Integrity commissioner seeks to quash court review of his decisions not to punish lobbyists

The Ontario Superior Court of Justice will hear an application next Tuesday to quash nine lawsuits filed by Democracy Watch seeking judicial reviews of decisions by the province’s integrity commissioner. The court challenges centre around the commissioner opting not to punish lobbyists who violated the province’s registration law or appeared to side-step conflict-of-interest guidelines.

In court documents obtained by Queen’s Park Today, lawyers for integrity commissioner J. David Wake argued his decision not to impose penalties on lobbyists after determining they broke lobbying rules are not reviewable in court, in the same way a Crown attorney decision not to charge someone with a crime can’t be overturned by a judge.

“They are highly discretionary decisions that are reviewable only on grounds of bad faith, improper motive, or bias. While Democracy Watch has alleged that the commissioner is biased, this allegation is baseless, spurious and has no chance of success,” reads the court application.

The watchdog’s office also maintains that Democracy Watch has no standing to sue since it was not involved in any of the investigations and that it waited too long (six months) to file challenges to the decisions in court.

In its own filing, Democracy Watch called the Crown attorney analogy “inaccurate,” arguing the commissioner had “initiated and concluded an investigation” when he made those decisions, therefore exercising his statutory powers which are subject to judicial review.

Democracy Watch’s lawyers also said their group’s accusations of bias are far from spurious, alleging Wake went easy on PC-linked lobbyists near the end of his five-year term (he was reappointed in February 2021).

“The [Office of the Integrity Commissioner] made the impugned decisions during the final year of his term of appointment, which could be renewed only with the approval of all members of the Ontario legislature — some of whom had close relationships with the lobbyists being investigated by the OIC,” reads the document. “A reasonable, informed person would conclude that this caused an appearance of bias on the part of the OIC.”

In an interview with Queen’s Park Today, Democracy Watch coordinator Duff Conacher accused Wake of letting well-connected lobbyists off the hook — the opposite of his stated goal to encourage “a culture of integrity.”

Should the court block judicial review of Wake’s decisions, Conacher said it would be a serious blow to reigning in unscrupulous lobbying.

“If we don’t win, it legalizes corruption, essentially,” said Conacher.

Commissioner’s ‘cooling-off period’ inadequate: Democracy Watch
The nine lawsuits originate from the commissioner’s 2019-20 annual report, in which Wake outlined his decision not to use his powers to sanction several lobbyists, despite finding some of them had violated the Lobbyists Registration Act and others had waded into conflict-of-interest territory.

Conacher described a troubling trend at Queen’s Park that has seen former PC staffers and campaign workers flock to lobbying firms to take advantage of government connections — a strategy proven to be effective in a Star investigation published yesterday (more on this below).

Last year, Wake issued a bulletin outlining a new interpretation of conflict-of-interest rules in Sec. 3.4 of Lobbyists Registration Act, which he admitted had been too vague. Wake prescribed that former campaign workers should have to wait a year before beginning their lobbying efforts, the same rule that governs ex-ministerial staffers.

But Conacher said this “cooling-off period” is still inadequate, accusing the commissioner of attempting to duck criticism without issuing any meaningful changes.

“The integrity commissioner just made up a new standard and said ‘no, [a conflict of interest] disappears after a year and they can work for [Premier Doug Ford] and then go lobby one of his ministers,” he said. “As long as Ford is in provincial politics, he owes people who helped him win the leadership and get elected.”

Wake’s office declined to comment on Conacher’s accusations of bias, referring Queen’s Park Today to its court filing.

In his recent annual report, Wake conceded the penalties he is allowed to dole out under the Lobbyists Registration Act — publicly naming a guilty individual and/or banning them from lobbying for two years — are “hollow sanction[s]” and suggested the ability to levy monetary fines might be more effective at deterring non-compliance.

There are a “host of other deficiencies” with the act that his office would be happy to share with the legislative committee currently reviewing it, he added in the report.

If the motion to quash is defeated next week, Conacher plans to launch further lawsuits challenging Wake’s rulings in this year’s annual report.