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With the continued increase in wagers and gaming revenue in Ontario, judicial validation of Ontario’s “conduct and manage” Internet gaming (iGaming) model and progress towards a centralized self-exclusion program as a key tool to promote responsible gaming, iGaming in Ontario has continued to grow and mature in 2024. As we move into 2025, we can expect further maturation in the regulatory environment. This will include a determination of whether players can participate in peer-to-peer games with players located outside of Canada, an increased focus on advertising and the expansion of regulated markets in other provinces of Canada, notably Alberta.
The Ontario Court of Appeal will render a decision in the reference brought by the Ontario Ministry of the Attorney General to determine whether “open liquidity,” which would permit players from Ontario to play against those outside of Canada, is legal in gaming offerings by registered operators (the Liquidity Reference). The Liquidity Reference was heard in late November 2024 and a decision is anticipated in the new year. If the Court of Appeal makes a favourable finding, we will likely see a further expansion in online gaming offerings for Ontario players, particularly in relation to peer-to-peer games such as poker and daily fantasy sports (DFS). In that case, increased revenues will flow to both government and operators in the years to come.
The success of the Ontario regulated market has not gone unnoticed by the governments in the rest of Canada. The government of Alberta has announced its plans to enact a statutory framework to support a regulated Alberta online gaming market. It is anticipated that the regulatory model will be substantially similar to Ontario’s approach. The onboarding process for operators seeking to benefit from the new regulated market is likely to follow promptly after the framework is enacted. We expect other provincial governments to follow suit.
The reasoning in the Mohawk case will provide comfort to and help guide other Canadian provinces that seek to launch their own private-operator online gaming model within the ‘conduct and manage’ exception under the Code.
Meanwhile, regulators and the public continue to focus on advertising and on responsible gaming. Market participants will need to be alert for regulatory changes and be prepared to respond. Issues to watch for going forward include the approach of regulators to combatting the continued activities of unregulated (black) market participants in regulated markets, including potential court challenges or measures to address the role of broadcasters and other media in transmitting advertising from black market iGaming operators.
The Ontario market matures
Based on iGaming Ontario’s (iGO) quarterly market performance report, total wagers in Ontario have increased to around $18.7 billion as of September 30, 2024, an increase of approximately 32% relative to the same quarter in 2023. The total gaming revenue has also increased to around $738 million, a year-over-year increase of approximately 35%. The Ontario market continues to be dominated by casino games, with these games capturing around 86% of total wagers and 75% of gross gaming revenue in Q2.
Ontario model receives judicial validation
A key development in 2024 for Ontario was the decision rendered by the Ontario Superior Court of Justice in Mohawk Council of Kahnawà:ke v. iGaming Ontario. This challenge by the Mohawk Council (the Council) attacked the fundamental premise of the Ontario regulated market — namely, that a province can “conduct and manage” online gaming in the province by means of a subsidiary (in this case, iGO) that enters into contractual agency arrangements with private operators. Those operators are also required to register with the Alcohol and Gaming Commission of Ontario (AGCO), Ontario’s regulator, and are governed by the AGCO’s regulatory standards.
The Mohawk challenge arose as a result of the historic gaming regulatory framework in Canada. Most gaming activity is prohibited under Canada’s Criminal Code (the Code), unless an exception to the criminal prohibitions is available. One such exception permits the government of a province, either alone or in conjunction with another province, to “conduct and manage” lottery schemes in that province in accordance with any law enacted by that province.
The Council argued that Ontario could not shelter under the exception in the Code because it had improperly delegated the “conduct and management” of online gaming to private operators through operating agreements. In other words, the Council argued that the province itself was no longer “conducting and managing”.
The Court found in iGO’s favour, upholding the validity of Ontario’s iGaming model. The Court confirmed that the province was conducting and managing the iGaming scheme for the purposes of the Code by virtue of the oversight from AGCO over the operators and the terms of the operating agreements between iGO and the operators, as iGO’s agents. The Council did not appeal the decision.
The reasoning in this case will provide comfort to and help guide other Canadian provinces that seek to launch their own private-operator online gaming model within the exception under the Code.
