game that can be accessed by the player. In this case, Elements caused the ambiguity in what constituted the contract by posting the Legend in the manner that it did, by wording the Legend differently than the Rules of the Game and by not notifying prospective players that other Rules of the Game govern and could be accessed.
[49] The principle of contra proferentem was applied by the Deputy Judge. I do not find that principle needs to be utilized in the circumstances of this case. I refer to the Court of Appeal for Ontario in Dunn v. Chubb Insurance Company of Canada, 2009 ONCA 538, 97 O.R. (3d) 701 at para. 36:
…Contra proferentem is a rule of last resort and will only apply “when all other rules of construction fail”: Canadian National Railway Co. v. Royal and Sun Alliance Insurance Co. of Canada, 2008 SCC 66, [2008] 3 S.C.R. 453, [2008] S.C.J. No. 67, at para. 33, citing Stevenson v. Reliance Petroleum Ltd., [1956] S.C.R. 936, [1956] S.C.J. No. 68, at p. 953 S.C.R. [page 712]
[50] I find that the Casino did not follow its own approved Rules of the Game by posting a Legend that differed from the approved Rules. That did create an ambiguity with respect to what the Rules of the Game were at the time the plaintiffs placed their wagers.
[51] I would find differently had the Casino provided any indication by way of a footnote to the Legend or other form of notice that a player can and should access other Rules of the Game that govern. That was demonstrated in the case before Stinson J. (supra) where the ticket stated that other rules applied and could be accessed. That was not the case in this instance.
[52] If the intention of the statutory scheme is to ensure integrity and fairness to the public when playing a game of chance, surely a Casino cannot post anything that would cause uncertainty instead of clarity. I find that is what Elements did in this case. In my view this is confirmed by the actions of Elements when they changed the wording of the Legend after the date in which Woolford and Dunbar had placed their bet. They changed the wording to conform the wording in the Rules of the Game that had been approved by AGCO.
[53] I find that a player could and, in this case, did reasonably rely on the Legend posted at the table as the game rules, and they placed their bets accordingly. In my view, the Rules that govern these parties are the rules posted at the table. A reasonable interpretation of those rules is that if a player has a hand that contains a Royal Flush with (including) QA suited, they are entitled to the 1000:1 payout. I agree with counsel for Woolford that the difference between the posting of a Royal Flush as a pay out of 100:1 is that it can include a Joker as the wild card and that differentiates the other posting in the Legend that requires the QA to be suited.
[54] Under the circumstances of this case, the only way that integrity and fairness can be achieved is to allow the trial judgment to stand.
[55] If costs cannot be agreed to, each party may provide written submissions within 30 days.
Justice R. J. Harper
Released: February 28, 2022
ONSC 1096
COURT FILE NO.: DIV-CV-20-51
DATE: 2022/02/28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E N:
Douglas Gordon Dunbar and Frederick Winston Woolford
Plaintiffs (Respondents)
- and –
Ontario Gaming West GTA Limited Partnership aka Elements Casino Brantford
Defendants (Appellants)
REASONS FOR JUDGMENT
Released: February 28, 2022