



COURT OF APPEAL
    FOR ONTARIO

CITATION:
Moreira v. Ontario
    Lottery and Gaming Corporation, 2013 ONCA 121

DATE: 20130226

DOCKET: C55521 & C55527

Simmons, Armstrong and Watt JJ.A.

C55521

BETWEEN

Joaquim Moreira,
Moshe
    Braunstein
and Remo Gigliotti

Plaintiffs/
Defendant by Counterclaim
(Appellants)

and

Ontario Lottery and Gaming
    Corporation
, Falls Management Company, Falls Management Group, L.P., and
    John Doe #1, John Doe #2, John Doe #3, and the Alcohol and Gaming Commission of
    Ontario

Defendants/
Plaintiff by Counterclaim
(Respondents)

AND BETWEEN

C55527

Tebaldo Barbuscio

Plaintiff/Defendant by Counterclaim (Appellant)

and

Ontario Lottery and Gaming
    Corporation
, Falls Management Company, Falls Management Group, L.P., and
    John Doe #1, John Doe #2, John Doe #3, and the Alcohol and Gaming Commission of
    Ontario

Defendants/
Plaintiff by Counterclaim
(Respondents)

Edward L. Greenspan, Q.C., for the appellants Joaquim
    Moreira and Remo Gigliotti

W. Xavier Navarrete and Glen Perinot, for the appellants
    Moshe Braunstein and Tebaldo Barbuscio

Derek D. Ricci and Nicholas Van Exan, for the
    respondents Ontario Lottery and Gaming Corporation, Falls Management Company
    and Falls Management Group, L.P.

John S. Kelly and Tom Schreiter, for the respondent
    Alcohol and Gaming Commission of Ontario

Heard: November 1, 2012

On appeal from the judgment of Justice Edward P. Belobaba
    of the Superior Court of Justice dated April 30, 2012.

Simmons
    J.A.:

A.

OVERVIEW

[1]

The appellants are high stakes gamblers who lost approximately $2.1
    million while playing roulette at the Niagara Fallsview Casino Resort (Fallsview
    Casino) over a period of about three-and-a-half years.

[2]

The appellants say that, throughout that three-and-one-half year period,
    the casino operators had in place a floating ball rule, which permitted roulette
    dealers to remove a floating ball from a spinning roulette wheel and to call
    a no-spin, ending the particular game and making all wagers void.

[3]

A floating ball can take one of two forms: either a ball that becomes
    stationary on the numbers ring of the roulette wheel as the wheel continues to
    spin (a ghost ball), or a ball that continues to roll around and around (a
    runner) without falling into the numbered pockets, sometimes for a
    considerable period of time.

[4]

The appellants contend that, under provincial law, the casino operators were
    required to have their floating ball rule approved as a rule of play by the regulator
    of provincial lottery schemes, the Alcohol and Gaming Commission of Ontario
    (the AGCO).

[5]

Because the casino operators failed to obtain the AGCOs approval of
    their floating ball rule, the appellants say that the roulette games they played
    at the Fallsview Casino did not qualify for the
Criminal Code
[1]
exemption from the prohibition
    against gambling and were therefore illegal. Accordingly, the appellants sued
    the casino operators and the AGCO in two separate actions claiming damages as
    well as the return of their gambling losses.

[6]

On a summary judgment motion to dismiss the appellants actions, Belobaba
    J. concluded that, even if the roulette games were illegal, the appellants would
    not be entitled to a remedy in this case. In reaching this conclusion, he
    relied significantly on the fact that the appellants wagers were returned
    whenever the floating ball practice was invoked. The motion judge therefore dismissed
    the appellants actions. He also granted summary judgment to the Ontario
    Lottery and Gaming Corporation (the OLGC)
[2]
with respect to two actions by the OLGC for recovery of the amount owing on
    gambling loans made to two of the appellants (the collection actions).

[7]

The main issues on appeal are: (i) whether the roulette games played by
    the appellants at the Fallsview Casino during the relevant period were illegal;
    (ii) whether the motion judge erred in holding that, even if the roulette games
    played by the appellants were illegal, the appellants would not be entitled to
    a remedy against either the casino operators or the AGCO; and (iii) whether the
    motion judge erred in failing to find that s. 47.1 of the
Gaming Control
    Act, 1992,
S.O. 1992, c. 24, bars the  collection actions because they are
    an attempt to use civil proceedings to recover illegal gambling loans.
[3]

[8]

For the reasons that follow, I would dismiss the appeals.

B.

Background

[9]

The Fallsview Casino opened in June 2004. Under the terms of the
    relevant provincial legislation, the OLGC manages it. Since the casino opened,
    one of either Falls Management Company or Falls Management Group, L.P., has
    acted as the OLGCs agent in operating the casino on a daily basis. (In these
    reasons, the OLGC, Falls Management Company and Falls Management Group, L.P.,
    are collectively referred to as the casino operators.)

[10]

The
    appellants frequented the Fallsview Casino between June 2004 and late 2007 or
    early 2008. During that period, they spent many hours playing roulette together,
    or immediately next to each other, at one of three roulette tables in the
Salon
    Privé
of the casino, typically wagering amounts in excess of $1,000 per
    spin.

[11]

During
    the three-and-one-half years that the appellants frequented the Fallsview
    Casino, collectively, they lost approximately $2.1 million.

[12]

During
    2006 and 2007, two of the appellants, Moshe Braunstein and Tebaldo Barbuscio,
    borrowed money from the Fallsview Casino to finance playing roulette and other
    games. For that purpose, the two appellants issued signed markers to the Fallsview
    Casino. In the case of Mr. Braunstein, the markers totalled $34,700; in the
    case of Mr. Barbuscio the markers totalled $75,000.

[13]

In
    late 2007 and early 2008, the OLGC made formal demands for repayment of the gambling
    loans.

[14]

In
    April and June of 2008, the appellants commenced these two actions against the
    casino operators and the AGCO, claiming a total of $14 million in damages for
    negligence, breach of contract, unjust enrichment and misrepresentation under
    the
Consumer Protection Act, 2002
, S.O. 2002, c. 30, Sched. A.

[15]

In
    January 2009, the OLGC sued Mr. Braunstein and Mr. Barbuscio in separate
    actions for repayment of their gambling loans. As of that date, Mr. Barbuscio
    had repaid $11,000 of the $75,000 he had originally borrowed.

[16]

In
    August 2009, the appellants actions were ordered to be heard together and the
    collection actions were deemed to be counterclaims.

[17]

After
    the actions were ordered to be heard together, the AGCO and the casino
    operators brought motions for summary judgment requesting that the appellants
    actions against them be dismissed. The OLGC also moved for summary judgment on
    its collection actions. After hearing submissions over two days, the motion
    judge dismissed the appellants actions and granted judgment in favour of the OLGC
    on the collection actions.

C.

