On the Horizon: Potential Changes to Ontario Lobbyist Legislation

On October 24, 2013, the Lobbyist Registration Amendment Act, 2013 (the Bill), a private member’s bill, passed second reading in the Ontario Legislature. The Bill proposes to implement several major changes to the Lobbyist Registration Act, 1998 (the Act). The Bill passed second reading in the Ontario Legislature and has been referred to the Standing Committee on Regulations and Private Bills. While the Bill was introduced by a non-governing party in a minority government, given the high profile of the issue, it is likely that the Bill will in some form receive legislative approval.

New definitions

Under the Act, lobbyists are required to disclose all techniques used to lobby, including "grass-roots communication", which refers to appeals to the public through mass media or direct communication to sway public opinion. The proposed changes to the Bill include adjusting the definition of "grass-roots communication" to specifically exclude communication between an organization, person or partnership and its members, officers or employees.

The Bill would also amend the definition of "undertaking" to provide that an undertaking by a consultant lobbyist to lobby on behalf of a client may be express or implied, whether or not the undertaking is connected to other professional services provided to the client.

The Bill would also lower the threshold of what constitutes an in-house lobbyist. An individual employed by a person, partnership or organization will meet the definition of a lobbyist if any part (as opposed to the current threshold of a "significant part") of his or her duties as an employee is to lobby on behalf of their employer.

The Bill would create a new category of public office holders, High Level Public Office Holders (HLPOH), which includes: the Premier; Ministers and deputy ministers; Members of the Cabinet and Legislative Assembly; and individuals who work in the office of the Premier, Cabinet or any Minister. HLPOH also include the senior executive officers of Hydro One and its subsidiaries, Ontario Power Generation and its subsidiaries, the Ontario Power Authority and the Independent Electricity System Operator.

New filing requirements

All lobbyists would need to file a monthly report detailing any lobbying of HLPOHs that took place within the previous month. The report would include the names of those lobbied, the dates on which they were lobbied, and the particulars of the subject matter on which they were lobbied. The reports would need to be filed within 15 days of the end of the month.

The proposed Bill would also shorten the time limit within which consultant lobbyists would need to file a return with the Registrar upon commencing an undertaking, a decrease from ten business days to five business days. Consultant lobbyists would also be required to file returns setting out the political contributions that they or their clients have made during the preceding 24 months if the Election Finances Act applies to the contributions. In-house lobbyists would also need to file their registration with the Registrar prior to lobbying or have the senior officer of their organization file their registration before lobbying begins.

New restrictions

The Bill would amend the Act to prohibit individuals from lobbying while they are being paid from public funds to provide services or advice to the Government of Ontario or any government agency. Consultants or organizations that are lobbying the government would also be prohibited from entering into agreements with the Government of Ontario or any of its agencies to provide services, advice or comments for remuneration.

Persons who fall under the definition of a HLPOH would be subject to a five-year ban on lobbying after they leave office. However, the Registrar would have discretion to grant exemptions under certain circumstances, including (i) individuals who occupied their position for a short duration of time or on an acting basis, (ii) positions under a program of student employment, and (iii) purely administrative positions. The Registrar will make the details of every exemption granted and the reasons for the exemption available to the public.

The Bill would also add whistle-blowing protection by prohibiting retaliation against a whistleblower and prohibiting both discouraging reporting and encouraging the failure of reporting.

Conclusion

The likelihood of the Bill’s approval provides fresh incentive for organizations to ensure awareness of and compliance with lobbying legislation.

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With assistance from Min Kim, Articling Student.