Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240716 DOCKET: M54988, M54991, M55000, M55001, M55003, M55016 & M55223 (COA-24-CV-0185)

van Rensburg J.A. (Motions Judge)

IN THE MATTER OF A REFERENCE to the Court of Appeal pursuant to section 8 of the Courts of Justice Act, R.S.O. 1990, c. C.43, by Order-in-Council 210/2024 respecting permitting international play in an online provincial lottery scheme

Counsel: Joshua Hunter, Ananthan Sinnadurai, Hera Evans and Jennifer Boyczuk, for the Attorney General of Ontario Robert Danay and Keith Hogg, for intervener the Attorney General of British Columbia Chanakya Sethi, Kristine Spence, Jacqueline Houston and Matthew Milne-Smith, for the interveners Atlantic Lottery Corporation, British Columbia Lottery Corporation, Lotteries and Gaming Saskatchewan and Manitoba Liquor and Lotteries Corporation Adam Goldenberg, Gregory Ringkamp and Rachel Abrahams, for the intervener the Canadian Gaming Association Scott C. Hutchinson, Kelsey Flanagan and Brandon Chung, for the intervener Flutter Entertainment plc Graeme Hamilton and Teagan Markin, for the interveners NSUS Group Inc. and NSUS Limited Nick Kennedy, for the intervener Mohawk Council of Kahnawà:ke

Heard: July 5, 2024

Endorsement

Background

[1] By Order in Council 210/2024, the Lieutenant Governor in Council referred the following question to this court, pursuant to s. 8 of the Courts of Justice Act, R.S.O. 1990, c. C.43:

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?

[2] On May 1, 2024, I heard motions for leave to intervene and for leave to adduce evidence. Following this hearing, and on consent of the Attorney General of Ontario (“Ontario”), I granted leave to intervene to:

1. the Canadian Gaming Association (the “CGA”);
2. Flutter Entertainment plc (“Flutter”);
3. Mohawk Council of Kahnawà:ke;
4. NSUS Group Inc. and NSUS Limited (collectively, “NSUS”);
5. Atlantic Lottery Corporation, British Columbia Lottery Corporation, Lotteries and Gaming Saskatchewan, and Manitoba Liquor and Lotteries Corporation (collectively, the “Canadian Lottery Coalition Members”); and
6. the Attorney General of British Columbia (“British Columbia”).

[3] I otherwise adjourned these motions to July 5, 2024 and set a timetable for the delivery of Ontario’s record and proposed records from any intervener wishing to file evidence on the reference.

[4] On May 31, 2024, Ontario filed a 745-page record. In addition to excerpts from Hansard and other materials filed without an affidavit, Ontario’s record consists of two affidavits: one sworn by Jesse Todres, General Counsel and Corporate Secretary of iGaming Ontario (“iGO”), and one sworn by George Sweny, Vice-President of Regulatory Affairs for Flutter International. Ontario’s evidence details how the new scheme would operate in part by reference to the current scheme. For example, Mr. Sweny’s evidence is that under the proposed new model, “iGO would continue to conduct and manage igaming, using operators as its agents, in the same manner and to the same extent as it currently does” and that Flutter’s subsidiaries operating in Ontario would “continue to abide by all of the terms in their existing Operating Agreements with iGO”.

[5] In response, British Columbia and the Canadian Lottery Coalition Members each filed a proposed record which they seek leave to adduce. The CGA then served a notice of motion requesting confidentiality orders regarding this proposed evidence. At the request of the CGA, I imposed a temporary sealing order on the proposed evidence so as to avoid rendering the CGA’s motion moot before it could be argued. I heard the CGA’s motion for confidentiality orders together with the continuation of the intervention motions on July 5, 2024.

[6] For the reasons that follow, I grant British Columbia and the Canadian Lottery Coalition Members leave to adduce their proposed evidence in its entirety, and I dismiss the CGA’s motion for a confidentiality order.

Leave to file evidence

[7] The proposed evidence consists of five affidavits: three from the Canadian Lottery Coalition Members, and two from British Columbia (one of which appends an expert report). British Columbia and the Canadian Lottery Coalition Members argue that their proposed evidence is relevant to correct factual misimpressions left by Ontario’s evidence. These misimpressions include that the proposed scheme would in fact bar players located outside of Ontario but within Canada from betting against players located in Ontario, and that the proposed scheme is analogous to or permissible under the regulatory schemes in various other jurisdictions.

