Alberta wants a say in the Supreme Court case assessing whether Ontario can offer international liquidity for certain forms of iGaming.

The Attorney General of Alberta has asked to intervene in the Supreme Court appeal concerning whether or not Ontario is allowed to pool players of peer-to-peer gaming like online poker and daily fantasy sports (DFS) with other jurisdictions.

Canadian Lottery Coalition members appealed in December

Back in November, theOntario Court of Appeal issued a decision that it would be legal under Canada’s Criminal Code to allow Ontario’s online gambling market to connect players of P2P games with users in other countries.

Weeks later, Manitoba Liquor and Lotteries (MBLL), the British Columbia Lottery Corporation (BCLC) and the Atlantic Lottery Corporation (ALC) all appealed in Canada’s highest court in December. As members of the Canadian Lottery Coalition (CLC), MBLL, BCLC and ALC were intervenors in the reference question that was posed to the Ontario appeals court in early 2024.

Ontario’s online poker and paid DFS play is currently fenced in within the province, but Ontario’s AG, the Canadian Gaming Association (CGA), GGPoker owner NSUS, and FanDuel and PokerStars parent Flutter asked the Ontario court whether Ontario is legally blocked from changing that.

The Ontario court judges determined that international P2P play would be legal. Their interpretation of the Criminal Code’s language also left open the possibility that the Ontario government could strike deals with other provincial governments to allow gamblers to play against each other.

This affects our iGaming plans, says Alberta

Currently, that would mean that iGaming Ontario (iGO) and the Ontario government would have to broker an agreement with another province’s government-run lottery corporation to do so, which seems unlikely.

But Alberta is reputedly mere months away from becoming the second province to open a regulated, commercial iGaming market. iGO President and Chief Executive Officer Joseph Hillier implied to Canadian Gaming Business last fall that Ontario and Alberta could discuss the idea once the latter province’s market is up and running, suggesting “that will be very much a topic of conversation at the table.”

In a formal motion to intervene that was filed in the Supreme Court case last week, legal representatives for Alberta AG (AGAB) Mickey Amery wrote that the AGAB has “a significant interest” in this issue because of the iGaming Alberta Act, the legislation that was enacted last May to allow Alberta to launch regulated iGaming.

“The iGaming Alberta Act allows for provincial regulation of a lottery scheme similar to the ‘proposed model’ in Ontario, which gave rise to the reference question underlying this appeal,” reads Alberta’s filing. “Under the iGaming Alberta Act, individuals outside of Canada are not prohibited from participating in an internet-based gaming site operated by a regulated agent of Alberta, provided that individual is permitted to do so by the laws of their jurisdiction.

“Consequently, this appeal will have a significant impact on determining the legality and operation of the iGaming Alberta Act … The issues relate to the legality and operation of validly enacted provincial legislation.”

Alberta AG intends to argue in favour of cross-border play

The AGAB stressed that its views should be considered by the Supreme Court and that its perspective would be “relevant, useful, and different”.

It stated that when faced with a potential conflict between valid federal and provincial legislation, the legal preference is for a federal statute to be properly interpreted in a way that avoids such a conflict.

“Alberta and Ontario have exercised their constitutional legislative authority to enact provincial internet-based gaming schemes,” Alberta added. “In the absence of clear and express language to the contrary, harmonious interpretations that allow federal and provincial laws to coexist should be favoured.”

Ultimately, Alberta’s AG argued in the motion that it has a fundamental interest in the case because the Supreme Court’s interpretation of the Criminal Code would significantly affect the legality and operation of the iGaming Alberta Act and the duties of the AG’s office.

It also signposted that, if it is granted leave to intervene, it will argue that the relevant section of the Criminal Code should be interpreted “in a flexible and broad manner” so that it does not conflict with valid provincial legislation regulating gaming. “The AGAB’s submissions with respect to these issues will be useful to the court and be different from those of the parties because they will address the effect of this court’s decision outside of Ontario,” added Alberta’s motion.

Like iGO’s Hillier, Alberta Minister Dale Nally has previously voiced a desire to explore pooling players with Ontario.

“We have filed an intervention application and look forward to participating in that process to provide our insights,” Nally told Canadian Gaming Business about the AG’s court motion. “This matter is not expected to impact the timing of Alberta’s iGaming market launch.”

Lotteries claimed nefarious behaviour from Ontario licensees

Alberta’s move to insert itself in the case comes a month after the Atlantic Lottery, on behalf of the CLC, filed a factum on Feb. 13 in which it claimed that Ontario’s idea of international liquidity “flouts” the Criminal Code.

The CLC-member provincial lotteries, which are the only government-authorized online gaming platforms in their respective provinces, also alleged that Ontario-licensed iGaming brands advertise heavily in other provinces despite having no legal recognition as licensed sites in those provinces.

“While the issue today is international liquidity, the next case may involve a province seeking to assert authority to conduct lottery schemes that extend across the country,” said the ALC/CLC filing. “And indeed, even if that is not what Ontario proposes de jure at this time, it is what it proposes de facto given the ubiquity of illegal gambling using international sites among Canadians outside Ontario.

“There is every indication that Ontario means to partner with the international affiliates of current iGO operators who today operate the international sites that illegally solicit Canadians outside Ontario … The undisputed evidence shows that the private gambling operators with whom Ontario has already joined hands use their legal platforms in Ontario as springboards to promote illegal international websites to Canadians outside Ontario.”

The CLC appeal is supported by the Atlantic provinces, B.C. and Manitoba. Loto-Québec filed a motion to join the other three crown corporations as an appellant on March 12.

Ontario has no representation in the CLC. Alberta Gaming, Liquor and Cannabis (AGLC), which will soon be both the regulator and the Play Alberta operator in Alberta’s open market, was an initial member of the coalition when it was created in 2022, but has left in 2024 as the province first began taking firm steps towards launching regulated iGaming.