The Legislative Framework PERMITTING LOTTERIES and
    Games of chance in Ontario

[18]

As
    a general rule, gambling and betting are illegal in Canada. Section 201 of the
Criminal
    Code
[4]
stipulates that [e]very one who keeps a common gaming house or common betting
    house is guilty of an indictable offence. Further, s. 206 of the
Criminal
    Code
contains specific prohibitions against lottery schemes and games of
    chance.

[19]

However,
    s. 207 of the
Criminal Code
authorizes the government of each province
    to conduct and manage lottery schemes, including games of chance, and to
    regulate and license the manner in which such lottery schemes are delivered.

[20]

Importantly,
    s. 207(1)(a) of the
Criminal Code
stipulates that [n]otwithstanding
    any of the provisions of this Part relating to gaming and betting,
it is
    lawful for

a province

to conduct and manage a lottery
    scheme
in that province
in accordance with any law enacted by the
    legislature
of that province (emphasis added).

[21]

In
    Ontario, the authority to regulate lottery schemes is vested in the AGCO, a
    quasi-judicial regulatory agency established under the
Alcohol and Gaming
    Regulation and Public Protection Act, 1996
, S.O. 1996, c. 26, Sched.

[22]

The
    AGCO regulates lottery schemes through the administration of the
Gaming
    Control Act
. The
Gaming Control Act,
and O. Reg. 385/99, enacted
    under the
Gaming Control Act
, set out the statutory framework for
    regulating the conduct and management of lottery schemes.

[23]

Under
    s. 3 of the
Alcohol and Gaming Regulation and Public Protection Act
,
    the AGCO is required to exercise its powers and duties under the
Gaming
    Control Act
in the public interest and in accordance with the principles
    of honesty and integrity, and social responsibility.

[24]

In
    contrast to the regulatory power exercised by the AGCO, the authority to
    conduct and manage lottery schemes on behalf of the province is vested in the
    OLGC, a Crown agency established under the
Ontario Lottery and Gaming
    Corporation Act, 1999
, S.O. 1999, c. 12, Sched. L. Section 0.1 of that Act
    indicates that the purposes of the Act are: a) to enhance the economic
    development of the province; b) to generate revenues for the province; c) to promote
    responsible gaming; and d) to ensure that anything done for one of the other
    three purposes is also done for the public good and in the best interests of
    the province.

[25]

Importantly,
    s. 3.7 of the
Gaming Control Act
authorizes the AGCO to approve in
    writing rules of play for the playing of lottery schemes conducted and managed
    by the [OLGC] if the regulations have not prescribed rules of play.

[26]

Section
    22(2) of the
Gaming Control Act
requires that casino operators ensure
    that lottery schemes are played in accordance with the rules of play approved
    by the AGCO:

22. (2) No registered supplier who provides services
    related to the operation of the gaming site maintained for playing a lottery
    scheme conducted and managed by the [OLGC]  shall permit the playing of a
    lottery scheme on the site except in accordance with,



(b) the rules of play approved in writing by the
    [AGCO] for lottery schemes, if none have been prescribed by the regulations.

[27]

Further,
    under s. 30 of O. Reg. 385/99 casino operators are required to submit to the
    AGCO for its approval a complete description of each game of chance that it
    intends to offer for play at the premises. The operator must also ensure that
    the games offered are approved by the AGCO and played in accordance with the
    rules approved by the AGCO:

30. (1)
An operator
of a gaming premises
shall
    submit
to the board of the [AGCO] for its approval
a complete description
of each game of chance that it intends to offer for play at the premises.

(2)
The description shall include
,

(a) a summary of the game, including its
    objectives,
the rules of the game
, the method of play and the wagers
    that may be made;

(b) the chances of winning the game and the
    advantage of the operator in relation to each wager; and

(c) a description of the equipment, if any, used
    in the playing of the game.



(4) An operator of a gaming premise shall ensure that
    the games of chance offered for play at the premises are approved by the board
    and played in accordance with the rules approved by the board. [Emphasis
    added].

D.

The issues before the motion judge

[28]

In
    his reasons for judgment, the motion judge noted that the appellants had raised
    an array of issues in their pleadings and written material and had added some
    new issues in oral argument. However, in his view, ultimately there were only
    two issues before the court.

[29]

The
    first issue was whether the roulette games played by the appellants were rendered
    illegal because of a practice by the roulette dealers of reaching into the
    roulette wheel while it was spinning to remove what is commonly referred to as
    a floating ball before the ball dropped into a pocket when the casino
    operators had failed to submit a floating ball rule to the AGCO for approval.

[30]

The
    second issue identified by the motion judge was whether the appellants had a
    viable claim for damages or unjust enrichment.

E.

The motion judges
    reasons

[31]

The
    motion judge began the analysis section of his reasons with the damages issue.
    He concluded that the claims in breach of contract, tort and misrepresentation
    could not succeed because the appellants had not filed any evidence of damages.
    That left for consideration the appellants illegality argument and their claim
    for unjust enrichment.

[32]

Concerning
    the illegality argument, after noting the relevant regulation and the content and
    evolution of the approved rules of play, the motion judge said that if the summary
    judgment motions for dismissal of the appellants actions turned only on the
    floating ball issue, he would have dismissed the motions. In his view, stopping
    roulette games to remove a floating ball was contrary to provincial gaming
    laws. This is because, as a matter of common sense, any rule that allows a
    dealer to stop the game for non-obvious reasons
[5]
is a rule of play. By not including a floating ball rule of play when it
    applied for AGCO approval,
[6]
the casino operators breached ss. 30(1) and (4) of O. Reg. 385/99 because they
    did not submit a complete description of the roulette game and because they
    did not ensure that the game in question was being played in accordance with
    the rules approved by the board.

[33]

In
    introducing this section of his reasons, the motion judge said the floating
    ball rule was probably a rule of play and that it was probably not
    approved as required. Further, in concluding this section, the motion judge acknowledged
    that the submissions of the casino operators and the AGCO on this issue were
    more extensive and nuanced than he had explained. However, because the
    determination of these motions did not turn on this issue, he found it
    unnecessary to devote further time to it. Accordingly, although the motion
    judges conclusions regarding the illegality issue are stated in a definitive
    manner, I accept that he regarded them as tentative.

[34]

The
    motion judge next turned to the appellants claims for unjust enrichment.

[35]

He
    began by reviewing the appellants arguments, which were premised on
Garland
    v. Consumers Gas Co.
, 2004 SCC 25, [2004] 1 S.C.R. 629. In
Garland
,
    a gas company was required to repay late payment charges it had collected that
    had been approved by the Ontario Energy Board because the Supreme Court
    determined that the late payment charges were illegal.

[36]

However,
    the motion judge identified an important feature of this case distinguishing it
    from
Garland
 namely, the fact that no money or benefits were ever retained
    by the casino operators. After every floating ball call, the players wagers
    were returned. Accordingly, the casino operators were not enriched and the
    appellants suffered no deprivation. Moreover, because the casino operators
    returned the players wagers each time a floating ball was called, unlike the
    situation in
Garland
, the casino operators obtained no proceeds of
    crime.

