Monday 30 June 2014


Whether you bet on sports, scratch cards, roulette, poker, or slots—in a casino or online—problem gambling can strain your relationships, interfere with your work, and lead to financial catastrophe. You may even do things you never thought you would do, like stealing money from your employer or your family.

Continuous gambling can lead to an addiction (also known as compulsion gambling) which will control almost every facet of one’s lives. This addiction makes it difficult for such gamblers to be able to have control of their lives and as a result, some lose their jobs and some even lose their families.                  

In this article, I will describe how a woman in British Columbia, Canada attempted to cure herself from her gambling addiction with what is commonly known as ‘self- exclusion from gambling’. I will simply call her Joyce. 

She was a participant in a voluntary self-exclusion (VSE) program designed by the British Columbia Lottery Corporation (BCLC) and put into place in all gaming facilities in British Columbia.
If the lottery casino or a person acting on its behalf has reason to believe that the presence of a person on the premises of a gaming facility is a participant in a voluntary self-exclusion program, the casino or person acting on its behalf may request the person to leave the premises of the casino immediately, or by written notice delivered to the person, forbid him or her to enter the premises of the casino at any time during a period specified in the notice.

The law states that such a person who has been given such a notice must not enter the premises of the casino at any time during the period specified in a written notice that has been handed to that person.

Now this self-exclusion program should work but alas, some of the people who signed such documents manage to slip into a casino and carry on with their addiction. This is what Joyce did
Can you believe it, this gambling addicted woman had the temerity to sue two gambling establishments for $78,000 that she alleged she lost in the gambling facilities operated by Orangeville Fraser Downs Casino and Gateway Cascades Casino during the time period June 12, 2007 to June 12, 2010 when she was a participant in a voluntary self-exclusion (VSE) program.

The defendants, Orangeville and Gateway, are two of the casino operators who have contracted with BCLC to provide the VSE services required, under standard Casino Operational Service Agreements.
When Joyce entered the VSE program at Fraser Downs Casino on June 12, 2007, she signed a VSE form. This form included paragraph 5 which stated that neither BCLC nor any service providers are responsible for any breach of the self-exclusion or for failure to enforce the self-exclusion and BCLC and its service providers are released from any liability for claims related to her self-exclusion, including her failure to comply with the self-exclusion. In my opinion, after agreeing to the terms of paragraph 5, she had more nerve than an infected tooth by suing the two casinos.

It is necessary that such signatures on those forms are obtained from the casinos because some of these people who sign these forms manage to slip unnoticed into the casinos anyway and continue participating with their addiction.

Now I know what you are thinking. How could Joyce slip past ‘face recognition’ cameras that have pictures of the faces of the people who signed the VSE forms when their faces are recorded in the equipment that is in the room where specially trained men are watching every aspect of the casino? The addict could change his or her appearance. I don’t know if this is what Joyce did. In any case, the casinos didn’t have the face-recognition cameras in their casinos. They had to rely on eye-to-eye face recognition by the security staff of the casinos.  That is pretty hard to do when thousands of patrons enter the casinos. For this reason, she somehow managed to get into both casinos undetected.

License plate recognition software started being used in gaming operations in approximately 2007 based on their experience but was not utilized in most gaming operations during 2007-2010.

Many casino operations in North America had security personnel check the identification of each and every patron who entered through every point of ingress between 2007 and 2010. The checking of each person’s ID as they enter a casino also created a privacy issue and created lines of patrons waiting to have their ID checked which annoyed by the long wait.

One sure way of preventing these addicts from attending these casinos is to make it impossible for them to collect their winnings. When they go to the money counter with their chips to have the chips converted to cash, a face recognition camera would spot them and all they would have when they are escorted out of the casino is the embarrassment of being escorted out of the building while other patrons are looking on. Of course, without such cameras, I hardly think that the staff at the counter would recognize the gambler as being a participant in the VSE program. And the people at the counters in the two casinos certainly didn’t recognize Joyce and that’s why she got away with what she was doing notwithstanding the fact that she blew $78,000 away while losing so badly. It is unfortunate that she wasn’t recognized by the employees of the two casinos as having participated in the VSE program. If she had, she wouldn’t have lost so much money to her addiction.

If a self-excluded participant or any other barred patron is able to recover their losses while breaching their agreements to be self-excluded, or while being otherwise barred, it would completely defeat the purpose of the VSE program or any other reason to bar patrons. If they are entitled to their losses before being caught this would give them the opportunity to gamble “risk-free” of their self-exclusion agreement or their banning, unlike other patrons who are not banned but gamble and lose and are not entitled to recover their lost wagers.

