On July 8, 2014, Ontario’s Deputy Premier Deb Matthews introduced Bill 8, the Public Sector and MPP Accountability and Transparency Act, 2014 (Bill). An identical bill had previously been introduced in March, but died on the order paper when a provincial election was called. The Bill introduces proposed amendments to the Lobbyists Registration Act of 1998 (Act), which are outlined in Schedule 8 of the Bill. It also enacts new legislation relating to public sector executive compensation and amends a number of existing laws.
CHANGES TO DISCLOSURE RULES
Changes have also been proposed to the existing requirements for filing returns with the Integrity Commissioner, who acts as the Lobbyist Registrar of Ontario (Registrar). Several of these changes confirm existing understandings or bring the legislation in line with regimes enforced in most other Canadian jurisdictions.
Definition of In-House Lobbyist
An “in-house” lobbyist would include paid directors and the thresholds for in-house lobbyists would be organization-wide. In other words, registration would always be required if lobbying activities – in the aggregate across an organization – constitute a significant part of the duties of one employee or director.
Content of Returns
At the time of registration, disclosure must include not just the subject matter of lobbying, but also the specific goal of lobbying. Returns have to name the target of lobbying if that target is a minister, member of provincial parliament, or any of their respective staff members. Lobbyists have to disclose whether the lobbyist was, at any time prior to filing the return, a former public office holder in a number of enumerated roles. Unlike the federal regime, there is no time limit on this and it extends to all ministers, deputy ministers, associated and assistant deputy ministers, all Minister’s Office staff, and all employees of any agency who report to the chief executive of that agency.
Returns have to be renewed within 30 days (not two months) of the applicable year for consultants or a six-month period for in-house. Notably, a single in-house return would now be filed by a chief executive or other senior officer, not multiple returns by individual in-house lobbyists.
CONTINGENCY PAYMENTS AND CONFLICTS OF INTEREST
The Bill introduces blanket prohibitions on any contingency fees paid to consultant lobbyists, in whole or in part, and voids any existing provision providing for a contingency payment. A one-year grandfathering clause applies to existing contingency payment provisions in contracts.
Regarding conflicts of interest, the existing prohibition against a consultant lobbyist accepting payment from public funds or from an agency that is prohibited from engaging lobbyists continues to apply, and the Bill codifies a prohibition on consultant lobbyists providing advice to a public office holder while lobbying any public office holder on the same subject matter (or vice versa).
NEW POWERS FOR THE REGISTRAR
The Bill would grant the Registrar significant new investigative powers, including:
- Conducting an investigation into a violation of the Act. The investigation would still need to occur within two years of when it knew or ought to have known about the alleged non-compliance.
- Compelling a person to provide information or documents that may be relevant to an investigation, to issue summons, and to apply for an order from the Superior Court of Justice directing a person to provide information or documents. The Registrar would be required to give notice to the person being investigated only after the investigation is complete and only if the Registrar believes the Act or its associated regulations have been breached. The investigated person will then have an opportunity to respond to the Registrar's allegations.
- Issuing a code of conduct for lobbyists. This authorization goes beyond the Registrar’s current powers under the Act to issue interpretation bulletins and advisory opinions.
The Bill also proposes harsher penalties for violating the Act and regulations. The Bill gives the Registrar the authority to punish a violation with a ban on lobbying for up to two years, or by publishing the name of the non-complying lobbyist and details of his or her offence. Moreover, the Act’s current maximum fine of C$25,000 will apply only to a first offence, with subsequent offences being punishable by a fine of up to C$100,000 each.
The Bill still must undergo its second and third reading as well as the committee stage. If passed, it may still be subject to significant amendment.