Intervenor status in international play question is filed by the CGA

The Canadian Gaming Association (CGA) has recently announced that it has filed for intervenor status, made with regards to a reference question that the government of Ontario had made to the Ontario Court of Appeal. 

This reference question was filed with regards to the international liquidity of legal gaming in the province of Ontario. 

More specifically, the CGA “seeks leave to intervene, file a record, and make submissions from a broad industry perspective, and thereby to assist the court.” 

The CGA is not alone in their application for intervenor status. Alongside them, one can find that the following entities in Canada have also applied for this status: 

• The Province of British Columbia 

• The Canadian Lottery Coalition 

These are composed of the following: 

• British Columbia Lottery Corporation 

• Alberta Liquor and Cannabis 

• The Manitoba Liquor and Lotteries Corporation 

• Loto-Québec 

• Atlantic Lottery Corporation 

• Mohawk Council of Kahnawake 

• FanDuel 

• PokerStars 

• Flutter Entertainment 

• NSUS Group Inc., an entity that is also the owner of GGPoker  

If this intervenor status were to be approved, the CGA would be in possession of the right to 'intervene and file a record’ in the question. 

The question asks the following: 

• Whether it is possible for daily fantasy sports and online poker in Canada to be expanded, all whilst still strictly adhering to the Criminal Code. 

At the beginning of last February, an Order in Council was approved by the government of Ontario.  

In this way, the question that is being considered stipulates if this manner of online gaming could remain lawful in the eyes of the Criminal Code.  

The Order in Council

The Order in question states the following: 

“Legal online gaming and sports betting benefits the public by providing a lawful alternative to the illicit gaming market; by providing measures to mitigate against the harms associated with gaming and betting (including money laundering, fraud, and addiction); by facilitating greater consumer choice; and by generating public revenue.” 

“Players participating in legal online gaming and sports betting must be located in Ontario and are not entitled to participate in games or betting involving players located outside of Ontario. Some individuals in Ontario continue to access internet gaming and betting schemes which are not conducted and managed by iGaming Ontario and which involve players located outside of Ontario.” 

“By permitting players participating in legal online gaming and sports betting to participate in games and betting involving players located outside of Canada, Ontario could channel players away from unlawful gaming and betting schemes operating without any oversight into a lawful alternative that is conducted and managed by the province. Ontario’s conduct and management of the scheme as it operates in this province would ensure that the public interest is secured through greater protections for players and the broader public, as well as the generation of revenue for the public purse.” 

In addition to this, the Order notes the following: 

“While Ontario would like to permit players participating in legal online gaming and sports betting to participate in games and betting involving players outside of Canada, there is uncertainty about whether doing so would be consistent with the requirements of the Criminal Code as they have been interpreted to date. 

“It is in the public interest that the issue of whether an online lottery scheme conducted and managed by a province which permits its users to participate in games and sports betting involving players outside of Canada is lawful under the Criminal Code be settled authoritatively as soon as possible.” 

The outcome of whether this type of online gaming becomes the new normality depends on the decision of the court. 

If this were to pass, then operators of online poker and daily fantasy sports might be required to pool Ontario’s players with those belonging to other international jurisdictions. 

What does an intervenor status entail? 

An intervenor status gives the right to participate to those entities or individuals who are not involved in the legal proceedings. 

Intervenor applications can be approved or denied. This decision is entirely dependent on the court’s discretion. 

In their motion, the CGA elaborated on what their non-profit organization can offer: 

“Specifically, the CGA will offer a frontline perspective on how online gaming works in Ontario: The platforms used and their functionality, the effect on the market from introducing International Play, and other matters that bear on the legal questions before the Court and the outcome of the Reference.” 

In addition to this, the CGA’s motion expresses the following: 

“The CGA would argue that the plain meaning of Section 207(1)(a) does not preclude International Play, and that if Ontario were not permitted to offer International Play, it would frustrate the objectives of the Criminal Code prohibition on gaming, and would frustrate Ontario’s goals of meaningfully regulating the market for gaming.” 

“The CGA can also offer a useful overview of the gaming industry in Ontario. This perspective relates to an issue raised by the Attorney General of Ontario: namely, what the online, networked gaming industry is like today, and therefore how the facts at issue in the case of Reference re Earth Future Lottery, 2002 PESCAD 8, aff’d 2003 SCC 10, have changed since that case was decided more than twenty years ago.” 

On May 1st, 2024, a hearing took place in which the applications of all intervenors, including that of the CGA, were taken into consideration. 

The question itself, however, will not be heard or considered by the Court of Appeal until late November this year. 

More about the CGA 

“The CGA is a not-for-profit corporation and a national trade association that works to advance the evolution of Canada’s gaming industry. The CGA’s mandate is to promote the economic value of gaming in Canada; to use research, innovation, and best practices to help the industry advance; and to create productive dialogue among stakeholders.” 

“The membership and affiliate membership of the CGA includes Canada’s leading gaming companies, their professional advisors, and organizations representing other industry participants and stakeholders.” 

“The CGA engages in law reform activities at the provincial and federal levels. In doing so, it aims to shape public policy and expand access to gaming, by encouraging appropriate regulatory reform and modernization to meet the changing needs of Canada’s gaming industry. The CGA’s advocacy efforts are grounded in ongoing consultations with industry stakeholders to identify issues of common interest.” 

“The CGA is a primary source of information and expertise on gaming in Canada, undertaking significant research activities, providing accurate industry data and assisting in the development of industry-wide programs and approaches for relevant and critical issues. These initiatives advance the CGA’s advocacy priorities by promoting public awareness of the gaming sector and its economic impact on Canada. As well, the CGA’s research is purposed to combat misinformation about gaming among legislators and the general public.”