Canada: Election Law 101: Read This Before You Get Involved In Ontario's Upcoming Provincial Campaign

Last Updated: April 27 2018
Article by Adam Goldenberg, Jessica Firestone, Asma Bala and Amanda larusso

Most Read Contributor in Canada, September 2018

Ontario's next general election will take place on June 7, 2018. If you choose to take part — as an individual donor or volunteer, or as an organization or other entity — there may be rules and restrictions that apply to you. This election law primer will introduce you to, or remind you of, some important considerations around making political contributions or volunteering on the campaign trail.

This will be the first provincial election to take place under the 2017 amendments to Ontario's campaign finance laws. The most significant changes are that: (i) corporations, unions, and other organizations are now prohibited from making campaign contributions; (ii) the maximum annual contribution to any one political party is now $1,2221 per person, down from $9,975 per person; and (iii) Members of Provincial Parliament ("MPPs"), candidates, and party leaders and their staff may no longer attend fundraising events. These amendments are further discussed below.

This election law update is intended as general guidance only. If you have any specific questions or concerns, please contact Adam Goldenberg or Jessica Firestone. We would be pleased to discuss them with you.

Contributions

The most recent amendments to Ontario's Election Finances Act2 (the "Act") came into force in January 2017. The Act governs the source, form and amount of contributions that may be made to political entities, including registered political parties, constituency associations, nomination contestants, candidates and leadership contestants.3

Contributions may only be made by "persons individually" — that is, by individuals who are residents of Ontario (or their estates).4 Contributions made through any trade union,5corporation, unincorporated association, or organization are prohibited. While group contributions are generally off limits, contributions from a political organization affiliated with a registered party, such as a youth group, are allowed.6

Contributions may be monetary or non-monetary.

Financial Contributions

Eligible contributors may only contribute their own funds. These would exclude funds that have been given to them by, for example, a group of people, corporation, or trade union.7So, if a contributor attends a fundraising event, he or she must pay for his or her ticket with his or her own funds and may not be reimbursed.8 Contributions of more than $25 must not be made in cash or anonymously, and must be contributed in a manner that associates the contributor's name with the funds, together with a certification form approved by Elections Ontario.9 In other words, it must be clear that the individual donor is indeed contributing her or his own funds. Any contributions that do not abide by this guideline may not be solicited or knowingly accepted by a political entity.10

Monetary contributions in excess of $25 must fall within the contribution limit for the calendar year.11 In 2018, eligible contributors can, in general, contribute a maximum of $1,22212 to each of the following:

  • Any one registered party;13
  • Constituency associations and registered nomination contestants, where the limit is aggregated across all registered constituency associations and nomination contestants14of any one registered party;15
  • Registered candidates16 of any one registered party during each campaign period;17
  • Registered candidates not endorsed by a registered party;18 and
  • Any one registered leadership contestant of a registered party in a calendar year that falls during a leadership contest period or during which the contestant is required to be registered.19

Note that the $1,222 contribution limit applies separately to each of these categories. So, in 2018, a single individual who donated $1,222 to each of the four Progressive Conservative Party leadership candidates, including leader Doug Ford, may donate a further $1,222 to the party itself, plus yet another $1,222 to Doug Ford's campaign for the party's nomination in a particular riding or the constituency association in the riding in which Doug Ford is running, plus yet another $1,222 to Doug Ford once he wins the nomination. These contributions would add up to an aggregate total of $8,554 in 2018 — and they would comply with the limits prescribed in the Act, both individually and collectively.

Contributions of Goods and Services

Political contributions may also come in the form of goods or services provided for less than their market value. The amount of the contribution is the difference between the market value of the goods or services provided and the amount for which the contributor was paid for them.20 Where the value of the goods and services contributed is less than $100 in total in a given year, the contributor may choose not to have the goods or services be counted as a contribution.21

The limits on financial contributions also apply to contributions of goods and services. Thus, only individual Ontario residents may contribute goods or services. Corporations, unions, and other organizations are prohibited from doing so. And an individual may only contribute up to $1,222 in goods and services in a given year in each of the categories described above.

The foregoing does not pertain to goods produced or services performed by volunteers.22The fruits of volunteers' efforts are not considered "contributions", and thus are not subject to the contribution limits in the Act. To qualify as a volunteer, a person must provide the goods or services "free of charge" and "outside their working hours".23 But if a person who is self-employed performs a service for which the self-employed person normally charges, then its market value will be considered a contribution, and the limits in the Act will apply.

Volunteering

Before you volunteer, consider whether you are a "lobbyist" under Ontario's Lobbyist Registration Act24 (the "LRA"). If you are, then the extent to which you may participate in the campaign as a volunteer may be affected.

