Navigating Canada's iGaming Landscape: Insights by Donald Bourgeois of Fogler, Rubinoff LLP
Donald Bourgeois, Counsel at Fogler, Rubinoff LLP explores how Ontario's pioneering "conduct and manage" iGaming model has sparked a national trend
Discover Canada's evolving iGaming landscape with Donald Bourgeois from Fogler, Rubinoff LLP, exclusively for Gambling.Re. Learn about Ontario's pioneering approach, its nationwide influence, and the legal challenges shaping the business of online gambling in Canada.
The iGaming sector has continued to evolve in Canada, primarily in Ontario but also with interest in a competitive, regulated market expanding outside the province of Ontario. Ontario’s launch of a regulated market under Canada’s unique “conduct and manage” model in April 2022 has exceeded expectations. Channelization from the “grey market” to the regulated market is over 85% with the International Betting Integrity Association estimating it to be at 92% for sports wagering.
The success of the Ontario model – in terms of channelization to a regulated market to protect players and to raise revenues for the government – has attracted other provincial governments. The Government of Alberta (the fourth largest province in Canada with a population of 4.8 million) allocated $1 million in its 2024/25 budget to explore the implementation of a similar model. Minister Dale Nally of Service Alberta and Red Tape Reduction also attended the ICE conference in London in February to gain a better understanding of the iGaming sector.
There are also reports that Canada’s third largest province (British Columbia with over $5.5 million) will explore the Ontario model later this year. Canada’s second largest province (Quebec – 8.9 million) remains, however, outside this tent notwithstanding strong support from Quebeckers for the model. The Government monopoly operator has been resistant to change.
Others have also been against the implementation of the Ontario model. iGaming Ontario, the Government of Ontario’s corporation that “conducts and manages” the lottery schemes on iGaming operators’ sites, was in Court defending the model. The lawfulness of iGaming Ontario’s model under Canadian criminal law was raised by the Mohawk Council of Kahnawà:ke. Its challenge was heard in February 2024. The Court reserved judgment and is expected to render a decision later this year.
The Attorney General of Ontario, in another case, asked the Ontario Court of Appeal to review the “liquidity” issue under Canada’s criminal law. An interpretation of the Criminal Code is that a provincial “conductor and manager”, such as iGaming Ontario, may only permit individuals physically in the province to participate in a lottery scheme or game, such as poker or fantasy sports. The Attorney General filed a reference to the Court of Appeal asking if online gaming and sports wagering remained lawful if Ontarians were permitted to participate in games and betting involving individuals outside of Canada. A “reference” is a legal proceeding that allows a provincial or territorial Attorney General or the federal Attorney General to obtain the opinion of the Court.
The Ontario Court of Appeal, on March 1, 2024, issued an Order of the Court to manage the reference. The Court directed the Attorney General to have carriage of the case and set-up a process for other provincial and territorial Attorneys General and the federal Attorney General to participate in the reference. The Court also ordered that other parties who may want to intervene in support of or against the question were to seek leave to intervene by April 8, 2024. The reference is to be heard on November 26, 27 and 28 of this year.