[37]

Finally,
    the motion judge rejected the appellants argument that the absence of a
    floating ball rule made all of the roulette games played by the appellants
    illegal. He said he knew of no legal authority that supports such a
    broad-sweeping proposition.

[38]

Although
    the motion judge said he found considerable merit in two additional arguments
    made by the AGCO,
[7]
because of his conclusion on the damages issue, he found it unnecessary to deal
    with them.

F.

The Appellants
    Position on Appeal

[39]

As
    was the case before the motion judge, on appeal to this court, the appellant
    presented an array of arguments relating to the nature of their causes of action
    and their claims for damages.
[8]


[40]

However
    during the course of oral argument, the appellants confirmed that, as against
    the casino defendants, they rely only on their cause of action for unjust
    enrichment and, as against the AGCO, they rely only on their cause of action
    for negligence.

[41]

The
    appellants rely on the motion judges finding that the floating ball rule is
    a rule of play and that it had not been approved by the AGCO. However, they
    submit that he erred in failing to find that non-compliance with the
Gaming
    Control Act
and related regulations rendered all the roulette games they
    played illegal.

[42]

Further,
    with respect to both causes of action they advance, the appellants say the
    motion judge erred by taking too narrow an approach to the appropriate remedy.
    In particular, they say the motion judge erred by failing to recognize that,
    because all the roulette games the appellants played were illegal, they are
    entitled to the return of, or damages for, the $2.1 million in losses they
    incurred while playing.

[43]

Finally,
    the appellants Braunstein and Barbuscio say that because s. 47.1 of the
Gaming
    Control Act
[9]

operates as a bar to the collection of illegal gambling debts, the motion
    judge erred in granting summary judgment to the OLGC on its collection actions.

G.

Analysis

(1)

Were the Roulette Games Played by the
    Appellants at the Fallsview Casino during the Relevant Period Illegal?

(i)

Introduction

[44]

Before
    assessing the illegality issue, it is important to review some of the evidence
    relating to the nature of roulette, the floating ball phenomenon and the
    evolution and use of the AGCO approved rules of play.

(a)

The nature of roulette

[45]

On
    the motion for summary judgment to dismiss the appellants actions, the casino
    operators filed affidavits from Shannon Dutton, the Director of Table Games at
    the Fallsview Casino, and from William A. Zender, a gaming consultant from Las
    Vegas with 34 years of experience in the gaming industry.

[46]

The
    uncontradicted evidence of the casino operators witnesses indicated that,
    unlike most other casino games (for example, blackjack and poker), roulette is
    a game of pure chance. The outcome of every game of roulette is completely
    random, unpredictable and independent of previous results.

[47]

Further,
    there is a fixed house advantage associated with roulette. The house advantage
    is the mathematical edge the casino has over its patrons, which compensates the
    casino for the entertainment services it provides. In the case of all roulette
    games played by the appellants, the house advantage was 2.7%.

[48]

As
    a result of the house advantage and the inherent nature of roulette as a game
    of pure chance, every player is mathematically more likely to lose than win on
    each spin of the roulette wheel.

(b)

The floating ball phenomenon

[49]

In
    his affidavit, Mr. Zender explained that a floating ball is a roulette ball
    that is hung-up above the pockets of the wheel for an unusually long period of time,
    up to several minutes. Further, the floating ball phenomenon is not unique to the
    Fallsview Casino. Rather, it is a random, unpredictable and relatively
    infrequent occurrence  but one that is common to the gaming industry.

[50]

Mr.
    Zender deposed that, in his experience in the gaming industry, the standard
    procedure for dealing with a floating ball, where the ball has been either
    stationary or running for several rotations of the wheel, is for the dealer
    to announce a no-spin, reach into the wheel and remove the ball, and declare
    all bets void.
[10]
Further, in his experience, most casinos and regulators do not have published
    procedures for dealing with floating balls.

[51]

Mr.
    Zender also explained that, in his view, it is not possible for a casino to use
    floating balls and the no-spin procedure to its advantage. This is because floating
    balls are random and unpredictable events that cannot be planned or anticipated
    by a dealer. In addition, the practice of removing the ball is not based on its
    location or orbiting path, but rather on the period during which it has been
    floating. Finally, floating balls occur too rarely for it to be possible for
    the operator to gain some form of advantage. Mr. Zender was not aware of any
    instance in which a casino had been able to gain an advantage by adopting a
    no-spin procedure to deal with floating balls.

[52]

Somewhat
    in contrast to Mr. Zenders evidence, on a cross-examination conducted in
    support of a motion, John Stamatakos, Executive Director of Table Games at the
    Fallsview Casino, acknowledged that the casino would make more money if there
    were more spins per hour (this is because of the house advantage). However, he
    also said that the casino would lose money when a floating ball is removed
    because the casino does not take any bets on a no-spin.

[53]

As
    will become apparent from the approved rules adopted by the AGCO over time, the
    floating ball phenomenon is not the only type of unpredictable event or
    irregularity that can occur during a game of roulette. Other types of
    irregularities include: the ball popping out of the roulette wheel; the ball not
    completing the required number of revolutions to constitute a valid spin; and a
    foreign object intentionally or accidentally being dropped or thrown into the
    wheel.

(c)

The evolution and use of the AGCO approved
    rules of play

[54]

In
    her affidavit, Ms. Dutton deposed that the AGCO approved rules of play for
    roulette in March 1999, five years before the Fallsview Casino opened. These
    rules remained in force across Ontario, essentially unchanged, until February
    2008 when the AGCO approved slightly revised rules of play for roulette. The
    February 2008 revised approved rules of play were amended and approved in April
    2008 and again in March 2011.

[55]

The
    March 1999 approved rules of play for roulette made no provision for random,
    unpredictable events (irregularities) that can occur during the course of a
    roulette game. The only reference to the possibility of an irregularity was
    contained in a rule under the heading Rotation of Wheel and Ball. The rule
    required that the ball complete at least four revolutions of the track to
    constitute a valid spin:

4.3     Rotation of Wheel and Ball

(a) The roulette ball shall be spun by the dealer in a
    direction opposite to the rotation of the wheel and shall complete at least
    four revolutions around the track of the wheel to constitute a valid spin.

[56]

The
    February 2008 approved rules of play for roulette added a heading Irregularities.
    That heading contained two provisions and stipulated that a Dealer or
    Supervisor could call a no-spin in two situations: (i) if the ball did not
    complete at least four revolutions of the track; and (ii) if the roulette ball
    left the roulette wheel. The two provisions read as follows:

5.5.1 If the Dealer or Supervisor determine the Roulette ball
    does or will not complete at least four revolutions, ensuring a random outcome,
    the Dealer and/or Supervisor announces a No Spin. When possible, the ball is
    removed from the wheel before it drops into a number.

5.5.2 If the Roulette ball leaves the Roulette wheel, the Dealer
    and/or Supervisor announces a No Spin. The Roulette ball is then placed on
    the last winning number.

