Canada: Ontario Government Proposes Changes To Lobbying Disclosure Law

Last Updated: August 2 2012
Article by Guy W. Giorno

The Ontario Government has proposed changes that will strengthen the Lobbyists Registration Act, currently one of the weakest lobbying transparency laws in the country.

The proposals are certain to have an impact on all businesses and organizations that communicate with Ontario public officials.

The text of the amendments has not been released and the Legislative Assembly is not scheduled to sit until September 10. The amendments are expected to be introduced then or sometime afterward.

Among the most important proposed changes:

1. Expanded reporting obligations for in-house lobbying

Currently there are different thresholds for the registration of in-house lobbying (that is, lobbying by an employee on behalf of his or her employer):

  • An employee of a business, who lobbies for that business, must register as a lobbyist if he or she lobbies provincial officials at least 20 per cent of his or her time.  Each individual employee must register separately.
  • Employees of associations and not-for-profit corporations must be registered as lobbyists if the cumulative volume of lobbying, by all employees, is equivalent to at least 20 per cent of one person's time. The CEO must file a single registration on behalf of all employees who lobby.

The Government announcement states that the registration requirements for both types of in-house lobbyists will be harmonized, but does not provide more detail.

Presumably this means that the responsibility for reporting on in-house lobbying by employees of a business will shift to the CEO from the individual employees.

What is unclear is whether the 20-per-cent threshold will be maintained, though calculated across the entire workforce rather than on an employee by employee basis. It is possible, but unstated, that the 20-per-cent threshold will be reduced or eliminated entirely. The Integrity Commissioner, who is also the Lobbyist Registrar, has proposed the latter.

The Government announcement merely says that its proposal will have the effect of "capturing more lobbying activity." Calculating the 20-per-cent threshold for businesses the same as it is calculated for non-profit organizations would capture some more lobbying activity. Eliminating the threshold would capture significantly more lobbying activity. At this point it is unknown how the Government intends to proceed.

2. More detailed reporting

Under this proposal, lobbying reports will be required to identify the MPPs and Ministers' offices being lobbied.

This proposal appears to be modeled on, but falls short of, the federal law. Federal law requires disclosure of meetings with elected officials, political staff members and senior public servants (rank of assistant deputy minister and above). The Ontario Government has not announced the intention to require disclosure of the names of public servants being lobbied. It also has not clarified whether the names of individual political staff members (as opposed to mere identification of the offices where they work) will be disclosed.

3. Greater regulation of lobbyists' activities

The Lobbyist Registrar (Integrity Commissioner) will be authorized to establish a Code of Conduct for Lobbyists. Currently, codes of conduct regulate the activities of lobbyists in four jurisdictions:  Federal, Newfoundland and Labrador, Province of Quebec and City of Toronto.

What is unclear is whether there will be consequences for contravention of the Code. At present, there is no sanction for a lobbyist who breaches the federal code of conduct, apart from the potential for the violator to be named in a public report to Parliament. On the other hand, in Newfoundland and Labrador, Quebec and Toronto, the lobbyist who contravenes one of the ethical rules may be subject to prosecution.

4. Restrictions on certain arrangements

Lobbyists will not be able to receive contingency or success fees. Persons will also be prohibited from lobbying and providing paid advice to Government on the same subject matter. These two proposals are consistent with the best practices in certain other jurisdictions.

Announcement Silent on Lobbyist Registrar's Key Recommendations

Today's announcement responds to only some of the May 2012 recommendations of the Lobbyist Registrar and Integrity Commissioner, Lynn Morrison.

For example, the Lobbyist Registrar has recommended elimination of the 20-per-cent threshold for in-house lobbying. As explained above, it is unclear whether the Government's legislation will implement this recommendation.  It speaks vaguely of "capturing more lobbying activity."

The Lobbyist Registrar seeks the power to enforce the law by issuing administrative monetary penalties – a power possessed by her counterparts in Alberta and British Columbia, and a power that a federal parliamentary committee recently recommended be conferred on the federal Commissioner of Lobbying. The Government did not explicitly address this recommendation. It only speaks vaguely of giving the Registrar "more enforcement powers, including the ability to prohibit individuals from lobbying." 

Since the Lobbyist Registrar did not expressly seek the power to prohibit individuals from lobbying (which the Government has mentioned), but did expressly request the power to impose administrative monetary penalties (which the Government has not addressed), one might infer that the Government has decided against allowing her to use administrative monetary penalties as a tool of enforcement.

The Lobbyist Registrar has also urged a tightening of the restriction on lobbying by former public servants. (Essentially she proposes closing the loophole that allows some lobbying during the first year after leaving public office.) The Government announcement avoided mention of this recommendation.

In total, Registrar Lynn Morrison has made nine specific recommendations for reform, and the Government announcement explicitly addresses only three of them. It is possible that some or all of the remaining recommendations will be addressed when the legislation is introduced.

View the Government's announcement.

View the recommendations (PDF) made by Lynn Morrison, the Integrity Commissioner and Lobbyist Registrar.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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