In a Casino, If the Rules Shown Upon the Game Table Differ From the Official Rules, Which Rules Apply?

When a Casino Publishes Rules Upon the Gaming Table and Those Rules Differ From the Official Rules That Are Unavailable to the Player At the Time of Placing a Bet, It is the Rules Upon the Gaming Table That Should Apply.

A Helpful Guide For How to Determine and Understand When a Gaming Casino May Be In Breach of Contract

Contract Document Gaming casinos, similar to other businesses, that are providing a product or service, enter into contracts that include the agreement for how a game is played as well as the structure for payout on winning bets.  In most casino environments, the game rules are provided upon the table itself; and accordingly, a player may be without full details, and therefore without a full understanding, of the rules intended by the casino.

Actual Case Details

Interestingly, a lawsuit has occurred where a casino failed to thoroughly display game rules and the casino provided a payout in accordance to the interpretation of the game rules that favoured the casino.  This situation occurred in the case of Dunbar v. Ontario Gaming West GTA Limited Partnership, 2020 CanLII 20498 and involved a misunderstanding involving the payout structure in the game of Pai Gow Poker.  The misunderstanding appeared to arise whereas the payout structure displayed upon the gaming table was ambiguous and capable of more than one interpretation with one interpretation favouring the casino and another interpretation favouring the player.  Accordingly, when a payout dispute arose, the questions for the court to review and decide upon were the contract terms, whether there was an ambiguity in the contract terms, and if so; in whose favour should the ambiguity favour.  In reviewing and answering these questions, the court said:

What were the contract terms?

53.  The tabletop chart contains the relevant terms.  The rules and SOP are not relevant to and form no part of the contract or its interpretation.  They were not incorporated by reference, and were never produced or available to the plaintiffs at any relevant time.

54.  Elements argues that the plaintiffs conceded that they would be paid in accordance with the rules of the game, and the official rules and casino SOP are each clear that in order to get a 1000:1 payout a player needs to have both a Royal Flush PLUS an ace and queen, suited.

55.  The plaintiffs testified that what they each understood when they placed their wagers to be the rules was the chart on the table.

56.  As the plaintiffs had no knowledge of the contents of the official rules and SOP at the time they placed their bets, those documents can not be relevant to terms of their contract with Elements.

57.  The circumstances which are relevant to a party’s understanding of the terms of a contract are the ones existing, and known to that party at the time the contract was formed, not after.

58.  In Sattva Capital Corp. v. Preston Moly Corp., [2014] SCR 633 the Supreme Court of Canada said:

Regarding the first development, the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding” (Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada, 2006 SCC 21, [2006] 1 S.C.R. 744, at para. 27, per LeBel J.; see also Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69, at paras. 64-65, per Cromwell J.). To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. Consideration of the surrounding circumstances recognizes that ascertaining contractual intention can be difficult when looking at words on their own, because words alone do not have an immutable or absolute meaning…

Sattva Capital Corp. v. Preston Moly Corp., [2014] SCR 633, at para 47 (emphasis added)

Is there ambiguity in the contract terms?

59.  Yes, there is.  The tabletop chart, which I have found represents the contract terms, is ambiguous.

60.  Mr. Ziaie submitted that I should impute to the plaintiffs the knowledge contained on the Wizard of Odds website (Exhibit 3, Tab 4), or some equivalent understanding concerning hand rankings and probabilities, and conclude that the only sensible interpretation of the tabletop chart would be that hands pay out in accordance with their rank and rarity.

61.  A natural royal flush in Pai-Gow, per Exhibit 3 Tab 4, has a probability of occurrence of .000169.  Elements says that that hand has no business being between the seven card natural flush (probability 0) and the seven card straight flush with joker, which has a probability of .000001.

62.  I can not, in the absence of some evidence suggesting it, find that the average person would carry that sort of information around in her head.  I do not impute that detailed understanding to the plaintiffs and find that it did not form part of the circumstances known to them at the time of the contract.  I accept that a reasonable player understands, in general terms, that the odds increase with the rarity of the hand but there is no basis on which I could find that either of the plaintiffs was aware of the precise statistics.

63.  In its ordinary usage, “with” has myriad meanings according to the Merriam-Webster online dictionary.  Among those are the meanings ascribed to it in this context by each party.

4 a —  used as a function word to indicate combination, accompaniment, presence, or addition

//heat milk with honey

//went there with her

//his money, with his wife's, comes to a million

b : inclusive of costs

//$5 with the tax

https://www.merriam-webster.com/dictionary/with

64.  The meanings are included in the same entry on the Merriam-Webster website, and there is no basis on which I could find that one is more common than the other.  I find them equally plausible and likely uses of the word “with”.

65.  It is noteworthy that the dealer, and at least one of her superiors (and possibly more) were either uncertain whether Mr. Woolford had the hand winning 1000:1 or agreed with him that he did.  The argument that there was no ambiguity, on the facts of this case, must fail.

If there is ambiguity in the contract terms, how should it be resolved?

