Reference re iGaming Ontario

Reference re iGaming Ontario

By majority (Tulloch C.J.O., Gillese, Hourigan and Dawe JJ.A.), Earth Future (2003 SCC 10) does not control this reference; the RSC test is inapplicable; applying the modern principle of statutory interpretation to s.207(1)(a) the phrase “conduct and manage a lottery scheme in that province” can be read to permit provincially authorized online pooled liquidity with selected foreign participants so long as the province continues to conduct and manage the scheme for players in that province under provincial law and subject to assumptions set out in the reference; accordingly the Proposed Model would remain lawful under s.207(1)(a) (dissenting opinion by van Rensburg J.A. would answer the...

Citation
2025 ONCA 770
Parties
Applicant (referencing Government): Attorney General of Ontario; Intervener (lottery Coalition): Atlantic Lottery Corporation; British Columbia Lottery Corporation; Lotteries and Gaming Saskatchewan; Manitoba Liquor and Lotteries Corporation; Intervener: Mohawk Council of Kahnawà:ke; Intervener: NSUS Group Inc. and NSUS Limited; Intervener: Flutter Entertainment plc; Intervener: Canadian Gaming Association
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
12 November 2025
Procedural Posture
Reference / Court of Appeal Decision (hearing Nov 26 28, 2024; Reasons Released Nov 12, 2025)
Outcome
Reference question 1 answered in the affirmative by majority: Proposed Model would remain lawful under s.207(1)(a) of the Criminal Code; second question unnecessary; one dissent would have answered negatively
Legal Topics
Section 207(1)(a) Criminal Code, Extraterritoriality, Internet Gambling and Pooled Liquidity, Statutory Interpretation, Real and Substantial Connection Test, Precedent: Earth Future
Source Language
English
Criminal Law Administrative Law Constitutional Law Regulatory Law Gaming Law Section 207(1)(a) Criminal Code Extraterritoriality Internet Gambling and Pooled Liquidity +3 more

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Parties

Attorney General of Ontario

Applicant (referencing Government)

Atlantic Lottery Corporation; British Columbia Lottery Corporation; Lotteries and Gaming Saskatchewan; Manitoba Liquor and Lotteries Corporation

Intervener (lottery Coalition)

Mohawk Council of Kahnawà:ke

Intervener

NSUS Group Inc. and NSUS Limited

Intervener

Flutter Entertainment plc

Intervener

Canadian Gaming Association

Intervener

Procedural Posture

Reference / Court of Appeal Decision (hearing Nov 26 28, 2024; Reasons Released Nov 12, 2025)

Legal Issues

  1. 1 Whether Ontario’s Proposed Model permitting players in Ontario to play peer-to-peer with persons outside Canada is lawful under s.207(1)(a) Criminal Code
  2. 2 Whether Earth Future precedent controls interpretation of s.207(1)(a)
  3. 3 Whether the Real and Substantial Connection (RSC) test applies to interpret ‘in that province’

Ratio Decidendi

By majority (Tulloch C.J.O., Gillese, Hourigan and Dawe JJ.A.), Earth Future (2003 SCC 10) does not control this reference; the RSC test is inapplicable; applying the modern principle of statutory interpretation to s.207(1)(a) the phrase “conduct and manage a lottery scheme in that province” can be read to permit provincially authorized online pooled liquidity with selected foreign participants so long as the province continues to conduct and manage the scheme for players in that province under provincial law and subject to assumptions set out in the reference; accordingly the Proposed Model would remain lawful under s.207(1)(a) (dissenting opinion by van Rensburg J.A. would answer the...

Court Disposition

Reference question 1 answered in the affirmative by majority: Proposed Model would remain lawful under s.207(1)(a) of the Criminal Code; second question unnecessary; one dissent would have answered negatively

Orders

  • Reference answered: legal online gaming and sports betting would remain lawful under the Criminal Code if Ontario implements the Proposed Model described in the Schedule to OIC 210/2024, subject to factual and assumption caveats set out in reasons