[57]

The
    April 2008 revised approved rules for roulette did not amend the provisions set
    out above. The March 2011 revised approved rules added a third provision under
    the subheading 5.5 Irregularities, specifying additional circumstances in
    which no-spins could be called, including in the event of a floating ball:

5.5.3 No spins include, but are not limited to:

a)  The ball and wheel moving in the same direction;

b)  A foreign object in the wheel;

c)  At the operators discretion, if the ball is floating
    for 3 or more rotations of the wheel;

d)  If the Supervisor believes it to be in the best interest
    of the integrity of the game.

[58]

According
    to Ms. Duttons affidavit, the 2008 revisions to the approved rules of play
    were part of a multi-year province-wide effort to update the rules of play for
    all table games, not just roulette. In the case of the approved rules of play
    for roulette, the 2008 revisions did not change the way the game of roulette was
    played in any material way. Instead, the revisions merely codified existing
    practice and provided added guidance with respect to such things as placing
    wagers and dealing the game.

[59]

Further,
    with respect to the 2011 revisions to the roulette approved rules of play, Ms.
    Dutton deposed that they did not change the way the game of roulette was (and
    continues to be) played in any material way. Rather, the 2011 rules of play
    merely codified existing practices with respect to dealing the game of roulette,
    and provided greater clarity and specificity.

(ii)

Discussion

[60]

In
    a nutshell, the appellants contend that the floating ball rule is a rule of
    play and accordingly, under s. 30(1) of O. Reg. 385/99, the casino operators
    were required to include the floating ball rule in the complete description
    of the rules of roulette they submitted to the AGCO and to obtain the AGCOs
    approval of the rule.

[61]

According
    to the appellants, the casino operators failure to obtain the AGCOs approval
    of the floating ball rule and their ongoing use of the floating ball rule in
    the roulette games played by the appellants means that such roulette games were
    played under rules (or at least one rule) not approved by the AGCO.

[62]

This,
    in turn, means that the roulette games in which the appellants participated were
    played in contravention of s. 22 of the
Gaming Control Act
and in
    contravention of s. 30(4) of O. Reg. 385/99. If that is the case, the roulette games
    were not played in accordance with [the] law[s] enacted by the province as
    required by s. 207(1)(a) of the
Criminal Code
. Accordingly, the
    roulette games do not qualify for the exemption from criminal liability
    contained in s. 207 and are therefore illegal.

[63]

I
    would not accept the appellants position for several reasons.

[64]

First,
    I am not persuaded that the casino operators floating ball practice is a rule
    of the game that required the AGCOs approval.

[65]

Under
    s. 30(1) of O. Reg. 385/99, the casino operators obligation is to provide to
    the AGCO a complete description of each game of chance it intends to offer 
    includ[ing]  a summary of the game, including its objectives, the rules of the
    game, the method of play and the wagers that may be made.

[66]

The
    appellants position effectively asserts that any failure by a casino operator
    to describe a rule of the game amounts to a breach of provincial law that
    would deprive the casino operator of the benefit of the exemption from criminal
    liability contained in s. 207 of the
Criminal Code
. Assuming, without
    deciding, that this interpretation is correct, as I have said, I am not
    persuaded that the casino operators floating ball practice is a rule of the
    game.

[67]

Considered
    in context, in my opinion, the requirement to provide a complete description of
    the rules of the game is a requirement to describe the rules by which the
    game is
played
and which ensure the integrity and fairness of the game
    assuming it proceeds in the ordinary course.

[68]

As
    such, the obligation to describe the rules of the game does not encompass an
    obligation to consider and provide a rule to respond to every irregularity that
    may occur during a roulette game. Nor does it encompass an obligation to
    describe casino-operator practices that have no impact on the fairness and
    integrity of the game.

[69]

The
    phrase complete description of  the rules of the game is not defined in
    either the
Gaming Control Act
or the regulations enacted under that
    Act. Consistent with established principles of statutory interpretation, the
    words should be read in their entire context and in their grammatical and
    ordinary sense harmoniously with the scheme of the Act, the object of the Act,
    and the intention of Parliament:
Bell ExpressVu Limited Partnership v. Rex
,
    2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

[70]

The
    legislative scheme in this case is intended to ensure that lottery schemes and
    games of chance, where they are permitted, be conducted responsibly and in the
    public interest.
[11]
Of necessity, this requires that the legislative scheme ensure that permitted
    lottery schemes and games of chance are conducted in a manner that ensures the
    fairness and integrity of the game.

[71]

Towards
    those ends, the legislature requires that casino operators submit to the AGCO
    for its approval a complete description of each game of chance they intend to
    offer, including the rules of the game, and that casino operators and staff
    ensure that each game of chance is played in accordance with the approved rules
    of play. This allows the legislature to strictly control gambling operations
    that may otherwise exploit individual gamblers or harm the broader public
    interest.

[72]

In
    order to achieve this objective, the legislature requires the regulator to
    review rules such as (i) the objectives of the game, (ii) the wagers that may
    be made, (iii) the chances of winning, and (iv) the advantages of the operator
    in relation to each wager. All of these rules are integral to the fairness and
    integrity of games of chance and failure to regulate these items would
    undermine the remedial function of the legislation.

[73]

However,
    the practice of removing a floating ball has no impact on any of these
    variables. Nor does the practice have an impact on any other aspect of the
    fairness and integrity of the game.

[74]

When
    a floating ball is removed, a no-spin is declared, all wagers are void and a
    new game is started. While there was some suggestion that casino operators could
    make more money from the use of a floating ball practice because the practice
    increases the number of spins per hour, in my view, that suggestion has no air
    of reality. The evidence in this case supported a finding that floating balls
    are a relatively rare event. There was no evidence that use of a floating ball
    practice actually appreciably increases the number of spins per hour on a
    consistent basis. Moreover, because of the house advantage, casinos are more
    likely to lose money on the occasions when the floating ball practice is invoked
    because they lose the particular opportunity for a win. For all practical
    purposes, a no-spin resulting from a floating ball is a non-event  just as
    all other no-spins arising from other irregularities are non-events.

[75]

As
    noted by the casino operators, it is impossible to exhaustively define every eventuality
    that may occur in a roulette game. If a particular dealer practice impacts the
    fundamental fairness or integrity of the game, a rule describing the practice should
    be submitted to the AGCO for approval. However, there is nothing to indicate it
    was the legislatures intention to make it mandatory that casino operators
    submit to the AGCO for approval detailed descriptions of practices that have no
    substantive impact on a game of chance or its players.

[76]

In
    short, while standard practices concerning the appropriate response to
    irregularities that occur during a roulette game may be of assistance, and
    while the AGCO can choose to include rules adopting such practices in its
    approved rules of play, such practices are not strictly rules of the game in
    the sense that they govern how a roulette game must be played to ensure the
    fairness and integrity of the game assuming the game proceeds in the ordinary
    course.

[77]

Second,
    and in the same vein, I am not persuaded that practices adopted by a casino
    operator in response to an irregularity constitute departures from AGCO
    approved rules of play where the AGCO approved rules of play do not address
    what should occur in the event of a particular irregularity.

