The Ontario Superior Court has dismissed the challenge filed by the Mohawk Council of Kahnawà:ke and ruled that the gaming model operated by iGaming Ontario is valid.

In its official judgment, the court found iGO’s gaming framework and the way it conducts and manages the industry in the province to be consistent with what is allowed within the Criminal Code of Canada.

Court sided with iGO

“We have always been confident in our model and are pleased that the court has ruled in our favour, and that Ontarians can continue to play with confidence in our regulated iGaming market,” said Executive Director of iGaming Ontario Martha Otton in an iGO statement. “Ontario’s model meets the requirements and contributes to the public good by protecting players, their data and their funds, while helping to fund priority public services in Ontario, and bringing well-paid, high-tech jobs and economic development to Ontario.”

iGaming Ontario has overseen online gaming and sports betting in Ontario since the province launched its regulated market on April 4, 2022.

The Superior Court’s ruling that iGO’s gaming model was valid was a direct response to a challenge lodged by Kahnawà:ke back in November 2022, seven months after the province launched regulated gaming, and heard from February of this year. The motion filed by the MCK argued that the provincial government’s “unilateral changes” to the way gaming is managed were “illegal and unconstitutional.”

The challenge hinged on the assertion that Ontario had re-interpreted Section 207 (1) of the Criminal Code, which permits provinces to regulate single-event sports betting, by allowing operators to “conduct and manage” themselves. Essentially, the MCK was asking the government to rule that it was the private-sector operators conducting and managing gaming offered in Ontario, not iGO.

Definition of ‘conduct and manage’ murky

The judgment noted there are issues with the phrase “conduct and manage” itself. Justice Lisa Brownstone wrote that she found the grammatical and ordinary sense of the terms “not particularly helpful to the interpretive task at hand” due to the vagaries of the ways the term can be defined.

Both parties had made their case.

The MCK said in its filing that “any reasonable interpretation” of the phrase “conduct and manage” would determine that Ontario leaves those duties up to the operators, who own their gaming websites, select their gaming offerings, decide how to advertise their products and services, and keep the lion’s share of the revenue. Meanwhile, iGO maintains that it conducts and manages iGaming, including controlling what games are allowed and how operators can operate, on behalf of the province via contracts with operators.

While the court ruled that Kahnawà:ke did have standing to challenge the province, it disagreed with the Council’s assertion. Justice Brownstone determined that the province has retained “key decision-making power” over the iGaming scheme and that operators in the Ontario market are not “their own masters.” Brownstone pointed to the fact that operators are not able to decide which games are eligible and are restricted in several avenues such as data usage, subcontracting, advertising, customer care, and responsible gaming.

On Monday, iGO said that “in dismissing the application brought forward by the Mohawk Council of Kahnawà:ke, the Superior Court found that iGaming Ontario is the ‘operating mind’ behind Ontario’s competitive iGaming market in accordance with the conduct and manage requirements of the Criminal Code.”

Kahnawà:ke argues iGaming is detrimental to First Nations

Kahnawà:ke had said its official legal challenge was a last resort after its attempts to engage in dialogue with government officials were repeatedly ignored.

The Council has been in the online gaming industry for 25 years, licensing online gaming operators on behalf of the Mohawks of Kahnawà:ke. It had been a vocal opponent of Bill C-218, the legislation that introduced single-event sports betting and ultimately led to Ontario’s regulated market opening up.

Kahnawà:ke said the bill “changed the iGaming/sports betting landscape to the detriment of Indigenous People” and that the subsequent framework for the market “disregards the expertise and the rights of First Nations to operate and regulate safe and responsible gaming.”

As a result of its opposition to Ontario’s new market, the MCK ceased the operations of its wholly owned subsidiary, Mohawk Online Limited, in the province.