Canada: Lobbying And Election Finance Reform: Roundup Of Recent Developments

British Columbia, the Northwest Territories and Ontario have recently introduced significant changes to their respective lobbying and election finance regimes; the Yukon has introduced a new lobbying regime, and Prince Edward Island's lobbying regime takes effect in 2019.

LOBBYING LEGISLATION

British Columbia: Proposed Amendments to the Lobbying Regime

Bill 54, Lobbyists Registration Amendment Act, 2018 (B.C. Bill) received royal assent on November 27, 2018. Most provisions of the B.C. Bill have not yet been proclaimed in force, but it will amend various sections of the Lobbyists Registration Act.

Definitions

The B.C. Bill proposes to expand the definition of "former public office holder" to also include any individual, other than administrative support staff, formerly employed in a current or former office of a current member of the executive council.

The B.C. Bill also proposes to revise the definition of "in-house lobbyist" in a significant way. Under the proposed definition, the 100-hour threshold for an in-house lobbyist would be removed and replaced with various qualifiers as to which individuals are not in-house lobbyists, including if:

  1. The individual is an employee, director or officer of an organization that has fewer than six employees
  2. The lobbying by the individual, either alone or together with other individuals in the organization, on behalf of the organization or an affiliate of the organization,
  1. Totals fewer than 50 hours in the preceding 12-month period, or
  2. Meets the prescribed criteria,

unless the primary purpose of the organization is to:

  1. Represent the interests of its members, or
  2. Promote or oppose issues, and the lobbying by the individual is for that purpose.

The Office of the Registrar of Lobbyists for B.C. advises that both preceding requirements must be met in order to take advantage of the exemption.

Finally, the B.C. Bill proposes to add a definition for a "relevant code of conduct." Although currently the Office of the Registrar of Lobbyists in B.C. has not released any code of conduct, such a code can be expected once the B.C. Bill is proclaimed into force, likely to be comparable to the federal code of conduct. For a summary of the federal code of conduct, please see our December 2015 Blakes Bulletin: New Lobbyists' Code of Conduct Has Broad Implications.

Gift-Giving Prohibitions

The B.C. Bill includes new prohibitions on gift giving. If enacted, these would prohibit lobbyists from giving or promising gifts to public office holders that they are lobbying, unless the gifts fall within social obligations typical in the office of the public office holder, and in the yearly aggregate do not exceed the prescribed amount (note that no such prescribed amount has been proposed). 

Returns

The current legislation requires that in-house lobbyists file a return within 60 days of meeting the in-house lobbyist threshold (if no return has been previously filed), and within 30 days of each six-month period thereafter (if filing a subsequent return). The B.C. Bill proposes to replace these provisions with one initial filing deadline 10 days after the organization first has an in-house lobbyist. The B.C. Bill also proposes to replace the requirement to file a subsequent return with a monthly filing requirement, whereby a return would be required no later than 15 days after the end of each month. 

Finally, the B.C. Bill introduces additional information regarding the timing and frequency of required returns. For instance, returns would no longer need to be filed for months in which no lobbying activity took place; however, if no lobbying is conducted for five consecutive months, then a return communicating that fact would need to be filed.

Penalties

The B.C. legislation already includes monetary penalties for lobbyists found guilty of an offence. However, under the B.C. Bill, the registrar would now also be able to impose a prohibition on lobbying and on filing returns for a period of up to two years. Furthermore, the registrar would also be required to ensure that information relating to any issued prohibition is made publicly available as soon as is permitted by the legislation.

PRINCE EDWARD ISLAND –NEW LOBBYING REGIME EFFECTIVE 2019

The Lobbyists Registration Act (P.E.I. Act) has now been proclaimed in force, effective April 1, 2019. The P.E.I. Act will regulate the activities of both consultant and in-house lobbyists in the province with respect to communications with public office holders in an attempt to influence:

  • The development of a legislative proposal by the Government of Prince Edward Island or by a member of the legislative assembly
  • The introduction of a bill or resolution in the legislative assembly or the passage, defeat or amendment of any bill or resolution that is before the legislative assembly
  • The making or amendment of any regulation made by a minister or the lieutenant governor-in-council
  • The development or amendment of a policy or program of the Government of Prince Edward Island or the termination of any program of the government
  • A decision by the executive council to transfer from the Crown for consideration, all or part of, or any interest in or asset of, any business, enterprise or institution that provides goods or services to the Crown or to the public
  • A decision by the executive council, a committee of the executive council or a minister to have the private sector instead of the Crown provide goods or services to the Crown
  • The awarding of any grant, contribution or other financial benefit by or on behalf of the Crown.

For a detailed summary of the new P.E.I. lobbying regime, please see our February 2018 Blakes Bulletin: Prince Edward Island Lobbying Regime on the Horizon. Once the legislation is effective, consultant lobbyists performing an undertaking to lobby will be required to file a return no later than April 11, 2019, while in-house lobbyists will be required to file a return no later than June 1, 2019.