[78]

As
    I have explained, the March 1999 rules of play approved by the AGCO for
    roulette, did not contain any provisions addressing what to do in the event of
    an irregularity. They did stipulate that, to constitute a valid spin, the ball
    had to complete four revolutions of the track of the wheel. However, they did
    not specify what procedure casino operators should follow if the ball did not
    complete four revolutions of the track. Nor did they address what casino
    operators should do in the event of any other irregularity.

[79]

Rules
    addressing what to do in the event of an irregularity were introduced for the
    first time into the rules of play approved by the AGCO in February 2008. Those
    rules specified the procedure to be followed if the ball did not meet the
    requirements for a valid spin (four revolutions of the track of the wheel), as
    well as the procedure to be followed if the ball left the roulette wheel.

[80]

Such
    events are irregularities that necessitate a response by a casino operator when
    they occur. In the absence of a response, the roulette game could not continue.
    In my view, it would be absurd to suggest that the legislature intended that, because
    the AGCO had no approved rule in place to respond to such irregularities prior
    to 2008, all roulette games played in Ontario prior to 2008 were therefore
    illegal.

[81]

The
    third reason I do not accept the appellants position is that I do not accept
    the motion judges distinction between obvious and non-obvious reasons for
    stopping a roulette game as a basis for determining whether the procedure for
    responding to an irregularity is a rule of the game that requires the AGCOs
    approval.

[82]

At
    para. 17 of his reasons, the motion judge expressed the view that any rule
    that allows a dealer  to stop the game for non-obvious reasons is a rule of
    play. By way of contrast, he cited the roulette ball flying out of the wheel,
    a foreign object landing in the wheel or someone pushing the roulette table and
    dislodging all the chips as obvious reasons for stopping a roulette game.

[83]

The
    motion judge concluded that the casino operators breached ss. 30(1) and (4) of
    O. Reg. 385/99 because they did not submit a complete description of the
    roulette game to the AGCO and because they did not ensure that the game was
    being played in accordance with the rules approved by [the AGCO].

[84]

As
    a starting point, the motion judges common sense characterization of the
    floating ball practice as a non-obvious reason for stopping a roulette game
    overlooked the expert evidence concerning the floating ball phenomenon in
    roulette. Although a relatively rare occurrence, the floating ball phenomenon
    is common to the game of roulette and, at least in North America casinos,
    prompts a common  and therefore perhaps obvious  response.

[85]

More
    importantly, however, the motion judges conclusion that the casino operators
    floating ball practice is a rule of play failed to take account of the
    legislative purpose for requiring approved rules of play.

[86]

As
    I have explained, the process of removing a floating ball from the wheel,
    declaring a no-spin, and rendering all bets void has no substantive impact on
    the fairness or integrity of the game of roulette vis-à-vis the players. This
    is because of the nature of the game as a true game of chance and, to some
    extent, because of the house advantage. The existence of a floating ball renders
    the spin a nullity, but it does not disadvantage the players. In these circumstances,
    I see no basis for distinguishing floating balls from other irregularities that
    necessitate stopping the game.

[87]

Based
    on these reasons, I have concluded that the casino operators were not required
    to obtain AGCO approval of their floating ball practice and that their failure
    to do so did not make the games of roulette the appellants played illegal.
    Accordingly, I would not give effect to this ground of appeal.

[88]

In
    the light of my conclusion on the illegality issue, it is not strictly
    necessary that I address the remaining grounds of appeal. However, as I would
    not give effect to the second ground of appeal even if the roulette games were
    illegal, I will explain my reasons for that conclusion.

(2)

Assuming all the Roulette Games the Appellants
    Played were Illegal, Did the Motion Judge Err in Finding that the Appellants
    were not Entitled to a Remedy in Unjust Enrichment against the Casino Operators?

[89]

In
    support of their claim for unjust enrichment against the casino operators, the
    appellants rely on
Garland v. Consumers Gas Co.

[90]

As
    was noted by the motion judge, in
Garland
, the Supreme Court allowed a
    customers class action against a gas company to recover late penalty payments
    that had been found to constitute a criminal rate of interest. The gas company
    levied the charges in accordance with orders made by the Ontario Energy Board. However,
    the Supreme Court found that, to the extent those orders conflicted with s. 347
    of the
Criminal Code
, they were inoperative. The Supreme Court
    concluded that the customers had a valid claim for unjust enrichment from the
    date their action was commenced.

[91]

The
    appellants submit that the motion judge in this case erred in failing to find
    that the absence of an AGCO-approved floating ball rule made all the roulette
    games they played illegal. In particular, they say that the
Criminal Code
makes gambling
per se
illegal, unless it is conducted strictly in
    accordance with a statutory exemption.

[92]

Further,
    relying on
Garland
, the appellants say the motion judge erred in finding
    there was no enrichment and no deprivation in this case. According to them, all
    bets they placed, and lost, during roulette games that were illegal fall
    squarely within the ambit of the concepts of enrichment and deprivation, as
    those concepts have been defined by the Supreme Court of Canada. Moreover,
    because the games they played were illegal, the
Gaming Control Act
cannot provide a juristic reason for the enrichment.

[93]

I
    agree that, assuming all the roulette games were illegal (and not just games
    where an unapproved floating ball was invoked), all bets the appellants placed
    and lost would constitute enrichment of the casino operators and deprivation to
    the appellants. And while I agree that, assuming that all the roulette games
    were illegal, there may be no juristic reason for the enrichment within the
    established categories as identified in the current jurisprudence, in my view,
    the casino operators established another juristic reason for the enrichment
    on the record that was before the court.

[94]

The
    elements of the test for establishing unjust enrichment are well-established:
    (1) an enrichment of the defendant; (2) a corresponding deprivation of the
    plaintiff; and (3) an absence of juristic reason for the enrichment:
Garland
at para. 30.

[95]

The
    Supreme Court of Canada has adopted a straightforward economic approach to
    the first and second elements of the test. Accordingly, where the alleged
    enrichment and deprivation take the form of a monetary payment, the first and
    second elements are easily established:
Garland
at para. 31.

[96]

Assuming
    all the roulette games the appellants played were illegal, the real issue in
    this case is whether there was an absence of juristic reason for the
    enrichment. In
Garland
, at para. 44, the Supreme Court concluded that
    a two-step approach to this issue is necessary.

[97]

In
    the first step, a plaintiff is required to show that no juristic reason exists from
    an established category to deny recovery. The established categories include: a
    contract, a disposition of law, a donative intent, and other valid common law,
    equitable or statutory obligations. If there is no juristic reason from an
    established category, then the plaintiff has made out a
prima facie
case under this component of the analysis:
Garland
, at para 44.

