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as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. L112
The Legislative Assembly and Executive Council Conflict of Interest Act
CONFLICT OF INTEREST ACT
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act
"Crown agency" means any board, commission, association, or other body, whether incorporated or unincorporated, all the members of which, or of the board of management or board of directors of which,
(a) are appointed by an Act of the Legislature or by order of the Lieutenant Governor in Council, or
(b) if not so appointed, in the discharge of their duties are public officers or servants of the Crown, or for the proper discharge of their duties are directly or indirectly, responsible to the Crown,
or any corporation the election of the board of directors of which is controlled by the Crown, directly or indirectly, through ownership of the shares of the capital stock thereof by the Crown or by a board, commission, association, or other body which is a Crown agency within the meaning of this definition; ("organisme de la Couronne")
"dependant" means
(a) the spouse of a member or minister, including a person who is not married to the member or minister but whom the member or minister represents as his spouse, and
(b)any child, natural or adopted, of a member or minister, who resides with the member or minister; ("personne à charge")
"direct pecuniary interest" includes a fee, commission or other compensation paid or payable to any person for representing the interests of another person or a corporation, partnership or organization in a matter; ("intérêt financier direct")
"member" means a member of the Legislative Assembly of Manitoba, and includes any minister who is a member; ("député")
"minister" means a member of the Executive Council appointed under The Executive Government Organization Act; ("ministre")
"subsidiary" means a corporation that is a subsidiary as described in section 2; ("filiale")
"voter" means voter as defined in The Elections Act. ("électeur")
A corporation is a subsidiary of another corporation where it is controlled by that other corporation.
A corporation is controlled by another corporation where
(a) securities of the controlled corporation to which are attached more than 50% of the votes that may be cast to elect directors of the controlled corporation are held, other than by way of security only, by or for the benefit of the controlling corporation; and
(b) the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the controlled corporation.
Subsidiary includes subsidiaries.
"Subsidiary" includes all subsidiaries of a subsidiary.
For purposes of this Act, but subject to this section, a person shall be presumed to have an indirect pecuniary interest in a matter where
(a) the person, or a nominee of the person,
(i) holds a beneficial interest in, or a share warrant or purchase option in respect of, 5% or more of the value of the issued capital stock, or
(ii) is a director or officer, of a corporation which, or a subsidiary of which, has a direct pecuniary interest in the matter; or
(b) the person is
(i) a partner of or employed by, or
(ii) a guarantor or surety for, or
(iii) a creditor of, a person, corporation, partnership, or organization who or which, or (in the case of a corporation) a subsidiary of which, has a direct pecuniary interest in the matter.
Exception for indemnity or expenses.
For purposes of this Act, members and ministers shall be presumed not to have a direct or indirect pecuniary interest in any matter involving the indemnity, expenses or remuneration payable to members or ministers from the Consolidated Fund.
Exception for common interests.
For purposes of this Act, where
(a) a person, corporation, partnership, or organization who or which benefits from a program, service or contract represents less than 1% of all persons, corporations, partnerships, or organizations in Manitoba who or which benefit from a similar program, service or contract; and
(b) the value of the program, service or contract to the person, corporation, partnership, or organization represents less than 1% of the total value of similar programs, services or contracts provided to other persons, corporations, partnerships or organizations in Manitoba;
the person, corporation, partnership, or organization shall be presumed not to have a direct or indirect pecuniary interest in any matter involving the program, service or contract.
For purposes of this Act, but subject to this section, a person shall be presumed to have an indirect pecuniary liability to another person or to a corporation, partnership, or organization where
(a) the person, or a nominee of the person,
(i) holds a beneficial interest in, or a share warrant or purchase option in respect of, 5% or more of the value of the issued capital stock, or
(ii) is a director or officer, of a corporation which, or a subsidiary of which, has a direct pecuniary liability to the other person or to the corporation, partnership, or organization; or
(b) the person is
(i) a partner of or employed by, or
(ii) a guarantor or surety for, or
(iii) a creditor of, a person, corporation, partnership, or organization who or which, or (in the case of a corporation) a subsidiary of which, has a direct pecuniary liability to the other person or to the corporation, partnership, or organization.
Exception for common liabilities.
