Executive Summary: Key Legal and Evidentiary Issues

• Court assessed whether GotSkill, an electronic game, remains a prohibited game of mixed chance and skill under s. 197(1) of the Criminal Code.

• Focus was on whether the game involves a systematic resort to chance in its normal operation by ordinary players.

• Applicant argued that game modifications eliminated the reliance on chance, especially by allowing preview of upcoming prizes.

• The Registrar determined the game still violated regulatory restrictions and ordered its removal from licensed premises.

• Court found statistical evidence showed players continued to be incentivized by hidden future prizes, which are uncovered through chance.

• Application was dismissed as the game’s design continued to rely on player spending driven by the hope of randomly receiving higher-value rounds.

Facts and procedural background

SBG-Skill Based Games Inc. is the distributor of GotSkill, an electronic terminal game offered in licensed establishments across Ontario. In 2019, the Ontario Court of Appeal determined that an earlier version of GotSkill involved a systematic resort to chance and was therefore a prohibited game of mixed chance and skill under the Criminal Code. Since then, the applicant modified the game to comply with the law, hoping to continue offering it in about 180 licensed premises.

Despite these changes, the Registrar of the Alcohol and Gaming Commission of Ontario (AGCO) maintained that the game still fell under the category of unlawful gambling. The Registrar issued a bulletin directing licensees to remove GotSkill terminals from their premises. SBG-Skill brought a Rule 14 application to the Superior Court, challenging the Registrar’s decision and seeking a declaration that the new version of the game was lawful.

The game’s operation and changes

Originally, GotSkill required players to purchase tokens and wager credits based on predetermined prize values. If the displayed prize was greater than zero, a skill task—based on hand-eye coordination—determined the player’s actual win. However, if the prize was zero, the player could only proceed with a minimum wager and would automatically lose.

Three major changes were made after the 2019 ruling: (1) players could view the next five potential prize values before choosing to play; (2) terms and conditions were updated to reflect this viewing option; and (3) players were now allowed to complete the skill task even when a ticket had a prize value of zero.

Legal analysis by the court

Justice Nakatsuru’s analysis focused on whether the game still involved a systematic resort to chance from the perspective of an ordinary player. The court found that, while players could now preview up to five upcoming prize values, they remained unaware of any prizes beyond that. As a result, they were still incentivized to continue playing—and paying—in the hopes of revealing a more valuable prize in a future round. This repeated wagering, based on concealed future prize values, constituted reliance on chance.

The court also considered user data from 2024, which showed that players averaged over 120 rounds per session and rarely used the “Next Wins/Menu” button to view upcoming prizes. This behavior demonstrated that players did not make strategic or informed choices that would eliminate the chance element.

The court was not persuaded by the applicant’s argument that players could potentially view up to 1,300 prize tickets by changing themes and entry levels. Such activity was deemed unrealistic for ordinary players, and the complexity of accessing all future prize information only reinforced the game's chance-based structure. Additional evidence showed that over two-thirds of the tickets offered zero value and that prize distributions were programmed to induce extended play.

Conclusion and outcome

Justice Nakatsuru concluded that despite efforts to minimize chance, the game continued to involve a systematic resort to chance. This characteristic rendered GotSkill a game of mixed chance and skill, falling within the prohibited category under s. 197(1) of the Criminal Code. The application was dismissed. The AGCO’s decision requiring removal of the game from licensed premises was upheld. No costs were awarded, as agreed by the parties.