[98]

At
    the second step of the analysis, the defendant can attempt to show that there
    is another reason to deny recovery. At para. 46 of
Garland
, the
    Supreme Court indicated that, at this stage, courts should have regard to two factors:
    the reasonable expectations of the parties, and public policy considerations. In
    applying these factors, this stage of the analysis may lead to establishing a
    new category of juristic reason; it may lead to finding a juristic reason
    applicable only to the particular circumstances; or it may lead to a conclusion
    that there was no juristic reason for the enrichment.

[99]

Beginning
    with the first step, at para. 53 of
Garland
, the Supreme Court
    concluded that, in that case, to the extent the Ontario Energy Board orders
    were inoperative because they conflicted with the
Criminal Code
, they
    could not constitute a juristic reason for the enrichment of the gas company. The
    consumers had therefore established a
prima facie
case at step one of the
    third element of the unjust enrichment test.

[100]

Nonetheless, moving
    to step two of the third element, in weighing the reasonable expectations of
    the parties and public policy considerations, the Supreme Court found that the
    gas companys reliance on the inoperative Ontario Energy Board orders provided
    a juristic reason for the enrichment until the gas company was put on notice of
    the serious possibility that it was violating the
Criminal Code
.

[101]

At para. 57 of
    its reasons, the court stated that the overriding public policy consideration
     [was] the fact that the [late payment penalties] were collected in
    contravention of the
Criminal Code
. As a matter of public policy, a
    criminal should not be permitted to keep the proceeds of his crime.

[102]

However, on the
    facts of that case, the Supreme Court concluded that, up until the gas companys
    customers commenced their action, the gas companys reliance on the
    authorization provided by the Ontario Energy Board orders was reasonable.

[103]

In my view, a
    similar analysis applies here. Although there was some evidence that the
    appellants complained to representatives of the casino operators on occasion about
    the casinos practice of removing floating balls, that evidence was sparse
[12]
 and there was conflicting evidence
    suggesting that the appellants wanted the ability to call a no-spin for a floating
    ball themselves.

[104]

More
    importantly, however, during the relevant period when the appellants were
    playing roulette at the Fallsview Casino, the casino was subject to supervision
    by its regulator, the AGCO, to ensure that it was complying with the
Gaming
    Control Act
and the rules of play.

[105]

This supervision
    included the existence of a dedicated Compliance Officer assigned to the
    Fallsview casino. Among other things, the Compliance Officer: (i) maintained an
    office at the Fallsview Casino; (ii) regularly walked the casino floor to
    monitor gaming activities; and (iii) had unfettered access to the Fallsview
    Casinos Surveillance Department to conduct investigations and ensure
    compliance with applicable laws, regulations and rules of play.

[106]

Further, the
    available records of the AGCO for the period from June 10, 2004 to the end of
    2008 indicate that the AGCO was not required to issue any warnings or monetary
    penalties in connection with the operation of the roulette games at the
    Fallsview Casino. There was no evidence that any of the appellants ever
    contacted the AGCO with complaints about the conduct or management of the
    Fallsview Casino.

[107]

Perhaps most
    importantly, for the purposes of the motion, the AGCO provided evidence to the
    effect that the rules of play for roulette are not required to deal with all
    irregularities that may arise from time to time during a game of roulette. While
    not determinative on the issue of the legality of the roulette games, this
    evidence supports a finding that it was reasonable for the casino operators to
    believe the roulette games were legal. If the regulator did not believe an
    approved floating ball rule was required, it was reasonable for the casino
    operators to reach the same conclusion.

[108]

Viewed as a
    whole, the evidence on the motion indicated that it was reasonable for the
    casino defendants (and the appellants) to rely on the legality of the roulette
    games. There is no suggestion that the casino operators were put on notice of a
    serious possibility that the roulette games were illegal until such time as
    the appellants commenced their actions.

[109]

In the
    circumstances, in my view, the evidence on the motion failed to disclose a
    genuine issue requiring a trial concerning the appellants claim against the
    casino operators for unjust enrichment.

(3)

The Appellants Claim for Negligence against the AGCO

[110]

I see no merit
    in the appellants claim for negligence against the AGCO.

[111]

In my view, the
    appellants claims against the AGCO are similar to the numerous actions brought
    against statutory regulators, who owe a duty to the public at large, by members
    of the public who have allegedly been harmed by individuals or organizations
    whose conduct is overseen by the regulators.

[112]

In such cases,
    it has consistently been held by the Supreme Court of Canada and by this court
    that statutory regulators public duties are incompatible with a private duty
    of care to individual members of the public, that there is no proximity in the
    relationship between such regulators and members of the public, and that public
    policy requires an immunization from a duty of care:
Cooper v. Hobart
,
    2001 SCC 79, [2001] 3 S.C.R. 537;
Edwards v. Law Society of Upper Canada
,
    2001 SCC 80, [2001] 3 S.C.R. 562;
Attis v. Canada (Minister of Health
,
    2008 ONCA 660, 93 O.R. (3d) 35;
Williams v. Canada (Attorney General)
,
    2009 ONCA 374, 95 O.R. (3d) 401;
Wellington v. Ontario
, 2011 ONCA 274,
    105 O.R. (3d) 81.

H.

Disposition

[113]

Based on the
    foregoing reasons, the appeal is dismissed with costs to the respondents on a
    partial indemnity scale fixed in favour of the casino operators in the amount
    of $15,000 and fixed in favour of the AGCO in the amount of $10,000, both
    amounts inclusive of disbursements and applicable taxes.

Released: RPA February 26, 2013

Janet
    Simmons J.A.

I
    agree Robert P. Armstrong J.A.

I
    agree David Watt J.A.

Appendix
    A


I.

CRIMINAL CODE

GAMING AND BETTING

Keeping
    gaming or betting house

201.
(1) Every
    one who keeps a common gaming house or common betting house is guilty of an
    indictable offence and liable to imprisonment for a term not exceeding two
    years.

Person found in or owner permitting use

(2) Every
    one who

(a)
is
    found, without lawful excuse, in a common gaming house or common betting house,
    or

(b)
as
    owner, landlord, lessor, tenant, occupier or agent, knowingly permits a place
    to be let or used for the purposes of a common gaming house or common betting
    house,

is guilty of an
    offence punishable on summary conviction.

