Bill 115 2013

An Act to amend the Lobbyists Registration Act, 1998

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

   1.  (1)  Subsection 1 (1) of the Lobbyists Registration Act, 1998 is amended by adding the following definition:

"business day" means a day from Monday to Friday, other than a holiday as defined in section 87 of the Legislation Act, 2006; ("jour ouvrable")

   (2)  The definition of "grass-roots communication" in subsection 1 (1) of the Act is repealed and the following substituted:

"grass-roots communication" means appeals to members of the public through the mass media or by direct communication that seek to persuade members of the public to communicate directly with a public office holder in an attempt to place pressure on the public office holder to endorse a particular opinion, but does not include communication between an organization, person or partnership and the members, officers or employees of the organization, person or partnership; ("appel au grand public")

   (3)  Subsection 1 (1) of the Act is amended by adding the following definition:

"high level public office holder" means,

  (a)  the Premier and any person employed in the Office of the Premier,

  (b)  the Secretary of the Cabinet and any person employed in Cabinet Office,

   (c)  a minister of the Crown and any person employed in a minister's office,

  (d)  a member of the Legislative Assembly,

  (e)  a deputy minister, associate deputy minister or assistant deputy minister in a ministry,

   (f)  an individual described in clauses (c) to (f) of the definition of "public office holder" who occupies,

           (i)  the senior executive position in his or her organization, whether by the title of chief executive officer or another title, or

          (ii)  a position of comparable rank to an associate deputy minister or an assistant deputy minister, and

  (g)  an individual in a class prescribed in the regulations; ("titulaire d'une charge publique de haut niveau")

   2.  (1)  Subsection 4 (1) of the Act is amended by striking out "10 days" and substituting "five business days".

   (2)  Subsection 4 (3) of the Act is repealed and the following substituted:

Transitional

   (3)  If, on the day the Lobbyists Registration Amendment Act, 2013 comes into force, a consultant lobbyist is performing an undertaking, the consultant lobbyist shall file a return with the registrar not later than five business days after that day. However, a consultant lobbyist who has filed a return before that day is not required to file another return in respect of the same undertaking.

   (3)  Section 4 of the Act is amended by adding the following subsection:

Same, political contributions

   (4.1)  A consultant lobbyist who is required to file a return under subsection (1) shall, at the same time, file a return listing each contribution to which the Election Finances Act applies that was made by the consultant lobbyist or by the consultant lobbyist's client during the preceding 24 months.

   (4)  The definition of "undertaking" in subsection 4 (10) of the Act is repealed and the following substituted:

"undertaking" means an undertaking by a consultant lobbyist to lobby on behalf of a client, whether the undertaking is express or implied and whether or not the undertaking is ancillary to or in connection with legal services, business services or other professional services the consultant lobbyist provides to the client. ("engagement")

   3.  The Act is amended by adding the following section:

Duty to file monthly report, consultant lobbyist

   4.0.1  (1)  If a consultant lobbyist's lobbying is directed to a high level public office holder, the consultant lobbyist shall file a monthly report with the registrar in accordance with the following rules:

    1.  The report shall contain, with respect to every lobbying activity that is of a prescribed type and that occurred in that month,

            i.  the name of each high level public office holder who was the object of the lobbying,

           ii.  the date of the lobbying,

          iii.  particulars, including any prescribed particulars, to identify the subject-matter of the lobbying, and

          iv.  any other prescribed information.

    2.  The report shall be filed within 15 days after the end of every month, beginning with the month in which a return is filed under subsection 4 (1).

    3.  The report shall be filed in the prescribed manner and form.

Transitional

   (2)  A consultant lobbyist who has a duty to file a report under this section shall do so within 15 days after the day on which this section comes into force in respect of the month ending before the day this section comes into force and after that in accordance with paragraph 1 of subsection (1).

   4.  (1)  Section 5 of the Act is amended by adding the following subsection:

Prohibition from lobbying until return is filed

   (1.1)  An in-house lobbyist who is required to file a return under clause (1) (a) shall not lobby before filing that return.

   (2)  The definition of "in-house lobbyist" in subsection 5 (7) of the Act is repealed and the following substituted:

"in-house lobbyist" means an individual (other than one described in subsection (8)) who is employed by a person or partnership, any part of whose duties as an employee is to lobby on behalf of the employer or, if the employer is a corporation, on behalf of any subsidiary of the employer or any corporation of which the employer is a subsidiary; ("lobbyiste salarié")

   5.  (1)  Section 6 of the Act is amended by adding the following subsection:

Prohibition from lobbying until return is filed

   (1.1)  The senior officer shall ensure that no in-house lobbyist lobbies before a return is filed as required under clause (1) (a).

