Tougher enforcement under the Conflict of Interest Act (Canada).

Mario Dion, Conflict of Interest Commissioner, is calling for a strict and tougher approach to enforcement. One of the byproducts of Ms. Dawson’s approach was a lack of legal interpretation of the statute. The penalties applied were minor and as a result few people objected.

An example of the resulting ambiguity is the usage of the word ‘significant’. Section 35 of the Conflict of Interest Act uses the phrase ‘direct and significant’ in the post-employment section. Section 10.11(c) of the Lobbying Act uses the word ‘significant’ as a limitation on lobbying by former designated public office holders employed by corporations.

What does the word ‘significant’ mean? Ms. Dawson was of the view that a designated public office holder who took an external meeting had ‘direct and significant’ official dealings. A 15 minute meeting where the person had no decision making authority provided the ground to engage the s. 35 one year cooling off period. What was the basis of this interpretation?

According to the Lobbying Commissioner, if lobbying is more than 20% of a person’s duties, it is significant.  The officer responsible for registering under the Lobbying Act does not have to identify an employee falling below that level. The five year prohibition on designated public office holders lobbying also does not apply to these employees. Why was a 20% threshold chosen?  Why not 30%?

These officers have been relying upon potential shame to enforce their interpretations. Increased penalties and more aggressive enforcement will likely lead to judicial review. That is a good thing.

Author: Tom Jarmyn