Canada: The New Normal: Changes To Ontario's Lobbying Rules

Ontario's lobbying rules are about to change. Here's what you need to know.

Significant amendments to Ontario's Lobbyists Registration Act, 1998 (the "LRA" or the "Act") received Royal Assent in late 2014. The 2014 amendments are expected to be proclaimed in force this July.

If you communicate with Ontario government officials as part of your business, the new rules may apply to you. Before you next press "send" or pick up the phone, make sure that you and your team understand the new reporting requirements and that your internal policies and procedures reflect them.

For businesses and not-for-profit organizations, the most important changes will be:

  • A new, lower threshold for registration. Corporations, partnerships, and organizations (including charities) whose paid employees and directors collectively devote at least 50 hours to provincial lobbying activities in a given one-year period will now be required to register.
  • Corporate CEOs must now register on the corporation's behalf. If a corporation reaches the new 50-hours-per-year registration threshold, the corporation's most senior paid officer (usually the CEO or President) will be responsible for registering on the corporation's behalf.
  • Broader investigative powers and tougher penalties. The new rules empower the Registrar to investigate possible breaches of the LRA and to punish non-compliance. Offences may now result in fines of up to $100,000.

Under the LRA, lobbying is defined as any communication with a public office holder[1] by a paid individual in an attempt to influence any provincial legislation, regulation, policy, program, privatization, outsourcing, or financial benefit.

Where the paid individual is a "consultant" lobbyist – that is, an individual who, for payment, undertakes to lobby on behalf of a person, corporation, partnership, or organization of which the lobbyist is not an employee or a paid director – lobbying includes the above, as well as any communication with a public office holder in an attempt to arrange a meeting between that public office holder and any other person, or in an attempt to influence the awarding of any contract.

The LRA distinguishes consultant lobbyists from "in-house" lobbyists, of which there are two types: (i) lobbyists employed by "persons" (including most for-profit corporations) or partnerships; and (ii) lobbyists employed by "organizations" (including not-for-profit organizations).

Some of the changes to the rules will apply only to in-house lobbyists. Others will apply to all lobbyists. Still others will apply only to consultant lobbyists. We will review each in turn.

IN-HOUSE LOBBYISTS

1. The 50-hour registration threshold

For most corporations and organizations, the most significant change to Ontario's lobbying rules will be the new, lower threshold for corporate registration.

Under the LRA, lobbying activities must be registered with Ontario's Integrity Commissioner, in his capacity as the province's registrar of lobbyists. Under the current rules, an entity is required to register only when its employees collectively devote one person-day per week – i.e., 20% of a single employee's time – in a given three-month period to lobbying activities. Under the new rules, an entity must register when its paid personnel collectively devote at least 50 hours per year to lobbying activities.

Under the new rules, paid directors of a corporation who lobby will count as in-house lobbyists. Their lobbying activities must be added to those of a corporation's paid employees in determining whether the new 50-hour registration threshold is met.

Remember, it is the total number of hours devoted by paid employees and directors in a given one-year period that will trigger the corporation or organization's registration obligation. Even if a corporation or organization does not have a designated "lobbyist" on its payroll, it may yet be required to register if the 50-hour threshold is met.

The new rules permit the Ontario Cabinet to change the 50-hour registration threshold by regulation.

2. The CEO must register

For corporations and partnerships, the obligation to register on behalf of the corporation or partnership will now rest with the "senior officer" – that is, the most senior paid employee of the corporation or partnership, usually the President or CEO.

Under the current rules, in-house lobbyists for corporations and partnerships are responsible for their own registrations.[2] Under both the current rules and the new rules, the obligation to register on behalf of an organization (including a not-for-profit organization) rests with its senior officer.

For all in-house lobbyists, the "senior officer" of a corporation, partnership, or organization must register by filing an initial return on behalf of the corporation, partnership, or organization within two months after the day on which an employee or paid director of the corporation, partnership, or organization becomes an in-house lobbyist.[3] For all in-house lobbyist registrations – whether on behalf of a corporation, a partnership, or an organization – the senior officer must update the entity's registration within 30 days of any change to the information contained in the entity's return or within 30 days of the senior officer's learning of the change, whichever is later.

The rule that the senior officer must register will apply even if the senior officer does not herself or himself lobby. If the 50-hour registration threshold is met, the senior officer must register on the corporation's, partnership's, or organization's behalf.

