The Supreme Court of Canada will hear arguments on Oct. 7 in a long-running Ontario appeal over whether daily fantasy sports and poker can legally include players outside Canada. The case could also matter for Alberta, where a similar regulated model has just begun to take shape.
The appeal, file 42141, comes from the Ontario Court of Appeal and is brought by Atlantic Lottery Corporation, British Columbia Lottery Corporation and Manitoba Liquor and Lotteries Corporation. At issue is a reference tied to Ontario’s proposed online gaming model, including whether participation with people outside Canada would remain lawful under the Criminal Code.
According to the court record, the reference question was referred on Feb. 2, 2024, under Order in Council 210/2024 and section 8 of Ontario’s Courts of Justice Act. It asked whether legal online gaming and sports betting would stay lawful if users were allowed to take part in games and betting involving individuals outside Canada, as described in an attached schedule.
The Ontario Court of Appeal’s majority answered that first question in the affirmative. In the court record, the majority said legal online gaming and sports betting would remain lawful under the Criminal Code under the proposed model, while van Rensburg J.A. dissented and would have answered in the negative.
The legal fight turns on section 207(1)(a) of the Criminal Code, which allows the government of a province to conduct and manage a lottery scheme in that province. The appellants argue that a provincially licensed lottery scheme must be conducted and managed within the province’s geographical boundaries to qualify, pointing to earlier Supreme Court authority they say requires that reading.
Ontario’s regulated iGaming market launched in April 2022 with a closed-liquidity model, under which players could only play against others located in Ontario. Osler’s analysis said the Court of Appeal decision confirmed the legality of Ontario’s proposed pooled-liquidity model, which would let Ontario-regulated market players join peer-to-peer games such as poker or fantasy sports with players outside Canada.
That background has made Alberta relevant to the dispute. Alberta’s competitive online sports betting and internet casino market launched on Monday with 22 sites approved by regulators to go live at the outset, and around 50 sites licensed for the market.
Covers reported that Alberta’s rules are similar to Ontario’s, in that online gambling has to be offered to people physically located in the province. On that basis, a DFS contest or online poker game in Alberta cannot include players from elsewhere in Canada or the United States.
The report added that if the Supreme Court backs Ontario, it could be good for Alberta’s DFS and poker market. It also said there is a possibility Ontario and Alberta could strike a deal to pool their iGaming liquidity so their online poker and DFS games could join players across both provinces.
