At our weekly meeting, Pip Swartz discussed the recent decision of the Divisional Court in Dunbar et al v. Ontario Gaming West GTA Limited Partnership, 2022 ONSC 1096, regarding the applicable rules for a casino game.
The underlying action in Dunbar et al v. Ontario Gaming West GTA Limited Partnership arose from a dispute over the plaintiffs’ winnings in a casino game named ‘Pai Gow Poker’.
The core issue in this case was one of contractual interpretation. Whether the plaintiffs were entitled to the disputed winnings depended on the Pai Gow Poker rules that were in effect when the plaintiffs earned their alleged winnings.
The matter originated in the Small Claims Court. There, the deputy judge found in favor of the plaintiffs. The defendant appealed to the Divisional Court. On appeal, the appellate judge affirmed the decision of the Small Claims Court judge, and dismissed the defendant’s appeal. The plaintiffs were awarded the difference between the winnings they were owed ($750 and $10,000 to the two plaintiffs respectively) and the winnings the casino had paid out ($50 and $550).
The two plaintiffs, Woolford and Dunbar, claimed that the defendant, Elements Casino Brantford (‘the casino’), had breached a contract between themselves and the defendant by withholding their legitimate winnings. The defendant casino argued that the plaintiffs were not entitled to winnings in the amounts claimed.
The rules of Pai Gow Poker were imprinted on the poker table (‘the table rules’) where the plaintiffs had played. After the plaintiffs revealed their winning hands, the dealer and two other casino employees were unable to rule on how much the plaintiffs had won, because the employees did not know how to interpret the table rules.
If the plaintiffs’ interpretation of the table rules applied, the plaintiffs would be entitled to substantially higher winnings than if the interpretation favourable to the casino applied. Because they were unable to rule on the plaintiffs’ winnings, the casino employees consulted the casino shift manager. The manager referenced a confidential document on her computer, titled “The Rules of the Game and the Standard Operating Procedure” (‘the governing rules’), and decided that the interpretation favourable to the casino applied, and that the plaintiffs were not entitled to the amounts they claimed.
The appellate judge reviewed the Small Claims Court judge’s decision, which adopted the plaintiffs’ interpretation of the table rules, on a correctness standard. The appellate judge found that the casino’s governing rules for Pai Gow Poker differed from the table rules. The judge found that this discrepancy created ambiguity as to which set of rules governed the contracts between the players and the casino. Because the players were not notified of the casino’s governing rules or provided with a means by which to access them, the judge held that the contracts between the players and the casino were governed by the table rules.
In making his decision, the judge discussed the purposes of the statute that governs the operation of casinos in Ontario, The Alcohol and Gaming Regulation and Public Protection Act (‘the Act’). The judge found that the ambiguity concerning the casino’s Pai Gow Poker rules undermined the goals of the Act.
The judge found that the plaintiffs’ interpretation of the table rules was reasonable, and that resolving the ambiguity in the rules in the plaintiffs’ favour would be most consistent with the goals of the Act. The appellate judge accordingly adopted the plaintiffs’ interpretation of the table rules and found in the plaintiffs’ favor.
Case Comparison — Tal v. Ontario Lottery Corporation
In reaching his decision, the appellate judge discussed a similar case to Dunbar, titled Tal v. Ontario Lottery Corporation/Loto 6/49 OLG. The plaintiff in Tal was one of over twenty thousand winners in a lottery. The lottery split the prize fund ($1.3 M) among the winners, and awarded the plaintiff his share ($66.90). The plaintiff claimed against the lottery for breach of contract.
The plaintiff argued that according to language on the lottery website, he was entitled to the entire prize fund. The court found in favor of the defendant, citing that the contract between the plaintiff and the defendant was based on the rules printed on the back of the plaintiff’s lottery ticket.
The appellate judge contrasted the facts in Dunbar with those in Tal. The appellate judge found that, unlike in Tal, the defendant casino in Dunbar failed to notify the plaintiffs about the governing rules of Pai Gow Poker. The appellate judge stated that if the defendant casino had provided the plaintiffs with a way to access the governing rules — for example, by adding a footnote to the table rules that linked to the governing rules — the judge would have ruled differently.
Dunbar and Tal shed light on how Ontario Courts differentiate between cases where the defendant has given sufficient notice to the plaintiff about the governing rules of a game, and cases where the defendant has given insufficient notice to the plaintiff. If a gaming corporation notifies its players about its game’s governing rules and provides its players with a way to access these rules, an Ontario court will likely find that the game’s governing rules prevail over contradictory posted rules.
 The difference in winnings was $50 vs. $750 for one plaintiff, and $550 vs. $10,000 for the other plaintiff.
 The interpretation that is favourable to the casino is the interpretation that results in the plaintiffs winning the least amount of money.
 The Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c. 26, Sched.
 Tal v. Ontario Lottery Corporation/Loto 6/49 OLG, 2011 ONSC 644.
 Dunbar et al v. Ontario Gaming West GTA Limited Partnership, 2022 ONSC 1096, at para 51.
 This reference can be provided either directly (by providing the rules themselves) or indirectly (e.g. by providing a link to an external source containing the rules).
 Such as on the casino’s table, like in this case, or on the lottery website, like in Tan (note that the ‘rules’ posted on the website in Tan were interpreted by the plaintiff as being different than the governing rules — that doesn’t mean they necessarily were).