Can the Civil Justice System Rise to the Challenge of VLTs?
Chesley F. Crosbie, Q.C.
The social and public health problem presented by Video Lottery Terminal use is more intractable than the social and public health problem of tobacco use in the 1990s. In the case of tobacco, enormous industry propaganda and lobbying created a legislative deadlock over meaningful action, and the civil lawsuit stepped into the void, resulting in a global settlement in the United States in 1997. Nowadays, the cigarette industry no longer argues that their product is safe. It is a generally admitted fact that cigarettes kill half of all consumers when used as intended. About all the industry can say in defence of tobacco use now is that it is a legal product. Much of the credit for the "outing" of big tobacco lies with those enterprising U.S. civil justice lawyers who used the civil justice system to expose the truth about tobacco and make wrongdoers pay.
The legal challenge posed by the social scourge of VLTs is even greater, because it is the government itself which is responsible for establishing VLTs in Newfoundland and Labrador in the early 1990s, and for promoting VLTs and feasting on VLT revenues ever since. Atlantic Lotto Corporation, the government agent for managing and controlling VLTs in the province, is its own regulator, and the government is a shareholder raking in profits in the tens of millions each year, so don't expect that a solution to this scourge is going to come from government. The VLT problem has never been subject to the machinery of democracy in this province. It has never truly been an election issue, has never been subject to a referendum as in New Brunswick, and has never been subject to formal hearings with meaningful public participation.
If there is to be a meaningful legal response to the VLT problem, then it will have to come from the class action lawsuit. According to the Supreme Court of Canada, class action suits are about access to justice and deterrence of wrongdoers. In passing class action legislation, Canadian policymakers have chosen to delegate civil oversight to lawyers and their clients, who are prepared to take on the risk of prosecuting cases they believe will succeed against wrongdoers who cause widespread harm. The function of class actions is to fill a gap in the system of public interest regulation and oversight which can't be filled in any other way.
Today we filed our certification materials to be recognized as a class action. The class action is taken by Keith Piercey on behalf of his daughter Susan's estate, and is for the benefit of the class defined as follows:
"Natural persons and their estates, resident in Newfoundland and Labrador, who, during the Class Period, paid the Defendant to gamble on VLT games, excluding video poker games and keno games, in Newfoundland and Labrador.
The Class Period is the period from six years before the bringing of this action, up to the opt-out date set by the Court in this action.
Excluded from the class are directors, officers and employees of the Defendant."
Our court documents are available elsewhere on this website. We will meet with Justice Dymond in mid January to set a date for the certification hearing.
The problem with a VLT or continuous electronic gambling class action is that no one has ever done it before, at least in the common law world. The recipe for success has not been invented yet. American lawyers have attempted but failed. To the best of my knowledge, no other proposed class action with any realistic possibility of success has been taken in the other Canadian provinces outside Quebec. The old adage comes to mind, "you can tell the pioneers by the arrows in their backs."
But I believe that anyone who looks in an objective and fair-minded manner at the complaint we have filed will conclude that Mr. Piercey has a righteous case. We have filed evidence that VLTs are an inherently dangerous product - see the affidavit of Dr. Harrigan. The question is whether the civil justice system has enough inherent vitality and flexibility to fill the regulatory gap left by a governmental apparatus which is in hopeless conflict of interest.
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