Canada: Are you a lobbyist and don’t know it?

Last Updated: July 15 2003
Article by Jacques Paquin

You are a chartered accountant and one of your clients is a real estate developer who is thinking about building a shopping center in a residential sector of the municipality in which you practice your profession. But, to do this, the area must be rezoned. Aware of your close ties to members of the party in power at city hall, he wishes to retain your services to intervene with the mayor, a close friend of yours, and with two city councillors, and persuade them that it would be in the municipality’s interests to rezone the sector so as to promote its commercial development.

You are a tax lawyer and your client, a biotech enterprise, mandates you to obtain a grant for the development of a new product.

You are a financial adviser and an enterprise mandates you to find financing for it in the form of equity participation in its capital from a government institution.

You were elected president of the "Thingumabob" Contractors Association in your area and the organization that you represent intends to intensify its interventions with the elected officials in your region as well as with a minister of the provincial government so as to exempt the member contractors of your association from the application of a new regulation likely to adversely affect them.

According to the Lobbying Transparency and Ethics Act (S.Q. 2002, chapter 23), assented to on June 13, 2002 and whose provisions pertaining to the disclosure of information in the registry of lobbyists came into force on November 28, 2002, these situations make you a "lobbyist".

The Act is intended to foster transparency in the lobbying of public office holders and to ensure that lobbying activities are properly conducted

As defined in the Act, "lobbying activities" are all oral or written communications with a public office holder in an attempt to influence or that may reasonably be considered by the initiator of the communication as capable of influencing a decision concerning:

  1. the development, introduction, amendment or defeat of any legislative or regulatory proposal, resolution, policy, program or action plan,
  2. the issue of any permit, licence, certificate or other authorization,
  3. the awarding of any contract, otherwise than by way of a call for public tenders, or of any grant or other financial benefit or the granting of any other form of benefit determined by government regulation, or
  4. the appointment of any public office holder within the meaning of the Act respecting the Ministère du Conseil exécutif (R.S.Q., chapter M-30), or the appointment of any deputy minister or other holder of a position referred to in section 55 of the Public Service Act (R.S.Q., chapter F-3.1.1) or any holder of a position referred to in section 57 of that Act.

Consultant lobbyists, enterprise lobbyists and organization lobbyists are considered to be lobbyists for the purposes of this Act.

A "consultant lobbyist" is any person, whether or not a salaried employee, whose occupation or mandate consists, in whole or in part, in lobbying on behalf of another person in return for compensation. An "enterprise lobbyist" is any person a significant part of whose job or function within a profit-seeking enterprise consists in lobbying on behalf of the enterprise. Lastly, an " organization lobbyist" is any person a significant part of whose job or function consists in lobbying on behalf of an association or other non-profit group.

For the purposes of this Act, the following persons are considered to be "public office holders": government ministers and members of the National Assembly, as well as persons on their staff, government employees, persons appointed to a government agency or enterprise within the meaning of the Auditor General Act (R.S.Q., chapter V-5.01), as well as employees of any such agency or enterprise, persons appointed to a non-profit agency established for the purpose of managing and providing financial support for activities of a public nature out of funds originating principally from the Government without itself delivering products or services to the public, as well as employees of any such agency, mayors, municipal or borough councillors, wardens, chairs and other members of the council of a metropolitan community, as well as persons on their staff and employees of municipalities and municipal bodies referred to in section 18 or 19 of the Act respecting the Pension Plan of Elected Municipal Officers (R.S.Q., chapter R-9.3).

If you are involved in lobbying activities, you must be registered in the registry of lobbyists created pursuant to said Act, which provides for the mandatory registration and updating, in a public registry, of a certain amount of information about lobbyists and their activities, in particular, information about the subject matter of these activities.

In the case of a consultant lobbyist, the lobbyist must register himself or herself no later than the thirtieth day after he or she begins to conduct lobbying activities on behalf of a client. In the case of an enterprise or organization lobbyist, the time limit is sixty days.

Any change in the information contained in the return concerning a lobbyist, including any change stemming from the termination of his or her engagement or any new lobbying activities, must, no later than the thirtieth day following the occurrence of the change, be stated in a notice of change filed in the registry.

