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Supreme Court of Canada issues landmark judgment on waiver of tort in electronic gaming class action

Date Closed

July 24, 2020

Lead Office


On July 24, 2020, the Supreme Court of Canada denied the certification of the proposed class action in Atlantic Lottery Corporation Inc., et al. v. Douglas Babstock, et al. The proposed class action was based on the plaintiffs’ claims that electronic gaming machines known as video lottery terminals (VLTs) are dangerous and deceptive. They further argued that Atlantic Lottery Corporation, the licensing body that approves permits to operate VLTs in Newfoundland and Labrador, had breached contracts with the plaintiffs and acted negligently by not adequately warning people who use VLTs about the risks of gambling on them.

The Supreme Court of Canada did not certify the class action on the basis that the plaintiff's claim had no chance of success, and a lengthy trial was not needed to determine that outcome. In reaching this result, the Court ruled that waiver of tort is not an independent cause of action in Canada – finally resolving a long-simmering debate in Canadian law. The decision will have significant implications not only for the gaming industry and gaming regulators, but also for class action defendants more broadly.

The Canadian Gaming Association (CGA) is a national trade association that works to promote the economic value of gaming in Canada. The CGA was an intervener before the Supreme Court.

McCarthy Tetrault represented the CGA with a team led by Brandon Kain that included Gillian P. Kerr, Adam Goldenberg, Brittany Cerqua, and Alana Robert.