On April 11 the Government of Alberta introduced amendments to the Lobbyists Act that will require more companies to register their communications with government, and will impose new restrictions on private-sector interaction with public office holders.
If passed by the Legislature, Bill 11, the Lobbyists Amendment Act, 2018, would make Alberta one of the strictest regulators of lobbying in the country. Businesses, organizations and consulting firms should prepare now to ensure that their government activities remain fully compliant.
Remember that CEOs Are Liable
The most senior officer (usually the CEO or President) of a business is personally responsible for filing and maintaining a lobbyist registration that covers all Alberta provincial lobbying by employees, officers and directors.
A CEO who fails to file a registration, or files a registration that is incomplete, inaccurate, outdated or late, could be convicted of a strict liability offence or, alternatively, be subject to an administrative monetary penalty.
To avoid enforcement action against the CEO, executives and in-house counsel will want to ensure that the organization maintains a due-diligence policy and process that ensure lobbying-law compliance.
More companies will be required to register their lobbying
Perhaps the most significant proposed change would be to lower the threshold at which an organization's CEO is required to register the lobbying of officers, employees and directors.
The Province's current threshold is 100 hours (across the entire organization) annually of communication with Alberta public office holders. The new threshold would be 50 hours (across the entire organization) consisting of communication with Alberta public office holders and preparation to communicate with public office holders. (Time spent travelling to meet a public office holder would not be counted.)
Practically, this change, if passed, would give Alberta the second-lowest lobbyist registration threshold in the country. (At 12 days annually, Quebec's is lower.) The result will be that more Alberta companies and other organizations are required to register lobbying by their employees, officers and directors.
The following additional change would make more activities subject to registration:
- Removing the current exemption for lobbying that occurs in response to a public office holder's request for comment
New restrictions on government relations activity
Bill 11 will also affect how organizations manage their government relations and deal with public officials.
Companies and other organizations would be prohibited from the following:
- Paying a consultant lobbyist on a contingency or success-fee basis.
- Acting as a consultant lobbyist on a contingency or success-fee basis.
- As a lobbyist, giving a gift to a public office holder being lobbied or to be lobbied if the public office holder is not allowed to accept the gift or the gift would place the public office holder in a conflict of interest.
Making the Act clearer, fairer and more understandable
Other proposed amendments would make remove ambiguity, confirm existing interpretations, or increase fairness. Examples include:
- Confirming that grassroots communication is a form of lobbying. (This codifies an existing interpretation and makes it more clear.)
- Clarifying that grassroots communication does not include communication between an organization and its members, officers or employees or between a business and its shareholders, partners, officers or employees.
- Confirming that lobbying does not include a communication made while participating on a board, commission, council or other similar body established by the Government or an agency.
- Confirming that lobbying does not include communications with public office holders by individuals who are recognized as elders by an aboriginal community.
- Confirming that members of the Premier's Office and Ministers' staffs are public office holders.
- Setting out additional details of the fair procedure that must be followed before the Registrar imposes an administrative penalty or removes a return from the registry.
- Creating a new right to appeal an administrative penalty to the Court of Queen's Bench.
Making exemption easier
While Bill 11 would mostly strengthen Alberta's lobbying law, one provision would have the opposite effect.
A proposed change would make it easier to exempt people from having to comply with the Act. Currently, exemptions must be made by regulation – which entails approval by the provincial Cabinet. Bill 11 would give a single individual (the Minister responsible for administration of the Lobbyists Act) the power to exempt people from the rules. The Government has not explained the rationale for making it easier to let some people avoid being subject to lobbying transparency and ethics requirements.
A few of Bill 11's provisions would take effect on Proclamation – that is a date fixed by the provincial Cabinet.
The rest of the Bill would take effect upon Assent. Several significant changes, including the new 50-hour threshold and the gift ban, would take effect on the date of Assent.
The contingency-fee prohibition would take effect two years after Assent.
Businesses and other organizations need due-diligence measures to satisfy the legal obligations on their CEOs. Failure to file a registration that is accurate, complete and timely is a strict liability offence. Every organization should maintain an internal mechanism to track communications with government officials by employees, officers and directors, and should have a corporate policy on dealings with public office holders.
Fasken offers a full range of lobbying-law compliance services, including compliance audits, internal training, policy and process development, and lobbyist registration support.
In addition to a potential fine or administrative penalty, a contravention also carries the risk of reputational harm.
Any organization or individual that has dealings with Alberta provincial public office holders should take concrete measures to ensure compliance with lobbying law. The same is true across Canada.