March 4, 2014

Kevin Gourlay

There seem to be more and more claims arising from disputed lottery winnings.  The classic is Justice Quinn’s decision in Miller v. Carley, 2009 CanLII 39065 (Ont. S.C.), with the great opening lines:

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.

In Prokop v. Dushop, 2014 BCSC 341, the facts are not quite as salacious. The defendant cashed in a $3.69M BC lottery ticket in July, 2008. The plaintiff had been in a long-term common-law relationship with the plaintiff’s mother. He alleged that the plaintiff had essentially stolen the ticket from him. After years of litigation, the claim proceeded to a two-week trial at the end of January, 2014.

Reasons for judgment were released March 3rd and dealt with an application by the plaintiff to amend his pleadings at the close of trial.  The amendments sought were not merely “tidying up” of the pleadings.  Rather, the plaintiff sought wholesale amendments to allege that the defendant’s mother conspired with the defendant to deprive the plaintiff of his winnings.

Justice Crawford dismissed the application, holding that the defendant’s mother ought to have been named as a defendant.  The amendments sought would indirectly do so at the close of trial; it was too late to do so and would be unfair to the defendant.  The judge noted that the “plaintiff has charted his course in his claim, and the case must be decided on that basis.”

While it certainly remains possible that the plaintiff could succeed in his claim, it is a good reminder of the importance of pleadings and to re-visit the pleadings prior to trial to ensure they still adequately frame the plaintiff’s case.



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