The Office of the Integrity Commissioner of Ontario, the regulator of lobbyists in the province, is increasing the scope and scale of its enforcement efforts. Many companies, organizations and individuals are now receiving enforcement letters.
An investigation under the Lobbyists Registration Act (Ontario) can result in a referral to the police, followed by a charge and prosecution. Alternatively, an investigation can lead to an administrative penalty that includes an order prohibiting a person from lobbying.
Enforcement Letters and Notices
Potential breaches of the Act are subject to investigation by the Integrity Commissioner (Lobbyist Registrar). A letter or notice from the Office of the Integrity Commissioner is significant. It should be treated like any formal communication from a statutory regulator.
Some businesses, organizations and individuals attempt to handle lobbying compliance proceedings personally or without the benefit of counsel experienced in lobbying law. The decision to handle the matter alone or without the assistance of a lobbying-law expert should not be taken lightly.
All individuals, corporations and organizations have the right to seek advice from and be represented by legal counsel in dealings with the Integrity Commissioner (Lobbyist Registrar), including during an investigation. It is prudent to seek expert legal advice immediately upon receiving a communication from his Office, and not to answer questions without benefit of legal counsel and representation.
One reason to exercise caution is that statements made, emails sent, and other communications to the Office of the Integrity Commissioner (Lobbyist Registrar) can be used against a lobbyist or a CEO in an investigation or prosecution.
CEOs Are Liable
The most senior officer (usually the CEO or President) of a business or not-for-profit organization is personally responsible for filing and maintaining a lobbyist registration that covers all Ontario provincial lobbying by company employees, officers and directors.
A CEO who fails to file a registration, or files a registration that is incomplete, inaccurate, outdated or late, could be convicted of a strict liability offence.
Registrations must be updated within 30 days of any change. Reportable changes include: removing the name of an employee (former employee) who no longer lobbies; adding the name of an employee who starts lobbying; updating the list of lobbying targets; and updating the descriptions of lobbying activities and goals.
Not Just Paperwork
Lobbyist registrations are legal filings in the name of the CEO. Filings that are late, inaccurate or outdated expose the CEO to enforcement risk, including the risk of prosecution.
Inside the company or organization, lobbyist registration filings should be treated with the same care and attention as other regulatory filings for which the CEO is legally liable.
Many enforcement letters and notices are issued because a contravention is apparent on the face of a lobbyist registration filing. In other words, some registrants "incriminate" themselves by the content of their filings. More seriously, sometimes a junior employee files a non-compliant registration that places the CEO in a position of contravention. Under a proper compliance regime, these risks are avoidable.
The maximum fine for a first offence under the Lobbyists Registration Act is $25,000. For a second or subsequent offence, the maximum fine is $100,000. Since the Ontario law took effect in 1999, nobody has ever been charged with (let alone been convicted of) an offence under the Act. Expect that to change. The increased level of enforcement activity makes it reasonable to anticipate referrals to the police and the laying of charges.
The Act also provides for administrative penalties. If the Integrity Commissioner (Lobbyist Registrar) finds a contravention, or following a conviction by the Court for an offence under the Act, the Registrar may impose a temporary lobbying ban of up to two years, or publish the individual's name and contravention, or both.
The temporary lobbying ban may have unexpected adverse enforcement consequences for company CEOs. Under the Act, the temporary ban is only effective against individuals who lobby. A company CEO who does not lobby, but nonetheless is liable to file the registration or renewal accurately, completely and on time, would be unaffected by a temporary lobbying ban (and the Registrar would lack the power to impose the temporary ban on someone in the company who does lobby unless the lobbyist too has broken the law). The risk to corporate CEOs, therefore, is that referral to the police for enforcement by charge and prosecution might be more attractive to the regulator as the only viable consequence for default by the senior officer.
Businesses and organizations need due-diligence measures in place to satisfy the legal obligations on their CEOs. Failure to file a registration that is accurate, complete and timely is a strict liability offence. Each company or organization needs an internal mechanism to track communications with government officials by employees, officers and directors, and should have a corporate policy on dealings with public office holders.
Fasken Martineau offers a full range of lobbying-law compliance services, including compliance audits and lobbyist registration support.
In addition to a potential fine (upon conviction) and/or temporary lobbying ban, contravention of the Lobbyists Registration Act will be a matter of public record and can cause significant reputational harm.
Any company, organization or individual that has dealings with Ontario provincial public office holders should take concrete measures to ensure compliance with lobbying law. The same is true across Canada.