Pelley v. Pelley, 2025 ONSC 733

Pelley v. Pelley, 2025 ONSC 733

COURT FILE NO. CV-22-00691534

DATE: 2025-06-03

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ROY PELLEY

Plaintiff

– and –

RICK PELLEY

Defendant

Kevin Mooibroek and Lindsay Poole, Lawyers for the Plaintiff

Avin Persad-Ford and Howard Cohen, Lawyers for the Defendant

HEARD: January 29, 30, 31 and February 3, 2025

REASONS FOR DECISION

G. DOW, J.

1The plaintiff, Roy Pelley claims entitlement to 50% of the $301,000 the defendant, Rick Pelley won at the Great Blue Heron Casino in Port Perry on October 26, 2022. The claim is advanced based on breach of an oral contract, breach of trust and/or unjust enrichment.

2The hearing proceeded as a summary trial with the evidence of the four plaintiff witnesses and the three defendant witnesses tendered by affidavit, followed by cross examination. Nine of the ten exhibits were the affidavits of witnesses (the defendant and his current spouse having each tendered a second or Reply affidavit with the tenth exhibit being the demand letter dated November 4, 2022 from the law firm representing the plaintiff.

BACKGROUND

3The plaintiff and defendant are two of five brothers (Shawn, Darryl and Dave being the other three) and two sisters (Debbie and Judy). They grew up in Newfoundland but those involved appear to have moved to the Durham Region as of the late 1990’s. The family dynamic has been marred by conflict to be detailed only as necessary. The contract the plaintiff seeks to enforce arises from Roy and Rick’s enjoyment of gambling which occurred at local casinos playing cards and slot machines. In particular, these two brothers had a passion for the card game “Let it Ride”, where the betting involved minor pay-offs such as return of one’s wager for a pair of 10’s or better (paragraph 8, Roy’s affidavit, Exhibit 1) to a pay-off of 1000 to one for a Royal Flush. The second best return was a Straight Flush with a pay-off of 200 to one. There was also a side wager for a progressive jackpot.

4From about 2000 onwards, Roy and Rick are in general agreement that when they were at the casino together, they would sit beside each other (Rick required that he be seated in seat one or where the dealer started and Roy was in seat two). They would share wins and losses. Chips would be moved between them to keep both in the game, which I find formed the basis of the agreement.

5Layered on this were a variety of relevant factors. First was an inequal discretionary source of funds. Without providing any specific details, it was clear Roy had greater funds at his disposal than Rick. His affidavit and cross examination evidence claims he spent tens of thousands of dollars more than Rick (paragraph 16, Roy’s affidavit, Exhibit 1). Figures relating to how much they would bring to the casino varied but $1500 each was referenced more than once. In addition, it was not disputed that Roy, rather than Rick, would on occasion use the ATM at the casino to withdraw more so that the two of them could continue playing (in an attempt to recoup their losses). An instance of Roy winning $3000 at a slot machine and giving $1500 of it to Rick was used to demonstrate their agreement was wider than sitting at the same table at the same time for the agreement to apply (paragraph 26, Roy's affidavit, exhibit one).

6I reject that position. I find that was part of Roy’s sometimes generous character or seeking approval and respect from his brother.

7Similarly, Roy relies on an instance in 2015 when he arrived first and began playing alone. He won $4000 and placed $2000 at the position being held for Rick. This was relied on in support of a term of the agreement not requiring the other to be present. I reject that position. Again, I find this was generosity and not part of the agreement in place at the time.

8Second, the relationship between the brothers also involved conflict to the point they would not communicate with each other for extended periods of time. Phone numbers and social media contact was blocked. Again, no specific incident or event was identified which resulted in the breakdown of the relationship which appears to have occurred in mid-2018. Both Roy and Rick were in the tree trimming-landscaping business and would refer work or ask for assistance of each other in doing jobs. It may have to do with that. It may also have had something to do with Rick meeting his current spouse, Tracey Powell around that time and introducing her to gambling which made him less available to Roy. They also may have won more often with which Roy had issues.