The corollary to this rule is that a senior officer who fails to comply with the corporation's, partnership's, or organization's registration obligations under the LRA may be convicted of an offence, fines for which may run as high as $100,000. These penalties are discussed below.

ALL LOBBYISTS

3. New investigative powers

The new rules empower the Integrity Commissioner, as Registrar, to conduct investigations of possible breaches of the LRA. The Registrar will have two years from the date on which he knew or should have known about the alleged non-compliance to commence an investigation.

The Registrar will also have the power to require any person to provide any information or document that the Registrar believes is relevant to an investigation, and to summon and examine any person who is able to provide such information.

The Registrar will not be required to give notice to the person being investigated until after the investigation is complete, and then only if the Registrar believes that there has been a breach of the LRA. Persons who are subject to an investigation will have an opportunity to respond to allegations.

You have the right to counsel in your interactions with the Registrar. The 2014 amendments expressly provide that individuals may be represented by counsel during an investigation. If you find yourself on the receiving end of a call from the Registrar, it is advisable to seek advice from a lawyer. Just like on TV, what you say (and write) may be used against you.

4. Tougher penalties

Under the new rules, the Registrar will have the power to punish those who fail to comply with the LRA or the regulations. Once the Registrar has provided the person being investigated with an opportunity to be heard and made a finding of non-compliance, the Registrar will have the authority to:

  • Ban the lobbyist from lobbying for up to two years; and/or
  • Name and shame the lobbyist.

The LRA also creates a number of offenses for non-compliance. With necessary modifications to reflect the new rules, these will remain in place. The 2014 amendments do, however, stiffen the maximum fines that may be imposed on conviction; under the new rules, individuals may be fined up to $25,000 for a first offence and up to $100,000 for each subsequent offence.

Note that, in the case of in-house lobbyists, it will be the senior officer of the corporation, partnership, or organization who may be charged, convicted, and fined under the offence provisions of the LRA.

5. Protection for whistleblowers

The new rules prohibit retaliation against anyone for making a disclosure to the Registrar or for giving evidence in a proceeding. Prohibited forms of retaliation include dismissal from employment, penalties, coercion, intimidation, and harassment. Under the new rules, whistle-blowers may not be sued or have any other proceeding commenced against them for whistle-blowing, unless the whistle-blower acted maliciously or in bad faith. Lobbyists and their employers will also be prohibited from discouraging or obstructing others from reporting to the Registrar.

The 2014 amendments create new offences for violations of these whistle-blower provisions. Those who discourage or obstruct others from reporting, or who retaliate against whistler-blowers, may be punished by fines of up to $100,000.

6. Expanded disclosure requirements

Under the new rules, an initial return – whether filed by a consultant lobbyist or by the senior officer on behalf of a corporation, partnership, or organization – must now include the following:

  • Whether the lobbyist has ever been: (i) an Ontario Cabinet minister; (ii) a staffer to an Ontario Cabinet minister; (iii) a senior Ontario public servant; (iv) a senior executive, senior employee, or board chair of an Ontario government agency, board, or commission; or (v) a senior executive, senior employee, or board chair of Ontario Power Generation Inc. ("OPG"), the Ontario Power Authority, or the Independent Electricity System Operator ("IESO");
  • The subject matters and goal of the lobbying;
  • Information on the lobbying target(s), including identifying ministers (by their portfolios) and MPPs (by their ridings) who have been or will be lobbied or whose staff have been or will be lobbied, as well as the names of any Ontario government ministries, agencies, boards and commissions in which any lobbying target is employed.[4]

The new rules also authorize the Ontario Cabinet to add additional disclosure requirements by regulation.

7. More flexible renewal timelines

Lobbyist registrations must be renewed. Under the current rules, a consultant lobbyist may only renew her or his registration after the one-year anniversary of her or his initial return, and a senior officer may only renew a corporation's, partnership's, or organization's registration after the end of the fiscal or calendar year.

Under the new rules, registrations may be renewed on a more flexible timetable:

  • A consultant lobbyist may renew her or his registration within 30 days of the one-year anniversary of her or his initial return – that is, either 30 days before or 30 days after – and within 30 days of every anniversary thereafter.
  • A senior officer of a person, partnership, or organization that employs an in-house lobbyist may renew that corporation's, partnership's, or organization's registration within 30 days of the end of the six-month period following the person's, partnership's, or organization's initial registration – that is, either 30 days before or 30 days after – and within 30 days of the end of each six-month period thereafter.

