Copyright 2012, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Financial Services, February 2012
When communicating with public office holders at any level, it is important to ensure that you and your advisers are complying with lobbying legislation.
Lobbying regulatory regimes are becoming increasingly common across Canada, and are growing in their complexity. The federal government, most provinces and a growing number of cities have lobbying regimes in place, with new regimes and enhancements of existing regimes being put in place each year. These regulatory regimes typically apply both to "consultant" lobbyists (such as a government relations firm, lawyer or any other person who is paid to communicate with public office holders), and to "in-house" lobbyists (such as senior executives who, together with their colleagues, spend the equivalent of a significant portion of one person's time communicating with public office holders).
Lobbying regulatory regimes for the most part do not prohibit communications with public office holders, but they may require public disclosure of the fact that communications took place, and registration with the applicable regulator of those engaged in such communications. In some cases, these regulatory regimes set out additional rules that require disclosure of specific meetings, place limits on former public office holders' communications with government officials, restrict the use of tax dollars to lobby government, or implement blanket prohibitions on lobbying during a procurement process.
In most jurisdictions, "lobbying" includes communications with a public office holder with respect to (i) government expenditures, grants and contributions, and (ii) the development or introduction of new or amended legislation, regulations, programs, or policies. For consultant lobbyists, the mere act of setting up a meeting usually constitutes lobbying. "Public office holders" are not limited to elected officials and their staff, but generally also include any director, officer or employee of the government or of a government agency, board or commission, as well as most government appointees.
Certain exceptions are available to relieve communicators from the legislation, such as where the communications in question were made as part of a public process (i.e., to a legislative committee), or where the communications by or on behalf a person related solely to either (i) the enforcement against, or interpretation or application of existing legislation or regulations to that person, or (ii) to the implementation or administration of any program, policy, directive or guideline that affects that person. However, regulators typically take a broad view of whether a communication is lobbying, and these exceptions are applied quite narrowly.
In addition to legal sanctions (consisting mostly of fines or de-registration), non-compliance with lobbying legislation has significant reputational risk, and public office holders are usually reluctant to deal with persons accused of non-compliance or impropriety in lobbying.
Clients who communicate with governments and government agencies at any level are strongly encouraged to consider whether they, and their advisers, are complying with the increasingly complex requirements of these regimes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
