It could be a long time before “pay-to-play” daily fantasy sports contests return to Canada’s most populous province through locally-regulated operators.
However, there are also no guarantees for Ontario-based DFS lovers.
Key takeaways
- While a decision is pending from the Court of Appeal for Ontario on whether local gamblers can play against rivals abroad, it’s possible the ruling is appealed to the Supreme Court of Canada.
- That makes the timeline for any return of paid DFS contests to Ontario via provincially-regulated operators very fuzzy.
- Ontarians lost access to the biggest DFS operators in 2022, when the province launched a regulated iGaming market that requires all players to be in the province.
The Ontario government lodged a question with the province’s Court of Appeal last year to determine whether it's legal for its online gamblers to play in games involving individuals outside Canada.
If Ontario gets a “yes,” it could pave the way for regulated iGaming operators to offer paid DFS contests and expand the potential player pool for online poker games, among other things.
Potentially big news for Ontario-based daily fantasy and poker fans: the provincial government is asking the Court of Appeal whether allowing residents to participate in online games and betting involving people outside of Canada is legal. https://t.co/sv2ouYlVQY pic.twitter.com/Eanx9zgAS0
— Geoff Zochodne (@GeoffZochodne) March 12, 2024
Yet an answer could still be a long time coming. Moreover, even when the Court of Appeal for Ontario responds, it’s possible whatever the court decides will be appealed to the Supreme Court of Canada.
I'm not a lawyer (they are, though)
So said one of the Canadian Gaming Association's lawyers (albeit speaking on his own behalf), who argued for the group before the appeals court last November.
“There is a provision in the Supreme Court Act which creates a right of appeal to the Supreme Court of Canada from the Court of Appeal's decision in any reference question, which means the likelihood of this case ending in the Court of Appeal for Ontario is, I think, relatively low,” said Adam Goldenberg, a partner at McCarthy Tétrault LLP, during a panel at last week’s Canadian Gaming Summit in Toronto.
“So stay tuned,” Goldenberg added.
The comments suggest it could be some time before the question of whether Ontario can share iGaming liquidity (also known as money people gamble) with other jurisdictions is settled.
That could be painful to read for an Ontarian who enjoyed playing paid DFS contests with DraftKings or FanDuel before the province launched its competitive iGaming market in April 2022.
It was then that DraftKings, FanDuel, and many other sportsbooks began operating under Ontario’s rules, which treat “pay-to-play” fantasy sports as gambling and require all online gamblers to be in the province to bet.
Those rules prompted the big DFS operators to shut down their contests in Ontario (although they now offer online sports betting and internet casino games, something they didn't do before in Ontario). It also shrunk the pool of potential poker players.
Something's missing
So, while the new Ontario sports betting and iGaming status quo has arguably been a success, it's not perfect.
Fifty regulated iGaming operators (plus the government-owned Ontario Lottery and Gaming Corp.) are currently authorized to take wagers in the province. More than 80% of all Ontario online sports wagering, casino gaming, bingo, and poker now happens with those authorized entities.
The end of an era in Ontario, as DraftKings has now shuttered its daily fantasy contests in the province ahead of its online sportsbook launch. pic.twitter.com/KhDINN7Tcu
— Geoff Zochodne (@GeoffZochodne) May 17, 2022
Still, that means approximately 20% of all Ontario online gambling happens with companies the province doesn't regulate.
Some of those unregulated entities may offer daily fantasy contests or poker games that connect Ontario residents to players outside the province, an edge locally-regulated operators lack.
“If you're having a peer-to-peer game and there are 10 people playing, then your potential prize structure is limited to what 10 people can realistically be expected to wager,” said Scott Hutchison, a partner at Henein Hutchison Robitaille LLP and one of the lawyers for FanDuel-parent Flutter Entertainment in the so-called Ontario liquidity reference, during the same panel as Goldenberg.
ICYMI: the B.C. government has withdrawn from Ontario's court reference regarding DFS/poker.
— Geoff Zochodne (@GeoffZochodne) September 23, 2024
The exit removes a potential opponent to Ontario's plan to allow online gamblers in the province to compete against players outside Canada:https://t.co/eSf3bogFZP @Covers
“If you have 100 people, you can come up with a prize structure that's more complicated and more attractive,” Hutchison added. “If you have 1,000 people, even more so. If you have a million, even more.”
If Ontario could enter into agreements with New Jersey or New York, for example, the province’s potential pool of online gamblers would expand significantly.
Ontario, though, maintains it would only oversee gamblers within its borders, while the other participants would be subject to their local authorities' regulations.
