Did Commissioner not penalize the 6 lobbyists because he was up for reappointment by party leaders and MPPs last fall?

Cases challenge 6 of rare public rulings – since 2018 Commissioner has made 763 secret rulings, and failed to penalize 23 of 27 lobbyists who violated law

FOR IMMEDIATE RELEASE:
Thursday, March 4, 2021

OTTAWA – Today, Democracy Watch announced that it has filed six applications in Ontario’s Divisional Court challenging rulings by Ontario’s Integrity Commissioner J. David Wake that failed to penalize six lobbyists who violated Ontario’s lobbying law in serious ways, mainly by failing to register and disclose their lobbying for a year or more. The Commissioner has failed to penalize 23 of 27 lobbyists (85%) who have violated the law since 2018.

During the 2019-2020 fiscal year, Commissioner Wake only penalized one lobbyist, Lawrence Gold, for violating Ontario’s Lobbyists Registration Act (LR Act) by failing to register and disclose his lobbying for a long period of time. The Commissioner only imposed the minimum penalty of naming Mr. Gold publicly.

Four of the other six lobbyists who were not penalized by the Commissioner, not even by naming them publicly, did exactly the same thing as Mr. Gold – they didn’t register and disclose their lobbying for a long period of time. The other two lobbyists violated the law by lobbying politicians after campaigning for them or giving them gifts, in violation of section 3.4 of the LR Act that prohibits lobbying any politician or other public office holder if it will create a real or potential conflict of interest or make it improper for them to further the interests of the lobbyist or their clients.

When the Integrity Commissioner lets a lobbyist off for a violation of the law, the lobbyist’s identity is kept secret, as are the details of their lobbying. The Commissioner can penalize a lobbyist for a violation of the LR Act by only naming them publicly or naming them and banning them from lobbying for up to two years (section 17.9).

Democracy Watch’s six cases, which will be heard by the Divisional Court in Toronto all together, challenge rulings #s 5, 14, 17 and 23 (the four lobbyists who also failed to register) and rulings #s 13 and 20 (the two lobbyists who violated the lobbying ethics rule) in the Commissioner’s 2019-2020 Annual Report. The six cases are Division Court file numbers 644/20, 645/20, 646/20, 647/20, 648/20 and 669/20. Nick Papageorge of Ross McBride LLP is representing Democracy Watch for the initial steps of the cases. Click here to see the Notice of Application challenging ruling #5 (the other five applications are very similar).

Democracy Watch also recently filed three applications in Ontario’s Divisional Court challenging three other rulings by Integrity Commissioner Wake that allowed lobbyists who worked on campaigns for Ontario politicians, or gave them gifts, to lobby the politicians soon afterwards. Nick Papageorge is also representing DWatch for those cases.

All nine cases also ask the courts to rule that Commissioner Wake was biased when he issued the six rulings, given he knew that he would need the unanimous approval of Ford’s Cabinet and all MPPs to be re-appointed for a second five-year term, which happened on December 1st (although many MPPs were not present for that snap vote).

“Ontario’s Integrity Commissioner has failed to penalize almost all the lobbyists he has found in violation of the lobbying law since 2018, and so Democracy Watch is taking the commissioner to court to challenge the worst of his many bad rulings,” Duff Conacher, co-founder of Democracy Watch. “Hopefully the courts will issue rulings that require the Commissioner to start enforcing the lobbying rules strictly and strongly by penalizing all lobbyists who violate the law.”

“Democracy Watch will continue challenging the Integrity Commissioner’s rulings in court, and his excessive secrecy including 763 secret decisions since 2018, as long as the Commissioner continues letting off lobbyists who violate the law by failing to disclose their lobbying or lobbying politicians unethically,” said Conacher.

763 secret rulings since 2018, all of which should be made public

Since April 2018, Commissioner Wake has issued 192 secret Advisory Opinions, closed 135 secret compliance reviews at the initial stage, and resolved 436 cases informally in secret (Click here to see Backgrounder on Integrity Commissioner’s Rulings 2018-2020). Because those 763 decisions were made in secret, it is unclear exactly how many other lobbyists Commissioner Wake has let off even though they violated the law.

Integrity Commissioner Wake has also taken the negligent position (in response to a letter sent by DWatch in January 2020) that he will only issue public summaries of his rulings in his annual report which is made public in June of each year, and covers the fiscal-year period which runs from April 1 to March 31 of the previous year.

This means if Commissioner Wake completes an investigation of a lobbyist after April 1st any year, he will not issue any information or a public ruling on that investigation until his annual report in June of the following year (14 months later), unless he decides to penalize the lobbyist (which he rarely decides to do).

Commissioner Wake also claimed in his 2018-2019 Annual Report (p. 47) that the advisory opinions he gives lobbyists under section 15 of the LR Act are confidential, but there is nothing in that section or anywhere in the LR Act that requires them to be kept secret. They are rulings, and the public has a right to know how the Commissioner has ruled every time. The Commissioner should at least issue a summary of every ruling.

“There is nothing in the lobbying law that prohibits Integrity Commissioner Wake from issuing a public ruling on a lobbyist’s alleged violations of the law after he completes his investigation and the lobbyist has been given an opportunity to respond, and it is absurdly negligent for him to claim that the law allows him to wait a year or more to issue a public ruling, and to keep almost all his rulings secret,” said Conacher.

Huge loopholes in lobbying law make it legal to lobby secretly and unethically

As well, huge loopholes in the LR Act allow countless other lobbyists to lobby in secret and unethically. None of the following lobbying activities are required to be disclosed: unpaid lobbying, business lobbying or non-profit organization lobbying of less than 50 hours a year, lobbying about the enforcement of a law, or in response to a request for feedback from a Minister, official or MPP. As a result, anyone lobbying in these ways is also allowed to give gifts to and campaign, fundraise and do favours for Ontario Ministers, MPPs, political staff and government officials they are lobbying.

“Until huge loopholes are closed in the lobbying law, public officials are banned from lobbying for years after they leave their position, and the Integrity Commissioner enforces the law more strictly and strongly, secret, unethical lobbying will continue to corrupt Ontario government policy-making,” said Conacher.

– 30 –

FOR MORE INFORMATION, CONTACT:
Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: info@democracywatch.ca

Democracy Watch’s Government Ethics Campaign and Stop Bad Government Appointments Campaign