[]

Offence
    in relation to lotteries and games of chance

206.
(1) Every
    one is guilty of an indictable offence and liable to imprisonment for a term
    not exceeding two years who

(a)
makes,
    prints, advertises or publishes, or causes or procures to be made, printed,
    advertised or published, any proposal, scheme or plan for advancing, lending,
    giving, selling or in any way disposing of any property by lots, cards, tickets
    or any mode of chance whatever;

(b)
sells,
    barters, exchanges or otherwise disposes of, or causes or procures, or aids or
    assists in, the sale, barter, exchange or other disposal of, or offers for
    sale, barter or exchange, any lot, card, ticket or other means or device for
    advancing, lending, giving, selling or otherwise disposing of any property by
    lots, tickets or any mode of chance whatever;

(c)
knowingly
    sends, transmits, mails, ships, delivers or allows to be sent, transmitted,
    mailed, shipped or delivered, or knowingly accepts for carriage or transport or
    conveys any article that is used or intended for use in carrying out any
    device, proposal, scheme or plan for advancing, lending, giving, selling or
    otherwise disposing of any property by any mode of chance whatever;

(d)
conducts
    or manages any scheme, contrivance or operation of any kind for the purpose of
    determining who, or the holders of what lots, tickets, numbers or chances, are
    the winners of any property so proposed to be advanced, lent, given, sold or
    disposed of;

(e)
conducts,
    manages or is a party to any scheme, contrivance or operation of any kind by
    which any person, on payment of any sum of money, or the giving of any valuable
    security, or by obligating himself to pay any sum of money or give any valuable
    security, shall become entitled under the scheme, contrivance or operation to
    receive from the person conducting or managing the scheme, contrivance or operation,
    or any other person, a larger sum of money or amount of valuable security than
    the sum or amount paid or given, or to be paid or given, by reason of the fact
    that other persons have paid or given, or obligated themselves to pay or give
    any sum of money or valuable security under the scheme, contrivance or
    operation;

(f)
disposes
    of any goods, wares or merchandise by any game of chance or any game of mixed
    chance and skill in which the contestant or competitor pays money or other
    valuable consideration;

(g)
induces
    any person to stake or hazard any money or other valuable property or thing on
    the result of any dice game, three-card monte, punch board, coin table or on
    the operation of a wheel of fortune;

(h)
for
    valuable consideration carries on or plays or offers to carry on or to play, or
    employs any person to carry on or play in a public place or a place to which
    the public have access, the game of three-card monte;

(i)
receives
    bets of any kind on the outcome of a game of three-card monte; or

(j)
being
    the owner of a place, permits any person to play the game of three-card monte
    therein.

[]



Permitted
    lotteries

207.
(1) Notwithstanding any of the provisions of this Part relating to
    gaming and betting, it is lawful

(a)
for
    the government of a province, either alone or in conjunction with the
    government of another province, to conduct and manage a lottery scheme in that
    province, or in that and the other province, in accordance with any law enacted
    by the legislature of that province;

(b)
for
    a charitable or religious organization, pursuant to a licence issued by the
    Lieutenant Governor in Council of a province or by such other person or
    authority in the province as may be specified by the Lieutenant Governor in
    Council thereof, to conduct and manage a lottery scheme in that province if the
    proceeds from the lottery scheme are used for a charitable or religious object
    or purpose;

(c)
for
    the board of a fair or of an exhibition, or an operator of a concession leased
    by that board, to conduct and manage a lottery scheme in a province where the
    Lieutenant Governor in Council of the province or such other person or
    authority in the province as may be specified by the Lieutenant Governor in
    Council thereof has

(i)  designated
    that fair or exhibition as a fair or exhibition where a lottery scheme may be
    conducted and managed, and

(ii)  issued
    a licence for the conduct and management of a lottery scheme to that board or
    operator;

(d)
for
    any person, pursuant to a licence issued by the Lieutenant Governor in Council
    of a province or by such other person or authority in the province as may be
    specified by the Lieutenant Governor in Council thereof, to conduct and manage
    a lottery scheme at a public place of amusement in that province if

(i)  the
    amount or value of each prize awarded does not exceed five hundred dollars, and

(ii)  the
    money or other valuable consideration paid to secure a chance to win a prize
    does not exceed two dollars;

(e)
for
    the government of a province to agree with the government of another province
    that lots, cards or tickets in relation to a lottery scheme that is by any of
    paragraphs (
a
) to (
d
) authorized to be conducted and managed in that other province may be
    sold in the province;

(f)
for
    any person, pursuant to a licence issued by the Lieutenant Governor in Council
    of a province or such other person or authority in the province as may be
    designated by the Lieutenant Governor in Council thereof, to conduct and manage
    in the province a lottery scheme that is authorized to be conducted and managed
    in one or more other provinces where the authority by which the lottery scheme
    was first authorized to be conducted and managed consents thereto;

(g)
for
    any person, for the purpose of a lottery scheme that is lawful in a province
    under any of paragraphs (
a
) to (
f
), to do anything in the province, in accordance with the applicable
    law or licence, that is required for the conduct, management or operation of
    the lottery scheme or for the person to participate in the scheme; and

(h)
for
    any person to make or print anywhere in Canada or to cause to be made or
    printed anywhere in Canada anything relating to gaming and betting that is to
    be used in a place where it is or would, if certain conditions provided by law
    are met, be lawful to use such a thing, or to send, transmit, mail, ship,
    deliver or allow to be sent, transmitted, mailed, shipped or delivered or to
    accept for carriage or transport or convey any such thing where the destination
    thereof is such a place.

Terms and conditions of licence

(2) Subject
    to this Act, a licence issued by or under the authority of the Lieutenant
    Governor in Council of a province as described in paragraph (1)(
b
), (
c
), (
d
)
    or (
f
) may contain such terms and conditions
    relating to the conduct, management and operation of or participation in the
    lottery scheme to which the licence relates as the Lieutenant Governor in
    Council of that province, the person or authority in the province designated by
    the Lieutenant Governor in Council thereof or any law enacted by the
    legislature of that province may prescribe.

Offence

(3) Every
    one who, for the purposes of a lottery scheme, does anything that is not
    authorized by or pursuant to a provision of this section

(a)
in
    the case of the conduct, management or operation of that lottery scheme,

(i)  is
    guilty of an indictable offence and liable to imprisonment for a term not
    exceeding two years, or

(ii)  is
    guilty of an offence punishable on summary conviction; or

(b)
in
    the case of participating in that lottery scheme, is guilty of an offence punishable
    on summary conviction.

Definition of lottery scheme

(4) In
    this section, lottery scheme means a game or any proposal, scheme, plan,
    means, device, contrivance or operation described in any of paragraphs 206(1)(
a
) to (
g
), whether or not it involves
    betting, pool selling or a pool system of betting other than

(a)
three-card
    monte, punch board or coin table;

(b)
bookmaking,
    pool selling or the making or recording of bets, including bets made through
    the agency of a pool or pari-mutuel system, on any race or fight, or on a
    single sport event or athletic contest; or

(c)
for
    the purposes of paragraphs (1)(
b
) to (
f
), a game or proposal, scheme, plan, means, device, contrivance or
    operation described in any of paragraphs 206(1)(
a
)
    to (
g
) that is operated on or through a computer,
    video device or slot machine, within the meaning of subsection 198(3), or a
    dice game.

Exception re: pari-mutuel betting

(5) For
    greater certainty, nothing in this section shall be construed as authorizing
    the making or recording of bets on horse-races through the agency of a
    pari-mutuel system other than in accordance with section 204.


II.

Gaming Control Act

Rules
    of play

22.  (1)
No
    registered supplier who provides a gaming site, other than a gaming site
    maintained for playing a lottery scheme conducted and managed by the Ontario
    Lottery and Gaming Corporation, and no registered gaming assistant who provides
    services to the registered supplier shall permit the playing of a lottery
    scheme on the site except in accordance with the rules of play and other
    standards and requirements that are prescribed by the regulations or
    established by the Registrar under section 3.8. 2011, c. 9,
    Sched. 17, s. 11.