However, the question raised in Joyce’s trial is a valid one. Suppose the casinos were negligent in permitting Joyce to enter their casinos undetected, would they be liable to her for her losses? If not, them as Joyce claimed in her statement of claim, the casinos had become unjustly enriched with the $78,000 she lost to them.     

The defence submitted by the casinos was that “unjust enrichment” is an equitable doctrine, the principle of “he who seeks equity must do equity with clean hands” should apply, and since the plaintiff (Joyce) has gambled while self-excluded and had thereby violated section 93 of the Act, by being in a gambling venue, she should lose her right to unjust enrichment for her unlawful attendance because she has not come into the casinos with clean hands.

Joyce claimed that the casinos had a duty of care to make sure she that didn’t enter the casinos after she signed the VSE forms.

The standard of care of responsible security personnel in casinos should be applied in a manner that gives due recognition to the discretion inherent in deciding who are breaching their agreements not to enter or gamble in casinos.  Security personnel may make minor errors in judgment without breaching that standard because the standard of care is flexible. For this reason, it doesn’t mean that they have breached their duty of care obligations to their patrons, even to those who have signed the VSE forms.  To make the duty of care totally applicable in situations like this in casinos would mean that the security personnel would have to be infallible and the only way they could be infallible is if they each had photographic memories—which they don’t.
The judge said;

“It is my conclusion that none of the defendants owed the plaintiff a duty of care to guarantee or ensure that she would not be able to continue to gamble in any BC casino during her self-exclusion period of 2007-2010, nor any duty of care to indemnify her for her losses when no other gambler is owed this duty.”
Joyce also submitted in her claim that if the operational security and surveillance system implemented by the defendant casinos to satisfy the self-exclusion policy objective was so deficient that she was not likely to be identified, then she ought to have been warned of that fact beforehand so that she could have organized her affairs accordingly by taking other steps to ensure her exclusion on her own, such as she did in handing out her own posters to staff in July 2010. With respect to the posters, I don’t think the staff wanted to put posters on the walls of the casinos of addicted gamblers.
Further, what other steps could she have instituted on her own that would cause her to stay out of the casinos? Gambling to excess is not like drinking alcohol to excess. Where are drugs that you can take to curb your drinking; there are no drugs you can take that will prevent you from entering a casino.

Now obviously the casinos must exercise all due diligence to prevent and not knowingly permit any person who has been barred from the casinos or barred from participating in casino games by the casinos from entering or being present in the casinos or participating in casino games. But as I said earlier, the employees of the casinos are not infallible.

The policy or program could only be put into operation if security and surveillance staff were able to familiarize themselves with the photographs taken of the VSE registrants. Otherwise, the policy of facial recognition would not be effective.  To be effective, the security personnel would have to have handfuls of photographs of people such as Joyce in their hands all the time while walking about the casinos. That is not a viable solution to this problem of locating people like her who have slipped into the casinos.  Besides, it would make the other patrons feel uncomfortable when security personnel are staring at their faces and looking at photographs in their hands.

 Gateway denied any allegations of operational negligence against it over her gambling there at night for long periods of time, sometimes sleeping in her car, excessive turnover of its staff, and staff knowledge of her having signed a VSE form.  It submitted that staff turnover cannot be proven to have caused the plaintiff any losses and any other losses that could be connected to the other conduct of her and her losses can only be those losses brought about by her own particular conduct and no more, and further, there was no evidence that any floor staff at Cascade’s Casino  had any knowledge that the plaintiff was self-excluded.

Gateway also submitted that the principle of ex turpi causa non oritur actio (out of a base “illegal or immoral’ consideration, an acton ‘to sue’ does not arise) should apply to deny the plaintiff recovery because in violating her self-exclusion obligation by entering casinos  in British Columbia during her self-exclusion, she was breaching her statutory obligation set out in the Act not to “enter the premises of the gaming facility at any time during the period specified in a written notice referred to in the Act that had been delivered to her in accordance with the Act.

They argued that it being illegal for her to enter their casino, she should not be entitled to profit by her own illegal activity and a damage award to her for her losses would allowed her to profit by her illegal conduct which is contrary to the public good.

