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Case Name:
Between
Joseph Treyes, Plaintiff, and
Ontario Lottery and Gaming Corporation and John Doe,
Defendants
[2007] O.J. No. 2772
Court File No. 05-CV-290238PD1
Ontario Superior Court of Justice
E.M. Macdonald J.
Heard: June 15, 2007.
Judgment: July 11, 2007.
(16 paras.)
Counsel:
H. Fancy and M. Chakravarti, for the Plaintiff.
James Doris, for the Defendant, Ontario Lottery and Gaming Corporation.
REASONS FOR DECISION
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E.M. MACDONALD J.:- The issue on this motion is the entitlement of the Plaintiff's
solicitors to a premium for their professional services in this action. The premium sought is 14.5%
of Mr. Treyes' damages. The court is asked to award a costs premium as a part of the contingency
fee agreement, on consent of the Plaintiff, pursuant to s. 28.1(8) of the Solicitors Act, R.S.O. 1990,
c. S.15. Section 28.1(8) reads as follows:
(8) A contingency fee agreement shall not include in the fee payable to the
solicitor, in addition to the fee payable under the agreement, any amount
arising as a result of an award of costs or costs obtained as part of a
settlement, unless;
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the solicitor and client jointly apply to a judge of the Superior Court
of Justice for approval to include the costs or a proportion of the
costs in the contingency fee agreement because of exceptional
circumstances; and
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the judge is satisfied that exceptional circumstances apply and
approves the inclusion of the costs or a proportion of them [emphasis
added].
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The action was an unprecedented claim by the Plaintiff, Mr. Treyes, for recovery of his
gambling losses, over the course of several years. These losses largely occurred at the Defendant's
gaming facilities located at Woodbine Racetrack and Mohawk Raceway. There was and is no case
law that directly supported the action brought by Mr. Treyes.
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Mr. Treyes was diagnosed with Parkinson's disease in 1992. As a result of the medications
prescribed to treat the symptoms of Parkinson's disease, Mr. Treyes became a pathological gambler
and was diagnosed as a pathological gambler in 1999. Pathological gambling is heavily laden with
stereotypes, the most notorious of which is the notion that a gambler is the author of his or her
misfortune and displays a lack of willpower.
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Mr. Treyes' losses were all in cash. The result was that there was a lack of records supporting
his losses at any of OLGC's facilities. Mr. Treyes played slot machines. Mr. Treyes became
impecunious and had no ability to fund this litigation. Indeed, Fancy Barristers felt morally
compelled to lend Mr. Treyes money to pay his rent during the course of the litigation. He
underwent two bankruptcies and was living "hand to mouth". He was living on a small disability
pension and CPP. His pension from his former employer will not be available to him until he is 65.
He is now 61.
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Prior to retaining Fancy Barristers, one lawyer who attempted to represent Mr. Treyes was
faced, in response to a demand letter for $100,000.00 in losses, with the Self Exclusion Agreement
signed by Mr. Treyes in favour of OLGC.1 OLGC took the position that Mr. Treyes' claim was
totally lacking in merit. It maintained that there was no precedent for a court imposing a duty of
care on a gaming venue to find and exclude individuals who identify themselves as problem
gamblers.
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Note 1 : Mr. Treyes signed a Self Exclusion agreement with the OLGC on September 2, 2000. In
this agreement OLGC contracted to use its best efforts to deny Mr. Treyes entry to all of
OLGC's gaming venues in the province of Ontario. Contrary to the agreement Mr. Treyes was
permitted access to Woodbine and Mohawk where he sustained the losses claimed in the
Statement of Claim dated May 26, 2005.
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Fancy Barristers had a program to take on one or two apparently impossible cases each year to
aid the disadvantaged and impecunious litigant who would otherwise have no access to justice.
After several months of research at their firm's expense, Fancy Barristers agreed to represent Mr.
Treyes and entered into a Contingency Fee Retainer Agreement ("CFA") with him. The CFA is
dated January 17, 2005. Aside from the serious evidentiary and proof hurdles, there were 13 critical
issues in this novel action as set out at pages 3 and 4 of the affidavit of Monica Chakravarti dated
June 10, 2007:
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Pathological Gambling: OLGC's Knowledge of Illness and Policy
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Whether Joe was a pathological gambler ("PG")?
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Whether PG was an illness such that fault did not lie with Joe,
regardless of the stereotypes associated with PG or problem
gamblers?
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Whether Parkinson's disease played a role in Joe's PG?
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Whether the OLGC was knowledgeable about the consequences of
PG and the financial, psychological, marital, and sometimes suicidal
consequences thereof?
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Whether slot machines at the OLGC facilities contained addictive
features?
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Whether the OLGC created a policy to combat PG?
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Proximity: Relationship Between OLGC and Joe
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Whether there was a special relationship between the OLGC and Joe
to create the foundation for a duty of care?
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What was the nature of the duty?
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Implementation of Policy
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If there was a policy to combat PG, and there was a proximate
relationship between the OLGC and Joe, whether the OLGC took
"operational" steps to implement the policy?
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Whether the implementation, if any, of the OLGC's policy was
reasonable in the circumstances?
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Joe's Economic Loss, Causation and Release
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Whether Joe attended the OLGC's facilities after proximity arose,
gambled, lost, and the quantum of all his cash losses [sic]?
