Many Canadians have vivid dreams of winning the “big one”, namely the jackpot prize in one of the many lottery games run by the provincial lottery corporations. Recognizing that the odds of winning a substantial jackpot are particularly remote, we choose to participate in office lottery pools as a means of benefitting from pooled contributions to purchase a greater number of tickets. In theory, the idea of an office lottery pool is a sound one… until the office wins a major prize and the pool turns out to be less than well-organized.

How office lottery pools are supposed to work

According to the Ontario Lottery and Gaming Corporation (OLGC), “group play” is encouraged as a means to have “more chances to win”. To facilitate this, the OLC publishes online a “Lottery Group Play Form”. The form includes space for the following information for each group participant: names, numbers chosen (including a box to check for Quick Pick, which is a set of randomly generated numbers), signature, phone number, amount contributed to pool and “paid” indication.

The OLC advises that the person who coordinates the office lottery pool, known in OLGC parlance as a “group play captain”, should ensure that certain steps are taken to confirm participation in a particular draw. Ideally, the group play captain would fill out the group play form for each draw and get signatures and money from each participant. Given the relative hassle of all of this coordination for a very remote chance at a jackpot, many captains may use less thorough means of registering participation. Such means may include an e-mail distribution group that contains the names of those who are regular participants. The captain can then e-mail out a copy of that week’s purchased ticket(s) to those who have contributed money by a certain deadline. Group members still need to be consulted on what to do with winnings, if any, including whether winnings get returned pro-rata to group members or re-invested for subsequent draws.

Notwithstanding the recommendations of the OLGC to have a lottery group play form, many group pools are far more informal; this does not necessarily mean they are any less enforceable. Indeed, as noted by Kane J. in the decision of Chamberland v. Provincial [2008] CanLII 67399 (Ont. S.C.),

Presumably among the many office pools that exist, there are varying levels of formality in their operation.  Some such arrangements may be reflected in writing with specific terms, while others have little or nothing recorded in writing and operate on the basis of a brief discussion and verbal agreement made over a water cooler or at a lunch room table, as in this case.

The courts have demonstrated a willingness to interpret and enforce verbal pooling agreements between parties on the basis of contract and trust law.

Inevitably, lottery disputes that end up in court come down to credibility issues based upon non-written “agreements”. Trials invariably need to sort out issues such as:

• Was a particular claimant part of the winning group?
• Did the particular claimant contribute to the group play on a regular basis? If so, did they just miss paying for the one draw?
• If the particular claimant was a regular contributor who missed payment for the one draw that led to the jackpot, was there an explicit or implicit understanding among the group that another group member would “spot” them (i.e., loan them) the contribution for that week?
• What was the behaviour of the individual group members upon being notified of the jackpot win
• Did they act like they were all part of the group?

Not surprisingly, many witnesses are called to verify the ownership of the winning ticket. Given the high value of the stakes involved, there is an incentive to have as many witnesses as possible to either enhance or diminish the credibility of the claimant plaintiff(s).

A memorable example of the often questionable credibility of lottery case witnesses appears in the highly readable Ontario decision in Miller v. Curley 2009 CanLII 39065. In that decision, Mr. Justice Quinn shows his clear frustration with the litigants:

After a busy day conducting illegal drug transactions, the plaintiff, the defendant and a mutual friend stopped at a corner store where the defendant purchased some “scratch” lottery tickets. One of the tickets proved to be a $5-million winner.

The parties dispute ownership of the winning ticket. If the ticket were a child and the parties vying for custody, I would find them both unfit and bring in Family and Children’s Services.

The case is awash in untruths and curiosities. It is a study in good fortune squandered and generosity abused…

During this trial, truth was only an occasional visitor…

Notwithstanding that approximately 95% of civil actions in Ontario end up in some form of settlement, it would appear that a greater proportion of lottery disputes go to trial. The reason is quite simple: the sums being fought over are usually much more than the claimant could ever hope to earn in his or her lifetime.

But why does the mere prospect of a lottery lawsuit captivate the general public so much? Is it because we are entranced by people fighting vigorously over something they did not earn, but merely “won” by pure chance? Is it because we love watching people tell twisted and contrived stories to win a big prize? Undoubtedly, lottery litigation shines a very bright light on the particular lengths to which people will go to share in the jackpot.

About the Author

Jeffrey S. Percival, of Pallett Valo LLP,  practises in the area of management-side employment & labour and commercial litigation, with a particular focus on advising clients on workplace human resources matters as well as product and professional liability issues.

Jeffrey is a director, representing the Central West Region on  the Ontario Bar Association Board of Directors.