8. Lobbyists may not place public office holders in conflicts of interest

The new rules specify that all lobbyists are prohibited from knowingly placing public office holders in a position of a real or potential conflict of interest. This includes conflicts of interest as defined in the Members' Integrity Act, 1994.

9. Code of conduct

The 2014 amendments empower the Registrar to establish a lobbyists' code of conduct. This authorization broadens the Registrar's current powers, but only slightly; the amendments specify that the Registrar's existing power to issue interpretation bulletins "includes the authority" to issue a code of conduct.

The wording of this new provision makes clear that the power to issue a code of conduct is subsumed within the Registrar's existing power to issue interpretation bulletins. For this reason, any code of conduct – just like any interpretation bulletin – will be non-binding. This is not a significant change.

10. Legislative review of the Act

The 2014 amendments require a committee of the Legislature to "begin a comprehensive review" of the LRA within five years of the new rules' coming into force, and to make recommendations to the Legislature within one year of the start of that review.

CONSULTANT LOBBYISTS

11. No contingency fees

Under the new rules,consultant lobbyists may not be paid contingency or success fees.

12. No double dipping

Consultant lobbyists will be prohibited from: (i) lobbying a public office holder to whom they are providing paid advice on the same subject matter; and (ii) providing paid advice to a public office holder whom they are lobbying on the same subject matter.

Note that, even though individual consultant lobbyists will be barred from double dipping, the same restriction will not apply to lobbying firms as a whole. If two individuals are partners in (or are employed by) the same lobbying firm, one of them may lobby a public office holder while the other gives paid advice to the same public office holder on the same subject matter, without running afoul of the new rule.

Note also that the double-dipping restriction will not apply to in-house lobbyists. If a corporation or partnership employs an in-house lobbyist, then not only may different employees of the same corporation or partnership lobby and provide paid advice to the same public office holder on the same subject matter, but a single employee of that corporation or partnership may lobby (on the corporation's or partnership's behalf) and give paid advice to the same public office holder on the same subject matter.

13. No public funds

Under the new rules, consultant lobbyists may not be paid with public funds. This restriction will apply to: (i) hospitals; (ii) school boards; (iii) universities, colleges, and other post-secondary institutions; (iv) children's aid societies; (v) community care access corporations; (vi) public sector procurement corporations; and (vii) any organization that received a total of more than $10 million of public funds in the Government of Ontario's previous fiscal year.[5]

Certain entities may not pay consultant lobbyists using public funds or their own revenues. These are: (i) any Ontario government agency; (ii) OPG; and (iii) IESO.[6]

***

The Registrar has indicated that implementing a number of the new rules will require adjustments to the registration system and procedures. As such, the Registrar's office is developing new protocols and expects them to be in place (alongside transition mechanisms) prior to the date on which the new rules come into force. Again, we expect that this date will be in July 2016.

THE BOTTOM LINE

The 2014 amendments to the LRA lower the threshold for corporate registration, expand executive liability, and grant the Registrar new investigative and punitive powers. If you, your employees, or your paid directors engage with Queen's Park or other Ontario public officials, now is the time to ensure that your internal policies and procedures will be compliant with the new rules.

Footnotes

[1] For the purposes of the Ontario Lobbyists Registration Act (the "LRA" or the "Act"), "public office holder" includes (among others) any Ontario Cabinet minister, an officer or employee of the province, an MPP or their staff, a person appointed to an office by the Lieutenant Governor in Council or a minister (other than a member of the judiciary), and members of the Ontario Provincial Police.

[2] If the corporation already employs an in-house lobbyist, the senior officer has two months from the date on which the 2014 amendments come into force to file the corporation's return.

[3] A consultant lobbyist must register by filing her or his initial return within 10 days of commencing lobbying on behalf of a client.

[4] Note that, unlike under federal law, the public office holders do not need to be identified by name.

[5] Note that the Ontario Cabinet may, by regulation, add to the list of entities prohibited from paying lobbyists using public funds.

[6] Note that the Ontario Cabinet may, by regulation, add to the list of entities prohibited from using their own revenues to pay lobbyists.

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