An appellate court in Ontario, Canada's most populous province, has concluded three days of hearings on whether residents of the province should be able to compete with players in other licensed jurisdictions outside Canada without being considered in violation of provincial or Canadian federal law.
The player pooling issue has been unresolved for more than two years, ever since the iGaming Ontario regulatory regime went into effect and operators were forced to be licensed in order to serve the province's online gamblers.
But there was a gap in the language. Ontario's new framework fully allowed for the province's players to compete with and against players in other regulated provinces, though, to date, Ontario remains the only Canadian province to fully regulate online gambling. As for similarly regulated players in other countries, there was no declaration, resulting in stakeholders arguing for legal clarity.
Arguments heard before panel
The three days of hearings before a five-judge panel from the Ontario Court of Appeal found the potential stakeholders lined up as expected. Arguing for Ontario's right to allow the province's players to compete with players in other well-regulated countries was iGaming Ontario (iGO) itself, which is soon to be spun into an independent entity. iGO is the charter licensee of AGCO (Alcohol and Gaming Commission of Ontario), the Ontarian government's official regulatory for online gambling and many other regulatory interests.
iGO's belief that it should be allowed to pool its online gamblers with other regulated international jurisdictions was argued for by Ontario's Office of the Attorney General. Also arguing for player pooling to be formally declared legal were representatives of the Canadian Gaming Association, which represents several dozen operators who offer iGaming-related services in Canada. Several DFS and online poker providers also argued before the appellate court. Those companies are currently limited to offering firewalled, Ontario-only services.
Lotteries sent cease-and-desist notices
On the other side, arguing that international player pooling is illegal, were counsel representing the Canadian Lottery Coalition (CLC) and the Mohawk Council of Kahnawà:ke (MCK). The CLC has repeatedly argued that Ontario's international player-pooling plans are a subterfuge for accepting online gambling traffic from other Canadian provinces, and in 2023 it went as far as sending cease-and-desist notices to several Ontario-licensed operators and provincial officials.
The MCK's general stance is that all of Ontario's regulatory framework is illegal and that the player pooling, if formally allowed, would be an expansion of those illegal services. The MCK previously filed suit (and lost) over the establishment of the iGO regulatory regime, and it is currently arguing that the player-pooling proposal is illegal because it would not take place wholly inside Ontario.
The MCK itself is a controversial entity, operating major online services from the Kahnawà:ke Reserve south of Montreal in Quebec. Through the Mohawk Council of Kahnawà:ke and its Mohawk Internet Technologies entity, the reserve offers iGaming services to a wide variety of operators, traditionally including some grey-market operators. The Mohawk nation has traditionally argued its right to offer these services under tribal sovereignty and has been at arm's length with Quebec and Canada's national authorities on the topic for over two decades.
No immediate ruling
Despite the hearings being concluded, the five-judge appellate panel has reserved its decision, likely until some point in 2025. The panel, headed by Chief Justice Michael Tulloch, issued a statement that declared, “It may be some time before a decision is available."
For the time being, that means the status quo remains intact. Online poker in Ontario is limited to a handful of firewalled sites from some of the industry's largest operators. The DFS side is more dire, and the upcoming ruling is even more impactful, since most DFS providers withdrew their services from Ontario in 2022 when the new regulatory rules went into effect.
A ruling in favor of international player pooling could also energize the DFS and online poker markets across the rest of Canada. While Alberta and British Columbia are reportedly nearing the approval of their own iGaming frameworks, formally declaring widespread player pooling to be legal would almost certainly generate large-scale interest from would-be bettors.
