Ontario’s Court of Appeal ruled in Play for Fun Studios Inc. v. Ontario (Alcohol and Gaming Commission of Ontario), 2019 ONCA 648 that ‘GotSkill’ is illegal under Ontario’s gaming, alcohol and racing legislation. The Alcohol and Gaming Commission of Ontario operates under provincial law controlling the grant of both liquor and gaming licences.
The Commission submitted an application on appeal, arguing ‘GotSkill’ was a game of chance or mixed chance and skill, not simply skill. As a game of chance or mixed skill and chance, the regulation of ‘GotSkill’ would fall under the jurisdiction of the Commission. The Appeal Court overturned the lower court’s decision and ruled ‘GotSkill’ was a game of ‘mixed chance and skill’ and was therefore prohibited in unlicensed premises; forcing over 200 licensees to remove ‘GotSkill’ from their premises.
The Court heard submissions on whether ‘GotSkill’ was a ‘game of chance’ or a ‘game of skill’ or a ‘mixed game of skill and chance’. If the game was a ‘game of mixed chance and skill” and not just one of pure skill, then the liquor licensee would violate the terms and conditions of the liquor license by allowing unlawful gambling on their premises.
‘GotSkill’ players interacted with a touchscreen computer within licenced premises in Ontario. To play, the player is told the monetary sum that they could win, and the player places a bet . The player then completed a skills based challenge which tested the hand – eye coordination and reaction time of the player. Importantly, the player was aware of the value that they may win during that game in question, but not the value for any subsequent challenges which were randomly selected .
The Court of Appeal commented that although a player with exceptional skill could technically beat the game (only if they continuously obtained 110% success on the skill tasks), the randomness of any subsequent challenges and wins was enough to satisfy the chance element. This rendered the game one of ‘mixed skill and chance’ and as a result it was illegal to offer ‘GotSkill’ in an unlicensed premises in Ontario.
The practicality of this ruling is, unless appealed successfully at the Supreme Court of Canada, ‘GotSkill’ cannot be offered in premises such as bars and restaurants unless licensees hold the relevant gaming license as a liquor licence holder must not permit unlawful gambling to occur on the premises.
Licensees will need to remove ‘GotSkill’ from their premises without delay. Licensees with any gaming machine on their premises should be aware of the potential for similar challenges by The Alcohol and Gaming Commission of Ontario, which could result in potential litigation against them based on the decision against Play for Fun Studios Inc.
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