66.  The ambiguity in the wording on the tabletop chart should be resolved in favour of the plaintiffs.

67.  Ms. Struthers points out that the tabletop chart has one other use of the word “with”; referring to the hand “7 Card Straight Flush with Joker”.  In this usage, she submits, clearly “with” means inclusive of.  Since only seven cards are in play, “with” can not mean “in addition to”.  I agree.  The payout for the seven card Straight Flush with Joker is stated to be 750:1, whereas the payout for a seven card Straight Flush without joker is 2500:1.  It would be reasonable to think that the absence of a Joker in a winning hand would increase the payout.

68.  In CNR v. Royal and Sunalliance the Supreme Court said:

73  In interpreting insurance contracts, like all contracts, effect must be given to the intention of the parties to be gathered from the words they have used. See Consolidated-Bathurst Export Ltd. v. Mutual Boiler and Machinery Insurance Co., 1979 CanLII 10 (SCC), [1980] 1 S.C.R. 888, at p. 899, per Estey J., citing Pense v. Northern Life Insurance Co. (1907), 15 O.L.R. 131 (C.A.), at p. 137, aff'd (1908), 1908 CanLII 11 (SCC), 42 S.C.R. 246. In Consolidated-Bathurst, Estey J. referred to this as step one in the interpretation of an insurance contract.

74  Step two is the application, where ambiguity is found, of the contra proferentem doctrine. However, contra proferentem is only to be applied when other rules of construction fail to enable a court to ascertain the meaning of the words in question. See Consolidated-Bathurst, at pp. 900-901, citing Stevenson v. Reliance Petroleum Ltd., 1956 CanLII 27 (SCC), [1956] S.C.R. 936, at p. 953.

75  Moreover, contra proferentem, when it is applicable, is applied only to remove doubt, not to create doubt or magnify an ambiguity when the circumstances raise no real difficulty. See Consolidated-Bathurst, at p. 889, citing Cornish v. Accident Insurance Co. (1889), 23 Q.B.D. 453 (C.A.), at p. 456. The same is true of other rules of construction: they do not apply to create ambiguity where none exists.

Canadian National Railway Co. v. Royal and Sun Alliance Insurance Co. of Canada, 2008 SCC 66 (CanLII), [2008] 3 S.C.R. 453 at para 73

69.  The understanding of the parties to this gambling contract are limited to what the tabletop chart indicated.  The plaintiffs have asserted that they have one understanding, and the defendant another.  Both involve common uses of the word “with”.  I find that there is genuine ambiguity in the interpretation of the conditions attracting a 1000:1 payout.

70.  Ms. Struthers asks me to apply the doctrine of contra proferentem to resolve the ambiguity in favour of the plaintiffs.  The Supreme Court has said clearly that this doctrine must be used cautiously, and in limited circumstances:

Step two is the application, when ambiguity is found, of the contra proferentem doctrine. This doctrine finds much expression in our law, and one example which may be referred to is found in Cheshire and Fifoot's Law of Contract (9th ed.), at pp. 152-3:

If there is any doubt as to the meaning and scope of the excluding or limiting term, the ambiguity will be resolved against the party who has inserted it and who is now relying on it. As he seeks to protect himself against liability to which he would otherwise be subject, it is for him to prove that his words clearly and aptly describe the contingency that has in fact arisen.

The rule expressed in the maxim, verba fortius accipiuntur contra proferentem, was pressed upon us in argument, but resort is to be had to this rule only when all other rules of construction fail to enable the Court of construction to ascertain the meaning of a document.

Lindley L.J. put it this way:

In a case on the line, in a case of real doubt, the policy ought to be construed most strongly against the insurers; they frame the policy and insert the exceptions. But this principle ought only to be applied for the purpose of removing a doubt, not for the purpose of creating a doubt, or magnifying an ambiguity, when the circum­stances of the case raise no real difficulty.

Consolidated-Bathurst v. Mutual Boiler 1979 CanLII 10 (SCC), [1980] 1 SCR 888 at p. 900

71.  The ambiguity here is real, and I construe the contract contra proferentem, against the defendant who was solely (as between the parties to the action) responsible for the wording of the chart.

72.  I find that Mr. Woolford’s hand met the conditions for a payout of 1000:1, and that both he and Mr. Dunbar are entitled to payment on that basis.

73.  I award the plaintiff Mr. Woolford the sum of $9,450, bring the difference between the $10,750 he was entitled to and the $1,300 he received from Elements.

74.  I award Mr. Dunbar the sum of $700, being the difference between the $750 he was entitled to and the $50 he received from Elements.

Accordingly, as shown in the Dunbar case, where the rules or payout structure shown upon the gaming table differ from the official game rules, and where the official game rules were unavailable to the player at the time of placing a bet, the ambiguity between the gaming table rules and the official rules is resolved in favour of the player in accordance to the legal principle known as contra proferentem.

Summary Comment

When a casino fails to provide the full official rules to a player in advance of placing a bet, and the official rules differ from the rules published upon the gaming table that is visible and available to the player at the time of placing a bet, per the contra proferentem principle, the rules available to the player via the gaming table are the rules that should apply.


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