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
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.
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