Effective October 14, 2022, the Regional Municipality of Niagara will begin to enforce its new lobbying by-law. Niagara Region is the ninth municipality in Ontario to operate a lobbyist registry, joining Toronto, Peel Region, Ottawa, Brampton, Hamilton, Vaughan, Collingwood, and Burlington.
While penalties and enforcement do not apply until October, mandatory lobbyist registration is now in effect. Companies and organizations that do business with the regional government should prepare now for compliance.
What's Covered? Private-sector Lobbying of Any Regional Official
Niagara Region's Lobbyist Registration By-law1 targets private-sector engagement with the Region. It only covers lobbying on behalf of business and financial interests.2
Coverage of non-profit organizations is somewhat limited: Lobbyist registration applies only to non-profits with employees.3
A public office holder of Niagara Region is responsible to end non-compliant lobbying as soon as practical, and to report such lobbying to the Lobbyist Registrar.4 In other words, companies and organizations could be shut out of vital contacts if their representatives fail to register.
It is important to distinguish between Niagara Region on the one hand, and the 12 lower-tier municipalities it contains on the other hand (one of which is the similarly-named City of Niagara Falls). The By-law applies to lobbying of the Region's public office holders. It does not apply to public office holders of the 12 lower-tier municipalities, unless they also hold an office with the Region (for instance, a councillor of a lower-tier municipality who is also a member of Regional Council).
Both Paid and Volunteer Lobbyists Must Register
Consistent with several other Ontario municipalities, Niagara Region makes both paid and unpaid volunteers register in order to lobby. Its Lobbyist Registration By-law recognizes three types of lobbyist:
- Consultant lobbyist – someone who lobbies for payment on behalf of a client
- In-house lobbyist – an employee, partner or sole proprietor who lobbies on behalf of their employer, business or other entity
- Voluntary unpaid lobbyist – someone who lobbies without payment on behalf, and for the benefit, of an individual, business or other for-profit entity
The Region defines lobbying in a manner consistent with the definitions in other Ontario municipalities: "any communication with a public office holder by an individual who is paid or represents a business or financial interest with the goal of trying to influence legislative action." Legislative action includes "development, introduction, passage, defeat, amendment or repeal of a bylaw, motion, resolution or the outcome of a decision on any matter before Council, a Committee of Council, or a staff member acting under delegated authority."5
The list of "public office holders" – that is, Niagara Region officials, communications with whom may constitute lobbying – is also broad and includes all of the following:6
- Members of Regional Council and their staff
- Officers and employees of the Region
- Members of local boards or committees
- An accountability officer of the Region
- Individuals under contract with the Region providing consulting or other advisory services to the Region related to matters with budgetary or operational impacts during the term of their contract
Former public office holders of the Region are subject to a 12-month "cooling-off" period before they can lobby.7 Lobbyists are also prohibited from receiving payment that is contingent on the successful outcome of lobbying.8 Likewise, clients and others on whose behalf lobbying occurs are prohibited from paying such a "success fee".9
Registration Required within Five Business Days
A lobbyist must register within five business days after the lobbying commences.10
The lobbyist's registration must include:11
- Name of the employer, client, individual, or other entity (including all of the entity's business names) on whose behalf the lobbying occurs
- Name and contact information of the lobbyist (as the online registry is currently coded, this must include an address in Niagara Region)
- Public office holders being lobbied
- Subject matter of the lobbying
- Dates on which the lobbying will start and finish (no more than one year apart)
The registration must be updated if any change occurs to the underlying facts reported on the registration.12
Conduct Rules Apply to Lobbyists
Most municipal lobbying regimes include codes of conduct for lobbyists, and Niagara Region is no exception.
Individuals who lobby public office holders in the Region:13
- Shall not represent competing or conflicting interests without receiving written consent of those whose interests are involved
- Shall advise public office holders that they have informed their clients of any actual or apparent conflict of interest and obtained the informed consent of each client concerned before proceeding or continuing with the undertaking to lobby
- Shall not lobby on a subject matter for which they also provide advice to the Region
- Shall avoid both the deed and the appearance of impropriety
- Shall not knowingly place public office holders in a conflict of interest or in breach of the public office holders' codes of conduct or standards of behaviour
The last point is particularly significant. A member of Regional Council placed in a conflict of interest by a lobbyist could be subject to an inquiry by the Region's Integrity Commissioner, and face penalties under section 223.4 of the Municipal Act or section 8 of the Municipal Conflict of Interest Act.14 While the Integrity Commissioner does not have jurisdiction over lobbyists, the findings of an inquiry could create reputational risk for the lobbyist and the lobbyist's employer or client.
Enforcement Begins October 14, 2022
The enforcement provisions in the Niagara Region By-law come into effect on October 14, 2022. As of that date, any individual who engages in non-compliant lobbying risks sanction. The Lobbyist Registrar may impose a penalty on any lobbyist who fails to comply with the requirements of the By-law or the Code of Conduct, including a prohibition on lobbying that may range from 30 days to indefinite.
The Region's public office holders also have a role to play in enforcement. All public office holders are responsible to end lobbying, as soon as practicable, by a lobbyist who is prohibited from lobbying (for instance, because of a failure to register).15
How Your Organization Can Stay Compliant
The requirements of Niagara Region's lobbyist registry are complex. The risk of negative consequences (reputational harm and loss of access to all of the Region's public office holders) is real. Businesses and organizations that have dealings with Niagara Region should prepare now to comply with the registry and to train their employees in the new rules.
For further information, please contact the authors or any member of Fasken's Political Law team.
Footnotes
2. Lobbyist Registration By-law, "Lobby" or "Lobbying" definition.
3. Lobbyist Registration By-law, section 4.1 l).
4. Lobbyist Registration By-law, section 7.1 b).
5. Lobbyist Registration By-law, "Lobby" or "Lobbying" definition.
6. Lobbyist Registration By-law, "Public Office Holder" definition.
7. Lobbyist Registration By-law, section 5.3.
8. Lobbyist Registration By-law, section 5.2.
9. Lobbyist Registration By-law, section 5.1.
10. Lobbyist Registration By-law, section 8.1.
11. Lobbyist Registration By-law, section 8.1.
12. Lobbyist Registration By-law, section 8.2.
13. Lobbyist Registration By-law, Schedule "A" – Lobbyist Code of Conduct.
14. An Integrity Commissioner cannot impose penalties directly. In the case of a breach of the Code of Conduct of Members of Council, the power to impose a penalty rests with Council under subsection 223.4(5) of the Municipal Act. The Integrity Commissioner cannot determine whether a breach of the Municipal Conflict of Interest Act occurred but can make an application to a judge who would have the authority to impose a penalty in the event of a breach.
15. Lobbyist Registration By-law, section 7.1 b).
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.