Same,
    lottery schemes of OLGC

(2)  No registered supplier who provides services related to
    the operation of a gaming site maintained for playing a lottery scheme
    conducted and managed by the Ontario Lottery and Gaming Corporation and no
    registered gaming assistant who provides services to the Corporation or a
    registered supplier shall permit the playing of a lottery scheme on the site
    except in accordance with,

(a)   the rules
    of play prescribed by the regulations;

(b)   the rules
    of play approved in writing by the Board for lottery schemes, if none have been
    prescribed by the regulations; and

(c)   the other
    standards and requirements prescribed by the regulations or established by the
    Registrar under section 3.8.


III.

O. Reg. 385/99

GAMES OF CHANCE AND
    RULES OF PLAY

30.
(1)  An
    operator of a gaming premises shall submit to the board of the Commission for
    its approval a complete description of each game of chance that it intends to
    offer for play at the premises. O. Reg. 208/00, s. 10 (1).

(2)  The
    description shall include,

(a)
      a summary of the game, including its objectives, the rules of the game, the
    method of play and the wagers that may be made;

(b)
      the chances of winning the game and the advantage of the operator in relation
    to each wager; and

(c)
      a description of the equipment, if any, used in the playing of the game.
    O. Reg. 385/99, s. 30 (2); O. Reg. 208/00,
    s. 10 (2).

(3)  Revoked:
    O. Reg. 208/00, s. 10 (3).

(4)  An operator of
    a gaming premises shall ensure that the games of chance offered for play at the
    premises are approved by the board and played in accordance with the rules
    approved by the board. O. Reg. 208/00, s. 10 (4).

(5)  Revoked:
    O. Reg. 208/00, s. 10 (5).

(6)  The operator
    of a gaming premises shall, on request, provide a player with a description of
    the rules of play of any game of chance offered for play at the gaming
    premises, except for games played on slot machines.

(7)  The operator
    of a gaming premises shall ensure that a sign indicating the maximum and
    minimum wagers permitted at a game of chance offered for play at the gaming
    premises is posted at each table at which the game is played and is clearly
    visible to the players at that table. O. Reg. 385/99, s.
    30 (6, 7).


IV.

Ontario Lottery and Gaming Corporation Act, 1999,

0.1.    The purposes of this
    Act are,

(a)
      to enhance the economic development of the province;

(b)
      to generate revenues for the province;

(c)
      to promote responsible gaming; and

(d)
      to ensure that anything done for the purpose set out in clause (a), (b) or
    (c) is also done for the public good and in the best interest of the province.





[1]

R.S.C. 1985, c. C-46.



[2]

In its capacity as an Operational Enterprise
    Agency of the Government of Ontario that authorizes the operation of gaming
    premises in the province, the OLGC manages two Niagara Falls casinos and
    carries on business under the name Casino Niagara and Niagara Fallsview Casino
    Resort.



[3]

The motion judge
    granted summary judgment to the OLGC for the amounts claimed in the collection
    action because he believed the appellants, Messrs. Braunstein and Barbuscio,
    had conceded that he should do so in the event their action was dismissed.
    However, in response to a question from this court following the appeal hearing
    concerning the nature of their concession, Messrs. Braunstein and Barbuscio
    asserted that a question was posed by the motion judge in the context of
    whether the roulette games were illegal. They say that, in that context, they
    advanced the position that, if the motion judge found the roulette games were
    illegal, they could rely on s. 47.1 of the Gaming Control Act, 1992, S.O. 1992,
    c. 24, as a bar to the collection actions. No one has disputed their
    description of their position before the motion judge.



[4]

The full text of all statutory provisions
    referred to in these reasons is set out in Appendix A.



[5]
According to the motion judge, three examples of an obvious reason
    to stop a roulette game would be: i) if the roulette ball flies out of the
    wheel; ii) if a foreign object lands in the wheel; or iii) someone pushes the
    roulette table and dislodges all the chips.



[6]
A floating ball rule was added and approved as a rule of play in
    2011. However, by that time, the appellants had stopped playing roulette at the
    Fallsview Casino.



[7]
The AGCO also argued that because its oversight of gaming casinos
    is pursuant to a statutorily imposed public duty, it does not owe a private
    duty of care to the appellants. In addition, it argued the appellants claims were
    statute-barred.



[8]

The respondents objected to some of the
    issues raised on appeal on the basis that some of the claims had not been
    pleaded. Given my proposed disposition of the appeal, it is unnecessary that I
    address this issue.



[9]

Section
47.1 of
    the
Gaming Control Act
provides:

47.1 No
    person may use civil proceedings to recover money owing to the person resulting
    from the participating in or betting on a lottery scheme within the meaning of
    section 207 of the
Criminal Code
(Canada) conducted in Ontario unless
    the lottery scheme is authorized under subsection 207(1) of the Code.



[10]

At footnote 1 of his reasons, the motion
    judge says: The general practice in North American casinos is that the dealer
    removes a floating ball before it drops into a number, stops play and declares
    a no-spin. The bets are returned to the players, the wheel is spun again and
    a new game is played. I understand that in European casinos, there is no
    floating ball rule. The roulette ball simply continues to roll until it drops
    into a numbered pocket. It appears that the reason for the North American
    practice is a combination of casino efficiency and customer satisfaction (more
    spin with more bets, more games played more quickly).



[11]
See, for example, s. 0.1 of the
Ontario Lottery and Gaming
    Corporation Act, 1999
, which states that [t]he purposes of this Act are,
    (a) to enhance the economic development of the Province; (b) to generate
    revenues for the Province; (c) to promote responsible gaming; and (d) to ensure
    that anything done for the purpose set out in clause (a), (b) or (c) is also
    done for the public good and in the best interest of the Province.



[12]

The appellants did not file responding
    affidavit evidence on the summary judgment motions. The evidence of the
    appellants on their examinations for discovery was to the effect that the
    roulette dealers picked up floating balls of their own volition and that the
    appellants complained to representatives of the casino operators that this
    practice was contrary to the rules of play. However, the appellants had no
    documents to support this assertion and Ms. Duttons affidavit (and the
    exhibits appended to it) indicate that the Fallsview Casino records of player
    comments (of Players Advantage Club Members) show no record of such complaints.
    On his cross-examination, John Stamatakos, Executive Director of Table Games at
    the Fallsview Casino, testified that the appellants did not make any such
    complaints to him.

I note that at para. 2 of his
    reasons, the motion judge said, Over the course of the three and a half years
    of play, one particular manoeuvre of the dealer [the floating ball practice]
    drew frequent comments and complaints [from the appellants]. In my view, this
    can only be an introductory comment intended to describe the appellants
    position at its highest, as it was not supported by the weight of the evidence
    and the motion judge gave no reason for rejecting the weight of the evidence.


