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Canadian Class Actions Monitor

A Failed Gamble

Posted in Class Actions
Alexandre Mireault

The recent decision in Ifergan v. Loto-Quebec, 2017 QCCS 1332, presents a rare occasion where the Superior Court of Québec refused permission to institute a class action lawsuit.  The Court determined that even the low standard of “alleging facts that justify the conclusion sought” was not met in this case, and that an overzealous litigant was ill-suited to represent the proposed class, given his past behaviour before the courts.

The Allegations

The Applicant presented an Application for Authorization to Institute a Class Action, in which he claimed that the Respondent Loto-Quebec had misrepresented the likelihood of winning its Super 7 or the Lotto Max lotteries, due to a particular methodology for generating numbers for consumers opting for automated selection, known as “quick-pick”. He alleged that this constituted a fraudulent commercial practice within the meaning of the Consumer Protection Act. The Applicant sought to represent a class defined as, “All persons having purchased from the Respondent or retailers a quick-pick ticket for either the Super 7 or Lotto Max lotteries.”

The Applicant was no stranger to litigation against Loto-Quebec. In 2008, he had personally instituted a claim against Loto-Quebec with regard to the Super 7; in 2009, the Super 7 was replaced by Lotto Max. The Applicant relied on the facts he had gathered during his initial claim in order to present his claim against both lotteries.

The Applicant relied on Loto-Quebec’s expert testimony from the 2008 claim to allege that, for the purposes of a lottery draw, a central computer would create randomized selections of seven numbers, which would then be sold sequentially at various sales points. The selections would be randomized again only after three or four draws. Applicant alleged that the failure to randomize selections after each draw and ensure that all possible seven-digit combinations were available distorted the likelihood of winning, constituting a fraudulent commercial practice within the meaning of the Consumer Protection Act.

Loto-Quebec also relied on its expert from the 2008 claim, who provided testimony to qualify the statements previously made. He stated that his past testimony treated a different set of circumstances, and he affirmed that all possible seven-digit combinations were available to all customers, and that all had an equal chance of winning the jackpot.

Facts Justifying Conclusions Sought

The Court rejected the proposed action with regard to Lotto Max, as the facts presented in the Application related only to the Super 7, and no allegation was made to the effect that both lotteries employed an identical selection method.

The Court sided with the Respondent’s version of the facts regarding the customer’s chances of winning, concluding that the evidence presented did not allow for an inference that the customer was deprived of a fair chance of winning, or that the Respondent had contravened the rules of play advertised in relation to its lotteries. As a result, the Court rejected the proposed action on the basis that the facts alleged in the Application did not justify the conclusions sought.

Action Out of Time

The Respondent alleged that the Application was barred by the limitation period because the Applicant learned about the alleged faults in 2012. With regard to Lotto Max, the Court concluded that action was not out of time given the absence of allegation of fault by the Respondent in his earlier claim. With regard to the Super 7, the Court concluded that the action was out of time since the Applicant knew about the alleged fault. Although the Applicant argued that he was unaware that the facts of which he had knowledge constituted a fault, the Court sided with the Respondent, reaffirming that ignorance of a right of action does not suspend the running of time for the purpose of a limitation period.

Unqualified Representative

The Court also determined that the Applicant was not qualified to represent the proposed class. The Court found that the Applicant’s emotional investment in the matter affected his ability to ensure representation of the defined class.

In 2008, following the rejection of his previous claim against the Respondent, the Applicant had sought leave to appeal; when this was denied, he sought permission to appeal to the Supreme Court of Canada. When it was denied, the Applicant submitted an application for reconsideration of the order refusing leave to appeal. His language in that application was poetic, to put things mildly. When his final application was denied by the Supreme Court, the Applicant drafted an open letter to the Superior Court, in which he further demonstrated an attitude hostile to the courts.

In this context, the Court concluded that given the Applicant’s demeanour and past representations before various courts there was serious doubt as to his ability to respect his duties to the members of the proposed class. Furthermore, the Court called into question the Applicant’s ability to act with the objectivity and perspective necessary to represent the class in its relations and negotiation with Respondent. The Court finally concluded that the fact the limitation period had expired on the Applicant’s cause of action made him unqualified to represent the interests of a class.