Gateway denied that it owed any fiduciary duties of care to the plaintiff and that the VSE enrollment form that denies any responsibility of the service providers also covers any fiduciary duty of care owed to the plaintiff.
On the plaintiff’s allegation of the failure of Gateway to warn her that the VSE program depended on her being first identified before she could be stopped, Gateway submitted that on her own evidence, she was told that the VSE program might not be effective if she gambled elsewhere in the Lower Mainland. If that was her understanding, then she was fully warned that the system was not 100% effective in preventing her from gambling in any of the casinos in the province.           

Further, with her continuing gambling in BC after her self-exclusion, is evidence that proves beyond any reasonable doubt that she was never relying on any warning to change her conduct.

This same reasoning would also apply to the other defendant, Orangeville Fraser Downs Casino. (Orangeville)

Orangeville submitted that the plaintiff had unreal expectations if she thought that by entering the VSE program and signing the VSE form, she had no further personal responsibility for her conduct because all that responsibility was then turned over to the casinos and BCLC to protect her from herself. They added in their argument that the wording of the form indicates an expectation that the VSE participant will or may breach because there is no guarantee given that she will not be able to breach.

Because the VSE program for security and surveillance cannot possibly detect all VSE violators, the responsibility for self-exclusion remains on the VSE participant as stated by the words of the form and the waiver of liability in the form for the benefit of BCLC and the service providers.

In my opinion, there is no duty of care that should be imposed on any of the defendants to the plaintiff in order to respect the allocation of responsibility the parties agreed to by the VSE form, and to respect the proper role of the VSE program which is to encourage and support self-responsibility for a participant’s gambling habits.

The plaintiff said she has an admittedly vague memory of her enrollment procedure on June 7, 2007 at Fraser Downs. She says she cannot recall with any certainty the time of day she enrolled, or the people and gender of the staff she dealt with, much less any of what she said to the staff. Was she impaired? If so, she shouldn’t have been asked sign the document. I have to presume that she was sober and cognizant of what she was doing otherwise the casino never would have asked her to study the form and sign it.

That defence is about as weak as the high school student’s excuse that the dog ate his or her assignment.

The judge said, “I agree with BCLC that the Act provides its authority to retain the revenues the plaintiff lost by gambling while [she was] self-excluded however, the Act does not deny a banned patron their winnings before they are required to leave. It only requires their removal [from the casino.]”

The judge also said;

“There is no evidence that any of the defendants knew that the plaintiff was a pathological gambler or was otherwise vulnerable when she enrolled on June 12, 2007, because she never gave any indication to any of the Fraser Downs employees of her makeup.”

That aspect of the judge’s decision would rule out any claim on the plaintiff’s part that the casinos knew that she was a pathological gambler when she signed the VSE form.  In any case, it wouldn’t matter whether they knew it or not. They are not required to look into her motives for her signing the form. They can presume that she is a pathological gambler but they don’t have to establish in their minds that she is such a gambler.
The judge said;

However, in my view every casino must assume that every person seeking to enrol in the VSE program has some kind of a gambling problem and is not entitled to assume it is only a minor problem and not a major problem.

In my opinion, she may have pursuing a “not getting caught” strategy while she continued to gamble during her self-exclusion but I do not consider that her conduct gave her the right to claim against the defendants for the money she lost in gambling. As someone in the self-exclusion program, and possibly a pathological gambler, it must be expected that she might attempt to find a way to continue gambling. But if she does and loses money in the process, it is her loss and not that of the casinos or the BCLC. The self-exclusion program is just what it says, a self-exclusion. The person enrolling in the program has to retain the primary obligation to control their gambling or cease it all together. Quite frankly, I don’t think they should do any gambling whatsoever. We all know what happens when a reformed alcoholic takes a nip of alcohol—he is back off the wagon and his drinking is out of control again.
The judge said;

“I am satisfied that the policies and practices set in place and the surveillance and security systems set out in the two defendant casinos  were appropriate and reasonable and were applied non negligently in the case of the plaintiff. I am satisfied the defendants met the standard of care required by that duty. Further, I accept the evidence of Dr. Blaszczynski that the plaintiff did have the capacity to exercise control over her gambling behaviour and suffered no psychiatric nor psychological impediments that prevented or impeded her capacity to identify herself to casino staff as a voluntary self-excluded person when she entered the casinos.”

Her claims against the defendants were dismissed.  She was also ordered to pay their legal costs along with her lawyer’s fees.

You can see compulsive gamblers lose and sigh but you can also see them wink an eye. 

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