On July 1, 2016, important amendments will come into force with respect to the Ontario Lobbyists Registration Act (Act). These amendments may require more persons (including corporations), partnerships, and organizations to register than is currently the case, and will also affect the contractual agreements between lobbyists and the clients they represent; require additional information in filings; and provide the Integrity Commissioner—as Lobbyist Registrar—with investigative and enforcement powers that are not currently available.
To explain lobby registration requirements, one must first understand that anyone can communicate with government officials on any topic. When the communication falls within certain defined categories as set out in the Act, then a lobby registration will be required. Defined communications will arise when a person attempts to influence an Ontario Government official (Public Officer Holder or POH) while discussing legislative proposals, existing bills or resolutions; the making or amending of regulations; the development or amendments of policies or programs; transfers from the Crown for consideration of the interest or assets of a business providing goods or services to the Crown; awarding a grant, contribution or other financial benefit; and, in relation to a consultant lobbyist, awarding any contract or arranging a meeting between a POH and another person.
When communication by the employees of a person (including corporations), partnership or organization with respect to any one or all of these defined areas reaches 50 hours per year (previously 20 percent of employees' time devoted to lobbying), then the communication must be registered. In addition to employees, the amendments now include paid directors in the calculation of the 50-hour threshold.
Under the current system, the individual employee of a person (including corporations) or partnership is required to file the registration. Under the amended provisions, the senior officer of the employer will now be required to file the registration on behalf of all employees and paid directors. When a return is filed by the senior officer, it will need to list each of the in-house lobbyists employed by the business (as is currently the case) and will now also need to indicate whether the lobbyist was previously in public office and outline the goal of the reported lobbying. If the lobbying communication is with a minister or other member of the Legislative Assembly, or a person on their staff, then the return must provide the name of that relevant office.
When a person (including corporations), partnership or organization retains an outside person to lobby on their behalf, this individual (consultant lobbyist) is required to register in their own name and will no longer be able to accept "contingency fees" dependent on a particular lobbying outcome. Any such clause in a contract entered into or renewed as of July 1, 2016, will be void. If such a contingency arrangement is in a contract that is already in force on July 1, 2016, then the payment to the consultant lobbyist will be valid for one year before becoming void on July 1, 2017. In addition, consultant lobbyists—but not in-house lobbyists—will be prohibited from providing paid advice while lobbying on the same subject-matter. Both consultant and in-house lobbyists will now have to be careful not to knowingly place a POH in the position of a real or potential conflict of interest, which can arise through giving a fee, gift or personal benefit that is connected, directly or indirectly, with the performance of their duties.
Registrations will also contain a number of new questions. As stated in the amendments, these will include:
- Were you, at any time, a Cabinet minister, a deputy minister, an associate/assistant deputy minister, a member of a minister's staff or held certain positions at identified agencies of the government?
- When creating a registration, on what date did you commence the performance of your undertaking?
- What are your specific lobbying goals?
- Will you be lobbying a Minister's Office and/or Member of Provincial Parliament, in addition to a ministry and/or agency?
- When terminating a registration, on what date did you complete or terminate your undertaking?
Registrations will need to be renewed annually by consultant lobbyists and organizations while persons (includes corporations) and partnerships will need to be renewed every six months. Nothing needs to be done with an existing registration that is in effect on July 1, 2016.
Finally, the Lobbyist Registrar will also be granted a range of new powers. These include:
- The power to issue advisory and interpretation bulletins that will be expanded to include lobbyists' 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 or 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.
During an investigation, the Registrar will have the power to compel a person to share information or documentation that may be relevant, issue summons, and apply to the Superior Court of Justice for an order directing a person to provide information or documents. Following an investigation, if the Registrar believes a breach of the Act or Regulations has occurred, he will give notice to the person being investigated and the person will have an opportunity to respond to the Registrar's allegations.
Interestingly, whistleblower protection provisions have also been added. Under these provisions, people will be prohibited from retaliating against another person who has disclosed information to the Registrar or who has given evidence in a proceeding conducted by the Registrar. Without limiting the meaning of the word "retaliate", examples include:
- Dismissing or suspending a person from employment, or disciplining them.
- Imposing a penalty on a person.
- Intimidating, coercing or harassing a person.
It is important to note that no action or other proceeding can be commenced against any person who qualifies as a whistleblower unless the person acted maliciously or in bad faith.
A recent decision by the Ontario Court of Justice in the case of R. v. Carroll (April 8, 2016) resulted in a conviction pursuant to the federal Lobbying Act and a fine of $20,000. While this was relative to the federal lobbying regime, the potential consequences also apply to the Ontario legislation and the amendments coming into force on July 1, 2016. A failure to abide by the lobbying provisions can result in significant financial consequences that would obviously flow from a conviction and penalty, but could also flow from the attendant negative publicity for individuals and corporations.
Predictably, lobbying enforcement activities will continue to be enhanced. Individuals, corporations, partnerships and organizations would be wise to become fully informed with respect to the provisions that might apply to their communications with government.
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