The Orders
Among other things, the Court granted an order prohibiting Bodog’s operator, Il Nido Ltd., from advertising unauthorized online gaming products or services to persons located in Manitoba. This prohibition applies equally to the free-play site bodog.net and the real-money site bodog.eu. The Court found that offering unauthorized online gaming products or services contravenes Sections 201, 202, and 206 of the Criminal Code. While bodog.net itself is not expressly blocked, it cannot be used in Manitoba as a promotional tool for unauthorized gaming products or services. Specifically, the Court ordered that the real-money site, bodog.eu, and any website offering substantially the same or similar products or services, cannot be hosted or operated in a manner that is accessible to persons located in in Manitoba.
The Court also declared that promoting bodog.net (or any successor/replacement domains) to Manitobans as a “legitimate, lawful, safe or trusted” gambling site constitutes: (i) a materially false or misleading representation under Section 52(1) of the Competition Act; and (ii) a false description of services likely to mislead the public under Section 7(d) of the Trademarks Act.
Shortcomings
Unfortunately, the decision does a poor job of explaining why bodog.net’s free-to-play offerings constitute the advertising of unauthorized real money gaming products and services. Although not expressly stated, the Court seems to treat bodog.net as a part of a single, unlawful gambling enterprise because of the integrated branding and shared game catalogue. Reading between the lines, the decision implies that bodog.net serves as a promotional tool to attract Manitobans to the real money gambling offerings of bodog.eu.
A cautious approach is recommended before drawing any hard conclusion from the Bodog decision:
- First, it was uncontested by Bodog. Had it been vigorously defended, the Court might have arrived at a different determination.
- Second, the Court did not explicitly articulate how bodog.net’s free-to-play offerings constituted unlawful advertising of gaming and betting. The Court’s reasoning leaves significant gaps in its analysis. While the court concluded that Bodog “conducts and manages” lottery schemes in violation of Sections 202 and 206, it failed to analyze whether bodog.net’s free-play site independently constitutes an offense. A more compelling analysis would have been to:
(i) acknowledge that no consideration is paid on bodog.net;
(ii) show that shared branding between a free-to-play site and a pay-to-play site constitutes giving notice of an invitation to bet or the advertising of a game of chance, and is therefore is caught by s 202(1)(h) (“give notice of any offer, invitation, or inducement to bet on… a result or contingency relating to any contest”) or by s 206(1)(a) (“advertising… any proposal, scheme or plan, for… disposing of any property by… any mode of chance whatever”); and
(iii) connect that statutory text to the evidence that the two sites share branding and funnel Manitobans from free play to paid money wagering.
The Court could have more clearly distinguished the legal implications of advertising a free-play site versus a real money gambling site. It would be helpful to address whether, and under what circumstances, the operation or advertising of a free-play site alone constitutes an offence or a violation of Sections 201, 202 and 206, or whether liability arises only when such a site is demonstrably linked to illegal gambling.
- Third, the Court’s analysis overlooks Section 6(2) of the Criminal Code, which establishes territorial limitations on the Court’s jurisdiction over offenses committed outside Canada. Given that Bodog is incorporated in Antigua and Barbuda, the Court’s jurisdictional analysis would have been more robust had it established Bodog’s real and substantial connection to Canada.
Relevance to the Rest of Canada
The relevance of the Bodog decision extends beyond Manitoba because it interprets and applies federal statutes (the Criminal Code, the Competition Act, and the Trademarks Act), which are uniform across Canada. Although the decision is not binding outside Manitoba, its reasoning provides persuasive authority for courts and regulators in other provinces and territories facing similar issues with unauthorized online gambling operators. The Court’s approach to integrated branding, the treatment of free-play and real-money sites, and the use of injunctive relief offers practical guidance for enforcement actions nationwide. Furthermore, the decision reflects a coordinated regulatory stance, as evidenced by the involvement of the Canadian Lottery Coalition, which includes gaming regulators from multiple provinces. As a result, the Bodog decision is likely to influence how other Canadian jurisdictions interpret and enforce the law against offshore gambling operators targeting Canadians, and serves as a warning to operators that similar legal risks exist throughout the country.
Conclusion
In conclusion, while this decision is in some respects a landmark ruling regarding the regulation of online gambling promotion in Manitoba and by extension the rest of Canada, its reasoning contains several significant gaps that may limit its precedential value. Future cases will need to more thoroughly address the relationship between free-play and real-money gambling sites, establish clearer standards for what constitutes illegal gambling advertising, and provide more robust jurisdictional analysis when dealing with foreign-based operators. Until then, operators of free-play gaming sites should exercise caution in their Canadian operations, particularly when any connection exists to real-money gambling platforms.
If you have questions about this article or Gaming & Betting law, we would love to hear from you. Please do not hesitate to contact the writer, David McHugh at [email protected]. You can also reach out to us at 1-800-604-1312 or https://segevllp.com/contact-us/.