Thirteen years after the Lobbying Transparency and Ethics Act was passed, the Government of Quebec has introduced Bill 56 ("Bill 56"), which proposes to strengthen and expand the regulation of lobbying activities.
Among the new features proposed, Bill 56 revises the definitions of lobbyists; requires disclosure of lobbying by non-profit organizations; makes each in-house (enterprise or organization) lobbyist individually responsible for filing a return; requires registration before lobbying commences; moves to quarterly reporting of lobbying activities; imposes new obligations on public office holders; makes the Commissioner responsible for the registry; empowers the Commissioner to impose monetary administrative penalties; and provides for substantially higher fines upon conviction.
Expanded Scope: More People and More Organizations Covered
The Bill broadens the definitions of lobbyists and expands the legislation's reach by increasing the coverage of people, entities and activities.
New definitions for lobbyists
The definition of "enterprise lobbyist" is expanded to include shareholders lobbying for an entity related to their company.
Organization lobbyist now means a director, employee or officer of a non-profit corporation who lobbies for the corporation or for a non-profit corporation or unincorporated group to which the corporation belongs. Under Bill 56, all non-profit corporations and even unincorporated groups will now be subject to the Act, thus significantly broadening the legislation's reach.
Note that under the current legislation, an enterprise or organization lobbyist is only considered to be lobbying if those activities represent a significant portion of his or her job. As this requirement is no longer found in Bill 56, all lobbying engaged in by enterprise or organization lobbyists will now have to be registered.
The definition of "consultant lobbyist" is modified. The current definition is limited solely to one who lobbies on behalf of another person in return for compensation. Under Bill 56, any person who lobbies for a third person (even without compensation) otherwise than as an enterprise lobbyist or an organization lobbyist will be subject to the Act and required to register.
Bill 56 introduces the notion of "entity", which targets a number of corporate structures such as a profit-seeking enterprise, a non-profit organization or a group not constituted as a legal person. The Bill also adds a definition for "non-profit organization" that includes "an employer association, employee association, professional association or professional order, and any other non-profit group constituted as a legal person".
Reporting of lobbying activities will be more complex
One of the most significant changes is that each lobbyist must file a return before the start of the lobbying activity, unless the first lobbying activity was unplanned, in which case the return must be filed not later than the fifth working day afterward. Bill 56 thus codifies the practice of some public office holders who, before agreeing to meet with lobbyists, require that they be registered . Bill 56 would make Quebec the only Canadian province and the third jurisdiction in Canada to require registration prior to lobbying. Similarly, if the lobbying mandate changes, the return must be amended before the lobbying activity concerned by the change can be conducted or, if the change could not have been known in advance or the activity was unplanned, no later than the fifth working day following the activity.
Among other changes, the responsibility for registering enterprise and organization lobbyists is no longer the responsibility of the senior officer of but of the individual lobbyists themselves. The Bill specifically permits a single individual to file information concerning several lobbyists from the same entity, but the individual lobbyists are responsible for ensuring that information concerning them is filed within the prescribed time and is accurate, complete and up-to-date. Finally, lobbyists must now file quarterly reports of their lobbying activities for all their mandates.
The Quebec Registry
The registry of lobbyists, now the responsibility of the Personal and Movable Real Rights Registrar, will be repatriated into the hands of the Lobbyists Commissioner. This change should eliminate some confusion among lobbyists, and increase the system's consistency.
New Obligations on Public Office Holders
Bill 56 explicitly requires every public office holder to ensure that anyone lobbying him or her is duly registered as a lobbyist. The public officer shall do so by checking the registry, asking the lobbyist, or reminding the lobbyist of the registration requirement. This obligation would not apply where the public office holder received an unsolicited written communication from a lobbyist and did not reply or follow up other than to acknowledge receipt.
Among other exceptions, making an appointment or setting up a meeting with a public office holder is no longer considered a lobbying activity; the name of any intermediary who facilitated the meeting will however have to be disclosed in the lobbyist's return.
Furthermore, the mere fact of making a comment or observation during a chance encounter does not constitute a lobbying activity. These new exceptions will lessen the burden of disclosure and will also draw lawmakers' attention to communications made directly to public office holders.
New administrative monetary penalties
Bill 56 introduces a new regime of administrative monetary penalties ("AMPs") that may be imposed on any lobbyist who does not comply with the time limits prescribed by law for providing or amending the required information. In addition to prosecution of offences and other administrative measures that already exist, AMPs are a new tool for monitoring and controlling compliance with the law.
This regime is distinct from enforcement by prosecution of offences, which stands alone and is applied separately. Quebec, administrative monetary penalties reflect a trend that has been observed for several years in environmental and securities laws. Under Bill 56 those who fail to comply with deadlines risk being fined $50 a day, up to a maximum of $500. The fines may be contested before the Administrative Tribunal of Québec.
Higher Fines Upon Conviction
Finally, Bill 56 provides for much higher fines for offences committed under the Act and the Code of conduct. An individual who is guilty of an offence will be liable to a fine of $3,000 to $25,000. The fine for an entity will range from $9,000 to $75,000. A lobbyist who lobbies while prohibited from lobbying under a disciplinary measure will be liable to a fine of $6,000 to $50,000. Moreover, an entity that omits, neglects or refuses to take any necessary measure so that this lobbyist does not lobby during the timeframe stipulated in the Commissioner's decision will be guilty of an offence and liable to a fine of $18,000 to $150,000.
In all cases, the fines will be doubled for a second offence, and tripled for each subsequent offence.
Upcoming Consultations on Bill 56
When the bill was introduced by Jean-Marc Fournier, Minister responsible for Access to Information and the Reform of Democratic Institutions, he said that it would likely undergo "particularly broad" consultations.