The Supreme Court Trial Division here in Newfoundland has had the application in the VLT class action against Atlantic Lotto Corporation on reserve for several months. The issues involve whether a cause of action is disclosed. One of the causes of action we pleaded is waiver of tort.
In a trilogy of decisions handed down recently, the Supreme Court of Canada resolved definitively that waiver of tort is a good cause of action, and cannot be dismissed as failing the plain and obvious test for an arguable cause of action.
The significance of this is that the decision is binding on the Newfoundland court in the VLT action in Newfoundland. The Newfoundland court now has no option but to approve the waiver of tort cause of action, and therefore, but to approve the class action against ALC, at least at this initial stage of the application for certification.
There will be a stage two of the certification application on behalf of victims of deceptive gambling perpetuated by ALC through their VLT offerings, but I am now confident that we have won stage one – the court has no choice but to accept that at least one cause of action is disclosed. And we have advanced others.
Stage two will address whether the other criteria in the Class Actions Act for certification have been met. I have always regarded these as easy enough to meet if we get through stage one, disclosure of a cause of action.
For example, the VLT class action is a case where the defendant ALC has accurate records of the money extracted from the victims. It is therefore a perfect case for aggregate damages, and the availability of aggregate damages virtually guarantees certification. So the recent Supreme Court of Canada decision in Pro-Sys Consultants v. Microsoft Corporation is very good news for victims of ALC’s deceptive gambling practices who want access to justice, and ill-gotten gains removed from ALC. Not to mention radical changes in deceptive VLT offerings for the future.