Canada: Canadian Counsel @ Gowlings - June 13, 2008

Last Updated: June 25 2008

Edited by Christopher Alam

Contents:

  • Canada's New Tougher Lobbying Act

  • Bill C-61: Proposed Amendments to the Copyright Act Released

Canada's New Tougher Lobbying Act
Article by Chris S. Schafer,

U.S. business beware. The new Canadian federal Lobbying Act sends a clear get-tough message to lobbyists. Increased enforcement, larger criminal monetary penalties, and heightened scrutiny of lobbying related matters, mean that U.S. corporate counsel and U.S. businesses that lobby the Canadian federal government must be aware of the changes coming to federal lobbying law.

Whether or not you are a Canadian citizen, if your activities involve lobbying federal public office holders in Canada, you must register as a lobbyist in Canada. A foreign corporation or the Canadian subsidiary of a foreign corporation whose employees lobby public office holders in Canada or while they are posted abroad, are subject to Canadian lobbying law. If the Canadian subsidiary of a foreign corporation has to register, it is the responsibility of the most senior paid officer, regardless of whether that person is a Canadian citizen or resides in Canada, to ensure that they are registered as a lobbyist in Canada.

On December 12, 2006, the Federal Accountability Act received Royal Assent. Among other things, it amends the Lobbyist Registration Act and renames it the Lobbying Act. The Lobbying Act establishes the position of the Commissioner of Lobbying, who will be an independent Agent of Parliament, with enhanced investigatory powers and a mandate to enforce compliance with the Lobbying Act.

The Commissioner will be able to, among other things, ask designated public office holders to verify the accuracy and completeness of contact report information that lobbyists submit and, if necessary, report to Parliament the names of those who do not respond. The Commissioner will also be able to conduct expanded investigations, including the power to summon and compel persons to produce documents relevant to any investigation of possible infractions under the Lobbying Act or Lobbyists' Code of Conduct, and prohibit lobbyists convicted of any offence from communicating with the government as paid lobbyists for up to two years, if the Commissioner deems it to be in the public interest, in addition to publishing the names of violators in reports before Parliament.

Furthermore, under the Lobbying Act there will be increased time allowed for the investigation and initiation of prosecution for possible infractions or violations under the Lobbying Act or Code (previously the limitation period was two years; now it is up to 10 years). The Lobbying Act will also double the current criminal monetary fines for lobbyists who do not comply with the requirements of the Lobbying Act, from $25,000 to $50,000 on summary conviction, and from $100,000 to $200,000 on proceedings by way of indictment, not to mention the possibility of up to six months imprisonment for the former and up to two years imprisonment for the ladder.

It is important to note that when employees of a business lobby, they are not individually responsible for registering and reporting their lobbying activities. Instead, the legislative reporting obligation rests with the employee who occupies the senior most position in the business and is paid for the performance of these duties. Usually, that officer is known as the president, CEO, or executive director. If a report is not filed, or if it is filed incorrectly, incompletely, or late, then liability rests with the CEO or senior officer of the business and they are subject to possible investigation and/or prosecution.

Under the Lobbying Act, the strict liability offence of failing to file a return will become subject to the identical penalties as the mens rea offence of knowingly making a false or misleading statement (on a return, for example): $50,000 fine or six months' imprisonment or both (summary conviction); $200,000 fine or two years imprisonment or both (indictment), as noted above. Although a CEO charged with a strict liability offence could argue that he or she took all "reasonable care" and exercised "due diligence" in order to comply with the Lobbying Act, the onus would lie on the CEO to prove such care was taken and diligence exercised. In the end, despite the stiffer financial penalties under the Lobbying Act, they may be less powerful than the taint that would come to the reputation of a business and in-house lobbyist, who would almost certainly have their names publicly tainted by the media and opposition political parties.

Lobbying regulators have been increasing their enforcement related activities. The second conviction under Canadian lobbying laws was of a CEO who failed to report in-house lobbying activities under Quebec provincial legislation. In February 2007, the federal Registrar of Lobbyists issued four reports of investigations into the activities of a consultant lobbyist for four British Columbia (BC)-based corporations. In these reports, each corporation was named in the title and in the body of the particular report and in the media coverage that ensued. The reports were also tabled in Parliament and made public.

At the same time, lobbying related allegations and unregistered lobbying are attracting increasing media coverage. In February 2007, national media reported widely on allegations that Don Cherry and senior employees of CV Technologies Inc., which makes COLD-Fx, lobbied federal officials without being registered, although registration in this case was ultimately determined to be unnecessary. Similarly, the media widely reported that a former adviser to BC Premier Gordon Campbell was charged with and pled guilty to violating the BC provincial lobbying law.

Thus, given the new get-tough approach of the Canadian Lobbying Act, and the increased enforcement and heightened scrutiny of lobbying related matters in Canada, U.S. corporations would be well served by corporate counsel and in-house lobbyists who are aware and understand the changes to Canadian federal lobbying law.

Bill C-61: Proposed Amendments to the Copyright Act Released

Yesterday, the Federal Government introduced Bill C-61 proposing substantial amendments to the Copyright Act. In an associated news release, the Government expressed the motivations behind its proposed amendments as being four fold: (a) To balance the rights of copyright holders with the needs of users to access copyright works, (b) To provide clear, predictable and fair rules under the Copyright Act, (3) To foster innovation and attract investment to Canada, and (4) to ensure Canada's copyright framework for the Internet is in line with international standards.

Bill C-61 is large and addresses a number of areas of copyright law, many of which relate to challenges having arisen from the Internet and digital technologies. It will take time to fully assess the impact Bill C-61 will have on the Canadian Copyright regime. In brief summary, the following are among the more important changes to copyright law proposed by the Government:

  • Provisions placing an obligation on ISPs to pass on to their subscribers notices of copyright infringement. ("notice and notice" approach). ISPs' failing to comply may be liable for copyright-infringing activities taking place on their networks.

  • An obligation on ISPs to keep a record of information permitting the identification of infringers.

  • Limitations on the liability of search engines for reproductions made in the course of providing their services.

  • Introduction for the first time of prohibitions against circumvention of technological measures intended to control access to works, similar in nature to prohibitions enacted in the U.S. by the Digital Millennium Copyright Act, and consequences for such circumventions.

  • Exceptions to copyright infringement intended to benefit educational institutions in specific circumstances.

  • Provisions to allow consumers to legally record TV programs for later viewing (time shifting) and to transfer legally recorded music onto other devices (such as an iPod).

  • Changes made in relation to ownership of copyright and term of protection for photographs, to deal with these works in the same manner as other types of works under the Act.

  • Creating a distribution right for Works, Performer's Performances and Sound Recordings to control the initial entry of product in the marketplace.

  • Creating a making available right granting Performers and the Makers of Sound Recordings with the right to control the posting of their materials online.

  • A court could award no more than $500 in statutory damages against an individual for all private use infringements in a lawsuit (e.g. for downloading a song without the owner's permission).

As Parliament is about to recess for the summer, further legislative developments regarding this bill will have to wait for the Fall.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions