Originally published June 2005
Effective June 20th, 2005, amendments to the Lobbyist Registration Act and related regulations have come into effect. In light of these significant changes, and pursuant to the issuance of three Interpretation Bulletins and an advisory opinion by the Registrar, the Government Relations Practice Group of Borden Ladner Gervais, LLP has prepared this information circular for firm professionals and their clients. The information contained in this document should be viewed as a supplement to, and read in conjunction with, our information bulletin on the same subject published in June of 2004.
I. Application of the Act
The Lobbyist Registration Act has as its central purpose the regulation and registration of individuals and organizations that are paid to interact with public office holders in the Government of Canada on behalf of others. Under the previous version of the Act, lobbying was said to occur whenever a paid individual communicated, on behalf of any person or organization, with a public office holder "in an attempt to influence" them. The amended Act states that lobbying will now simply consist of "any oral or written communication made to a public office holder" with respect to the development of any legislative proposal, the amending of any legislation or regulation, the development or amendment to any policy or program of the Government of Canada, the awarding of any government grant, or the awarding of any government contract.
The Act categorizes and distinguishes between three types of lobbyists: Consultant Lobbyists, In-House Lobbyists for corporations and In-House Lobbyists for organizations. Consultant Lobbyists are individuals who are paid to communicate with government officials on behalf of an individual or organization. Under the provisions of the amended Act, the term ‘organization’ is defined to include: a business, trade, industry professional or voluntary organization; a trade union or labour organization; a chamber of commerce or board of trade; a partnership, association, trust, charitable society, coalition or interest group; a government other than the government of Canada, and non-profit corporations. The broadened definition now applies to trusts.
The Lobbyist Registration Act contains provisions that exclude certain types of conduct from triggering its registration and reporting requirements. Examples of conduct that would not normally require registration, as detailed in the June 20th, 2005 Interpretation Bulletin issued by the Registrar, include: enquiries to obtain publicly available information; general enquiries about the terms and conditions of programs and application processes; participation in consultations, hearings, roundtables, or similar activities when the names of the participants are made publicly available; communication with respect to the enforcement, interpretation or application of federal statutes or regulations; and presentation of briefings to parliamentary committees. Also included in an expanded exclusion provision are members (or staff) of an aboriginal government or institution that exercises jurisdiction or authority under a self-government agreement including land claims agreements.
III. In-House Lobbyists (Corporations & Organizations)
Under the amended Act, the provisions relating to In-House Lobbyists for corporations are now similar to those previously in force for In-House Lobbyists for organizations. The Act now requires that the officer responsible for the filing returns for a corporation – identified in the Interpretation Bulletin as the "most senior paid officer of a corporation or organization" (likely the CEO) – register on behalf of the corporation when one or more employees communicate with federal public office holders on behalf of the corporation. The officer must register on behalf of the corporation and list the names of each senior officer who lobbies as part of his or her duties, as well as the names of any other employees whose duties require them to dedicate a significant part of their time to lobbying activities. The threshold after which lobbying represents a ‘significant part’ of an employee’s duties has been established at 20% of overall duties.
The first obligation on the part of the officer responsible is to determine whether or not lobbying constitutes a significant part of the duties of those employees who communicate with public office holders. The Registrar suggests that in calculating the relative importance of lobbying duties, a six-month estimation period should be used. The precise manner in which the calculations are then made can vary, and the Interpretation Bulletin issued by the Registrar on this subject suggests a variety of methods are acceptable.
One method outlined by the Registrar is to estimate the time spent both preparing for communicating (research, drafting, planning, compiling, travelling, etc…) and actually communicating with public office holders. In one example given, the bulletin suggests that where a one-hour meeting required nine hours of preparations the time related to lobbying with a public office holder would be the full 10 hours. In cases where it is difficult to quantify the amount of time spent, the officer responsible will have to estimate the relative importance of lobbying duties. In either case, the officer responsible will be accountable for the decision as to whether or not a disclosure is necessary. It would appear that where there is any doubt, registration is likely the most prudent course to keep onside the provisions of the Act.
IV. Former Public Office Holders
The amended Act now requires that lobbyists who are former public office holders list their past employment with the federal government. The Act defines a "public office holder" as any officer or employee of the federal government and includes members of the Senate and the House of Commons, any person on the staff of such a member, a person who is appointed to any office or body by or with the approval of the Governor in Council or a minister of the Crown – other than a Judge, an officer, director or employee of any federal board, commission or other tribunal, a member of the Canadian Armed Forces and any member of the Royal Canadian Mounted Police.
A separate Interpretation Bulletin on this specific provision issued by the Registrar confirms that any Consultant Lobbyist or In-House Lobbyist who formerly held a public office must disclose the relevant details of that position in their registration. The Interpretation Bulletin further specifies that this requirement to disclose covers all such positions – irrespective of however many years ago the position was held – including "employment for a short duration, such as student employment, co-operative education and summer positions with the federal government".
Information provided should be submitted in the following format: the period of employment; the unit/organization where the work was performed; and the title of the position occupied. In specifying the "unit", individuals should describe the relevant organizational structure, such as the department, division, directorate, branch or office.
V. Registration & Semi-Annual Renewals
Consultant Lobbyists are required to register their activities no later than ten days after entering into a ‘lobbying’ undertaking. With respect to In-House Lobbyists, the officer responsible for filing returns must file a return no later than two months after the day on which the requirement to file a return first arises. Under the amended Act, all categories of lobbyists will have to update and renew their registrations every six months, instead of annually as required under the previous version of the Act. Subsequent filings must be made not later than 30 days after the expiry of every six-month period.
As the new provisions come into force, the renewal of all registrations must be done within the next sixty days – by August 20th, 2005.
VI. Offences & Punishment
Every individual who contravenes any provision of the Act or its regulations is guilty of an offence and liable on summary conviction to a fine not exceeding $25,000. Every individual who knowingly makes a false or misleading statement in any return or other document submitted to the registrar under the Act, is guilty of an offence and liable on summary conviction for a fine of not more than $25,000 and/or to imprisonment of up to six months and on indictment to a fine not exceeding $100,000 and/or to imprisonment of not more than two years.
BLG Government Relations Services
The Government Relations Group at Borden Ladner Gervais represents clients in their relations with governments in Canada at all levels - Municipal, Regional, Provincial and Federal and with Departments, Boards, Authorities and Agencies of each of those Governments.
BLG professionals bring extensive experience working within the public sector and maintaining excellent contact with key decision-makers. We provide insight with respect to new legislation assessment of complex policies and identification of key contacts within the public service regardless of department and including appropriate elected officials.
Our services include:
- Monitoring political policy developments
- Analyzing the potential impact of emerging government policy program changes on clients interests
- Preparing briefs, submissions and presentations to governments on behalf of clients
- Creating advocacy campaigns on behalf of clients, including communicating on behalf of clients with government decision-makers
- Developing strategic advice that incorporates political agendas of the day with the technical expertise needed to meet the challenge any public pronouncements
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.