More Ontarians than ever will be considered "lobbyists" during this year's election. This is thanks to amendments to the LRA that came into force in 2016. (You can read our update on those amendments here.) In short, you are a lobbyist if:

  • you undertake to communicate with Ontario public office holders25 on behalf of a client, either to arrange meetings or in an attempt to influence legislation, regulation, Cabinet decisions, policies, programs, or the awarding of contracts or grants;
  • you are an employee or paid director of a corporation or organization and, as part of your duties, you devote at least 50 hours in a year to provincial lobbying activities; or
  • you are an employee or paid director of a corporation or organization, the employees and paid directors of which collectively devote at least 50 hours in a year to provincial lobbying activities, and your duties include lobbying provincially.

The LRA  prohibits lobbyists from putting public office holders in positions of conflict of interest, whether actual or potential.26 This could impact your ability to lobby candidates for whom you volunteer, whether they are a current public office holder, remain a public office holder after the election, or become one in the future.27 For example, the federal Commissioner of Lobbying takes the view that certain political activities — such as serving in a "strategic role on a campaign team", preparing candidates for election debates, or organizing fundraising events — may risk placing candidates in a conflict of interest if those candidates are, remain, or become public office holders.28 Other activities, such as "placing a candidate's campaign sign on one's lawn" or "scrutineering for a candidate" carry no such risk, however.29 Though the federal and provincial lobbying and conflict of interest regimes differ from one another, lobbyists who become involved in provincial politics should nonetheless keep the federal Commissioner's guidance in mind.

While MPPs would ordinarily be considered "public office holders" under the LRA, MPPs (with the exception of Ministers) are not included in the definition during the election period. This is because, when an election is called, the Legislative Assembly is dissolved and those who were once MPPs cease to be public office holders.30

Furthermore, if your lobbying activities are directed at MPPs, you may be required to amend your registrations after the election. After the election, Ontario's electoral map will change, with the addition of seventeen new ridings, and some electoral districts may undergo changes to their name and representative.31 To comply with the LRA, lobbyists whose registrations are affected by these changes must revise their registrations within 30 days of the election.32

Unlike MPPs, the "public office holder" designation of Ministers and ministry officials is unchanged during the election period. As such, any lobbying activities that are directed at these public office holders during the campaign must comport with the usual lobbyist registration requirements.33

Like electoral districts, there may be changes to Cabinet portfolios which will impact Ministers' titles and ministry names. To comply with the LRA, lobbyists whose registrations are affected by these changes must revise their registrations within 30 days of the election.34

Third Parties

Corporations, partnerships, organizations, unincorporated associations, and any other "person or entity" that is not "a registered candidate, registered constituency association or registered party" may be subject to the provisions of the Act governing "third parties".35 A third party must register with Elections Ontario as soon as the third party has spent at least $500 on, or has received services whose commercial value is at least $500 in relation to, "political advertising" during either the election period or the six months preceding it.36

The Act defines "political advertising" broadly, as:

Advertising in any broadcast, print, electronic or other medium with the purpose of promoting or opposing any registered party or its leader or the election of a registered candidate and includes advertising that takes a position on an issue that can reasonably be regarded as closely associated with a registered party or its leader or a registered candidate.37

The Chief Electoral Officer has the power to decide whether an advertisement constitutes "political advertising" for the purposes of the Act.38 This will more likely be so if, among other factors, "the advertising makes reference to the election",39  "there is a material increase in the normal volume of advertising conducted by the person, organization, or entity",40 or "the content of the advertisement is similar to the political advertising of a party".41

This stands to capture a significant range of expressive activity. If a corporation, organization, or other entity spends at least $500, or receives services whose commercial value is at least $500, in relation to communications caught by the definition above, then the entity will be obliged to register as a third party. Registration will trigger various other statutory obligations, including: (i) appointing a Chief Financial Officer;42 (ii) appointing an auditor if the third party intends to spend more than $5,000 on political advertising, as defined above;43 (iii) filing a third party political advertising report;44 and (iv) complying with the mandatory "blackout" on election day and the day before it.45

The Bottom Line

Participating in an election campaign is a crucial form of civic engagement. Still, those who work for or lead private entities — whether for profit or not — should be cognizant of the potential limits on their own involvement, as well as on the involvement of their directors, officers, and employees. If you or others in your organization will interact with politicians and political parties this election season, take the time to ensure that your internal policies and procedures comply with the rules outlined above.

Footnotes

 1 The contribution limit for 2018 is $1,222. "The contributions a person makes to any one registered party shall not exceed, in a calendar year, $1,200, multiplied by the indexation factor determined for the calendar year under section 40.1 and rounded to the nearest dollar". Election Finances Act, R.S.O. 1990, c. E-7 at s. 18(1).

