What protections does the Human Rights Code give with regard to discrimination based on handicap? Does a gambling addiction count as a “handicap”?

According to the Human Rights Code, every person has the right to equal treatment with respect to employment despite having a handicap.

While gambling addiction is not specifically defined under “handicap,” courts have taken an approach analogous to that of alcohol addiction and have accordingly accepted problem gambling as a bona-fide handicap.

However, recent cases have shown that a “complete loss of control "must be shown in order for a gambling problem to be serious enough to constitute a handicap.

Example: An employee had successfully held a job in the advertising department of a newspaper company for several years. He later developed a gambling problem. To support his habit, he took $14,000 from the company. He was later dismissed. The court held that although the employee did have a gambling addiction, there was not enough evidence to show that he experienced a complete loss of control to a degree that would excuse his otherwise wilful conduct.

How serious does the addiction have to be in order for an employer to be justified in firing an employee with a gambling problem?

It is not so much the severity of the addiction that is important, but more how the addiction affects and impairs job performance. If the employee is so negatively impaired by the gambling problem that essential duties cannot be performed, the employer may be fully justified in dismissing the employee. Standards that have been applied to justify such a dismissal include “serious misconduct,” “habitual neglect of duty,” “incompetence,” “conduct incompatible with duties or prejudicial to the employer’s business” and “disregarding the essential conditions of the contract of service.”

Example: A woman works as a receptionist at an office downtown. Virtually all her time outside of her employment is spent at the local casino. As a result, her family life is deteriorating and her mental health is diminishing. However, she still performs her duties as a receptionist as well as she’s ever done, she’s always on time and never leaves early. Even if her employers are aware of her gambling addiction, there is no cause for them to dismiss her.

Do employers have any obligation to help any employees with gambling problems seek treatment?

An employer of anyone with a handicap has an obligation to accommodate the handicapped individual as long as it doesn’t constitute an “undue hardship” on the part of the employer. For handicaps such as mental disorders, including addictions, the most relevant accommodation would probably be seeking treatment for the employee.

Taxation

Are there any circumstances in which gambling winnings would have to be declared as income when filing a tax return?

Usually, “income” derived from gambling is considered a windfall from entertainment. Thus, like most windfalls, such as lottery winnings, gambling winnings are for the most part not taxable.

However, if it can be shown that the individual in question is a professional gambler, then that person is obligated to pay tax on his or her winnings. Evidence must be shown that the taxpayer depends upon gambling to earn his or her livelihood, and that the element of chance must be minimized. There must be a reasonable expectation of profit.

Example: A taxpayer declared no income for a particular year when he claimed that he was living off winnings from playing pool. Nonetheless, the court still found him liable to pay taxes on his winnings. Apparently, he had carefully managed the risks, was a skilled player, and played Monday to Friday each week. His opponents were usually intoxicated. This gambling was his primary source of income and he won most of the time.

Are gambling losses deductible?

Consistent with the treatment of gambling winnings, gambling losses will only be deductible if they offset the winnings. Thus, it must first be ascertained that the taxpayer is a professional gambler; second, that there are winnings to offset; third, that the amount of winnings exceeds the amount of losses.

Does a counsellor have any legal duty to disclose information obtained out of a confidential relationship with one of his or her clients? Is there a legal duty not to disclose (i.e., maintain confidentiality)?

Legally, there is little protection given to clients who volunteer confidential information to counsellors. As far as the counsellor’s obligation to disclose information, he or she will have a duty only as far as the information is illegal. Otherwise, it is up to the counsellor to decide whether or not to breach a client’s confidence.

However, in some cases, statements elicited from confidential relationships have been refused as evidence in court. When faced with this dilemma, courts have weighed various factors, including the importance of the evidence, nature of the relationship, and how important it would be to the general public to maintain a strict level of confidence within that relationship.

Example: Courts have almost always rejected evidence from informers if the evidence was such that the identity of the informer would almost certainly be ascertained by giving the evidence. On the other hand, there is still much uncertainty in this area, as even a priest/confessor relationship has been held not to constitute an important enough relationship to exclude statements elicited from it.

Are there any circumstances in which a gambling establishment might be held liable in court for damages caused to one of their patrons or the family of the gambler? If so, what are the circumstances? It is not likely that a court would allow damage awards to patrons of a gambling establishment or their families. It simply would not be reasonable for a gambling establishment to be imposed a duty to assess any conceivable harm that may be done to patrons, such as gambling away money necessary for family support. Courts would probably be of the opinion that casino employees are neither social workers, psychologists nor mind readers.

On the other hand, it has been suggested in some of the cases that a severely intoxicated patron of a gambling establishment may be entitled to have some of his or her debt disregarded if there is evidence that the establishment was unfairly taking advantage of the patron’s inebriated state. However, cases have also shown that it would a rare and unique situation if a gambling plaintiff was successful with this argument.

Example: A casino extended credit to a patron in the sum of $55,000. The patron had repaid $19,000 of that amount. As for the remainder, the patron submitted the defence that he ought not to have been extended credit nor been permitted to gamble. The court felt that there was not enough evidence to constitute an issue for trial.  

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