An Ontario Superior Court of Justice judge has determined that GotSkill? electronic terminal games effectively amount to gambling as the Alcohol and Gaming Commission of Ontario (AGCO) continues to take action to shut down similar products in the province.
A judgment issued on Aug. 28 by Judge Shaun S. Nakatsuru decreed that, despite SBG-Skill Based Games Inc. (SBG) making changes to its games, the machines still cannot be defined as pure games of skill. Instead, he wrote, they are mixed games of skill and chance.
Games of skill are legal forms of entertainment in Canada and are not considered gambling, whereas games of chance are. Canadian common law defines the concept of chance in a game as a “systematic resort to chance,” and games of mixed skill and chance include both that element and an element of skill, essentially rendering them as gambling. The AGCO’s regulations cite casino games, raffles and bingo as games of chance, sports as games of skill and blackjack as an example of a game of mixed skill and chance.
“I find that [GotSkill?] does remain and mixed game of chance and skill despite the changes,” Nakatsuru wrote in his judgment. “There remains a systematic resort to chance in how the game incentivizes the players to spend money in the hopes of uncovering a valuable round in the future.”
As such, he dismissed SBG’s application.
Years of to-and-fro
The latest judgment will likely empower the AGCO further to continue looking to remove GotSkill? and other similar machines, as well as to take enforcement action such as rescinding licenses. The dispute over games of skill vs. games and chance has raged for years.
Back in 2018, the Ontario Superior Court ruled that GotSkill did not constitute either a game of chance or mixed skill and chance. The AGCO appealed that decision and it was overturned in 2019 by the Ontario Court of Appeal, which found GotSkill? was a game of mixed chance and skill because it included a systematic resort to chance: Players were induced to wager in the hopes of uncovering prizes of value in future rounds of the game that were dependent on chance.
SBG filed an application for judicial review with the Ontario Superior Court of Justice. After the case was heard in July of this year, Nakatsuru upheld the Court of Appeal’s determination last week. His written judgment noted that both SBG and the AGCO agreed that if a modified version of GotSkill? was still found to constitute a game of mixed chance and skill, it could not be operated at licensed establishments.
Different, but not really, says judge
In the intervening years between the initial ruling and the latest judgment, SBG changed GotSkill? in the hopes of rendering it a game of skill by law.
Previously, players purchased game tokens and were presented with one “potential next win” amount they could earn if they chose to wager. Whether the player actually won it depended on completing a “skill task.” If the player chose to keep playing, they decided how many credits to wager in pursuit of the disclosed potential win.
In the current form, the number of potential next wins the player can view is five rather than one. In addition, there’s now the option to perform the skill task on tickets with zero value. Previously, if a player had a zero-value ticket, the skill bar task would not appear and the game would skip to the next ticket.
Nakatsuru adjudged that even in its amended form, GotSkill? is a game of mixed chance and skill as the ordinary player still chooses to spend money for the “systematic chance” of winning something of greater value later in the game, beyond the five potential next wins they can choose to view. Citing data that showed that in 2024, Ontario GotSkill? users played for 27 minutes on average and spent $15-25 in credits on an average of 122.8 game rounds per session, Nakatsuru wrote that the game’s design encourages quick, multiple-round play with clear elements of chance.
“All told, I find that it is a reasonable inference that the game is designed to induce players to lose money, round after round, in the hopes of eventually uncovering a valuable ticket,” he wrote. “While the extent of the uncertainty in GotSkill has been reduced in the modified game, it has not been eliminated. It is ingrained in the game. Colloquially speaking, the bait may be different, but the lure of a big or bigger win based upon luck is still used.”
Canadian Gaming Business reached out to SBG and the AGCO for comment.
“We are pleased with the ruling from the Ontario Superior Court of Justice and are conducting a thorough review of the decision,” an AGCO spokesperson told CGB. “The AGCO is committed to continuing our work to address the significant risks to Ontarians posed by illegal gaming in the province in all its forms.”
AGCO’s latest target: Prime Skill Games
The latest judgment also comes just a few weeks after the AGCO revoked the lottery seller registrations of several retailers in the Greater Toronto Area that were found to be offering Prime Skill Games machines that it deemed to be unauthorized games of chance.
That company’s CEO disputed the AGCO’s characterization and told Canadian Gaming Business that he intends to prove the legality of the machines and the integrity of the company’s operations “through every available means, whether through legal documentation, expert analysis or, if necessary, before the courts.”
