May 14, 2024
Yesterday, the Ontario Superior court issued its judgment on the case brought by Mohawk Council of Kahnawake vs. iGaming Ontario. In essence, the challenge sought to determine that the iGaming Ontario model was not truly a "conduct and manage" model as outlined within Canadian law, but was actually an arms-length licensing scheme of private operators. The 26-page judgment sought to clear up the definition of "conduct and manage", through an examination of relevant case law.
In the end Judge Lisa Brownstone concluded that the province has retained key decision-making power over the igaming scheme and rejected Kahnawake's argument that the igaming operators are backdoor private contractors.
The Judge found that within the provincial igaming scheme, the operators are not “their own masters”. Operating brands are not able to decide which games are eligible to offer. They are restricted to using their data only in connection with the use of their website or with iGO’s pre-approval. They are limited in their ability to subcontract (not all gaming suppliers are licensed to operate withing iGO). They are not free to determine their own advertising methods or materials. They must adhere to requirements related to responsible gambling, good governance, game integrity, and player awareness.
We agree with all of these points, and they make up the most important aspects under consideration. However, the Judge also stated that (operators) may not freely manage issues of customer care or dispute resolution. We would disagree with this point vehemently. In our dealings with various iGO operators as a customer within the scheme for the purposes of review, iGaming Ontario has refused to intervene on behalf of the customer, leaving the operators completely free to self-resolve issues and disputes with customers.
Nebulous terms and conditions by the operator can be cited toward poor or unfair treatment of the customer, and iGO will not step in. iGaming Ontario very much acts at arms length in this respect, providing essentially no proper dispute resolution. We are not sure that the Judge tested this aspect of iGaming Ontario operators for their decision, but rather ruled on the supposed written governance for how iGaming Ontario intends to operate in this respect.
Alberta was surely the province that was most closely watching this, given their public position in pursuing a solution similar to iGaming Ontario in their own province, even before the judgment came down. This judgment surely gives encouragement for them to move ahead with conviction to develop their own market of legal Alberta betting sites and online casinos, as they should now have confidence that they could successfully defend similar challenges, should any come forth.
We expect no movement any time soon from more stubborn governments in BC, Quebec and elsewhere. However, this judgment will give decision makers in other provinces reason for pause. Anyone that feared that the Ontario model would not stand up to legal challenges should now be more relaxed about that. The door is now nicely ajar to get started down the trail that Ontario has blazed.
Every other province can now be freely asked, without impediment: Would you like significant incremental tax revenue while helping to better protect a good deal of your more vulnerable citizens?
Sadly, other than Alberta, we've yet to see any indication that any other provinces wish to answer that question in the affirmative. Hopefully, this judgment provides the push required to overcome their own inertia in this respect, toward more widespread igaming regulation across Canada.
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