ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-18612
DATE: 2015-07-09
BETWEEN:
The Estate of Ollie John Paton, Deceased, by His Estate Trustee During Litigation, Ronald McKay and the Estate of Eva Paton Deceased by Her Estate Trustee During her Litigation, Ronald McKay
Plaintiff
and
Ontario Lottery and Gaming Commission, carrying on business as Fallsview Casino Resort and as OLG Casino Brantford
Defendant
Don Morris, for the Plaintiff
Matthew I. Milne-Smith, Bryan D. McLeese, Anisah S. Hassan, for the Defendant
HEARD: Written Submissions
Ruling on Costs
[1] I rely on the facts and the terminology set out in my judgment released May 20, 2015. I will refer to the facts only to the extent that in my view is necessary to deal with the issue of costs.
[2] S. and A. Spinks defrauded the Paton estates of $1,500,000. Of this amount, they spent $950,000 gambling at Fallsview and OLG. OLGC profited from their gambling at Fallsview and OLG. The estates brought an action against OLGC. They alleged four different causes of action – negligence, unjust enrichment, conversion and knowing receipt of trust funds. I held that they did not plead facts that could support any of these causes of action. It was “plain and obvious” that the claim would fail. I dismissed it without leave to amend the statement of claim.
[3] OLGC seeks partial indemnity costs of the entire action against the Paton estates as follows:
Fees
$46,147.50
13% HST
5,999.17
Disbursements
3,864.92
Total
$56,011.09
Counsel for OLGC states in his written submissions that this is 40% of what he plans to charge OGLC. Using round figures of $46,000 in fees this means that he would charge OLGC $115,000 in fees.
[4] The Paton estates acknowledge that there have been many lawsuits by problem gamblers and self-excluded problem gamblers where casinos have not excluded them that have been dismissed. However, they argue that there is no reported case where the court has considered a claim by a fraudster’s victim against casinos where the fraudster lost her victim’s money in casinos. They argue that this is a test case. Counsel for the Paton estates submits that to make an award of costs against the Paton estates would be to victimize them twice – actually three times – once by the fraudster, a second time by the fraudster’s loss of their money in the casinos and a third time by requiring the Paton estates to pay a substantial costs claim to the casinos.
[5] In Boucher v. Public Accountants 2004 14579 (ON CA), [2004] O.J. No. 2634 the Court of Appeal emphasized the importance of consideration of the principle of access to justice in assessing costs.
[6] I agree with counsel for the Paton estates. There will be no order for costs.
P.B. Hambly, J
Released: July 9, 2015
COURT FILE NO.: 10-18612
DATE: 2015-07-09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
The Estate of Ollie John Paton, Deceased, by His Estate Trustee During Litigation, Ronald McKay and the Estate of Eva Paton Deceased by Her Estate Trustee During her Litigation, Ronald McKay
Plaintiff
Ontario Lottery and Gaming Commission, carrying on business as Fallsview Casino Resort and as OLG Casino Brantford
Defendant
REASONS FOR JUDGMENT
P.B. Hambly
Released: July 9, 2015