Lobbying law is rapidly changing in Canada. At present, every jurisdiction in Canada – except for the three territories, New Brunswick, Saskatchewan and Prince Edward Island – has some form of lobbying law. The City of Toronto has established a rigorous lobbying regime, and the City of Ottawa is moving to establish a lobbyist registry. Regulatory regimes in jurisdictions across the country are being reviewed and changed by lawmakers and regulators. The following is a short summary of recent developments in lobbying law across Canada.
The House of Commons Standing Committee on Access to Information, Privacy and Ethics released a report entitled Statutory Review of the Lobbying Act: Its First Five Years on May 14, 2012. The Report contains 11 recommendations for changes to the current lobbying regime and discusses a number of other issues raised in the submissions made to the committee. In particular, the Report recommended some material changes to the regime for in-house lobbyists. The recommendations include:
- The thresholds and "significant duties" test for in-house lobbyists should be removed
- Each individual in-house lobbyist should be required to register under the regime (in addition to their senior officer)
- Board members, sole proprietors and partners of an entity should be included on in-house returns
- The different treatment of businesses and non-commercial organizations should be eliminated
- Gifts of any kind from a lobbyist to a public office holder should be restricted
- A new conflict of interest provision should restrict a lobbyist from lobbying on a subject matter if they have a contract to provide advice to a public office holder on the same subject
- The current five-year post-employment lobbying prohibition for public office holders should be retained
- The Commissioner of Lobbying should be empowered to impose administrative monetary penalties.
Changes to the federal Lobbyist Registration Regulations have also recently been enacted to improve consistency between the English and French versions of the regulations. No changes were made to the English version.
Developments in Atlantic Provinces
In May 2012, the New Brunswick legislature completed first and second readings of the Lobbyists Registration Act. The legislation is the most recent of several private members' bills to create a lobbyist regime in the province. New Brunswick currently has no legislation regulating lobbying activities. The proposed legislation is similar to other Canadian acts regulating lobbying. It would establish a registry system for lobbyists and a Registrar of Lobbyists to administer the system. Lobbyists are proposed to be divided into three classes: consultant lobbyists, in-house lobbyists (for businesses) and in-house lobbyists (for organizations). In-house lobbyists would be subject to a "significant duties" test similar to that in effect in most other Canadian jurisdictions. The legislation is currently being studied by committee.
In Nova Scotia, several amendments have been made to the Lobbyists' Registration Act to restrict the payment of contingency or "success" fees to lobbyists, and to regulate grassroots lobbying activity. A new private member's bill, Modernizing Government Act, has also been proposed, providing for a three-year post-employment prohibition on Members of the Legislative Assembly engaging in lobbying.
Developments in Ontario
Ontario's Integrity Commissioner has made a number of recommendations to update Ontario's Lobbyists Registration Act. By and large, these recommendations are consistent with the recommendations made federally (described above), including the addition of powers to the Commissioner (including administrative monetary penalties), and the elimination of the "significant duties" test and the differences in treatment of businesses and non-commercial organizations. The Commissioner also proposed that board members be included on in-house returns, and a new conflict of interest provision be implemented which would restrict a lobbyist from lobbying on a subject matter if they have a contract to provide advice to a public office holder on the same subject. Clarifications were also proposed to make clear that the act applied to all grassroots communications, and to define more clearly what constitutes "government funding."
Developments in the West
On April 30, 2012, Manitoba's lobbying regime finally took effect, with lobbyists being required for the first time to register with the province's lobbyist registrar, disclose who they are lobbying, and details about their efforts. The Manitoba legislation closely follows the British Columbia and Alberta model, with a 100-hour per year aggregate threshold for in-house lobbyists, and a prohibition on lobbying on a subject matter by a lobbyist who has a contract to provide advice to a public office holder on the same subject.
In May 2012, Saskatchewan's Standing Committee on Intergovernmental Affairs & Justice also released its Lobbying Legislation Inquiry Final Report, which includes a detailed set of recommendations for lobbying legislation in Saskatchewan. The province plans to follow the British Columbia model closely. Like most jurisdictions (except for the federal regime), communications would only constitute lobbying where they include an "attempt to influence" a public office holder. In-house lobbyists would be determined based on the same 100-hours test (aggregate for all employees, annually, including travel and preparation time) as is in place in British Columbia. A post-employment prohibition on lobbying is proposed for Ministers (one year) and other elected members, senior political staff and senior civil servants (six months). A registry system with semi-annual updates is proposed, as is a provision that would restrict a lobbyist from lobbying on a subject matter if they have a contract to provide advice to a public office holder on the same subject. Administrative monetary penalties are recommended.
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