9It resulted in Roy refusing to play hockey or golf with Rick, activities they had both done and enjoyed together for an extended period of time. Their contact became restricted to, and I accept Roy’s evidence in reexamination that, for him, playing cards was different because it was “like an investment” (page 104 draft trial transcript).

10With the onset of COVID and subsequent lock-down in March, 2020, there was a hiatus in gambling at casinos. It was agreed Roy’s absence continued for some time after the casinos opened given his declining to be vaccinated.

11The next key development occurs in April, 2022. Rick stopped playing after losing the funds that he brought. This was the evening Roy continued playing, at the slot machines and won $3,000. Upon discovery Rick had not left the Casino, he split the winnings with Rick. A week later, Roy became aware that Rick and Tracey had won over $12,000 playing Let it Ride. Roy was not present and deposed being “hurt and upset” (paragraph 27 of Roy’s affidavit, Exhibit 1) that Rick did not offer to share the winnings. This resulted in the key text exchange on April 17, 2022 between the brothers where Roy expressed his desire and need to “change our way of playing” (paragraph 28 of Roy’s affidavit, Exhibit 1) based on losing “99% off the time” yet when Rick goes on his own, he has greater success. Rick responds “That’s stupid playing for ourselves. We always keep each other going”. Roy repeats his position and the brothers confirm by text to each other. Rick texts “Ok we will play our own cards and split straight flush or royal while we are both there together”. Roy responds by text “ 5 cards straight flush and royal yes”.

12Roy deposed and maintained at trial this actually meant their original agreement to share at Straight Flush or Royal Flush continued to apply “regardless of whether we were physically together at the casino” (paragraph 29 of Roy’s affidavit, Exhibit 1). I reject that version of this new and narrower agreement. Generally, I found Roy to be a combative and difficult witness, keen to only describe his version of events. This undermined his credibility. Where his evidence differed from that of Rick, I preferred Rick’s evidence.

13The limited communications and contact between the brothers continued. On October 20, 2022, Rick was playing Let it Ride at the Great Blue Heron Casino in Port Perry (known between them as “Port”) and texted his brother “Did you want to go to Port tonight” (paragraph 31 of Rick’s affidavit, sworn February 23, 2023). Roy did not respond. Despite same, Rick reserved the seat beside him.

14Roy arrived that later that evening with his then girlfriend, Tammy O’Doherty and, after confirming Rick had saved the seat for him sat down beside him again playing. However, Rick deposed and I accept “Roy turned his chair and back to me and proceeded to play and completely ignore me” (paragraph 31 of Rick’s affidavit sworn February 23, 2023).

15I accept this evidence in part based on Roy’s clear desire to win at Let it Ride, his frustration at Rick’s greater success and Roy’s girlfriend, Tammy O’Doherty deposing her observations that evening “After a few hours, Rick left the casino up $8,000, and Roy left the casino down a substantial amount of money” (paragraph 20 of Tammy O’Doherty’s affidavit, Exhibit 1).

16On October 26, 2022, Rick went to Great Blue Heron Casino with $5,000 to play Let it Ride. He was alone. He and Tracey Powell testified the money was $2,500 from each of them from an envelope (envelopes with cash inside that they had set aside for gambling). The envelopes were kept in a safe at Rick’s place (paragraph 8 of Tracey’s affidavit sworn September 1, 2023, Exhibit 1).

17Upon arrival, Rick texted Roy “Just got here empty table” (paragraph 35 of Rick’s affidavit sworn February 23, 2023, Exhibit 1). Soon after Rick had a phone discussion with Tammy who confirmed Roy had received the message and indicated Roy’s reaction was one of Rick wanting to watch him lose again. The parties and evidence are in conflict as to whether Rick’s text constituted an invitation and whether Tracey confirmed that she and Roy intended to attend. In the next 25 to 30 minutes, Rick wins the Royal Flush, and progressive jackpot.

