On June 29, 2018, the new Premier of Ontario, Doug Ford, and his cabinet were sworn in, the first change in government in 15 years. The new government has announced wide-ranging plans that will impact sectors as varied as health, energy and infrastructure. Those seeking to communicate or liaise with the new government should keep in mind the lobbying and gifting regimes applicable in Ontario.
In Ontario, any paid communication to a public office holder for an enumerated subject matter (described more fully below) is lobbying, which, absent an exemption, triggers a registration requirement. Individuals and organizations that lobby are required to register with the Ontario Commissioner of Lobbying. Consultant lobbyists are required to register within 10 days of commencing lobbying, while in-house lobbyists, who, alone or collectively, spend 50 hours in any year lobbying on behalf of the organization, are required to register within two months of meeting the 50-hour threshold.
Lobbying includes communications with a public office holder in an attempt to influence decisions regarding:
- The development of a legislative proposal by the government or a member of the Legislative Assembly
- The introduction of any 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 development or enactment of a regulation
- The development, establishment, amendment or termination of a program, policy, directive or guideline of the government
- The awarding of a grant or financial benefit by, or on behalf of, the government
- The transfer of any government interest in a business that provides goods or services to the Crown or the public
- Privatization of the provision of goods or services to the government
For consultant lobbyists, lobbying also includes arranging a meeting with a public office holder, or communicating with a public office holder in an attempt to influence the awarding of a contract.
Under the Ontario legislation, “public office holder” includes a wide range of individuals, both elected and unelected, such as: politicians, political staff, civil servants, Ontario Provincial Police members, persons appointed to office by the lieutenant governor-in-council or government ministers (including members of boards and tribunals), and directors, officers and employees of Ontario Power Generation Inc., its subsidiaries, as well as the Independent Electricity System Operator.
Certain types of communications are permitted without having to register under the Ontario legislation. For instance, the following communications are not considered lobbying:
- Submissions made in a public proceeding to a committee of the Legislative Assembly or other body or person having jurisdiction or powers conferred by an act
- Submissions made to a public office holder by an individual with respect to: (i) the enforcement, interpretation or application of any act or regulation made by that public office holder; or (ii) the implementation or administration of any policy, program, directive or guideline by that public office holder
- Submissions made to a public office holder by an individual in direct response to a written request from a public office holder for advice or comment
- Submissions made to a member of the Legislative Assembly by an individual on behalf of a constituent with respect to any personal matter of that constituent
Employers considering hiring recently departed public servants should keep in mind that Ontario legislation imposes a one-year lobbying prohibition on certain former public servants. Generally, under this prohibition, a former public servant is not permitted, for a one-year period, to lobby the minister of their former office or other public servants that work in their former minister’s office or the ministry of their former minister’s office. Additional lobbying-related post-employment restrictions also apply to a former secretary of the cabinet, deputy minister, associate deputy minister or assistant deputy minister.
Members of the Legislative Assembly must not accept a fee, gift or personal benefit if that fee, gift or benefit is connected directly or indirectly with the performance of their duties of office. Lobbyists must be cautious not to gift any gifts or other benefits given to a public office holder that could knowingly place the public office holder in a real or potential conflict of interest, either at the time of the gift giving or in the future. Gifts can include meals and hospitality that would be routine in the private sector.
Members of the Legislative Assembly that receive permitted gifts or benefits with a value over C$200 are required to disclose them to the integrity commissioner. Such disclosure is also required if the total value of what is received from one source in any year exceeds C$200. Members should not accept gifts from a person who is lobbying or seeking to influence them.
Finally, in addition to the above-noted gifting rules, individuals or organizations giving gifts to public office holders must also be careful to remain free of any conduct that might be prohibited under the Criminal Code or other anti-corruption legislation.