In 2016, the Ontario Legislature passed the Election Finances Statute Law Amendment Act (Bill 2), updating the rules on third-party spenders in provincial elections. A ‘third party’ is any person or entity that is not a political party, candidate or constituency association, and that engages in political advertising.
Bill 2 includes not only partisan but also issue-based nonpartisan advocacy in its definition of political advertising. This has the potential to create unintended consequences for nonprofits that participate in democratic debate during election campaigns.
If your organization spends money on paid advertising that advocates for or against a policy that a candidate or party takes a position on, even if your advocacy is nonpartisan, you may need to register as a third-party advertiser. The rules apply to the election period itself, and the six-month period before general election periods (note that you can elect to register as a third-party advertiser in either or both of these periods). Check with Elections Ontario for details.
Nonprofits are required to register as third-party political advertisers if they spend over $500 engaging in public policy debate on issues that a candidate happens to address during the prescribed election period. There are also new financial tracking and reporting requirements.
Any paid advertising from a nonprofit to an audience that goes beyond an organization’s staff and membership list that has a cost could fall under this definition. This would apply to many issues, including child care, affordable housing, arts and recreation funding, and climate change — issues candidates routinely take a position on.
Elections Ontario’s CFO Handbook
Elections Ontario’s CFO Handbook offers some helpful explanations:
Political advertising is defined as advertising in any broadcast, print, electronic, or other medium (like billboards, bus shelters and brochures) with the purpose of promoting or opposing any registered political party or its leader or the election of a registered candidate. Political advertising also includes advertising with respect to an issue of public policy during an election for which one or more registered political parties or candidates may also have taken a position.
Political Advertising does not include:
- Publicizing an editorial, debate, speech, interview, column, letter, commentary or news
- Distributing a book, or promoting the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election
- Communicating directly by a person, group, corporation or trade union to their members, employees or shareholders, as the case may be
- Publicizing on the internet your individual personal political views, on a non-commercial basis
- Phoning electors only to encourage them to vote
The Chief Electoral Officer considers the following criteria when determine if an advertisement is political advertising:
- Whether it is reasonable to conclude that the advertising was specifically planned to coincide with the period referred to in Spending Limits section
- Whether the formatting or branding of the advertisement is similar to a registered political party’s or registered candidate’s formatting or branding or election material
- Whether the advertising makes reference to the election, election day, voting day, or similar terms
- Whether the advertisement makes reference to a registered political party or registered candidate either directly or indirectly
- Whether there is a material increase in the normal volume of advertising conducted by the person, organization, or entity
- Whether the advertising has historically occurred during the relevant time of the year
- Whether the advertising is consistent with previous advertising conducted by the person, organization, or entity
- Whether the advertising is within the normal parameters of promotion of a specific program or activity
- Whether the content of the advertisement is similar to the political advertising of a party, constituency association, nomination contestant, candidate or leadership contestant registered under the Act
The information on this page does not constitute legal advice. For advice tailored to your organization, please consult legal counsel about Elections Ontario third-party advertising rules and, if applicable, federal rules for charities’ engagement in political activities (including the definition of partisan activities) under the Income Tax Act. We particularly encourage you to seek legal advice before paying anyone fees for the distribution of materials during the current election campaign.