Election Finances Actibid.

Election Finances Actibid  at  s. 16(1); Elections Ontario, Election Finances: CFO Handbook for Political Parties (January 2018) at 25 "CFO Handbook for Political Parties".

Election Finances Actsupra at ss. 16(1), (4).

5 A trade union is a trade union as defined by the Labour Relations Act or the Canada Labour Code that holds bargaining rights for employees in Ontario to whom those Acts apply and includes any central, regional or district labour council located in Ontario. Election Finances Actibid  at s. 1(1) ("trade union").

Election Finances Actibid  at ss. 26(1), (3), (4); See also CFO Handbook for Political Partiessupra at 26–27.

Election Finances Actsupra  at s. 19(1).

CFO Handbook for Political Partiessupra at 27.

9 Election Finances Actsupra  at ss. 16(2), 17(2), 19(3).

10 Election Finances Actibid  at s. 19(2).

11 Election Finances Actibid  at ss. 16(2), 18(1), 30. A party membership fee that is less than $25 is not considered a contribution.

12 Election Finances Actibid  at s. 18.

13 Election Finances Actibid  at s. 18(1); See also CFO Handbook for Political Partiessupra at 29.

14 Notably, contributions to a registered nomination contestant are not eligible for tax receipts. Elections Ontario, Election Finances: CFO Handbook for Nomination Contestants (January 2018) at 14.

15 Election Finances Actsupra  at s. 18(1.1); See also Elections Ontario, Election Finances: CFO Handbook for Constituency Associations (January 2018) at 23.

16 Candidates may only become registered under the Act when a writ of election is issued, which will occur on May 9, 2018. Thus, eligible contributors may only contribute to registered candidates at that time. Elections Ontario, Register as a candidate (2018).

17 Election Finances Actsupra  at s. 18(1.2); See also Elections Ontario, Election Finances: CFO Handbook for Candidates (January 2018) at 18. The campaign period is the period commencing with the issue of a writ for an election and terminating three months after polling day. Election Finances Act, supra  at s. 1(1) ("campaign period").

18 Election Finances Actibid  at s. 18(1.3).

19 Election Finances Act, ibid  at s. 18(1.4); See also Elections Ontario, Election Finances: CFO Handbook for Leadership Contestants (January 2018) at 17.

20 Election Finances Actsupra at s. 21(1), 21(3).

21 Election Finances Actibid  at s. 21(2).

22 Election Finances Actibid  at s.1(1) ("contribution").

23 Election Finances Actibid at s. 1(1) ("voluntary labour").

24 Lobbyist Registration Act, 1998, S.O, 1998, c.27, Sched.

25 For the purposes of the Ontario Lobbyists Registration Actsupra, "public office holder" includes (among others) any Ontario Cabinet minister, an officer or employee of the province, an MPP or his or her 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. Lobbyist Registration Act, supra at s. 1(1) ("public office holder").

26 Lobbyist Registration Act, ibid  at s. 3.4. MPPs are also bound by the Members' Integrity Act, 1994, S.O. 1994, c. 38.

27 Office of the Integrity Commissioner, Guidance for Lobbyists on Political Activity(2017) "Commissioner's Guidance".

28 Office of the Commissioner of Lobbying of Canada, Commissioner's Guidance for lobbyists regarding the application of Rule 9 of the Lobbyists' Code of Conduct – Political Activities (December 2015).

29 Ibid.

30 Lobbyist Registration Actsupra  at s. 1(1) ("public office holder"). See also Commissioner's Guidancesupra.

31 Ibid.

32 Lobbyist Registration Act, supra  at ss.4(5), 5(4), 6(3.1). See also Commissioner's Guidancesupra.

33 Lobbyist Registration Act, supra  at s. 1(1). See also Commissioner's Guidancesupra.

34 Lobbyist Registration Act, supra at ss.4(5), 5(4), 6(3.1). See also Commissioner's Guidancesupra.

35 Election Finances Actsupra  at s. 1(1) ("third party").

36 Election Finances Actibid at ss. 37.1 ("expenses"), 37.5(1), 37.10.1.

37 Election Finances Actibid at s. 1(1) ("political advertising") emphasis added.

38 Election Finances Actibid at s. 37.0.1.

39 Election Finances Actibid at s. 37.0.1(c).

40 Election Finances Actibid at s. 37.0.1(e).

41 Election Finances Actibid at s. 37.0.1(i).

42 Election Finances Actibid at s. 37.5(3).

43 Election Finances Actibid at s. 37.7(1).

44 Election Finances Actibid at s. 37.12(1).

45 Election Finances Actibid at s. 37(1), 37(2); but see ibid. at s. 37(4)

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