Superior Court Dismisses MCK’s Legal Challenge Of Ontario’s Igaming Scheme

Greg Warren
Written by: Greg Warren

The Ontario Superior Court has ruled in favour of iGaming Ontario (iGO) and the Attorney General of Ontario in its legal dispute with the Mohawk Council of Kahnawa:ke.

Superior Court Justice Lisa Brownstone delivered the verdict Monday, finding that iGO is, in fact, conducting and managing igaming within Ontario, as it pertains to various sections of the Criminal Code of Canada.

After two days of hearings in February and a thorough legislative review, Justice Brownstone outlined her reasons for judgment in a 26-page document that answered questions as it pertains to the proper interpretation of “conduct and manage” as outlined in Section 207 (1) of the Criminal Code.

From the ruling:

In implementing its lottery scheme in accordance with s. 207(1)(a), the province is permitted to engage private entities in an operational capacity. The province must not, however, delegate to such entities the conduct and management of the scheme. In order to be conducting and managing a lottery scheme itself, the province must exert a sufficient level of control to maintain its position as the “operating mind” of the lottery. It must do so in a manner that protects public safety and fosters responsible gaming. It must do more than distantly oversee or regulate the scheme; the province must exert direction and control over it. It need not be involved in granular operations, but it needs to be far more than a “hands-off” licensor.

I do not accept the Council’s argument that many of these controls are illusory or serve a different purpose (for example in the case of the data requirements, compliance with privacy legislation). The controls are detailed and extensive. They show that iGO retains ultimate decision-making authority on a breadth of issues central to the igaming scheme. It retains a high degree of control over the operators in a wide array of the igaming scheme’s aspects. These are markers of who is in control of the igaming scheme, and who is its operating mind. That operating mind is iGO.

[Operators] are not able to decide which games are eligible. They are restricted to using their data only in connection with the use of their website or with iGO’s preapproval. They are limited in their ability to subcontract. They are not free to determine their own advertising methods or materials. They may not freely manage issues of customer care or dispute resolution. They must adhere to requirements related to responsible gambling, good governance, game integrity, and player awareness.