Chair, Government Relations Practice Group
The content contained in this article was current as of June 2004
Lobbying in Canada is attracting the continuous attention of governments and the public. Persons engaged in the lobbying of public officials are subject to federal and some provincial legislation.
Lobbying - What’s In, What’s Out
The Government of Canada and the governments of British Columbia, Ontario, Quebec and Nova Scotia have all enacted legislation governing the lobbying of public officials. Common features of all legislation include public registries, requiring persons to register as lobbyists and requiring specified information about their activities to be disclosed.
Common to all jurisdictions are certain activities that require registration. A common activity is communication with a public office holder with the intention to influence. The communication may be oral, in writing, formal or informal. The communication requires registration where the communication is done for payment of a fee. The subject matter of the communication requiring registration is quite broad and includes communication that seeks to influence, among other things, government legislation at any stage or form, e.g. regulations, draft bills, amending bills, existing bills. Registerable communication can include the simple arranging of meetings with public officials. Communication that seeks to influence government policy, programs, grants, or contracts is included as is, (in the Province of Quebec) communication concerning appointments. This listing is not exhaustive but it reveals a breadth of scope such that most communication, done for payment of a fee with a public office holder requires registration.
There are, however, some activities, which do not require registration, and they include communications essential to public policy making. Common to the federal and provincial jurisdictions, excluded communications include those made in proceedings, which are a matter of the public record such as testimony before legislature or parliamentary committees. Also excluded are submissions made regarding enforcement or interpretation of an Act or Regulation by the particular office holder. Communication contained in submissions made in direct response to written requests from a public office holder for advice or comment are also excluded activities.
British Columbia, Ontario and Nova Scotia exclude routine constituency related communication made to provincial legislature members regarding personal matters.
Nova Scotia excludes communication by a Trade Union regarding the administration or negotiation of a collective agreement.
Quebec has additional excluded communication. If the submission being made would result in a threat to the safety of the person communicating with the public office holder it is excluded. Submissions made in negotiating the conditions for performance of a contract after its award are excluded. Negotiations of an individual or collective labour contract are excluded. Submissions made in judicial or adjudicative proceedings are also excluded.
Significantly, Quebec requires that compensation paid to a lobbyist cannot be contingent upon the success of the lobbying. In the federal, B.C., Ontario and Nova Scotia domains, compensation paid to consultant lobbyists that is contingent, while not prohibited must be noted in the registration.
Lobbyists - Who’s In
In all jurisdictions, there are three types of lobbyists.
- The Consultant Lobbyists are those who, for payment, lobby on behalf of any person or organization.
- Corporate In-House (Enterprise Lobbyists in Quebec) are, in all jurisdictions, employees of a corporation devoting a significant part of their duties to lobbying. ‘Significant part’ is defined everywhere, except Quebec, to be 20% or more of their employment time engaged in lobbying activities. Quebec does not set out what percentage is considered significant.
- Organization In-House Lobbyists are employees of not-for profit organizations or associations who devote 20% of their time engaged in lobbying activities. Quebec differs only in that it does not set out the percentage that constitutes ‘significant’.
The Consultant Lobbyist classification is broad and would capture any professional, including lawyers, accountants and others who, on behalf of a client, for a fee, engage in a lobbying activity. Corporate officials will find themselves asking if the 20% requirement puts them in or out of the Corporate In-House /Enterprise Lobbyist class. Measuring the 20% is not clear-cut and Quebec’s absence of a percentage makes this classification even less clear.
Each jurisdiction has detailed lists of what specific information has to be included in a particular registration. Generally, identification of who the lobbyist is, whom they are working for, who is being lobbied and what they are lobbying about have to be included. Each jurisdiction has its own additional information requirements and reference to the specific registries should be carefully reviewed.
Failure to comply with registration requirements in all jurisdictions can result in fines of up to $25,000. A re-offence in Nova Scotia can net a fine of up to $100,000 and second and subsequent offences in Quebec may result in fines between $10,000-50,000 for each re-offence.
It can be seen that careful consideration must be given when communicating with Public Office holders as to whether one should register. With increasing attention being paid to lobbying activity in Canada, it is likely that adherence to registry requirements will gain importance to both those lobbying and those being lobbied.
This article originally appeared in the September 7th, 2004 issue of The Bay Street Times.
Colin MacDonald is a partner at Borden Ladner Gervais’ Calgary office, and is the National Coordinator of the Government Relations Group.
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.