In addition, the Lobbyists Registration Act General Regulations were also recently released and take effect on April 1, 2019. They provide that the six-month post-employment restriction for former public office holders under the P.E.I. Act will also apply to former public-office holders who held the highest-ranking executive position of, or – if applicable – were on, the board of directors or other governing entity of, the Public Service Commission or a reporting governmental entity, as listed in Schedule B or C of the Financial Administration Act.

YUKON – NEW PROPOSED LOBBYING REGIME

Bill 23, Lobbyists Registration Act (Yukon Bill), received royal assent on November 22, 2018, but has not yet been proclaimed into force.  

Regulated Lobbyists and Lobbying Activities

Under the proposed Yukon lobbying legislation, both consultant and in-house lobbyists will be regulated. While the definition of in-house lobbyist does not include an hourly threshold, the proposed legislation states that registration by an in-house lobbyist is only required if the individual, alone or in tandem with another individual working on behalf of the same employer, spends a prescribed amount of time lobbying, or if no number is prescribed, then 20 hours per year. A consultant lobbyist, on the other hand, is defined under the Yukon Bill as an individual who, for consideration, undertakes to lobby on behalf of a client.

The lobbying activities regulated under the Yukon Bill generally apply to both in-house and consultant lobbyists and include communications with a public office holder in an attempt to influence:

  • The development of a legislative proposal by the Government of Yukon or by a member of the legislative assembly
  • The introduction of a bill, motion or resolution in the legislative assembly, or the passage, defeat or amendment of a bill, act, motion or resolution that is before the legislative assembly
  • The making or amendment of a regulation
  • The development, amendment or termination of a policy or program of the Government of Yukon
  • A decision by the executive council to transfer for consideration all or part of, or an interest in or asset of, a business, enterprise or institution that provides goods or services to the Government of Yukon or to the public
  • A decision by the executive council, a committee of the executive council or a minister to have the private sector instead of the Government of Yukon, or any of its organizational components, provide goods or services to the Government of Yukon
  • The awarding of a grant, contribution or other financial benefit by or on behalf of the Government of Yukon
  • The awarding of a contract by or on behalf of the Government of Yukon.

In addition, for consultant lobbyists, it will also be considered lobbying if they attempt to arrange a meeting between a public office holder and another person for the purpose of attempting to influence the above objectives.

Contracting

The Yukon Bill, like other federal and provincial legislations, proposes to regulate communications with a public office holder in an attempt to influence the awarding of a contract by or on behalf of the Government of Yukon. However, unlike other jurisdictions, this provision applies to both consultant and in-house lobbyists.

Who is a Public Office Holder?

A public office holder, as defined under the Yukon Bill, includes a member of the legislative assembly, a cabinet employee, a caucus employee, an employee within the meaning of the Public Service Act, and a person who is a member of a prescribed class of persons (currently none prescribed).

Exempted Communications

Under the Yukon Bill, the Yukon lobbying regime will not apply to the following communications:

  • Oral or written submissions made in public proceedings to a committee of the legislative assembly or to a person or body having jurisdiction or powers conferred under an act
  • Oral or written submissions made to a public office holder by an individual on behalf of a person, organization or body, in relation to the enforcement, interpretation or application of an enactment by the public office holder or the implementation or administration of a policy, program, directive or guideline by the public office holder with respect to that person, organization or body
  • Oral or written submissions made to a public office holder by an individual on behalf of a person, organization or body in direct response to a written request from a public office holder for advice or comment with respect to lobbying objectives
  • Oral or written submissions made to a member of the legislative assembly by an individual on behalf of a constituent with respect to any personal matter of the constituent
  • Communications made to a public office holder by an employee organization, within the meaning of the Public Service Labour Relations Act, with respect to the administration or negotiation of a collective agreement under that act, or a matter related to the representation of a member or former member of a bargaining unit who is (or was) an employee as defined in that act.

Lobbyist Registration

Under the Yukon Bill, consultant and in-house lobbyists will be required to submit a return to the commissioner. Consultant lobbyists will be required to file the return within 15 days of starting a lobbying undertaking on behalf of a client, and subsequently every six months within 30 days of the previous return date. Once in force, consultant lobbyists will have 90 days to submit their first return.

An in-house lobbyist, on the other hand, will be required to submit a return within 60 days of the date they meet the in-house lobbyist threshold (which is the prescribed amount, or otherwise 20 hours). Once the legislation comes into force, an in-house lobbyist will be required to submit their first return within 90 days if the registration threshold has already been exceeded, or within 60 days after the day on which the threshold is exceeded.

Post-Employment Restrictions for Former Public Office Holders

Under the Yukon Bill, former consultant lobbyists cannot become public service employees within six months after notifying the commissioner of their discontinued lobbying engagement. Similarly, former public office holders will not be permitted to lobby as consultant lobbyists within six months of ceasing to be a public office holder. However, upon request and after providing terms and conditions considered advisable by the commissioner, a former public office holder may obtain an exemption from the lobbying prohibition.

Conflicts of Interest

Like other jurisdictions, consultant and in-house lobbyists will be prohibited from knowingly placing a public office holder in a position of real or potential conflict of interest. However, the Yukon Bill does not currently define what constitutes a conflict of interest.