For purposes of this Act, where
(a) a person with a direct or indirect pecuniary liability to another person or to a corporation, partnership, or organization represents less than 1% of all persons in Manitoba who have a similar direct or indirect pecuniary liability to the other person or to the corporation, partnership or organization; and
(b) the value of the person's direct or indirect pecuniary liability to the other person or to the corporation, partnership, or organization represents less than 1% of the total value of similar direct or indirect pecuniary liabilities owing by other persons in Manitoba to the other person or to the corporation, partnership, or organization;
the person shall be presumed not to have a direct or indirect pecuniary liability to the other person or to the corporation, partnership, or organization.
For purposes of this Act, and notwithstanding any other provision of this Act, no person shall be presumed to have a direct or indirect pecuniary interest in any matter, or a direct or indirect pecuniary liability to another person or to a corporation, partnership, or organization, unless the value of the pecuniary interest or liability is $500. or more.
Statutory appointments to Crown agencies.
For purposes of this Act, where under the authority of any other Act of the Legislature, a member or minister is appointed to a Crown agency, the member or minister shall be presumed not to have a direct pecuniary interest in the appointment and shall not be presumed, solely by virtue of that appointment, to have
(a) an indirect pecuniary interest in a matter in which the Crown agency has a direct pecuniary interest; or
(b) an indirect pecuniary liability to another person or to a corporation, partnership, or organization to whom or which the Crown agency has a direct pecuniary liability.
For purposes of this Act, where a person is employed by the Government of Canada or a federal Crown agency, by a school board, or by a municipal government, the person shall not be presumed to have
(a) an indirect pecuniary interest in a matter in which his employer has a direct pecuniary interest; or
(b) an indirect pecuniary liability to another person or to a corporation, partnership, or organization to whom or which his employer has a direct pecuniary liability.
Where during any meeting there arises
(a) a matter in which a member or any of his dependants has a direct or indirect pecuniary interest; or
(b) a matter involving the direct or indirect pecuniary interest of any person, corporation, subsidiary of a corporation, partnership, or organization to whom or which a member or any of his dependants has a direct or indirect pecuniary liability;
the member shall
(c) disclose the general nature of the direct or indirect pecuniary interest or liability;
(d) withdraw from the meeting without voting or participating in the discussion; and
(e) refrain at all times from attempting to influence the matter.
All official meetings included.
For purposes of subsection (1), "meeting" includes
(a) a sitting of the Legislative Assembly ;
(b) a meeting of the Legislative Assembly Management Commission;
(c) a meeting of any committee of the Legislative Assembly on which the member sits; and
(d) a meeting of any Crown agency on which the member serves.
Where a member has complied with subsection 4(1), the clerk of the meeting shall record
(a) the disclosure;
(b) the general nature of the direct or indirect pecuniary interest or liability disclosed; and
(c) the withdrawal of the member from the meeting;
and the clerk of the meeting shall subsequently file the recorded information with the Clerk of the Legislative Assembly.
The Clerk of the Legislative Assembly shall record all information filed with him under section 5 in a central record kept for that purpose, and shall make the central record available for inspection by any person without charge during normal business hours.
Where during any meeting of the Executive Council or a committee thereof there arises
(a) a matter in which a minister or any of his dependants has a direct or indirect pecuniary interest; or
(b) a matter involving the direct or indirect pecuniary interest of any person, corporation, subsidiary of a corporation, partnership, or organization to whom or which a minister or any of his dependants has a direct or indirect pecuniary liability;
the minister shall
(c) disclose the general nature of the direct or indirect pecuniary interest or liability;
(d) withdraw from the meeting without voting or participating in the discussion: and
(e) refrain at all times from attempting to influence the matter.
Performance of responsibilities by minister.
Where, during the exercise of any official power or the performance of any official duty or function by a minister, there arises
(a) a matter in which the minister or any of his dependants has a direct or indirect pecuniary interest; or
(b) a matter involving the direct or indirect pecuniary interest of any person, corporation, subsidiary of a corporation, partnership, or organization to whom or which the minister or any of his dependants has a direct or indirect pecuniary liability;
the minister shall
(c) delegate the power, duty, or function to the Executive Council or a committee thereof;
(d) refrain at all times from attempting to influence the matter; and
(e) at any subsequent meeting of the Executive Council or a committee thereof which considers the matter, disclose the general nature of the direct or indirect pecuniary interest or liability and withdraw from the meeting without voting or participating in the discussion.
