ON JANUARY 13, 2011, Justice Murphy of the Supreme Court of Nova Scotia released his written reasons for decision in Burrell v. Metropolitan Entertainment Group, 2010 NSSC 476 (hereafter referred to as Burrell). The plaintiff, Paul Burrell, a problem gambler, instituted legal proceedings against the Attorney General of Nova Scotia, the Nova Scotia Gaming Corporation and Metropolitan Entertainment Group, a casino operator, claiming they owed Mr. Burrell a common law and statutory duty of care pursuant to the Gaming Control Act and its regulations to ensure appropriate steps were taken to prevent or minimize Mr. Burrell's gambling and thus to avoid him harm.
Notwithstanding other existing proceedings, Burrell seems to be the first reported Canadian case to consider whether a common law duty of care is owed to problem gamblers by a governmental casino operator.
In his reasons for granting summary judgment in favour of the defendants dismissing the plaintiff's claim, Justice Murphy concluded that the duty under the Gaming Control Act was to the public as a whole, and the plaintiff therefore had no special proximity to the governmental regulator to support the existence of a duty of care to problem gamblers.
While Justice Murphy did not recognize that a duty of care was owed by a governmental regulator, his reasons for decision leaves the door open to the possibility of recognizing the existence of such a duty in the context of online gaming operators.
Following the decisions of other jurisdictions - including the United Kingdom, Australia and the United States - Justice Murphy confirmed that a duty of care could be owed to problem gamblers in exceptional circumstances such as self exclusion, whereby a gamer requests that he be barred from a gambling facility and is nevertheless provided with access to the facility or in the case of active inducement by the operator.
The decision in Burrell highlights the importance to operators - including online gaming operators - of taking the necessary steps in implementing proper safeguards to identify problem gamers and introduce responsible gaming initiatives such as voluntary self exclusion programs in the event that the activities of online gaming operators should fall within the scope of the above noted "exceptional circumstances".
With respect to "active inducement" in particular, the concept can be quite broad in the Internet context. Pop up ads, banner ads, and other advertisement or incentives commonly used by online gaming operators could arguably be characterized as "active inducement". Moreover, with Internet search engines often ranking gaming sites at the top of many search results lists, a webpage, on its own, has the potential of being considered as "active inducement" by the Courts.
While no Canadian Court has yet considered whether there exists a common law duty of care upon online gaming operators to problem gamers using their services, it will only be a matter of time before we witness lawsuits being initiated by online problem gamers utilizing the guidance provided by Burrell to advance their claims and recover gambling losses incurred as a result of online gaming. The implementation of responsible gaming initiatives outlined above will provide online gaming operators with a viable defence in the event that such a duty is found to exist by Canadian courts.
Heydary, Javad
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