Responsible gaming initiatives underway
The success of the Ontario regulated market is resulting in heightened focus on responsible gaming initiatives. One noteworthy development is Ontario’s progress towards the implementation of a centralized self-exclusion system for iGaming, which claims to be the first of its kind in North America. iGO has partnered with industry experts to implement this initiative. The new system is expected to allow players to self-exclude from all regulated iGaming sites in Ontario at once, including those operated by the Ontario Lottery and Gaming Corporation.
Self-exclusion is an important tool in allowing players to take a break from online gaming and therefore in promoting responsible gaming. Currently, each operator of a regulated iGaming site is required to offer a self-exclusion program but there is no centralized system to integrate the programs offered by all operators.
If Ontario’s centralized self-exclusion system is successfully implemented, it may very well become a model for other provinces to follow or even to participate in.
Legality of open liquidity to be determined in 2025
In the Liquidity Reference, the Ontario government has asked the Ontario Court of Appeal to rule on the legality of so-called “open liquidity.” Specifically, the Court has been asked whether online gaming and sports betting offered in the regulated market to Ontario players would remain lawful under the Code if players in Ontario were permitted to participate in games and betting with players located outside of Canada.
The Ontario regulated market launched based on a “closed liquidity” system. In other words, Ontario players of peer-to-peer games such as poker can only play against other players located in the province. Industry participants have argued that, given the small size of the Ontario market, this closed-liquidity model limits the games that can be offered and reduces the appeal of Ontario games to players who still have access to online gaming through unregulated websites where open liquidity is available.
The Code allows a province to offer gaming in a regulated market either alone or together with another province. Two provinces could, by means of an agreement, permit players from the two provinces to participate together in online games, creating a “shared liquidity.” The potential for other provinces to develop their own iGaming regulated markets also carries with it the potential for shared liquidity between those provinces and Ontario in the future.
The Code is, however, silent with respect to whether open liquidity involving players from outside Canada is legally permissible. The Liquidity Reference will determine whether it is sufficient, for the purposes of the Code, for Ontario to regulate the operator and the Ontario players, while still allowing players from other international jurisdictions to participate, subject to their own jurisdiction’s regulations, if any.
See how Osler’s Gaming Practice Group can help your organization navigate that rapidly evolving industry.
A decision in favour of open liquidity could generate significant revenue from potential wagers for poker, DFS and other games offered by iGaming operators in Ontario. Ontario operators, particularly those that offer peer-to-peer games, will be keeping a close eye on the progress of this case. The Court of Appeal’s ruling is likely to be issued sometime in the first half of 2025.
In addition, Alberta and other provinces may well be guided by the decision in the Liquidity Reference in designing their own regulatory frameworks.
Alberta moves to develop a regulated market
Alberta is almost certain to be the next province to launch its own regulated iGaming framework. Since Alberta announced earlier this year that the province would pursue a regulated open-market model for iGaming similar to that of Ontario, the Canadian gaming community has indicated its support. The government of Alberta is working to develop the underlying regulatory framework, as well as to complete ongoing consultations with relevant stakeholders such as First Nations, prospective operators and prospective gaming-related suppliers.
When the Alberta market launches, Minister Nally has indicated it will closely model that of Ontario. It is likely to require operators to enter into an operating agreement with the government, similar to Ontario. Operators will also likely be regulated by means of registration requirements and regulatory policies and standards. That being said, operators will be keen to see whether and to what extent Alberta will depart from aspects of the Ontario model in the interests of reducing the administrative burden imposed on operators in Alberta and of designing a uniquely “Alberta” solution.
Osler is assisting the Alberta government in developing its regulated market.
What to look for in 2025
The gaming regulatory landscape in Canada is changing rapidly, after decades of relative stagnation. With these changes come new policy challenges for regulators, such as the need to support responsible gaming, address the perceived proliferation of gaming advertising and combat illegal gaming. At the time of writing, Senate Bill S-269, which mandates the creation of a national framework for sports betting advertising, has been passed by the Senate and sent to the House of Commons for consideration.
As more provinces seek to regulate online gaming, the Canadian regulatory framework can only become more complex for operators to navigate. At the same time, this brings welcome clarity to the “rules of the game” in Canada and provides new opportunities for revenue generation. Operators are well advised to closely monitor developments in Ontario, including the Liquidity Reference and the centralized self-exclusion system, and to be proactive in preparing for the launch of the new Alberta regulated market.