Where a member or minister fails to comply with subsection 4(1), section 7 or section 8, as the case may be, by reason of the absence of the member or minister from a meeting referred to therein, the member or minister shall
(a) disclose the general nature of his direct or indirect pecuniary interest or liability at the next meeting of the same body before which the matter arose; and
(b) refrain at all times from attempting to influence the matter.
Voidability of transaction or procedure.
The failure of any member or minister to comply with subsection 4(1), section 7 or section 8, as the case may be, does not of itself invalidate
(a) any contract or other pecuniary transaction; or
(b) any procedure undertaken by the Government of Manitoba or a Crown agency with respect to a contract or other pecuniary transaction;
to which the failure to comply with subsection 4(1), section 7 or section 8 relates, but the transaction or procedure is voidable at the instance of the Government of Manitoba or the Crown agency before the expiration of two years from the date of the decision authorizing the transaction, except as against any person, corporation, partnership, or organization who or which acted in good faith and without actual notice of the failure to comply with subsection 4(1), section 7 or section 8.
Statement of assets and interests.
Within 15 days after the beginning of each session of the Legislature, every member and minister shall file with the Clerk of the Legislative Assembly a statement disclosing assets and interests in accordance with section 12.
Notification of failure to comply.
Where a member or minister fails to comply with subsection (1), the Clerk of the Legislative Assembly shall forthwith notify the member or minister in writing of the failure to comply, and the member or minister shall, within 30 days of receiving the notification, file the statement referred to in subsection (1).
Further statement after acquisition or disposal.
Where during the course of a session of the Legislature a member or minister or any dependant of a member or minister acquires or disposes of any assets or interests of the kind mentioned in section 12, the member or minister shall within 30 days of the acquisition or disposal file with the Clerk of the Legislative Assembly a further statement disclosing the acquisition or disposal.
Assets and interests which must be disclosed.
Subject to section 13, the member or minister shall disclose in the statement filed under subsection 11(1)
(a) all land in the province in or in respect of which the member or minister or any of his dependants has any estate or interest, including any leasehold estate and any mortgage, licence, or interest under a sale or option agreement, but excluding principal residence property;
(b) where the member or minister or any of his dependants holds a beneficial interest in, or a share warrant or purchase option in respect of, 5% or more of the value of the issued capital stock of a corporation, all estates and interests in or in respect of land in the province held by that corporation or by a subsidiary of that corporation;
(c) the name of every corporation, and every subsidiary of every corporation, in which the member or minister or any of his dependants holds a beneficial interest in 5% or more of the value of the issued capital stock, or holds a share warrant or purchase option in respect of 5% or more of the value of the issued capital stock;
(d) the name of every person, corporation, subsidiary of a corporation, partnership, or organization which remunerates the member or minister or any of his dependants for services performed as an officer, director, manager, proprietor, partner or employee;
(e) bonds and debentures held by a member or minister or any of his dependants, excluding bonds issued by the Government of Canada, by the government of any province of Canada, or by any municipality in Canada, and also excluding Treasury Bills;
(f) holdings of the member or minister or any of his dependants in investment funds, mutual funds, investment trusts, or similar securities, excluding Retirement Savings Plans, Home Ownership Savings Plans, accounts and term deposits held in banks, credit unions, or other financial institutions, pension plans, and insurance policies;
(g) any estate or interest in land in the province
(i) to which the member or minister, or any dependant of the member or minister, is entitled in expectancy under any trust, or
(ii) over which the member or minister, or any dependant of the member or minister, has a general power of appointment as executor of a will, administrator of an estate, or trustee under a deed of trust;
(h) the nature, and the identity of the donor, of every gift given to the member or minister or any of his dependants at any time after the coming into force of this Act, excluding
(i) gifts from a family member,
(ii) gifts disclosed in any previous statement filed under section 11, and
(iii) gifts received before the member was first elected to the Legislative Assembly or the minister was first appointed to the Executive Council; and
(i) the general nature of any contract or other pecuniary transaction entered into at any time after the coming into force of this Act between the Government of Manitoba or any Crown agency and
(i) the member or minister or any of his dependants, or
(ii) any corporation referred to in clause (c), or
(iii) any partnership in which the member or minister or any of his dependants is a partner, but excluding
(iv) any such contract or other pecuniary transaction entered into before the member was first elected to the Legislative Assembly or the minister was first appointed to the Executive Council,
(v) any such contract or other pecuniary transaction disclosed in any previous statement filed under section 11, and
(vi) any transaction in which the member or minister or any of his dependants is presumed under section 3 not to have a direct or indirect pecuniary interest.
