Amendments to the Lobbyists Registration Act: How are trade unions affected?
Recent changes to the Lobbyists Registration Act may require more trade unions to register as lobbyists.
What is the Lobbyists Registration Act?
The Lobbyists Registration Act ,1998 establishes a public registration system for different kinds of persons who lobby the provincial government, including “in-house lobbyists” employed by organizations. An “organization” under the Act includes a “trade union or labour organization”.
If the amount of lobbying undertaken by an in-house lobbyist reaches a certain threshold, the organization must register with the Integrity Commissioner (the “Registrar”), and file a return detailing its lobbying activities.
What constitutes “lobbying”?
The Act defines “lobby” very broadly to mean communicating with a “public office holder” in an attempt to influence: the development of legislative proposals; the introduction, amendment or defeat of any bill or resolution; the making or amendment of any regulation; the development, amendment or termination of any government policy or program; a decision by government to outsource goods and services or privatize its assets or interests; or the awarding of grants, contributions or other financial benefits by or on behalf of the Crown.
Activities that do NOT constitute lobbying under the Act include making oral or written submissions: to a committee of the Legislative Assembly; to a public office holder about the enforcement, interpretation or application of a statute, policy, program, directive or guideline with respect to that organization; or in direct response to a written request from a public office holder.
Who is a “Public Office Holder”?
The Act broadly defines “public office holder” to include any minister, officer or employee of the Crown; members of the Legislative Assembly and their staff; most persons appointed to any office or body by or with the approval of the Lieutenant Governor in Council or a minister of the Crown; officers, directors or employees of any agency, board or commission of the Crown; members of the OPP; and officers, directors or employees of Ontario Power Generation Inc. and each of its subsidiaries and Independent Electricity System Operator.
In other words, just about any public servant may be a public office holder for purposes of the Act.
What is the threshold for registering?
An “in-house lobbyist” is defined by the Act as an individual employee or group of employees who, as part of their employment duties, either individually or collectively spend least 50 hours per year lobbying on behalf of the organization.
The Act previously applied only to organizations in which an individual employee spent 20% or more of his or her time lobbying public office holders on behalf of the organization, or where the combined times of more than one employee would exceed the 20% threshold.
The change from 20% an employee’s time to 50-hours per year significantly lowers the threshold for the application of the Act. As a result, it may be that more trade unions have become subject to the Act.
The 50-hour threshold does not include time spent preparing for communications (such as developing research papers or other resources). It can, however, include time spent managing grassroots campaigns (see below).
Public servants as defined under the Public Service of Ontario Act are excluded from the definition of in-house lobbyist under the Act.
Disclosure and Filing Requirements
Any organization that meets the lobbying threshold is required to register in the name of the senior officer of the organization.
The returns filed by the organization must include, among many other things:
- The names of all paid employees whose positions require them to lobby the provincial government.
- A description of the membership of the organization and such other information that may be required by regulation, including the names of officers or directors. However, the names of the other members of the organization or information that might identify them cannot be required to be disclosed.
- The subject matter(s) in respect of which the in-house lobbyist(s) is lobbying at the time the return is filed, or expects to lobby during the period for which the return is filed, and the goal(s) of the lobbying.
- The names of any provincial ministry, agency, board or commission in which any public office holder is employed or serves whom the in-house lobbyist(s) has lobbied during the period for which the return is filed.
- The techniques of communication, including grassroots communication, that any in-house lobbyist has used or expects to use to lobby during the period for which the return is filed. Grassroots 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.”
When must an organization register?
The Act provides that the senior officer of an organization that hires an in-house lobbyist must file a return “within two months after the day on which that person becomes an in-house lobbyist.” An employee does not become an in-house lobbyist within the meaning of the Act until he or she (or the organization’s employees as a group) has hit the 50-hour lobbying threshold.
If an organization is unsure whether it engages in 50 hours of lobbying per year, it should count the time it spends on lobbying activities beginning on July 1, 2016 (the date the amendments came into effect). If and when the 50-hour threshold is reached, the organization should complete the registration process on the Registry website. If the 50-hour threshold has not been reached by the end of 2016, the organization should start to count again from zero beginning on January 1, 2017.
Once an organization has registered and filed a return, a new return must be filed every six months thereafter. If there are changes in any of the information in a return after it has been filed, the senior officer must inform the Registrar within 30 days.
Investigation, Penalties and Enforcement
The Act gives the Registrar the power to conduct an investigation to determine whether any person(s) has not complied with the Act or regulations, including the power to require persons to provide any information or produce any documents the Registrar considers to be relevant, and to summon for examination any person the Registrar believes can provide relevant information.
If the Registrar concludes that someone has failed to comply with the Act, the Registrar may prohibit the person from lobbying for a period of not more than two years and/or may make public the name of the person against whom the finding was made, a description of the non-compliance with the Act and any other information the Registrar considers necessary to explain the finding.
Non-compliance with the Act’s registration obligations is an offence punishable by fine of not more than $25,000 for a first offence and not more than $100,000 for each subsequent offence.
For more information, please contact Josh Mandryk.