The provinces of Alberta and Prince Edward Island recently introduced significant changes to their respective lobbying and election finance legislation.
The Province of Alberta recently revised its Lobbyists Act and Election Finances and Contributions Disclosure Act. Below is a summary of the key legislative changes.
"Lobbying" under the Alberta Lobbyists Act (LA) now includes grass-roots lobbying, the definition of which was revised as a result of the legislative reforms and now covers, among other things:
... appeals to members of the public through the mass media or by direct communication that seek to persuade those members of the public to communicate directly with a public office holder in an attempt to place pressure on the public office holder to endorse a particular opinion.
The LA definition of grass-roots lobbying does not include communication between an organization and its members, officers or employees, or between a person or partnership and its shareholders, partners, officers or employees.
The recent reforms have impacted the legislative exemptions from lobbying under the LA. Under the revised LA, the exemption for public office holders acting in their official capacity has been expanded to include a member of the premier's and ministers' staff as defined in the Conflicts of Interest Act.
The exemption for certain types of submissions made to a public office holder has also been revised. Previously, the exemption covered submissions made by an individual on behalf of a person or organization in response to a request by a public office holder, for advice or comment on certain matters listed in the LA. This exemption now only captures submissions made by an individual on behalf of a person or organization if the individual is participating on a board, commission, council, or other similar body established by a public office holder, the government, or certain prescribed provincial entities.
In-house Lobbyist Threshold
The in-house lobbyist threshold has been reduced from 100 hours to 50 hours annually, mirroring the Ontario threshold. The revised LA now also states that time spent preparing for communication and communicating with a public office holder will be counted towards the 50-hour threshold.
Prohibition on Contingency Fees and Gifts
The reforms have introduced a new prohibition on contingency fees for consultant lobbyists under the LA, which brings the Alberta legislation in line with federal lobbying legislation and lobbying legislation in Nova Scotia, Ontario and Quebec.
The new Alberta legislation also prohibits lobbyists from giving gifts altogether in the course of lobbying. "Gifts" is a broad term that can include a wide range of benefits and hospitality.
Revisions have been made to the administrative penalty regime under the LA. The revised legislation now clarifies that administrative penalties only apply to specific sections of the LA that deal with the duty to file returns (for consultant and organization lobbyists), contingency fees, prohibited gifts, and filing subsequent returns. The revised LA also lists the specific factors the Registrar may take into account when determining the amount of an administrative penalty. Finally, the LA now mandates that the Registrar must provide a written notice of administrative penalty and sets out procedures for appealing an administrative penalty.
Election Finances and Contributions Disclosure Act
The Alberta Election Finances and Contributions Disclosure Act (EFCDA) has been revised to provide that a registered party cannot collude with another registered party to circumvent the expense limits, and that a political party cannot apply to become a registered party for the purposes of circumventing the expense limits. In connection with these new prohibitions, the EFCDA also states that a fine of not more than C$100,000 for the circumvention of expense limits can apply in respect of collusion between registered parties.
The EFCDA has been revised to include by-elections in the definition of "election advertising period" applicable to third-party advertising and now provides that the "election advertising period" includes, in the case of a by-election, the period commencing with the issue of a writ for the by-election and ending at the end of the polling day.
Election Commissioner Powers
The reforms to the EFCDA have expanded the powers of the election commissioner. The revised EFCDA provides that it is an offence to fail to comply with the direction of the election commissioner and states that the election commissioner now has the ability to:
- Conduct periodic investigations of the financial affairs and records of certain registered individuals and parties
- Enter the premises where books and documents of certain registered individuals and parties are kept
- Request information with respect to the financial affairs of any registered party
- Conduct an investigation into whether two or more registered parties are associated registered parties on the election commissioner's own initiative or at the request of the chief electoral officer, an elector, or a registered party
- Conduct an investigation into any matter that might constitute an offence under the EFCDA on the election commissioner's own initiative or at the request of the chief electoral officer or another person or organization.
Compliance Agreement Regime
The EFCDA now includes a new compliance agreement regime. The revised compliance agreement regime provides that if the election commissioner believes on reasonable grounds that a person has committed, is about to commit, or is likely to commit an act or omission that could constitute a contravention of the EFCDA, the election commissioner may enter into a compliance agreement with that person to ensure compliance with the EFCDA. This agreement may contain any terms and conditions that the election commissioner considers necessary, and failure to comply with the agreement could lead to a notice of failure, an administrative penalty, a letter of reprimand, or prosecution.
PRINCE EDWARD ISLAND
The Province of Prince Edward Island has recently revised its Election Expenses Act (EEA). Among the most significant changes are revisions to the definition of what constitutes a contribution and restrictions and limits on contributions.
The definition of contribution under the (EEA) now includes:
- Any money donated to, or for the benefit of, a political party or candidate
- Any other property or services provided free of charge or at less than market value, when provided to, or for the benefit of, a political party or candidate
- Any fees paid to a political party for membership in the political party.
The definition does not include:
- Any voluntary unpaid labour
- Any money or other property or services solicited by, or donated, to a political party or candidate for purposes other than the purposes set out in section 7 or subsection 9(2), respectively.
Previously, the legislation only set out what a contribution did not include. In addition to the above change, the EEA now also provides that advertising will constitute a contribution in certain situations.
The restrictions regarding who can make a contribution in Prince Edward Island have changed significantly. The legislation previously stated that individuals, corporations and trade unions could make contributions. However, under the revised EEA, only individuals who are ordinarily resident in the province can make contributions. This brings the province in line with federal contribution limits, and similar limits in place in other provinces.
The revised EEA now also prohibits all anonymous contributions.
Finally, the revised EEA contains the much anticipated contribution limit, which provides that an individual's aggregate contributions to any single registered party or to any single registered independent candidate cannot exceed C$3,000 annually. Transitional provisions have been included to address the application of this contribution limit in 2018. These provisions provide that where an individual has contributed aggregate contributions for the 2018 year that exceed the C$3,000 limit prior to the coming into force of the limit (June 12, 2018), the limit for that individual for the 2018 year is deemed to be the value of the aggregate contributions contributed by that individual before June 12, 2018.
For permission to reprint articles, please contact the Blakes Marketing Department.
© 2018 Blake, Cassels & Graydon LLP.
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.