In the recent case Tsuu T’ina Gaming Limited Partnership v Alberta Gaming, Liquor and Cannabis Commission, 2023 ABCA 135 (Tsuu T’ina GLP), the Alberta Court of Appeal affirmed the chambers judge’s decision that the online gambling website PlayAlberta is within the jurisdiction of the Alberta Gaming, Liquor and Cannabis Commission (the Respondent), and that the court cannot stay, extend or shorten the application deadline set by Rule 3.15 of the Alberta Rules of Court, AR 124/2010 (the Rules or Rule).
Background and judicial history
In Tsuu T’ina GLP, The Tsuu T’ina Gaming Limited Partnership (the Appellant) submitted an application for a declaration that the Respondent does not have statutory authority under the Gaming, Liquor and Cannabis Act, RSA 2000, c G-1 (the Act), to authorize and operate an online gambling site called “PlayAlberta.”[1] In addition to the declaration that the Respondent does not have jurisdiction, the application by the Appellant sought relief on multiple grounds, including: the Respondent acted unreasonably, in bad faith, in a conflict of interest or in breach of statutory or fiduciary duties when the Respondent failed to consider Alberta’s casino moratorium policy and charitable casino model, the statutory prohibition on gaming terminals in some municipalities, the COVID-19 closure of on-site casinos and its duty to consult and consider economic reconciliation with Indigenous peoples.[2]
The chambers judge found that, under Rule 3.15, the request for the originating application for judicial review must be filed and served within six months of the date of the decision or act to be reviewed, and the court cannot extend this limitation period. Due to Rule 3.15, the remedies sought by the Appellant, with the exception of the jurisdictional question, were all time-barred.[3]
With respect to the jurisdictional question, the chambers judge determined that the relevant provisions of the Criminal Code, the Act, and the relevant case law indicate that the Respondent is operating PlayAlberta in accordance with the regulatory framework provided by the relevant legislation.
Court of Appeal analysis
Time-barred remedies
The Court of Appeal (the Court) affirmed the chambers judge’s application of Rule 3.15. As noted above, this rule provides that an originating application may be filed if the applicant seeks a declaration from the court against a body whose decision is subject to judicial review, and it must be filed and served within six months after the date of the decision or act, and that limitation period may not be stayed, extended or shortened by the court.[4] With the chambers judge’s finding of fact that the application had not originated within six months, the Court dismissed this ground of appeal.
Were the Respondent’s actions reasonable?
Although the remedy was time-barred, the Court discussed what a reasonable action would be in the context by using the general administrative standard of review in Valivov.[5] It was found that there was no evidence to support rebutting this standard of review, and the chambers judge correctly applied the standard in their conclusion that the Respondent did not act unreasonably.
Does the Respondent have jurisdiction?
The Court concluded, with reference to the relevant sections[6] of the Criminal Code, the Act and the Gaming, Liquor and Cannabis Regulation, AR 143/96 (the Regulation), that the chambers judge’s interpretation was correct. PlayAlberta falls within the ambit of a “provincial lottery,” which gives the Respondent the authority under Section 43 of the Act to “conduct and manage provincial lotteries on behalf of the Government of Alberta.” Therefore, the Court of Appeal rejected the Appellant’s arguments that the chambers judge failed to consider the full legislative scheme outlined in the Criminal Code, the Act and the Regulation, nor did the Court accept the view that the Act, when viewed in it’s entirety, prohibits a Commission-operated online gambling website.[7]
The Court considered the distinction under Section 207 of the Criminal Code between provincial governments that may conduct and operate a provincial lottery and non-government entities who require provincial approval and licensing to conduct and operate a gaming activity. Section 1(1)(g) of the Act differentiates between licences for “gaming activities” and for “provincial lotteries.”[8] “Provincial lotteries” are defined in Section 1(1)(x) of the Act as a “lottery scheme referred to in Section 207(1)(a) of the Criminal Code, that the Government of Alberta is authorized to conduct and manage.”[9] On the other hand, a “gaming activity” is a “lottery scheme referred to in Section 207(1)(b), (c), (d), or (f) of the Criminal Code; a permitted game of chance operated by a licenced entity other than a provincial government.”[10] This is an important distinction, as Section 20 of the Regulation provides that an applicant for a “gaming licence,” which is required under Section 36 of the Act for non-government entities to conduct a “gaming activity,” must prove pursuant to Section 207(1)(b), (d) or (f) of the Criminal Code that it is a charitable or religious organization utilizing proceeds for a charitable or religious purpose or purposes authorized by the board.[11]
A final element to note is that Section 48 of the Act, which addresses video lottery terminals (VLT), does not apply to online provincial lotteries.[12] A VLT is defined as a “video gaming terminal other than one that is located in a licenced facility.” Although a provincial lottery may use “gaming terminals,” this does not include all Albertans’ “desktops, tablets and smartphones.”[13] The Court notes that this provision’s scope is limited to traditional in-person VLT machines approved and registered for use in licensed and authorized “establishments” other than “licensed facilities.”
Key Takeaways and Conclusion
In summary, the Court provided some important guidance on the jurisdiction of the Alberta Gaming, Liquor and Cannabis Commission over online gambling websites, such as PlayAlberta. A few key takeaways are: (i) an online lottery may be, and in this case is, within the jurisdiction of the Alberta Gaming, Liquor and Cannabis Commission, (ii) there is an important distinction between a provincial government which may operate and manage a provincially authorized lottery scheme, and those who require provincial approval and licensing to operate a gaming activity and (iii) Section 48 has no application to online provincial lotteries, as desktops, tablets, and smartphones are not “video gaming terminals.”
On the Rules, the Court reinforced the timeline in Rule 3.15 that cannot be stayed, extended or shortened.
For more information on this topic, please reach out to the authors, Sean Fairhurst, Dan Collins and Kate Millar.
[1] Tsuu T’ina Gaming Limited Partnership v Alberta Gaming, Liquor and Cannabis Commission, 2023 ABCA 135 [Tsuu T’ina GLP] at para 1.
[2] Tsuu T’ina GLP at para 1.
[3] Tsuu T’ina GLP at para 12. It is worthwhile to note that, in obiter, the chambers judge stated there was no bad faith, conflict of interest, or a breach of fiduciary duty by the Respondent. Furthermore, there were no Aboriginal rights engaged by the Respondent’s actions, thus the duty to consult was not triggered: Tsuu T’ina GLP at para 14.
[4] Tsuu T’ina GLP at para 19.
[5] Tsuu T’ina GLP at para 22.
[6] The relevant sections include: ss 206 and 207 of the Criminal Code, ss 1(1)(h), (i), (j), (j.1), (x), 3, 26(3), 36, 37, 43, 45, 47(d), and 48 of the Act, and s 20 of the Regulation: Tsuu T’ina GLP, paras 25-40.
[7] Tsuu T’ina GLP atpara 43.
[8] Tsuu T’ina GLP at para 29.
[9] Tsuu T’ina GLP at para 32.
[10] Tsuu T’ina GLP at para 29.
[11] Tsuu T’ina GLP at para 41.
[12] Tsuu T’ina GLP at para 40.
[13] Tsuu T’ina GLP at para 40.