[8] Ontario, Flutter, the CGA and NSUS oppose the admission of this evidence. There were two thrusts to the opposition. First, that the proposed evidence is irrelevant to the reference question. Second, that its admission at this stage may lead to delay and complexity in the reference proceeding. NSUS also argues that British Columbia’s expert report has not been properly tendered as expert evidence and that the author is not qualified to provide the opinions offered in his report. In the alternative, Flutter, NSUS and the CGA seek the right to cross-examine the affiants of the interveners seeking to adduce evidence, and leave to adduce responding affidavits.

[9] It is not my role as a single judge case managing the reference to determine questions of admissibility and relevance. This is for the panel to decide. The issue at this stage is whether the proposed evidence “may assist the court in determining” the reference question: Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at paras. 17-18; see also Reference re Greenhouse Gas Pollution Pricing Act, 2019 ABCA 349, at para. 21.

[10] There are a number of relevant considerations.

[11] First, the “general rule” that interveners are typically not permitted to supplement the record does not apply in this case, where the parties seeking to file evidence are the effective opposition to Ontario and where there is no pre-existing record from a court below. It is appropriate for the moving parties to participate in the creation of the record in which the reference question will be determined: Reference re Greenhouse Gas Pollution Pricing Act, 2019 ABCA 361, at para. 9. The reference question is framed by the Lieutenant Governor in Council, but s. 8(6) of the Courts of Justice Act (which provides for the court’s appointment of counsel if an affected interest is not represented) recognizes that Ontario is not entitled to proceed unchallenged. In a case where Ontario has filed an extensive record, meaningful opposition must include an opportunity to challenge the factual assertions in that record.

[12] Second, it is important that the court have an adequate factual context for the determination of the reference. It is well-established that in a constitutional reference, an intervener may be permitted to file material (subject to the court’s determination as to its relevance and weight), because constitutional challenges should not be determined in a factual vacuum: Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 29, at para. 17. However, the parties disagree about whether this is a “constitutional reference”. Ontario says it is not and that the reference question is purely one of statutory interpretation. British Columbia and the Canadian Lottery Coalition Members say that this is a constitutional reference because the court is asked to assess whether a provincial scheme would comport with federal legislation, and because some of the interveners have raised constitutional issues. I also note that Ontario’s own Statement of Particulars makes an argument based on language in the Constitution Act, 1867. Regardless of whether this is a “constitutional reference”, it is clear to me that the factual context may assist the court in answering the reference question. The reference question and incorporated Schedule explain Ontario’s proposed changes to the iGaming scheme in part by reference to the current scheme. The reference question asks whether the current scheme would “remain lawful” under the Criminal Code if it were changed in specific ways, and if not, “to what extent?”. Answering the reference question presupposes an understanding of how the current scheme operates.

[13] Third, I do not accept Ontario’s argument that the record must be limited to what it has put before the court on the reference. There are no stipulated agreed or assumed facts. Nor is there draft legislation. Rather, Ontario has filed affidavit evidence speaking to the operation of the current iGaming scheme and to the operation of the proposed scheme. Any party is free to argue at the hearing of the reference that the court’s determination of the reference must be based on facts put forward by Ontario only, or, as Ontario has argued here, that the reference involves a narrow question of statutory interpretation with a limited role for evidence. At this stage, however, it would be inappropriate to “limit the scope of the legal arguments by artificially curtailing the factual record”: Reference re Greenhouse Gas Pollution Pricing Act, 2019 ABCA 361, at para. 8.

[14] Fourth, I accept that it would not be appropriate for evidence to be put forward for the purpose of raising new and unrelated issues that have the effect of broadening the scope of the reference. Here, I am satisfied that the purpose of putting forward the proposed evidence is not to raise new issues, but to respond directly to Ontario’s own evidence about the operation of the scheme and the future operation of the proposed scheme, and to support British Columbia and the Canadian Lottery Coalition Members in their opposition to Ontario in the reference. This evidence may be of assistance to the court in determining the reference question. Again, this does not preclude any party from making arguments about the admissibility and relevance of the evidence or any part of the evidence at the hearing of the reference.

[15] Fifth, it is premature at this stage to make any determination about the admissibility and appropriate scope of expert evidence. As with all of the other proposed evidence, the admissibility of all or any part of the expert report submitted by British Columbia and the permitted scope of the author’s expertise, if any, is for the panel to determine.