Prohibited Activities and Penalties

Under the Yukon Bill, a consultant or in-house lobbyist will be found guilty of an offence and subject to monetary fines if they undertake any of the following prohibited activities:

  • Submitting a return or other document with false or misleading information, unless this was not known, and could not have reasonably been known, at the time of submission
  • Knowingly placing a public office holder into a real or potential conflict of interest
  • Interfering with or obstructing a person who is exercising a power or performing a duty under the Yukon lobbying legislation
  • Contravening the requirements associated with filing returns and information required to be provided to the commissioner
  • Contravening a prohibition imposed under the Yukon lobbying legislation.

Under the Yukon Bill, the commissioner may prosecute a lobbyist for any of the above offences within two years of its alleged commission, and, where convicted, may impose a maximum monetary fine of C$25,000 for a first offence and C$100,000 for any subsequent offence. The commissioner may also prohibit an individual convicted of an offence from lobbying or filing a return for up to two years, and has the authority under this bill to publish the name of the convicted individual, the nature of the offence, the penalty, and the prohibition.

ELECTION FINANCE LEGISLATION

Northwest Territories – Third-Party Advertising

Bill 24, An Act to Amend the Elections and Plebiscites Act was proclaimed into force on November 30, 2018, and introduces a new third-party advertising regime under the Elections and Plebiscites Act.

Third-Party Registration and Advertising Expense Limits

Under the new regime, third parties are required to register immediately after incurring, or in the anticipation of incurring, expenses of C$500 or more for election advertising. A "third party" includes a person, corporation or group that is not a registered candidate or member of the legislative assembly, while "election advertising" is defined as the transmission to the public of a message that promotes or opposes the election of a candidate or takes a position on an issue that is associated with a particular candidate.

Once registered, third parties are prohibited from incurring advertising expenses in the aggregate across all electoral districts that exceed C$57,000 within the election advertising period. The "election advertising period" is defined as the period commencing three months before the writ of election is issued and ending on the polling day. Additionally, registered third parties are restricted from incurring advertising expenses that exceed C$3,000 per candidate to promote or oppose the election of one or more candidates in a given electoral district. For this purpose, "promote or oppose" includes naming the candidate, displaying the candidate's likeness, or taking a position on an issue with which that candidate is particularly associated. Finally, a C$3,000 advertising expense limit has also been imposed in relation to a by-election in a given electoral district.

Third-Party Advertising Expense Reports

Registered third parties are now required to file an election advertising expense report with the chief electoral officer, which includes:

  • The total value of funds spent on election advertising during the election advertising period
  • The candidates for whom funds were spent
  • The value of funds spent towards each candidate
  • The source and amount of contributions received and the date of receipt
  • All expenditures made from the advertising account, including the amount and date.

A summary of every submitted election advertising expense report will be published on the chief electoral office's website.

Advertising Contributions to Third Parties

There are restrictions under the new third-party advertising regime with respect to who can make an advertising contribution to a registered third party. For instance, a person ordinarily residing outside the Northwest Territories, or an employee organization that is not a Northwest Territories employee organization, is not permitted to make an advertising contribution to a registered third party. In addition, a third party must not incur advertising expenses that exceed C$500 if the third party is not eligible to be registered.

ONTARIO – CONTRIBUTION LIMITS

Bill 57, Restoring Trust, Transparency and Accountability Act, 2018 (Ontario Bill), received royal assent on December 6, 2018, and the following amendments to the Election Finances Act will come into force on January 1, 2019.

Starting in 2019, the Ontario Bill will raise the maximum contribution limit from C$1,200 (multiplied by the annual indexation factor) to C$1,600 (plus C$25 each calendar year starting January 1, 2020). This new limit applies to contributions made to a registered party, registered constituency association, registered nomination contestant, registered candidates both endorsed and not endorsed by a registered party, and registered leadership contestants, respectively.

The Ontario Bill also incrementally phases out the quarterly allowance payable to a registered party or a registered constituency association by January 1, 2022. It replaces the current calculation for quarterly allowance under the Election Finances Act, which continues in perpetuity, with a quarterly allowance calculation mechanism that is only attainable until, and including, the 2021 calendar year. Furthermore, the Ontario Bill decreases the calculated amount for quarterly allowances in 2021. As of January 1, 2022, all provisions on quarterly allowance will be repealed in the legislation.

Finally, the Ontario Bill entirely repeals the provision that limits contribution amounts made at a single fundraising event and the provision that prohibits the following people from attending fundraising events: 

  • A member of the assembly
  • The leader of a registered party
  • A nomination contestant, candidate or leadership contestant registered under this Election Finances Act
  • A person who was nominated or appointed as an official party candidate for an electoral district on or after March 1, 2016, but who is not a registered candidate, in respect of a fundraising event held on or after the day the Representation Statute Law Amendment Act, 2017 received royal assent
  • Any person employed in the Office of the Premier
  • The chief of staff of a minister of the Crown, or a person holding an equivalent position for a minister of the Crown, regardless of title
  • Any person employed as a member of the staff of the leader of a recognized party within the meaning of subsection 62 (5) of the Legislative Assembly Act.

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© 2018 Blake, Cassels & Graydon LLP.

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