2020 has been marked by a series of significant public health and economic actions by both the federal and provincial governments in Canada in response to the COVID-19 pandemic.
In developing these policies, governments engaged and continue to engage with business groups, unions, social groups, and non-governmental agencies in Canada. They have received and continue to receive solicited and unsolicited representations from the public, including businesses, as the policies and programs evolve.
For a business which has engaged in these processes, it may come as a surprise that these interactions may have triggered the requirement for the business and its employees to register as a "lobbyist". A further surprise may be the tightness of the legislated timeframe required for registration, and the potential sanctions for failing to register.
As a result, businesses should review their interactions with the different levels of governments in 2020 to see if they have triggered the lobbying registration requirements. A helpful checklist is provided further in this article to assist in such an assessment.
Generally, "lobbying" means communicating with politicians and government officials as an advocate for another party, in an attempt to influence the direction of government actions or decision making. While lobbying has a less than pristine reputation, it has a long history - Wikipedia notes 2020 marked the 200th anniversary of the term in print circulation.
Lobbying legislation, both at the federal and provincial level, seeks to regulate instead of barring such activity. The legislation recognizes that lobbying is a legitimate activity, but that (as stated in the preamble to the federal Lobbying Act): "it is desirable that public office holders and the public be able to know who is engaged in lobbying activities". The focus of the regimes in Canada is to capture paid lobbying activities. (most lobbying by volunteers, for example, is excluded from the regimes).
Each level of government in Canada has a lobbying regime. The federal regime respecting lobbying of the Government of Canada and its agencies is set out under the Lobbyist Act (Canada); for the Government of Newfoundland and Labrador, it is set up under the Lobbyist Registration Act. Common elements to each regime include a public registry for lobbying activities, a positive obligation on individuals engaged in the activity to register, and a requirement to disclose both the public office holders with whom the communications were with, and the topics of such communication.
The most complex part of the various regimes is establishing what does and does not qualify as lobbying, and what lobbying is regulated. The starting point is that an individual who is paid to lobby on behalf of others will be required to register. That individual may be external to the organization (such as a professional lobbyist) but may also be an employee of an organization whose responsibilities include lobbying activities. If a business is employing external advisors or consultants to lobby on its behalf, the registration requirements are with that external party not the business.
Checklist - Does my business need to register as a Lobbyist?
If a business has employees who are regularly communicating with government, it should assess whether those employees need to be registered as lobbyists. To start that analysis, a business should ask itself:
- Have one or more employees been spending material portions of their working hours over a period communicating with government officials? This includes all forms of meetings, presentations, emails, letters, or calls, and all time spent drafting or preparing for such communication activity. The "period" of concern is one month for lobbying the federal government and three months for lobbying the provincial government.
- What has been the nature of such communication? If it has been about qualification under existing government programs or policies, it is not lobbying. However, if it has been attempting to influence decisions on the substance or content of government programs and policies, it may be lobbying.
- Has the communication been to elected officials or senior public servants? Lobbying requires communication to government individuals who can influence discretionary decisions.
- Has the communication been in public venues or through private channels? Even if the communication constitutes lobbying, lobbying that occurs in public, such as presentations to hearings or published submissions, does not necessarily require registration.
If a business has employees who have spent a significant portion of their working time engaging in lobbying activities, or preparing for them, it should seek advice as to whether they are required to register under the lobbying regime for the level of government involved. Organizations other than businesses would have the same concerns but have additional exemptions that need to be considered.
The rigorousness of the registration process depends on the jurisdiction. For example, the federal registration requirements are relatively onerous in terms of the level of corporate information required to be disclosed. All regimes require identification of the government individuals who were lobbied, and the nature (in general terms) of the lobbying activities.
Timeframes and Penalties
The timeframes for registration also vary per jurisdiction. The federal regime is relatively strict, requiring registration within 60 days of the lobbying activity in question, but registration and reporting within a shorter timeframe for lobbying activity of certain designated individuals (elected parties and very senior government officials). For the Government of Newfoundland and Labrador, the timeframe is even more onerous - registration is required within 10 days of qualifying as a lobbyist under the legislation.
The penalties for failing to register vary between jurisdictions, but are significant. Under the federal Lobbying Act, the penalties on conviction can be up to $50,000 and six months imprisonment for summary conviction, and $200,000 and two years on conviction of an indictable offence. In Newfoundland and Labrador, a conviction on an offence, including failing to register where required, can be up to $25,000 for a first offence, and $100,000 for subsequent offences.
Finally, there are important points to remember as an organization determines if it has engaged in lobbying:
- It does not make a difference if the communication with a government body was at their request or invitation, or if it was initiated by the business. Instead, the obligation to register is based on the nature of the communication.
- The obligation to register is on the individual not the organization; individuals who work for organizations and lobby on their behalf as part of their job are required to register individually as lobbyists.
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.