One of Canada's strongest and broadest lobbying laws is now in force in Yukon. CEOs, businesses, organizations and individual consultants have until January 13 to come into compliance.
After a 23-month delay,1 the Lobbyists Registration Act2 came into effect October 15, and is the 19th active lobbying law in Canada.3 Among provinces and territories, now only the Northwest Territories and Nunavut lack lobbying transparency and ethics legislation.
The law will significantly affect those who have dealings with the Government and Legislative Assembly of Yukon, including companies that sell goods, services and solutions to the public sector, non-profit entities, and organizations that campaign for public support to put pressure on MLAs and government officials.4
Chief executive officers are required to register lobbying by their employees, and are exposed to prosecution and fines if lobbyist registrations are missing, late, inaccurate, incomplete, or out-of-date.
What is Lobbying in Yukon?
Lobbying is defined as communication with a territorial public office holder, or attempted indirect communication through the public in the form of grass-roots communication, in an attempt to influence any of the following:
- Developing legislation, legislative proposals, and bills
- Making and amending regulations
- Developing, amending, and terminating policies and programs of the territorial government
- Cabinet decisions to sell government assets or to out-source the delivery of goods and services
- Awarding of grants, contributions and financial benefits by the government
- Awarding territorial government contracts
In the case of consultant lobbyists, lobbying also includes arranging a meeting between a public office holder and any other person for the purpose of attempting to influence a decision listed above.
Who are Yukon Public Office Holders?
The Lobbyists Registration Act defines public office holders to include:
- Employees for Ministers
- Employees for party caucuses
- Employees in the Yukon Public Service
Additional categories of public office holder may later be established by regulation. At present there is no regulation under the Lobbyists Registration Act.
A Very Strong, Very Broad Law
Yukon's lobbying law is one of the strongest and most comprehensive in the country:
- The threshold for the registration of in-house lobbying is a mere 20 hours (among all employees of a corporation or organization) in a calendar year. This is the second-lowest threshold in Canada.5
- Uniquely in Canada, unpaid volunteers on a board of directors are subject to lobbyist registration. So, too, is every other directing mind of a corporation, partnership or organization.
- Self-employed individuals are subject to registration as in-house lobbyists.
- Canada's only reverse revolving-door prohibition prevents a former consultant lobbyist from accepting employment in the Yukon Public Service for six months after notifying the Conflict of Interest Commissioner that the individual has ceased to be a consultant lobbyist.6
- Employees who attempt to sell goods, services, and solutions to the territorial government are subject to registration as in-house lobbyists.
- A former public office holder may not lobby as a consultant lobbyist for six months after leaving office. The Act leaves a gap that permits a former public office holder to lobby immediately as an in-house lobbyist, subject to the conflict of interest rule described in the next section of this bulletin.
Conflict of Interest
Section 24 of the Act makes it an offence for a lobbyist, in the course of lobbying a public office holder, knowingly to place the public office holder in a position of real or potential conflict of interest.
While the Conflict of Interest Commissioner and the courts have yet to interpret this prohibition, a similar restriction has been enacted in several other Canadian jurisdictions, and is capable of very broad application. For example, in Ontario, essentially the same provision is interpreted to restrict lobbying of an elected official by somebody who recently worked on the politician's election campaign.
Section 24 would also be expected to restrict the provision of hospitality or entertainment, by a lobbyist, to a Yukon public office holder, and to prohibit an individual from lobbying the individual's friends.
Penalties and Enforcement
As mentioned, the CEO will most commonly be the individual responsible for in-house lobbyist registration. The maximum fine is 25,000 CAD for a first offence, and 100,000 CAD for a subsequent offence. The territorial Conflict of Interest Commissioner may impose a two-year lobbying ban on anyone convicted of an offence, and also make public the individual's name and nature of the conviction.
In addition, the publicity associated with lobbying law contraventions can cause reputational damage.
Compliance and Next Steps
Anyone doing business or operating in Yukon, selling into the Yukon public sector, or seeking decisions from the territorial government should immediately implement a plan to meet the obligations of the new law. It is highly desirable to obtain advice from a legal expert experienced in the development of due-diligence lobbying compliance programs.
Each business or organization should adopt due-diligence measures to satisfy legal obligations and protect the CEO. Failure to maintain a registration that is accurate, complete, timely, and up-to-date is a strict liability offence. Each company or organization needs an internal mechanism to track communications with public office holders by employees, officers and directors, and should have a corporate policy on interaction with public office holders.
Fasken offers a full range of lobbying-law compliance services, including compliance audits and lobbyist registration support.
1. The Act received Royal Assent November 22, 2018. It came into effect on a date selected by the territorial Cabinet.
2. S.Y. 2018, c. 13.
3. Municipal policies in Winnipeg, MB, and Surrey, BC, are excluded from the counts. Lobbying laws are in effect in the federal jurisdiction, all ten provinces, and seven Ontario municipalities.
4. Lobbying includes grass-roots communication, defined as, "communication to members of the public through the mass media, or by direct communication, that seeks to persuade members of the public to communicate directly with a public office holder in order to attempt to influence the public office holder." Grass-roots communication is also treated as lobbying under federal law and in six of ten provinces. Yukon's grass-roots communication rule is the clearest and most understandable in the country.
5. The second-place assessment excludes municipalities, and uses the lower of British Columbia's two registration thresholds (which vary depending on organization size).
6. Lobbyists Registration Act, paragraph 10(b).
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.