   (2)  The definition of "in-house lobbyist" in subsection 6 (5) of the Act is repealed and the following substituted:

"in-house lobbyist" means an individual who is employed by an organization, any part of whose duties as an employee is to lobby on behalf of the organization; ("lobbyiste salarié")

   6.  The Act is amended by adding the following sections:

Duty to file monthly report, organization

   6.1  (1)  If an in-house lobbyist's lobbying is directed to a high level public office holder, the senior officer who has a duty to file the return under clause 6 (1) (a) shall also file a monthly report with the registrar in accordance with the following rules:

    1.  The report shall contain, with respect to every lobbying activity that is of a prescribed type and that occurred in that month,

            i.  the name of each high level public office holder who was the object of the lobbying,

           ii.  the date of the lobbying,

          iii.  particulars, including any prescribed particulars, to identify the subject-matter of the lobbying, and

          iv.  any other prescribed information.

    2.  The report shall be filed within 15 days after the end of every month, beginning with the month in which a return is filed under clause 6 (1) (a).

    3.  The report shall be filed in the prescribed manner and form.

Transitional

   (2)  If, on the day this section comes into force, an organization employs an in-house lobbyist, the individual who has the duty to file a report under this section shall do so within 15 days after the day on which this section comes into force in respect of the month ending before the day this section comes into force and after that in accordance with paragraph 1 of subsection (1).

Prohibitions

Prohibition, lobbying while receiving public funds

   6.2  (1)  An individual shall not lobby as a consultant lobbyist or an in-house lobbyist in respect of a subject-matter if the individual is directly or indirectly entitled to receive public funds as compensation for the provision of services, advice or comments in respect of that subject-matter to the Government of Ontario or to an agency of the Government of Ontario.

Same, receiving public funds while lobbying

   (2)  An individual who is lobbying as a consultant lobbyist or an in-house lobbyist in respect of a subject-matter shall not agree to provide services, advice or comments to the Government of Ontario or to an agency of the Government of Ontario in respect of that subject-matter if the individual would be directly or indirectly compensated from public funds for the provision of the services, advice or comments.

Application

   (3)  Subsections (1) and (2) apply,

  (a)  in the case of a consultant lobbyist, even if the services, advice or comments are not provided on behalf of a client of the consultant lobbyist; and

  (b)  in the case of an in-house lobbyist, even if the services, advice or comments are not provided on behalf of the lobbyist's employer.

Interpretation

   (4)  For the purpose of this section,

"providing services, advice or comments" includes serving as a member of the board of directors of an agency of the Government of Ontario or providing professional services to the Government of Ontario or to an agency of the Government of Ontario. ("fournir des services, des avis ou des observations")

"public funds" means,

  (a)  public funds within the meaning of the Broader Public Sector Accountability Act, 2010, or

  (b)  money paid by the Government of Ontario or an agency of the Government of Ontario; ("fonds publics")

Former high level public office holders

   6.3  (1)  An individual who was a high level public office holder shall not lobby as a consultant lobbyist within the meaning of section 4 or as an in-house lobbyist within the meaning of section 5 or 6 for five years after the individual ceases to be a high level public office holder.

Exception

   (2)  Subsection (1) does not apply in respect of a high level public office holder who held office only because the individual participated in an employment exchange program.

Exemption

   (3)  On application, the registrar may exempt an individual from the application of subsection (1) if the registrar is of the opinion that the exemption would not be contrary to the purposes of this Act having regard to any circumstance or factor that the registrar considers relevant, including whether the individual,

  (a)  was a high level public office holder for a short period;

  (b)  was a high level public office holder on an acting basis;

   (c)  was employed under a program of student employment; or

  (d)  had administrative duties only.

Conditions

   (4)  The registrar may impose conditions on an exemption under subsection (3).

Publication

   (5)  The registrar shall without delay cause every exemption and the registrar's reasons for it to be made available to the public.

   7.  Section 12 of the Act is amended by adding the following subsection:

Confirmation or correction

   (2)  The registrar may send to any present or former high level public office holder a copy of any return or other document that has been submitted to the registrar about communication with that high level public office holder, and the registrar may require that, in accordance with the regulations, the high level public office holder,

  (a)  confirm the accuracy and completeness of the information in the return or other document; or

  (b)  correct and complete the information.

   8.  The Act is amended by adding the following section:

Whistle-blowing Protection

Whistle-blowing protection

   17.1  (1)  No person shall retaliate against another person, whether by action or omission, or threaten to do so because,

  (a)  anything has been disclosed to the registrar; or

  (b)  evidence has been or may be given in a proceeding, including a proceeding in respect of the enforcement of this Act or the regulations.