I'll hang up and listen
With that in mind, Ontario's government forwarded its question to the Court of Appeal in February 2024.
Specifically, the province wanted to know: “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,” and, if not, to what extent?
Ontario believes it should get a “yes” from the court, which could help bring back paid DFS.
The appeals court heard the reference late last November, with the judges reserving their decision for a later date that has yet to arrive.
Ontario's attorney general, Doug Downey, said during his own Canadian Gaming Summit "fireside chat" last week that he couldn't say much on the subject with the appeal court's decision still pending. However, Downey did speak about the province's thinking more generally.
"It's pretty clear in the Criminal Code that we can't attract players from other provinces without an agreement with those provinces, but it's much less clear whether we can host and conduct and manage a game in Ontario with those outside of the country," Downey said. "I had the ability as the attorney general to put a stated question to the Court of Appeal, not wait for something to happen and then work its way up through the system and create uncertainty in the market. This was an attempt to create certainty and say, 'Here's our question, is this legal?' And we will hear what they have to say."
Whether a decision arrives anytime soon, especially given summer is upon us and some other legal developments, is anyone’s guess.
“Even the form of the case is unusual,” noted Danielle Bush, senior counsel at McCarthy Tétrault LLP and another lawyer for the Canadian Gaming Association, during last week's panel with Goldenberg and Hutchison. “I think that we determined that the Court of Appeal in Ontario had only heard another reference case 17 years ago.”
When the decision does arrive, as Goldenberg noted, it may not be the last word. But before the Supreme Court gets involved, there must be a decision from the Court of Appeal for Ontario.
Putting it politely
The Ontario reference became something of a heated affair, too.
Government-owned lottery and gaming corporations from British Columbia, Manitoba, and provinces other than Alberta and Ontario jumped into the case to argue for a “no” from Ontario's Court of Appeal.
“We've been a bit flummoxed by this,” Hutchison said. “Because it's really… from my perspective, the only time I've ever seen a province or a provincial entity intervene in a reference to say that their province and their provincial entity has less legal power than is being advocated by the other side.”
But, as Goldenberg noted, there's been a “larger back-and-forth” between the lotteries and certain online gambling operators. Some of the companies the lotteries take issue with have sites that serve Ontarians and others that are available in different provinces.
Ontario is currently the only Canadian province that authorizes private-sector operators to offer online gambling. Alberta could become the second province to launch that kind of regulatory scheme at some point over the next year or so.
Meanwhile, provincial lotteries outside Alberta and Ontario are competing with online iGaming operators their provinces haven't and may never authorize. This, in Canada, has been called the "grey market," although the lotteries have argued they are simply illegal gambling sites.
As Hutchison noted, the other provincial lotteries could take advantage of the model Ontario is proposing themselves and link their online gamblers with players abroad. Instead, they argued against the idea.
Downey declines to comment much on the province's DFS/poker reference with the Court of Appeal, as it's still before that court. Notes if you're in Ontario right now, though, can only play provincially regulated poker with other Ontarians.
— Geoff Zochodne (@GeoffZochodne) June 18, 2025
Those lotteries, members of the Canadian Lottery Coalition, raised concerns about Ontario-licensed brands operating in other provinces, allegedly nudging bettors there toward international websites.
The lotteries have also sent cease-and-desist letters to several operators, which the operators claimed were defamatory.
More recently, the lottery coalition successfully sought a court injunction in Manitoba against offshore sportsbook Bodog, which didn't defend itself in provincial court.
Goldenberg summed up the effort as the lotteries trying to get a court to determine “whether or not the grey market is, in fact, grey.”
Strategery?
That isn't what the Ontario government asked the province's Court of Appeal, but the larger debate is now part of the record before the judges. There's more (arguably much more) the judges must weigh as well.
Hutchison and Bush noted during the reference hearing in November, the Ontario judges asked if anyone ever tried to take an offshore operator to court in Canada, which they hadn't at that time.
That changed with the Bodog injunction. Bush said the lotteries sent the recent Manitoba order to the Ontario Court of Appeal 48 hours after it was issued, including its unflattering portrayal of Bodog’s operations under Canadian law.
The Manitoba injunction could now be another thing the Ontario court may consider as it comes to a decision.
“They've [the lotteries] gone back now and they've said, ‘Okay, we did it, and here's what the court in Manitoba said,’” Bush said. “It is certainly strategic. And the next year or so is going to be really, really important for everybody in the industry, as this plays out, frankly, across the country.”