18After calling Tracey and his children, Rick calls Tracey to tell her to tell Roy to take his call as he wanted to advise of the win and to offer Roy $20,000. Roy takes the call and tells Rick in response to the offer of $20,000 “you know what you can do with that” (paragraph 40 of Rick’s affidavit sworn February 23, 2023, Exhibit 1).

19The dealer at the table was tipped $5,000 by Rick. Another player who had left the table was given $250. $30,000 was spent on landscaping at Rick’s place. Before the events of October 27, 2022, Tracey was in the process of selling her home to purchase a share of Rick’s home and move in with him. Tracey received one-half of the remainder, being $130,000.

20The cell phone call log of Rick Pelley for the evening of October 26, 2022 was produced and details the time of calls made that evening (Exhibit J to Rick’s affidavit sworn February 23, 2023). This was used to ground the sequence of calls made by Rick upon his arrival at the Casino, in cross-examination, and attempt to undermine his credibility. It is clear the first call Rick made on winning the Royal Flush jackpot was to call his girlfriend, Tracey (named on the screen as “Beautiful”). The first call did not go through apparently because she was on another call and the second call was noted as occurring at 6:51 pm. This means the previous call to Roy’s girlfriend at the time, Tammy where she alleges telling Rick that Roy received his text and they were coming so, as Roy put it, Rick could watch him lose more money, was at 6:40 pm. The call previous to that, at 5:47 pm to Tracey is consistent with the text at 6 pm by Rick to Roy of “Just got here table empty”.

21The calls subsequent to winning the Royal Flush jackpot to Tracey, Rick’s son and daughter are consistent with his evidence. The call at 7:05 pm to Tammy to tell her to have Roy pick up when he calls him next so he could offer the $20,000 is also consistent. I reject the submission that these records somehow show Rick was not being truthful in his evidence about who he called and the substance of those conversations.

22Finally, the evidence from other witnesses about the “long standing” agreement between Roy and Rick is of limited value given whatever that arrangement had been over the many years (which I accept), it was altered at Roy’s insistence on April 17, 2022, mere months before Rick won the Royal Flush jackpot. This is reinforced by the breakdown in the relationship between the brothers at that time as noted by their being only one occasion when they were at the Casino together after this change in the terms. This was October 20, 2022 at which time I find it was clear that Rick invited Roy to attend and as demonstrated by his saving a seat for him. It is noteworthy and I find Roy’s behaviour that evening was to ignore Rick.

23There was a further difference by the uncontracted evidence of Rick and Tracey that Rick was playing with money which he and his girlfriend Tracey shared. It is also consistent that Rick shared the Royal Flush jackpot with her (although this is somewhat clouded by the fact it occurred under the threat of Roy’s relatively immediate position of entitlement).

24I find the circumstances on October 20, 2022 to be very different than what occurred on October 26, 2022.

ANALYSIS

25The plaintiff posed and I agree there are three questions which need to be addressed:

a) did the parties have a jackpot agreement;

b) did Rick breach the jackpot agreement by refusing to split the $301,000 Royal Flush jackpot with Roy; and

c) in the alternative, is Roy entitled to share in the Royal Flush jackpot on the grounds of unjust enrichment or breach of trust.

26Regarding the existence of the jackpot agreement, the law has previously provided for such agreements to be made and enforced (Osorio v. Cardona, 1984 , 364 (BCSC) at paragraph 30).

27It is clear the parties had an oral agreement to share significant winnings prior to the texting exchange on April 17, 2022.

28I agreement with the statement in Chamberland v. Provincial, 2008 58414 (ONSC) at paragraphs 7 and 8 “Presumably among the many office pools that exist, there are varying levels of formality in their operation. Some such arrangements may be reflected in writing with specific terms while others have little or nothing recorded in writing and operate on the basis of a brief discussion and verbal agreement made over a water cooler or at a lunchroom table, as in this case. The Courts have demonstrated a willingness to interpret and enforce a verbal pooling agreements between parties on the basis of contract and trust law”. This decision was upheld on appeal (2009 ONCA 733).