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Whether Joe's depression, after diagnosis of PG, was due to
Parkinson's disease or PG?
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Whether Joe was contributorily negligent in connection with the
gambling losses?
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Whether Joe had released the OLGC from all claims and losses by
signing a form drafted by the OLGC years before the within action?
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Mr. Treyes' attracted the attention of the CBC and the National Post both of whom reported on
the details of Mr. Treyes' claim. On one occasion, Mr. Treyes asked a National Post reporter for a
$5.00 loan so that he get home from Woodbine.
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Between January 17, 2005 to June 2007, Mr. Fancy, a Director of the Ontario Trial Lawyers
Association with 15 years post-call experience, Ms. Chakravarti with 5 years post-call experience,
and Mr. S. Hahzad Siddiqui with 2 years post-call experience, spent well in excess of 500 hours
preparing for, researching, conducting investigations, examining, and litigating this action. They
spent $30,000 in disbursements. There were some weeks where all three lawyers plus law clerks
worked exclusively on Mr. Treyes' case to the prejudice of the balance of their firm's practice. Mr.
Treyes consents to and joins his legal team in support of the order sought in this motion.
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Prior to the bringing of this motion and following a one-day mediation, paid for by OLGC, a
settlement was reached. The settlement is confidential. I am aware of the contents of the settlement
agreement.
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Mr. Fancy and his colleagues used a new advocacy model called Demonstrative Advocacy
(D.A. Model) to prove Mr. Treyes' claim. I agree with the point made by Ms. Chakravarti that the
D.A. Model goes a long way in constraining subjective interpretations, reducing acrimony and
expediting settlement. The utilization of the D.A. Model demonstrated the state of Mr. Treyes' life
before his addiction and diagnosis with Parkinson's disease. He was an electrical engineer and
worked at Delphax Systems for over a decade. He was married and had one daughter. When the
diagnosis of Parkinson's was initially made, his family was very supportive but matters became
more difficult when he was forced to go on long-term disability and was withdrawn from his
workplace due to the severity of the disease.
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Mr. Fancy and his colleagues extensively researched Mr. Treyes' pre-pathological gambling
life. Lay and expert Witnesses were identified. In 1999, he was diagnosed with pathological
gambling. His treating neurologist, Dr. Guttman, whose report is contained in the record, confirmed
this diagnosis. The firm also retained Dr. Williams of the Albert Gaming Research Institute at the
University of Lethbridge. He correlated pathological gambling and Parkinson's disease in his report
dated April 18, 2007. He opined that the diseases are almost the mirror image of each other. I will
mention one other expert, Mr. Sol Boxenbaum, a well-respected, independent anti-gambling
consumer advocate. He is an expert on the issue of the OLGC's self-exclusion program. His report
is dated June 10, 2007 and is contained in the record. He became familiar with the D.A. Model from
reading the affidavits filed on behalf of Mr. Treyes in support of this motion. He stated that in all of
his years as a consumer advocate in the gambling industry, he had never come across such an
innovative methodology.
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Before I deal with the legal questions posed in this case, I comment on a recent and
comprehensive article that the Plaintiffs included as an exhibit on this motion: William V. Sasso
and Jasminda Kolajdzic, "Do Ontario and Its Gaming Venues Owe a Duty of Care to Problem
Gamblers?" (2006) 10 Gaming L. Rev. at 552. The article addresses many, if not all, of the issues
that arise in cases such as this one including the Voluntary Self Exclusion Program undertaken by
the OLGC, and the duty of care of gaming venues. The authors conclude at page 570:
The ramifications of [Edmonds v. Laplante (15 March 2005), Toronto
02/CV226280 (Ont. S.C.J.)] remain to be seen. Will other courts, including
appellate courts, follow Edmonds? What steps could the OLGC take to meet its
duty of care? For the time being, at least one question has probably been
answered by Edmonds: Do Ontario and its gaming venues owe a duty of care to
problem gamblers? Under the current state of the law, the answer would appear
to be "yes".
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The content and conclusions of this article are likely to have influenced the confidential
settlement of this action.
Disposition
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The legal considerations in this case are similar to those dealt with in Christian Brothers of
Ireland in Canada (Re.) (2003), 68 O.R. (3d) 1 (C.A.). In his judgment, Laskin J.A. observed that
the financial risk assumed by Weir Foulds alone supported a premium. Awarding a reasonable
premium to a law firm that assumes a large risk gives lawyers an economic incentive to take on the
litigation and "to do it well": Christian Brothers, supra at para. 21. Equally as important is the fact
that awarding a premium enhances access to justice and promotes access to justice in future cases.
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I allow the 14.5% premium. Mr. Fancy and his colleagues did exemplary work at enormous
risk to their firm as detailed above. This was a novel action. For it to succeed, as it did, it required
great temerity and commitment to a difficult case by Fancy Barristers.
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This is a case of exceptional circumstances for all of the reasons set out above. The Plaintiff
consented to the premium as part of the contingency fee arrangement. By correspondence dated
June 22, 2007, Mr. Fancy, with the consent of Mr. Doris brought to my attention the recent decision
of the Ontario Court of Appeal in Kramer Henderson (Re) 84 O.R. (3d), 241. I agree that Kramer is
factually opposite to case asserted by Mr. Treyes in this motion. I have endorsed the motion record
accordingly.
E.M. MACDONALD J.
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