[16] Sixth, the fact that some of the proposed evidence refers to alleged illegal or unregulated activities is not a reason to exclude it from the record. Arguably Ontario itself has opened the door to such evidence by adducing evidence about the existence of unlawful online gaming sites as part of the context in which the current scheme operates, and the avoidance of harms of unlawful or unregulated online gaming as a rationale for the proposed scheme. As for the portions of the proposed evidence that identify specific operators by name, this reference is not about, and cannot result in, a determination of liability against any specific operator. This reference is about the legality of a hypothetical new scheme which does not currently exist. The reference question and incorporated Schedule explain that new scheme in part by reference to the existing scheme. Understanding the operation of the current scheme – including how it in fact affects persons in provinces outside of Ontario – will assist the panel in understanding the proposed scheme and advising whether it will “remain lawful under the Criminal Code”, and if not, “to what extent”.

[17] I turn to the assertion that the inclusion of the proposed evidence in the record will lead to delay and complexity, as the opposing parties may want to file responding evidence, and to cross-examine to refute assertions in the proposed evidence, and that persons whose interests are not already represented may seek to participate in the reference to protect their reputations and business interests. I am confident that these and any other procedural concerns that arise from the inclusion of the proposed evidence in the record can be addressed in the reference process that I am case managing. A date has been fixed for another attendance before me (July 29, 2024). Other attendances can be arranged, if and when required.

[18] For these reasons leave is granted to British Columbia and the Canadian Lottery Coalition Members to file on the reference the proposed evidence put forward in their motions.

Confidentiality order motion

[19] The CGA brought a motion seeking to have certain portions of the proposed evidence sealed in the event the court grants leave to file some or all of the proposed evidence. The CGA refers to the portions of the proposed evidence it seeks to seal as the “Sensitive Evidence”. [1]

[20] In support of its motion for a sealing order, the CGA relies on the test from Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at para. 38, and argues that:

1. court openness poses a serious risk to an important public interest;
2. the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and
3. as a matter of proportionality, the benefits of the order outweigh its negative effects.

[21] On the first prong of this test, the CGA argues that the Sensitive Evidence could cause Ontario operators to suffer reputational harm, and that other operators identified by name in the Sensitive Evidence are not involved in the reference and have no opportunity to answer the allegations against them. The CGA asserts that there is an important public interest in limiting court openness when reputational and regulatory harm would result from unproven allegations against non-parties, especially in the reference context, which is not designed to permit the impugned non-parties an opportunity to respond. The CGA says that allowing the public to access the Sensitive Evidence in this context would cause harm to the court’s process. Flutter supports the CGA’s motion. British Columbia and the Canadian Lottery Coalition Members oppose the motion.

[22] The CGA has not established that public access to the Sensitive Evidence would pose a serious risk to an important public interest. The CGA did not provide any direct evidence of harm, but asserted instead that it would be reasonable to infer that allegations of criminal conduct could entail regulatory consequences for Ontario operators named in the Sensitive Evidence. The alleged regulatory or reputational harm is a private interest that would not justify an order limiting public access: Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522, at para. 55. In any event, the Sensitive Evidence is largely already public. There is little justification or purpose in granting a sealing order over information that is already in the public domain: Fletcher v. Ontario, 2024 ONCA 148, at para. 141.

[23] Nor am I persuaded that public access to the Sensitive Evidence poses a serious risk of harm to the court’s process. On the contrary, given my conclusion above that the proposed evidence may assist the panel in answering the reference question, the integrity of the court process is best served by public access to all of the evidence that will be before the panel: Sherman Estate, at para. 39. Since the CGA has not met the first prong of the Sherman Estate test, it is not necessary to consider the remaining two prongs.

Disposition

[24] I order as follows:

• British Columbia and the Canadian Lottery Coalition Members are granted leave to file as part of the record on this reference, the proposed evidence contained in their motion records, and to cross-examine Ontario’s affiants.
• Ontario, Flutter, the CGA and NSUS are granted leave to cross-examine British Columbia’s affiants (including the author of the expert report) and the Canadian Lottery Coalition Members’ affiants.
• The CGA’s motion for confidentiality orders is dismissed. The interim sealing order I imposed over the proposed evidence pending the resolution of the motion for confidentiality orders is hereby lifted.

[25] I would ask counsel to advise by Monday, July 22, 2024, whether there will be any requests for leave to file responding evidence, and what other issues they propose to address at the July 29 attendance. To the extent there is agreement on a schedule for the next procedural steps or if, for any reason, no attendance on July 29 is required, counsel should so advise. Correspondence can be sent to coa.executivelegalofficer@ontario.ca.

“K. van Rensburg J.A.”

[1] The CGA also sought other relief expunging the proposed evidence from the court file to the extent any of the proposed evidence was not admitted as part of the reference record. Given my decision to permit all of the impugned evidence to be filed and to reserve questions as to its admissibility and relevance to the panel, this portion of the CGA’s motion need not be determined.