As of July 2, 2008, the new Lobbying Act (Canada) and Regulations are now fully in force. While much of the old law remains intact, there are some significant changes that should be noted.
WHAT IS NEW
The most significant change to the law of lobbying involves a requirement to file a monthly report for “oral and arranged” communications with a designated public office holder (DPOH). A DPOH is defined as a minister, a member of a minister’s staff, deputy minister, associate, or assistant deputy minister, or those that hold comparable ranks.
Oral and Arranged
The regulations prescribe that communications with a DPOH which are “oral and arranged” must be reported monthly. This effectively means that any meeting, whether in person, or by phone, that is organized in advance, will trigger the need for a report within fifteen days of the end of the month in which the meeting (oral and arranged communication) occurred. Oral and arranged communication, initiated by the DPOH, related to the development of policy, programs, or legislation is exempt from reporting requirements. Oral and arranged communications relating to contracts and financial benefits will need to be reported, even when initiated by the DPOH. Communication such as e-mail, spontaneous communication not prearranged, or simply writing a letter, does not need to be reported under the monthly reporting requirements.
Special Rules for Boards of Directors
Boards of Directors who are paid and whose duties, in part, include lobbying, must register as consultant lobbyists. For example, the simple arrangement of a meeting with a public official by a Board Member for his, or her corporation, or organization, will trigger a registration requirement. This has always been the law, but the amended legislation now requires one to reflect this practice by disclosing, in the return, whether they are lobbying on behalf of a corporation of which they are a member of the board of directors, or merely lobbying on behalf of a client.
Contingency fees, as with the previous law, are banned. Consultant lobbyists will now be asked to certify that the payment for the undertaking for which they are filing a return respects this prohibition.
Commissioner of Lobbying
A Commissioner of Lobbying, who reports directly to Parliament, now administers the Lobbying Act. Armed with new investigatory powers and stronger penalties for violations of the statute, it is expected that the new Commissioner will raise the profile on the law on lobbying, and bring more vigorous enforcement of the provisions of the Lobbying Act.
WHAT REMAINS THE SAME
Communications with public office holders that advocate for, or against some change in policy, procedures, legislation, regulation, or other matter, unless specifically exempted, requires registration. Registration must occur within certain time periods after beginning the lobbying activity and be updated every six months, or earlier if the subject matter and target of the lobbying changes.
Public Office Holder
A public office holder is virtually any employee of the federal government, including members of parliament, ministers, and their staff. Also included is any person (other than a judge) who is appointed to any office or body, by the federal cabinet or a cabinet minister. All officers, directors, or employees of any federal board, commission, or other tribunal, as well as a member of the Canadian Armed Forces, or a member of the Royal Canadian Mounted Police are considered public office holders.
Thresholds for In-House and Consultant Lobbyists
Those that lobby on behalf of a client (including professionals, such as lawyers and accountants) are considered Consultant Lobbyists and any amount of lobbying activity requires registration within ten days of the beginning of the activity. Consultant lobbyists must also register for merely setting up meetings, regardless of the purpose of the meetings.
Those that lobby on behalf of their employer are considered In-House Lobbyists. Individual corporations and organizations must register when enough lobbying activity occurs to occupy what the Act calls “a significant part of the duties of one employee, or would constitute a significant part of the duties of one employee if they were performed by only one employee”. An interpretation bulletin advises that if any person, or persons, either acting as an individual, or in combination with others, spends the equivalent of 20% of one person’s time lobbying, then there is a requirement to register. The time spent includes preparing for meetings, travel time, and other miscellaneous activities that are engaged in for the purpose of lobbying.
Many communications with the Government of Canada are exempt from the requirement to lobby, even though the communication may be part of advocacy. For example, exempt communication includes submissions to Parliamentary Committees, whether oral, or written.
A broader exemption includes any communication made to a public office holder with respect to enforcement, interpretation, or the application of any Act of Parliament, or regulation by the public office holder with respect to that person, or organization, as well as communications that are restricted to a request for information. Therefore, the countless number of communications between citizens and government that are not about changing the law, regulations, or government program or policy, but merely discussions about administration, enforcement, interpretation, or a simple request for information are exempt. These types of communication are not considered lobbying.
Who Must File and When
For an organization (non-profit), or corporation (for-profit), the most senior officer is responsible for filing the return. The first return must be filed within two months after the obligation first arises, and then updated every six months, unless the subject matter, or target of the lobbying changes. The same most senior officer in the organization, or corporation is responsible for filing the new monthly reports for arranged meetings.
The Lobbying Act is a highly prescriptive law. Details matter. Corporations and organizations need to develop clear compliance policies and educate their employees and board members of the requirement to register when lobbying the Government of Canada. Those who are unsure of the requirements to register are well advised to consult with counsel to ensure that they understand the full implications of the lobbying registration requirements, as well as the time frames in which to comply. The Act creates strict liability offences, and what may appear as a minor mistake, could have serious consequences.