Canada: Proposed Changes To Ontario's Lobbyists Registration Act, 1998

INTRODUCTION

On March 24, 2014, the Minister of Government Services John Milloy introduced for first reading Bill 179 "An Act to promote public sector accountability and transparency by enacting the Broader Public Sector Executive Compensation Act, 2014 and amending various Acts, 2014". ("bill 179") Schedule 7 of bill 179 proposes various amendments to the Lobbyists Registration Act, 1998. If passed, these changes would represent the first substantial changes to that Act since it was first enacted in 1998. In essence, the proposed amendments outlined below will make the Ontario Lobbyists Registration Act more consistent with the federal lobbying legislation as well as various lobbying disclosure statutes in the provinces, specifically, British Columbia and Alberta. This bulletin provides a summary of the key provisions proposed that will be of interest to BLG's government relations clients.

KEY PROPOSED CHANGES TO THE LOBBYISTS REGISTRATION ACT, 1998

Prohibited Lobbying Activities

The bill proposes a new heading "Prohibited Lobbying Activities" that collects together various new and current prohibitions on consultant lobbyists under one section. The prohibitions are:

  • No consultant lobbyist shall undertake to lobby on behalf of a client where the client is prohibited from engaging a lobbyist to provide lobbyist services using public funds;
  • No consultant lobbyist shall undertake to lobby when payment is contingent on his or her degree of success in lobbying.

Conflicts Of Interest

A new section (3.3) is added that details conflicts of interest: no consultant lobbyist shall undertake to provide advice on a subject matter to a public office holder for payment where the consultant lobbyist is lobbying any public office holder on the same subject matter. In addition, no consultant lobbyist shall undertake to lobby a public office holder on a subject matter where the lobbyist is under contract with any public office holder to provide advice on the same subject matter for payment.

A new section (3.4) is added to the bill that prohibits lobbyists from placing public office holders in a conflict of interest: no consultant or in-house lobbyist shall, in the course of lobbying a public office holder, knowingly place the public office holder in a position of real or potential conflict of interest. A conflict of interest is defined as "a public office holder is a position of conflict of interest if he or she engages in an activity that is prohibited by section 2, 3, or 4 of subsection 6 (1) of the Members Integrity Act, 1994 or that would be so prohibited if the public office holder were a member of the Legislative Assembly". Generally this involves a member using his or her position to further his or her private interests, accepting gifts tied to the exercise of the members officials duties, and the use of insider information to further the members private interests.

In-House Lobbyist Filings

The proposed bill amends various sections related to the requirements for in-house lobbyists when filing returns. Under the new bill, the senior officer of a corporation (what is called "person or partnership") that employs an in-house lobbyist must now file a return within two months after the in-house lobbyist was hired. In addition, the senior officers filing must list each in-house lobbyist employed by the business. The present statute only requires the in-house lobbyist of a corporation to file a return with the Lobbyist Registrar. This change mirrors the requirements for senior officers of an "organization" that employs a lobbyist such as a trade association and is consistent with federal lobbying disclosure requirements.

In addition, the bill would require that paid corporate directors that lobby the government now be classified as "in-house" lobbyists for the purposes of filing returns. This represents a change from the previous requirement that paid directors that lobby on behalf of their organizations register as consultant lobbyists (since they are not full-time employees that spend a significant part of their time lobbying).

So if a corporation has employees and directors whose duties, when combined, would constitute a significant part of the duties of one employee or director, then the senior officer of the corporation would be required to file a return.1

Disclosure of Public Offices Held

The bill also proposes to add sections that require both in-house and consultant lobbyists to disclosure any public office previously held. This includes whether the person was a minister of the Crown, a senior civil servant, the chief executive officer or chair of the board of any agency, board or commission of the Crown, a senior offi of any such organization, including Hydro One, Ontario Power Generation, the Ontario Power Authority or Independent Electricity System Operator.

Subject Matter and Target of the Lobbying

Further proposed changes include describing the goal of the lobbying related to a specific subject matter. In addition, if the target of the lobbying is a minister of the Crown, his or her political staff, or a member of the Legislative Assembly, then the lobbyist must include specific names and contact information in his or her return.

Expanded Powers of the Lobbyist Registrar

The bill proposes a new range of powers for the Lobbyist Registrar. These include:

  • The power to issue advisory and interpretation bulletins is expanded to include lobbyist's conduct, including the authority to issue a lobbyist code of conduct;
  • The ability to conduct investigations into any alleged breach of the Lobbyist Registration Act, and regulations.
  • Expanded penalty provisions for breaches of the Act or regulations such as prohibitions on lobbying for a maximum of two years, publication of the name of the lobbyist and his or her offence,
  • Maximum fines for any conviction under the Act increase from $25,000 to $100,000.

Of particular note involves the process for the investigation outlined in the bill. The Registrar may compel any person to provide information or documentation that may be relevant to the investigation, issue summons and apply to the Superior Court of Justice for an order directing a person to provide information or documents. Also once the investigation is complete, and the Registrar believes a breach of the Act or regulations has occurred, he or she will give notice to the person being investigated. (section 17.5). At that point the person alleged to have been in non-compliance with the Act will have the opportunity to respond to the Registrars allegations.

The Act also includes provisions for a reconsideration of the Registrars findings of non compliance or the penalty being considered or both. Provision is also made for a judicial review of the findings within 60 days of having received the judgment.

Footnote

1 The significant part of the duties of one employee is defined to mean 20% or more of one full time employee's time is devoted to lobbying.

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