The Ontario Court of Appeal ruled 4-1 that Ontario can lawfully let online players in the province take part in peer-to-peer games with players outside Canada, so long as iGaming Ontario continues to conduct and manage the Ontario side of the scheme under section 207(1)(a) of the Criminal Code. The decision removes a major legal constraint on an international pooled-liquidity model for products such as online poker and daily fantasy sports.
The court said the Criminal Code does not require all players to be physically located inside the province. What matters is that Ontario retains operational control over the gaming activity offered to Ontario users, and the court pointed to iGaming Ontario’s role as a provincial agent, its standard form operating agreements with private operators, and the continued application of Ontario’s regulatory framework.
That framework is built around the Alcohol and Gaming Commission Act, 2019, the Gaming Control Act, 1992, and regulations made under them. The Alcohol and Gaming Commission of Ontario regulates gaming actors and activities in the province, while iGaming Ontario, created as a Crown corporation and agent in July 2021, began offering iGaming to the public on 4 April 2022.
Under the existing model described in the record, only people physically located in Ontario and of legal age may access games and betting on iGO Sites. iGO enters operating agreements with private-sector operators, and those agreements are standardized and non-negotiable. iGO decides whether to contract in its sole and absolute discretion, will not enter agreements unless operators are registered by AGCO, approves all games, may set the maximum rake in peer-to-peer games, and has unrestricted access to game activity, player registration and transaction data.
The Attorney General of Ontario’s factum in the reference said the province was asking only whether the proposed model complied with the requirement in section 207(1)(a) that a provincial lottery scheme be conducted and managed in that province. It also said Ontario was not asking the court to rule on the legality of the iGaming scheme already operating in Ontario, which had to be assumed lawful for the purpose of the reference.
The question before the court, referred by Order-in-Council 210/2024 on 2 February 2024, was whether legal online gaming and sports betting would remain lawful if users were permitted to participate with individuals outside Canada as described in the attached schedule. The majority answered yes and said it was unnecessary to address a second reference question.
Van Rensburg J.A. dissented. In dissent, she would have answered no, saying the international liquidity aspects of the model would contravene the Criminal Code’s gaming prohibitions and that the exemption in section 207(1)(a) would not apply.
The ruling did not itself launch cross-border pooling. It said Ontario may proceed if it chooses, and a leave application to the Supreme Court of Canada could still affect the timing of any implementation.
