Friday, October 28, 2011


A group of friends in the Elks lounge in the town of Okotoks, Alberta, bought lottery tickets together, 6/49 and Super 7. They did so for years. They didn’t buy every time. They waited until the first prize reached $10 million. A few of them bought tickets fairly consistently. Among this group, it was common for one or another to buy tickets for those who weren’t at the lounge when the lottery ticket money was being collected. If someone bought a ticket for another, he or she would be repaid. Although there was a group who bought tickets fairly consistently, others could join in. One of them collected the money to buy the tickets in an envelope, marking down the names of those who bought tickets (including those for whom tickets were bought) on the envelope.

The patrons of the Elks lounge bought tickets together since the 1990s. For years, they did so, apparently, without dispute. Then again, like most lottery participants, for years they had never won much.

On November 23, 2007, there were two jackpots of more than $10 million coming up, one a Super 7, and the other a 6/49. Two of the frequent participants, Mr. and Mrs. Clancy were not at the Elks lounge. Mr. Christensen bought tickets for Mr. and Mrs. Clancy. He had bought for other friends as well, and didn’t have enough cash to buy tickets for both lotteries for Mr. and Mrs. Clancy. He chose to buy tickets for the 6/49 for Mr. and Mrs. Clancy, and he later collected the money for them.

The Super 7 ticket one the jackpot: 20 million dollars.

Mr. Johnson, who contributed funds to purchase the winning ticket, agreed to pay Mr. and Mrs. Clancy a part of his winnings from the Super 7 jackpot. The others did not.

Mr. and Mrs. Clancy sued. They alleged that there was an agreement among the regular participants to ensure that each of them was always in the draw. The also asked the Alberta Court of Queens Bench to find that those who participated in the Super 7 draw held a portion of the jackpot in trust for Mr. and Mrs. Clancy.

Madam Justice Bensler in Clancy v. Gough, 2011 ABQB 439, found that Mr. and Mrs. Clancy sincerely believed that their friends would ensure that they would be in the draw every time the group participated. But she also found that there was no binding legal obligation to do so among the group of regular participants. The participants did not either say that they agreed to be legally bound to make sure everyone participated, nor did their conduct show that they intended to be legally bound. They did not in fact make sure that each of them was in each draw in which the group participated.

Nor did the participants hold a portion of a jackpot in trust for Mr. and Mrs. Clancy. A trust requires three certainties: the certainty of the subject matter or property held in the trust; certainty of the objects or beneficiaries of the trust; and certainty of the intention to create a trust. Mr. and Mrs. Clancy argued that the subject matter was the lottery tickets, and the object was the sharing of the benefit of the benefits from the lottery tickets among the group.

Madam Justice Bensler found that there was no certainty of intention to create a trust. There was no agreement to create a trust.

Nor could the Court find that there was a trust based on the funds contributed by Mr. Christensen on behalf of Mr. and Mrs. Clancy, funds which they repaid. The funds provided by Mr. Christensen for the purchase of lottery tickets were used to buy lottery tickets in the 6/49 rather than the Super 7 lottery.

Accordingly, Mr. and Mrs. Clancy were not entitled to a share of the jackpot from the Super 7 lottery.

1 comment:

Nathan said...

Thanks for the post, Stan. Interesting read and reminder of the importance of intention! Raw deal for the Clancys!