Interpretation, retaliate

   (2)  Without in any way restricting the meaning of the word "retaliate", the following constitute retaliation for the purposes of subsection (1):

    1.  Dismissing a person from employment or suspending or disciplining the person.

    2.  Imposing a penalty on a person.

    3.  Intimidating, coercing or harassing a person.

May not discourage reporting

   (3)  None of the following persons shall do anything that discourages, is aimed at discouraging or that has the effect of discouraging a person from doing anything mentioned in clause (1) (a) or (b):

    1.  A consultant lobbyist within the meaning of section 4 or an in-house lobbyist within the meaning of section 5 or 6.

    2.  A person that is not an organization and that employs an in-house lobbyist within the meaning of section 5.

    3.  A person acting on behalf of a partnership or organization that employs an in-house lobbyist within the meaning of section 5 or 6.

May not encourage failure to report

   (4)  No person mentioned in paragraphs 1, 2 and 3 of subsection (3) shall do anything to encourage a person to fail to do anything mentioned in clause (1) (a) or (b).

Protection from legal action

   (5)  No action or other proceeding shall be commenced against any person for doing anything mentioned in clause (1) (a) or (b) unless the person acted maliciously or in bad faith.

   9.  (1)  Subsection 18 (2) of the Act is amended by striking out "subsection 5 (1), (2)" and substituting "subsection 5 (1), (1.1), (2)".

   (2)  Subsection 18 (3) of the Act is amended by striking out "subsection 6 (1), (2), (3) or (4)" and substituting "subsection 6 (1), (1.1), (2), (3), or (4) or section 6.1".

   (3)  Section 18 of the Act is amended by adding the following subsections:

Same, prohibitions on lobbying

   (3.1)  Every individual who fails to comply with section 6.2 or 6.3 is guilty of an offence.

.     .     .     .     .

Offence re whistle-blowing retaliation

   (7.2)  Every individual who contravenes subsection 17.1 (1), (3) or (4) is guilty of an offence.

   (4)  Subsection 18 (8) of the Act is amended by striking out "not more than $25,000" at the end and substituting "not more than $250,000".

   10.  The Act is amended by adding the following sections:

Contents of annual report

   18.1  (1)  In the annual report that the registrar, as the Integrity Commissioner, makes to the Speaker under the Members' Integrity Act, 1994, the registrar shall include,

  (a)  the name of each individual charged with an offence under this Act until the charge is finally disposed of; and

  (b)  the name of each individual convicted of an offence under this Act, unless the conviction is reversed on appeal.

Same, responses of high level public office holders

   (2)  If in the opinion of the registrar a present or former high level public office holder has failed to provide information as required under subsection 12 (2), the registrar may, after providing the high level public office holder a reasonable opportunity to comment on the registrar's opinion, include in the annual report information about the failure.

Review of Act

   18.2  A committee of the Legislative Assembly shall,

  (a)  begin a comprehensive review of this Act not later than the fifth anniversary of the day on which this section comes into force; and

  (b)  make recommendations to the Assembly within one year after beginning that review concerning amendments to this Act.

   11.  (1)  Clause 19 (a) of the Act is repealed and the following substituted:

  (a)  prescribing classes of persons for the purposes of the definition of "high level public office holder" in subsection 1 (1);

(a.1) governing the matters that may or must be prescribed in respect of monthly reports under sections 4.0.1 and 6.1;

   (2)  Section 19 of the Act is amended by adding the following clauses:

(d.1) governing responses to be provided by high level public office holders for the purposes of subsection 12 (2);

.     .     .     .     .

  (g)  respecting any transitional matters necessary for the effective implementation of the Lobbyists Registration Amendment Act, 2013.

Commencement

   12.  This Act comes into force six months after the day it receives Royal Assent.

Short title

   13.  The short title of this Act is the Lobbyists Registration Amendment Act, 2013.

 

EXPLANATORY NOTE

The Bill amends the Lobbyists Registration Act, 1998. Major features of the Bill include the following:

    1.   Consultant lobbyists are required to file returns with the registrar within five business days after beginning to lobby.

    2.   The definition of "undertaking" in section 4 of the Act is amended to provide that an undertaking to lobby on behalf of a client may be express or implied. Also, an undertaking to lobby may be in addition to other professional services provided to a client.

    3.   The definition of "in-house lobbyist" in sections 5 and 6 of the Act is amended to provide that an individual employed by a person, partnership or organization is a lobbyist if any part of his or her duties as an employee is to lobby on behalf of the employer.

    4.   Lobbyists who lobby high level public office holders are required to submit monthly reports to the registrar.

    5.   High level public office holders are prohibited from lobbying for five years after leaving their position, with certain exceptions and exemptions.

    6.   Consultant lobbyists are required to file returns setting out the political contributions they or their clients have made during the preceding 24 months if the Election Finances Act applies to the contributions.

    7.   Individuals are not permitted to lobby while they are being paid from public funds to provide services or advice to the Government or a Government agency.

    8.   Whistle-blowing protection is added to the Act.

    9.   Certain offences are added to the Act, and the maximum penalty is increased to $250,000. The registrar is required to publish the names of individuals charged with or convicted of an offence under the Act.