Ontario Testing Legality Of Opening DFS, Poker To Out-Of-Province Bettors

Written By Matthew Lomon on March 13, 2024
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It appears the concerns of paid daily fantasy sports and online poker supporters in Ontario are finally being heard. The online gambling options that were essentially squeezed out of the province two years ago could soon return to their natural form. Whether they do, and possibly to what extent, is now up to the courts.

The Ontario government announced Monday that it filed a reference with the province’s Court of Appeal to inquire if allowing residents to participate in online games and betting with players located outside of Ontario is legal under the Criminal Code.

In particular, the reference posed the following question to the court:

“Would legal online gaming and sports betting remain lawful under the Criminal Code if its users were permitted to participate in games and betting involving individuals outside of Canada as described in the attached Schedule? If not, to what extent?”

The court issued a timeline for the probe back on March 1. As such, any parties wishing to intervene must file their paperwork by April 8. The Ontario Court of Appeals, the province’s highest court, will hear the reference from Nov. 26 to 28 in Toronto.

DFS and online poker stifled by open market launch

Unlike Ontario online sportsbooks and online casinos, which boomed as a result of the open market launch on April 4, 2022, DFS and online poker contests dwindled.

Under Ontario’s iGaming structure, all players must be physically located within the province to access any of its games. Therefore lies the dilemma for DFS and online poker enthusiasts.

Such games rely on large player pools for greater excitement, competition and prize opportunities. However, when pools are strictly limited to players within Ontario, these games come at a greatly reduced value.

For that reason, major online operators like DraftKings and FanDuel axed their online offerings in Ontario for DFS and poker.

Nearly 24 months later, the government is vying to allow Ontario-based players to play against people outside of the country.

Part of the reason, per the government, is that residents are still accessing unregulated grey-market sites that offer international pools. In that same vein, granting Ontarians the ability to interact with outside players could present an opportunity for the government to redirect such activity back toward its regulated sites.

If that sounds familiar, that’s because it’s the same rationale behind the decision to regulate the market altogether. That said, the government must first receive clearance to operate in accordance with the current iGaming structure. It made that clear on Feb. 2 in its order in council:

“While Ontario would like to permit players participating in legal online gaming and sports betting to participate in games and betting involving players outside of Canada, there is uncertainty about whether doing so would be consistent with the requirements of the Criminal Code as they have been interpreted to date.

“It is in the public interest that the issue of whether an online lottery scheme conducted and managed by a province which permits its users to participate in games and sports betting involving players outside of Canada is lawful under the Criminal Code be settled authoritatively as soon as possible.”

Provincial government uses ‘late-night poker’ to sell its point

Coming off an impressive Q3 (Oct. 1 to Dec. 31, 2023) in which the combined Ontario online casino, sports betting, and poker sectors generated some $17.2 billion in wagers and $658 million in revenue, the government feels the latter sectors could still improve. After all, it’s no secret online casinos dominate in Ontario (79% of wagers and 71% of revenue in Q3).

So, to bolster its argument in favour of opening DFS and online poker to players outside Canada, the provincial government floated the idea of “late-night poker” in its Feb. 29 statement of particulars to the Court of Appeal.

“Here, it is proposed that Ontario and its agents allow players located in Ontario to access online gaming platforms conducted and managed by Ontario and, through electronic means, to participate in peer to peer games and betting involving persons located outside Canada participating in foreign lottery schemes.

“For example, an Ontario player could play a late-night poker game with players in Asia who are just getting home from work or place a bet on the outcome of the Stanley Cup final as part of a betting pool that also includes hockey fans in the United States.”

A rise of complaints regarding the gaming options, or lack thereof, gave way for Ontario Attorney General Doug Downey to push the motion forward.

Ontario also hoping to involve other provinces

Updating the current model to grant Ontarians the opportunity to play against people outside the country is a definitive goal for the provincial government. So, too, is allowing for players in other provinces to get in on the action.

“Under this model, players in Ontario will be able to participate in peer-to-peer games, including games of chance and mixed chance and skill played for money, and sports betting, involving players outside of Canada,” reads a schedule attached to the order in council.

A move forward, however, hinges on provincial governments striking a deal.

“Players located outside of Ontario but within Canada would not be permitted to participate in games or betting in the absence of an agreement between Ontario and the province or territory in which those players are located.”

According to a statement of particulars from AG Downey, the provincial government believes it can legally permit cross-play between provincial bettors and those beyond Canada’s borders. That belief, however, must first be substantiated by the appeals court.

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Matthew Lomon

Matthew Lomon has been a contributor at Catena Media’s network of regional sites since July 2022. He first broke into covering the legal North American gambling industry with PlayCanada. Since then, Matthew's reporting has extended to PlayMichigan, PlayPennsylvania, and PlayIllinois. Based out of Toronto, Ontario, Matthew is an avid (bordering on fanatic) sports fan.

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