Canada: Lobbying Legislation Changes For Communicating With Ontario And Alberta Governments

Recent amendments to Ontario and Alberta's lobbying regimes will mean changes for persons who communicate with governments in those jurisdictions. The effective date of Ontario's legislation has yet to be announced while Alberta's amendments have already taken effect.

AMENDMENTS TO ONTARIO'S LOBBYISTS REGISTRATION ACT

In August, the Ontario government introduced Bill 8, Public Sector and MPP Accountability and Transparency Act, 2014 (Bill), which proposed amendments to the Lobbyists Registration Act (Act), among other things. The Bill received royal assent on December 11, 2014, with some changes from its original form and will come into force at a later date.

Disclosure and Filing Requirements

The amendments introduce new filing requirements for in-house lobbyists. The chief executive or other senior officer of a company must now file a single in-house return within two months of the company exceeding applicable thresholds. Under the new definition of "in-house lobbyist," a return is required if the lobbying duties of any employees and directors, individually or in the aggregate, exceed 50 hours per year. This is a far lower threshold than previously in effect, but provides more flexibility for one-time communications than the original no-threshold proposal. Organizations should be aware that they may be required to file a return even if they do not employ a dedicated in-house lobbyist.

In-house and consultant lobbyists will have to disclose not just the subject matter of the lobbying, but also the lobbyist's goal with respect to the subject matter. If the lobbyist targets a minister of the Crown, his or her political staff, or a member of assembly, the lobbyist will also have to disclose the name and contact information for that individual. This is similar to federal requirements, but is a significant additional requirement for Ontario.

In-house and consultant lobbyists will have to disclose any public office previously held, including a senior position at Hydro One, Ontario Power Generation, Ontario Power Authority or Independent Electricity System Operator. As under the federal regime, this applies to lobbyists who became former public office holders within the previous two years.

Prohibited Activities

The Act clarifies that consultant lobbyists will be prohibited from lobbying in the following circumstances:

  • Where the client is prohibited from engaging a lobbyist using public funds
  • Where payment for lobbying is contingent on the lobbyist's degree of success
  • Where the lobbyist is providing paid advice to any public office holder on the same subject matter.

Both in-house and consultant lobbyists will be prohibited from knowingly placing a public office holder in a position of real or perceived conflict of interest. A public office holder is in such a position if he or she engages in activities set out in the Members' Integrity Act, such as accepting gifts tied to the exercise of his or her official duties.

New Powers and Penalties

The registrar's powers will include authority to issue a Lobbyists' Code of Conduct and require disclosure of a broad range of information. The Act will empower the registrar to require any person to provide any information, document or thing which, in the opinion of the registrar, is relevant to an investigation. The registrar will also be able to summon and examine any person who, in the opinion of the registrar, is able to provide such information. Persons who are summoned or required to provide information will be entitled to privilege and protection under the Canada Evidence Act.

The Act will empower the registrar to impose two additional penalties following a finding of non-compliance or conviction under the Act. The registrar will be able to prohibit the person from lobbying for up to two years, and will also be able to publish the person's name, a description of the non-compliance, and any other information the registrar considers necessary. These penalties could result in serious professional and reputational consequences.

Whistleblowing Protection

All persons (including companies) will be expressly prohibited from retaliating against anyone for disclosing anything to the registrar. Prohibited retaliation includes, but is not limited to, dismissal from employment, any other penalty, intimidation, coercion and harassment. Consultant lobbyists, in-house lobbyists, and organizations employing an in-house lobbyist are also prohibited from discouraging reporting.

AMENDMENTS TO ALBERTA'S LOBBYISTS ACT

The Alberta Accountability Act came into force on December 17, 2014. This Act contains several key amendments to Alberta's Lobbyists Act.

The Lobbyists Act now contains two new prohibitions:

  • No person may lobby a public office holder if that person holds a contract for providing paid advice to a government department or prescribed entities. Previously, the prohibition applied only to situations where the lobbying activity and the contract shared the same subject matter. Those who both lobby and provide paid advice to the government have 60 days to cease doing one or the other. Certain exemptions are available for sitting on boards with or commissions with multiple representatives, or by applying to the Ethics Commissioner.
  • No person may lobby in respect of a subject matter if a person associated with that person holds a contract for providing paid advice to a government department or prescribed entity on the same subject matter. A person is deemed to be "associated" with a person or entity if he or she is a director, senior officer, employee, or in the case of private corporations, a shareholder of the entity.

There are also new filing requirements. The designated filer must set out the nature and office held by any consultant or organization lobbyist who became a former public office holder within the previous two years, and sign a declaration that no consultant lobbyist named in a return holds a contract for providing paid advice to a department or prescribed entity.

The definition of "former public office holders" includes former members of the Executive Council, former members of the premier's and ministers' staff (other than employees providing administrative support), and individuals who formerly occupied a senior executive or assistant deputy position in a department. In addition, "former public office holders" include former office holders that may be designated by the lieutenant-governor under the Public Service Act. The lieutenant-governor has not yet proposed or designated any such former office holders, as the provisions of the Public Service Act, which authorize the lieutenant-governor to designate such positions only come into force on February 1, 2015.

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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