Ontario Introduces Proposed Amendments to Elections Laws

Blake, Cassels & Graydon LLP
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[co-author: Luiz Brasil, Articling Student]

Ontario’s 2022 election may be run under significantly different financial rules than the previous one. On February 25th, 2021, Attorney General Doug Downey introduced Bill 254, the Protecting Ontario Elections Act, 2021, which would amend the Election Act, Election Finances Act, Members’ Integrity Act, 1994, and Municipal Elections Act, 1996.

FINANCIAL AMENDMENTS

If passed, the proposed amendments will alter the contribution limits for individuals, candidates and third parties, and enable Ontario’s Chief Electoral Officer to enforce monetary penalties for any infractions.

The individual contribution limit would be doubled, increasing from C$1,650 to C$3,300, and will continue to increase by C$25 each year. The amount candidates can contribute to their own campaigns would also double from C$5,000 to C$10,000, and leadership contestants would be able to contribute up to C$50,000, twice the previous C$25,000 limit.

Third parties are currently limited to spending no more than C$637,200 in total for the purposes of political advertising in the six months before an election. If passed, the amendments would extend the spending period to 12 months prior to an election. This would require third-party political advertisers to stretch the same amount of funds over a longer period.

The current legislation prohibits third parties from circumventing or attempting to circumvent this limit by splitting into two or more third parties, or by colluding with other third parties, political parties, candidates, or constituency associations. If passed, the amendments would expand the activities that would be prohibited in an attempt to circumvent the spending limit, including:

  • Acting in collusion with another third party so that their combined political advertising expenses exceed the applicable limit;

  • Splitting itself into two or more third parties;

  • Colluding with, including sharing information with, a registered party, registered constituency association, registered candidate, registered leadership contestant, or registered nomination contestant or any of their agents or employees for the purpose of circumventing the limit;

  • Sharing a common vendor with one or more third parties that share a common advocacy, cause or goal;

  • Sharing a common set of political contributors or donors with one or more third parties that share a common advocacy, cause or goal;

  • Sharing information with one or more third parties that share a common advocacy, cause or goal; or

  • Using funds obtained from a foreign source prior to the issue of a writ for an election.

The proposed amendments would bring the province closer to federal elections law, which was amended in 2019 to increase prohibitions on non-expenditure collusion between third parties (see our Blakes Bulletin: Important Changes for Third Parties in the Canada Elections Act). However, while federal elections law broadly prohibits collusion between third parties and political parties or candidates to influence the third party in its partisan activities during a pre-election period, the proposed Ontario amendments would only prohibit collusion for the purposes of circumventing the third-party spending limit.

PROPOSED ENFORCEMENT POWERS FOR ELECTIONS ONTARIO

Currently, the Chief Electoral Officer must report infractions of elections law to the Ministry of the Attorney General, which then decides whether or not to prosecute. If passed, the amendments would enable the Chief Electoral Officer to enforce administrative penalties for minor infractions. These penalties would range depending on the infraction, with individuals facing penalties of up to C$10,000, and penalties of up to C$100,000 for corporations and other entities.

OTHER HIGHLIGHTS

Additional proposed amendments include:

  • Requiring the Chief Electoral Officer to establish an advisory committee to provide recommendations on the equipment used to cast and count votes. The committee would be composed of members of each registered party, as well as independents.

  • Allowing independent MPPs to register constituency associations, allowing them to access certain benefits such as fundraising outside election periods, qualifying for constituency association voter subsidies and keeping surpluses.

  • Extending the per-vote subsidy until the end of December 2024 (at the 2018 rate, which works out to about C$2.52 per vote).

  • Amending the Members’ Integrity Act, 1994 to expressly allow for MPPs to have social media accounts in their individual names before, during and after an election.

  • Dispensing with the requirement that registered candidates, political parties and constituency associations appoint an auditor and audit financial statements unless and until they have received at least C$10,000 in contributions or incurred at least C$10,000 in expenses.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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