City Council in Barrie, a community of approximately 147,000 people in Simcoe County, Ontario,1 has unanimously approved a Lobbyist Registry By-law ("By-law") and Lobbyists Code of Conduct ("Code").2 The By-law and Code will take effect on Monday, January 1, 2024.3

Barrie is the second municipality in Ontario to enact a lobbying by-law this year. The City of Pickering enacted a similar by-law on March 27. Meanwhile, the Town of Blue Mountains has drafted its own lobbying by-law, conducted public consultations, and is poised to make a final decision in August.

Lobbying Defined Broadly

The new law defines lobbying broadly as "any communication with a public office holder by an individual who is paid or who represents a business or financial interest with the goal of trying to influence" a legislative action, such as a by-law, motion or resolution.4

  • Public office holders include (i) councillors and the mayor, (ii) staff of councillors and the mayor, (iii) employees and officers in the civil service, and (iv) "individuals providing professional services to the City during the course of providing such services".5

The inclusion of professional service providers in the definition of public office holder means that businesses and organizations subject to the by-law may be required to disclose their communications with external lawyers, accountants, management consultants, architects, and engineers retained by the City of Barrie.

Not all communications with the municipal government are lobbying. The By-law exempts certain persons and organizations, including "persons communicating on behalf of the local school boards"6 and "persons communicating on behalf of healthcare institutions".7 The By-law also exempts certain types of communications, including:

  • Communications that are "restricted to a request for information";8
  • Communications about the "enforcement, interpretation or application" of an act or by-law, with respect to a specific individual, business or organization;9 and
  • Communications about the "implementation or administration" of a policy, program, directive or guideline, with respect to a specific individual, business or organization.10

Lobbyists are required to register their lobbying activities within 10 business days of their first communication.11 (They are also required to review their registrations every six months.12) Unlike in other jurisdictions, there is no registration threshold. Any amount of lobbying must be registered.

Planning and Development Decisions Sometimes Covered

There are specific rules regarding planning and development matters, including for approvals, permits, licenses, permissions and applications. Some communications on these topics are registrable, including those that step outside the "normal course of the approval process."13 Other communications are exempt.14 Accordingly, stakeholders engaged in communications with the municipal government about planning and development matters should ensure they have a due diligence process in place prior to January 1, 2024.

Ethical Rules, Restrictions and Prohibitions Create Legal Risk

In addition to requiring the public disclosure of lobbying activities, the By-law also imposes a number of ethical rules, restrictions and prohibitions on the lobbyists. For example, the By-law prohibits success fees, more specifically payments to lobbyists that are "in whole or in part contingent on the successful outcome of any lobbying activities."15

The By-law also prohibits some former public office holders (including councillors and the mayor) from lobbying the city for six months after they leave office.16 Other ethical rules, restrictions and prohibitions are set-out in the Lobbyists Code of Conduct:

  • Lobbyists are required to inform public office holders and their clients "of any actual, potential or apparent conflict of interest" and obtain "the informed consent of each client concerned"17;
  • Lobbyists are prohibited from providing advice to the municipal government on a subject matter if they are also lobbying on that same subject matter;18 and
  • Lobbyists are prohibited from "directly or indirectly, offer[ing] or provid[ing] any gift, benefit or hospitality" to a public office holder if the lobbyist or the lobbyist's client are registered to lobby.19

Regulator will Possess Broad Police Referral Power

The City's Integrity Commissioner will serve as interim Lobbyist Registrar (the regulator of lobbying under the By-law) until a permanent Lobbyist Registrar is selected. In addition to the power to publish public reports and to impose sanctions, such as lobbying bans, the Registrar will also be granted broad police referral powers.

More specifically, the Lobbyist Registrar will have the power to refer matters to law enforcement authorities, if they have reasonable grounds to suspect that a lobbyist "has contravened any other Act or the Criminal Code."20 Given this broad police referral power, it is strongly recommended that lobbyists consult external legal counsel before responding to inquiries from—or proactively communicating with—the Office of the Lobbyist Registrar for Barrie.

Footnotes

1. Statistics Canada, 2021 Census of Population.

2. Lobbyist Registry By-Law XXX-2023, enacted May 3, 2023.

3. Section 13.

4. Section 1.5.

5. Paragraph 1.11(b)(x).

6. Subsection 3.1(h).

7. Subsection 3.1(i).

8. Subsection 4.1(d).

9. Paragraph 4.1(f)(i)

10. Paragraph 4.1(f)(ii)

11. Section 2.4.

12. Section 2.9.

13. Sub-paragraph 4.1(f)(iv)(b).

14. Paragraph 4.1(f)(iv).

15. Sections 5.1 and 5.2.

16. Section 6.1.

17. Section 12.

18.Section 13.

19. Section 16.

20 Section 12.1.

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