29I find the parties did have an agreement prior to April, 2022 to share significant winnings when they had a plan to attend and play Let it Ride at the same casino on the same evening. However, that agreement was revised and restricted at Roy’s request on April 17, 2022 to occur, as indicated in the text between them “we will play our own cards and split straight flush or royal while we are both there together”

30I find this wording to be clear. The agreement reached required a Straight Flush or Royal Flush winning hand by one of them when both of them were sitting at the same table playing Let it Ride at the same time. That is not what occurred.

31For clarity, I do not find the text “Just got here empty table” to be an invitation or commitment, particularly given its difference to the clear invitation made six days earlier of “Did you want to go to Port tonight”. I am reinforced in this conclusion by the evidence of Rick saving a spot for Roy at the table on October 20, 2022 but not on October 26, 2022.

32As a result, my conclusion to the second question is Rick did not breach the jackpot agreement between the parties after April, 2022 by refusing to split the $301,000.

33Regarding the third question, I reject any unjust enrichment or breach of trust has occurred. As submitted by plaintiff’s counsel and indicated in Chamberland v. Provincial, supra (at paragraph 260) for “a trust to be validly constituted, it must be intentionally created or recognized in law. In the absence of formal trust documentation, the court must look at the surrounding circumstances and the evidence as to what the parties intended, as to what was actually agreed and as to how the parties conducted themselves to determine whether there was “certainty of intention”.

34I disagree with the plaintiff’s submission that the text exchange between the parties on April 17, 2022 demonstrated a certainty of intention to include what occurred on October 26, 2022. I have concluded it narrowed the circumstances and application of their prior agreement. Roy expressed his dissatisfaction with the existing agreement in the April 17, 2022 text at 9:47pm. They were losing “99% off the time” and only break even the remaining one percent. Roy was focused on and makes an express admission of Rick being able to play, win and keep all the winnings in that text (“I can’t count how many times you’ve called and told me how good you’ve done”).

35I read Rick’s initial response as attempting to dissuade Roy from changing their agreement (“That’s stupid playing for ourselves. We always keep each other going”). However, Roy persists with Rick describing the new, narrower arrangement (“Ok we will play our own cards and split straight flush or royal while we are both there together”) to which Roy responds his agreement (“5 card straight flush and royal yes”).

36I find the newer, narrower agreement was restricted to a Straight Flush or Royal Flush win and that they be “both there together”. That did not occur on October 26, 2022.

37I find Rick’s offer of $20,000 to be part of his effort to reconcile with his brother and to show his generosity in recognition of their years of effort together without success.

38Regarding the claim for unjust enrichment, I have reached the same conclusion. Had they not made the new, narrower agreement as detailed in the April 17, 2022 text exchange, a different outcome may have been possible.

CONCLUSION

39As a result, the plaintiff’s claim is dismissed. Regarding the claim for punitive and exemplary damages, the plaintiff’s counsel confirmed at the conclusion of submissions that it had been withdrawn.

COSTS

40I required the parties to provide me with their claim for costs, if successful at the conclusion of the trial and before a decision was rendered. The plaintiff’s Bill of Costs sets out a claim for $36,421.50 for partial indemnity fees, plus HST ($4,734.80) and disbursements of $2,431.20 (inclusive of HST, for a total of $43,587.49). The defendant’s Costs Outline sets out partial indemnity fees of $45,261.85 plus HST of $5,840.69 and disbursements of $1,223.84 which (does not) total $52,348.93 but rather $52,326.38.

41I was also advised Rule 49 Offers to Settle had been made and acceded to the suggestion they not be disclosed pending release of this decision.

42I urge the parties to agree on costs. If they cannot, the defendant shall forward to my assistant (at the email address from they received these Reasons) not more than 5 typed written, double-spaced pages compliant with Rule 4.01, their submissions as to the quantum of costs being sought on or before July 9, 2025. The plaintiff shall have until August 8, 2025 to respond, identically limited. The limitation does not include essential attachments, such as the relevant Offer to Settle.