Lastly, the registration of a consultant lobbyist must be renewed no later than the thirtieth day following the anniversary date of the initial registration; the enterprise lobbyist’s or organization lobbyist’s registration must be renewed no later than the sixtieth day following the enterprise’s or the organization’s financial year end.

Moreover, the Act prohibits certain lobbying practices and provides for certain disciplinary measures and penalties in the event of the breach of the obligations imposed by the Act or the breach of the code of conduct. Therefore, no person may lobby a public office holder without being registered in the registry of lobbyists in respect of such lobbying activities and no consultant lobbyist or enterprise lobbyist may act in return for compensation that is contingent on the achievement of a result or the lobbyist’s degree of success.

Furthermore, a consultant lobbyist or enterprise lobbyist may not act in return for compensation derived from a grant or loan received from the Government, a municipality or a government or municipal body or agency.

Among the disciplinary measures provided for by the Act, note that the Lobbyists Commissioner may prohibit a lobbyist’s registration in the registry of lobbyists or may order the cancellation of all entries in the registry concerning such lobbyist where he ascertains that the lobbyist has gravely or repeatedly breached the obligations imposed on him or her by the Act or the code of conduct adopted thereunder.

On receiving an inquiry report from the Lobbyists Commissioner ascertaining that a lobbyist has, in any way, breached the obligations imposed on him or her by the Act or by the code of conduct, the Attorney General may claim from the lobbyist the amount or value of any financial or other compensation received by or payable to the lobbyist on account of the activities that gave rise to the breach and the enterprise or group within which the lobbyist was acting at the time of the breach is solidarily liable with the lobbyist for payment of the amount claimed by the Attorney General.

The penalties provided for in the Act include fines that vary from $500 to $25,000 and may be doubled in the event of a second or subsequent offence.

It should be pointed out that the Act does not apply to certain activities outlined in section 5 and that any communication for the sole purpose of inquiring as to the nature or scope of the legal rights or obligations of a client, an enterprise or a group does not constitute a lobbying activity and, as such, is excluded from the application of the Act..

The following activities are excluded from the Act:

  1. any submission made in or prior to judicial or adjudicative proceedings;
  2. any submission made to a parliamentary committee of the National Assembly or at a public meeting of a municipal council or municipal body;
  3. any submission made in public proceedings, or in proceedings that are a matter of public records, to any person or body having jurisdiction or powers conferred by an Act, an order in council or a ministerial order;
  4. any submission made by a person other than a consultant lobbyist concerning the granting of a form of benefit referred to in subparagraph 2 or 3 of the first paragraph of section 2 [i.e., the issue of any permit, licence, certificate or other authorization, the awarding of any contract (…) or of any grant or other financial benefit (…)], where the public office holder having the power to make the decision is only authorized in this regard to ascertain whether the legal requirements for the granting of such benefit are satisfied;
  5. any submission made outside a process for the granting of a benefit referred to in subparagraph 2 or 3 of the first paragraph of section 2 and for the sole purpose of informing a public office holder of the existence and characteristics of a product or service;
  6. any submission made in the negotiation, subsequent to the awarding of a contract, of conditions for the performance of the contract;
  7. any submission made in the negotiation of an individual or collective labour contract or in the negotiation of a collective agreement for the provision of professional services, in particular, an agreement under the Health Insurance Act (R.S.Q., chapter A-29);
  8. any submission made by a person other than a consultant lobbyist on behalf of a professional order or the Conseil interprofessionnel du Québec to the Minister responsible for the administration of legislation respecting the professions or a member or employee of the Office des professions concerning the development, introduction, amendment or defeat of proposals regarding the Professional Code (R.S.Q., chapter C-26), the Act or letters patent constituting a professional order or the regulations under those Acts;
  9. any submission made by public office holders when acting in their official capacity;
  10. any submission made in response to a written request from a public office holder, including any submission made in response to a call for public tenders issued under the public office holder’s authority; or
  11. any submission the disclosure of which could reasonably be expected to threaten the safety of a lobbyist or a lobbyist’s client, a public office holder or any other person."

The Act creates the position of Lobbyists Commissioner who is responsible for monitoring and controlling the lobbying of public office holders and vests him with inquiry and inspection powers. Moreover, the Personal and Movable Real Rights Registrar is responsible, as Lobbyists Registrar, for keeping a registry of lobbyists at the Personal and Movable Real Rights Registry Office.

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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