For purposes of sections 11 and 12, no member or minister is required
(a) to disclose any gift worth less than $250. unless the total value of all the gifts from the donor to the member or minister and the dependants of the member or minister during the previous year exceeded $250.; or
(b) to disclose any other asset or interest worth less than $500.; or
(c) to estimate the value of any asset or interest disclosed; or
(d) to disclose any asset or interest acquired by a dependant of the member or minister.
Where a member or minister or any of his dependants receives as a gift any of the assets or interests referred to in clauses 12(a) to (g), the member or minister shall, notwithstanding that the gift has already been disclosed in a statement filed under section 11, continue to disclose the asset or interest in every statement filed under subsection 11(1) until the member or minister or his dependant disposes of the asset or interest.
The Clerk of the Legislative Assembly may prepare and make available to members and ministers forms to assist them in complying with sections 11 and 12.
Subject to subsection (3), a member or minister may comply with sections 11 and 12 by completing and filing with the Clerk the forms referred to in subsection (1).
No member or minister is relieved from any disclosure requirement of section 11 or 12 by virtue of the inadequacy or unavailability of any form referred to in subsection (1).
Statements not available to public.
Subject to subsections (2) and (3), the Clerk of the Legislative Assembly shall not
(a) make any statement filed under section 11 available for inspection by any person; and
(b) reveal the contents of any statement filed under section 11 to any person.
Exception for members and ministers.
Subsection (1) does not apply to a member or minister who wishes to inspect, or to be informed of the contents of, any statement which he has filed under section 11.
Where any person
(a) provides details of a possible violation of this Act by a member or minister; and
(b) identifies a specific asset or interest in respect of which the possible violation may have occurred;
the Clerk of the Legislative Assembly shall examine the statements filed by the member or minister under section 11 and shall in writing inform the person whether or not the statements disclose the specific asset or interest.
This section applies to statements filed in respect of the 32nd Legislature.
Statements available to public.
The Clerk of the Legislative Assembly shall make every statement filed under section 11 in respect of the First Session of the 33rd Legislature, or any subsequent session, available for inspection by any person without charge during normal business hours.
No member or minister shall use, for personal gain or the gain of any other person, information which is not available to the public and which the member or minister acquires in the performance of his official powers, duties and functions.
No member or minister shall, himself or through any other person, communicate with another member or minister or with an officer or employee of the Government of Manitoba or a Crown agency for the purpose of influencing the Government of Manitoba or the Crown agency to enter into any contract or other transaction, or to confer any benefit, in which the member or minister or any of his dependants has a direct or indirect pecuniary interest.
Application for authorization.
Any voter may, by filing an affidavit showing details of an alleged violation of this Act by a member or minister and by paying into court $300. as security for costs, apply ex parte to a judge of the Court of Queen's Bench for authorization to have a hearing before another judge of the court to determine whether the member or minister has violated this Act and upon hearing the application, the judge may grant the authorization or dismiss the application and order forfeiture of all or a part of the security.
Disposition after hearing on merits.
Where, after a hearing authorized under section 20, the judge determines that the member or minister has violated this Act, the judge shall, subject to section 22, impose one or more of the following penalties on the member or minister:
(a) In the case of a violation committed by a member, disqualification of the member from office.
(b) In the case of a violation committed by a member, suspension of the member for a period not exceeding 90 sitting days of the Legislative Assembly.
(c) A fine not exceeding $5,000.
(d) An order requiring the member or minister to make restitution to the Government of Manitoba or a Crown agency for any pecuniary gain which the member or minister has realized in any transaction to which the violation relates.
A member who is suspended under clause (1)(b) or subsection 23(1) is, for the duration of the suspension, prohibited from
(a) sitting in the Legislative Assembly; and
(b) participating as a member in any meeting of a committee of the Legislative Assembly, the Legislative Assembly Management Commission or any Crown agency on which the member serves.
Suspension served during sitting days.
A suspension imposed under clause (1)(b) shall be served entirely during sitting days of the Legislative Assembly, and any time remaining to be served at the end of a session shall be carried forward to the next session.
Unknowing or inadvertent breach.
Where, after a hearing authorized under section 20, the judge determines that the member or minister has violated this Act unknowingly or through inadvertence, the judge may make an order of restitution in accordance with clause 21(l)(d) but shall impose no other penalty against the member or minister.
A member who fails to file the statement required under subsection 11(1) within the time prescribed under subsection 11(2) is, subject to subsection (2), suspended for the duration of the session then in progress or, if no session is then in progress, for the duration of the next session.
A member who is suspended pursuant to subsection (1) may at any time file the statement required under subsection 11(1), and thereupon the suspension terminates.
Disqualification at end of session.
Where the session during which a member is suspended pursuant to subsection (1) ends and the member has not filed the required statement, the member is disqualified from office.
No court disposition required.
No court proceeding under section 20 or 21 is required before a member is suspended or disqualified from office under this section.
The Legislative Assembly possesses all the powers and jurisdiction necessary or expedient for investigating and determining a violation referred to in this section and for suspending or disqualifying a member under this section, and any decision by the assembly under this section is final and conclusive and is not subject to review or appeal in any court.
A member who is suspended pursuant to clause 21(l)(b) or subsection 23(1) is, in respect of the period covered by the suspension, not entitled to receive any indemnity, allowance or expense otherwise payable to the member under The Legislative Assembly Act, The Legislative Assembly Management Commission Act or under the terms of appointment to any Crown agency on which the member serves.
A member who appeals a disqualification from office imposed under clause 21(l)(a) or a suspension imposed under clause 21(l)(b) may apply to a judge of The Court of Appeal for a stay of the penalty pending the determination of the appeal, and the judge may order a stay on such terms and conditions as are just under the circumstances.
Where a member who appeals a disqualification from office imposed under clause 21(l)(a) or a suspension imposed under clause 21(l)(b) has lost any indemnity, allowance, expense or benefit as a result of the disqualification or suspension and a court which hears the appeal sets aside or reduces the penalty, the court may, as part of the judgment, order that the member be reimbursed in whole or in part for the indemnity, allowance or expense, or that the benefit be restored in whole or in part, and the member shall be reimbursed or the benefit restored accordingly.
Forthwith after the delivery of any court judgment
(a) determining whether or not a member or minister has violated this Act; or
(b) disposing of an application for a stay of a judgment referred to in clause (a) or an appeal from a judgment referred to in clause (a);
the registrar of the court which delivers the judgment shall, in writing, certify to the Speaker of the Assembly the decision of the court, including any penalty imposed on the member or minister by the court.
Subject to section 10, no decision or transaction and no procedure undertaken by the Government of Manitoba or a Crown agency with respect to a decision or transaction is void or voidable by reason of a violation of this Act.
Election not to preclude application.
An application to the Court of Queen's Bench for a determination that a member or minister has violated this Act may be brought notwithstanding that
(a) the member against whom the order is sought resigned or did not seek re-election, or was not re-nominated, or was re-elected or defeated; or
(b) the minister against whom the order is sought resigned from or was not re-appointed to the Executive Council, or was re-appointed to the Executive Council;
subsequent to the alleged violation of this Act.
Notwithstanding anything in this Act, where any person, whether the person is or was a member or minister or not, has realized pecuniary gain in any transaction to which a violation of this Act relates, any person affected by the pecuniary gain, including the Government of Manitoba or a Crown agency, may apply to a court of competent jurisdiction for an order of restitution against the person who has realized the pecuniary gain.
No application under section 20 shall be brought more than six years after the date of the alleged violation in respect of which the application is made.
Limitation period for order of restitution.
No application for an order of restitution under section 29 shall be brought more than six years after the date of the transaction which results in the alleged pecuniary gain.
Proceedings alleging a violation of this Act or for an order of restitution under section 29 shall be had and taken only under the provisions of this Act.
Summary Convictions Act not to apply.
No violation of any provision of this Act is an offence for purposes of The Summary Convictions Act.