On January 5, 2008, the Government of Canada filed Public Notice through the Canada Gazette of the Lobbyist Registration Regulations passed under the new Lobbying Act. While the regulations dealt with a range of issues, including some "housekeeping" measures, the most significant regulations deal with the requirement to file monthly returns under certain circumstances. Subject to a thirty-day public comment period, the regulations will come into force on July 1, 2008. The most important aspects of the new regulations are described below.
CORPORATIONS TO FILE TWO LISTS
The Lobbying Act will slightly modify the manner in which corporations list the names of their corporate lobbyists, by requiring that the names of employees and senior officers that lobby as a significant part of their duties (currently interpreted to mean 20% or more) be listed separately from the names of senior officers who lobby for less than a significant part. This distinction complements the five-year prohibition on lobbying that bans former designated public office holders from lobbying on behalf of a corporation if lobbying constitutes a significant part of their duties. Both the registration form and the Lobbyist Registration System (LRS) will now accommodate two lists.
BOARDS OF DIRECTORS
Currently, members of Boards of Directors, or members of non-profit organizations who are not employees, but who are remunerated for their services and who engage in lobbying activity on behalf of the corporation, or organization, are advised to register as consultant lobbyists. To reflect this practice, the Regulations will now require consultant lobbyists to disclose, in their returns, whether they are lobbying on behalf of a corporation of which they are a member of the Board of Directors, or on behalf of an organization of which they are a member of the organization, or its Board of Directors. Disclosing this information in the Registry will provide a more accurate representation of an individual’s lobbying activities.
DATE OF THE UNDERTAKING
To better administer the various types of returns required and the associated timelines by which these returns must be filed, consultant lobbyists will now be asked to indicate the date that they entered into an undertaking and the date the undertaking was terminated. Similarly, corporations and organizations whose employees lobby will be asked the date on which the requirement to file a return arose and ended.
To facilitate the fact that the Lobbying Act prohibits the payment and acceptance of contingency fees, consultant lobbyists will be asked to certify that the payment for the undertaking for which they are filing a return respects this prohibition.
A Review of the Act
Before looking at the regulations requiring monthly returns, in some circumstances, it makes sense to review the changes to the lobbying legislation passed at the end of 2006.
A new subsection 7(4) of the Lobbying Act now reads:
"The officer responsible for filing returns shall file a return, in the prescribed form and manner, not later than 15 days after the end of every month, beginning with the one in which the return is filed under subsection (2), that
(a) Sets out with respect to every communication referred to in paragraph (1) (a) i.e. lobbying activities that is of a prescribed type that was made in that month involving a designated public office holder,
(i) The name of the designated public office holder, who was the object of the communication,
(ii) The date of the communication,
(iii) Particulars, including any prescribed particulars to identify the subject-matter of the communication, and
(iv) Any other information that is prescribed".
The same requirements apply to a consultant lobbyist. In other words, a report must be filed within 15 days of the end of each month after the month that a lobbying activity occurred that was directed towards a designated public office holder ( DPOH). A DPOH is defined in the new Lobbying Act as:
(a) a minister of the Crown, or minister of state and any person employed in his or her office who is appointed under subsection 128(1) of the Public Service Employment Act,
(b) any other public office holder who, in a department
(i) occupies a senior executive position, whether by the title of deputy minister, chief executive officer or some other title, or
(ii) is an associate deputy minister or an assistant deputy minister or occupies a position of comparable rank, and
(c) any individual who occupies a position that has been designated by regulation.
DPOH’s may be requested, by the Commissioner of Lobbying, to verify a communication with an individual, or corporation. This implies that the DPOH’s may be required to keep records of who has lobbied them. Individuals should be aware that if their name turns up in the records of a DPOH, and the individual has not, in fact, registered, an investigation might be triggered. Therefore, there may be a "chill" on the ability to obtain meetings, or have other communications with designated public office holders.
Regulations - Oral and Arranged Communications
The Regulations prescribe the types of communication that must be reported monthly as oral and arranged communication. This will include pre-arranged meetings and telephone calls. Oral and arranged communication initiated by DPOH’s 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 public office holders.
For the prescribed types of communication, the new monthly returns require all three types of lobbyists, namely corporate lobbyists, organizational lobbyists (non-profits) and consultant lobbyists to disclose the name, title and department of each DPOH with whom they have communicated, the date of the communication and the subject matter of the communication.
TYPES OF COMMUNICATIONS NOT COVERED UNDER THE REGULATIONS
Prior to the release of the Regulations, there was much debate and speculation on what types of communication would need to be reported on, on a monthly basis, and what types of communication would be exempt. The Government has decided that communication that is both oral and arranged, in other words, a meeting, must be reported on within 15 days of the end of the month in which the lobbying activity occurred. Written communication, communication by e-mail, or spontaneous communication, not pre-arranged, does not need to be reported on under the "15 days after the end of the month" requirement. Many questions, such as whether simply calling a Designated Public Office Holder counts as arranged in advance, remain. Watch for a clear definition of "arranged" through an interpretation bulletin.
VERIFICATION OF INFORMATION IN RETURNS - CLARIFICATION AND CORRECTIONS
The Act requires the Commissioner to establish and maintain a public Registry, which contains the information submitted in returns. Furthermore, the Act requires that individuals who have filed a return clarify any information that they have provided to the Commissioner in the return within 30 days of a request by the Commissioner. The Regulations reflect this time limit of 30 days for individuals to respond to the Commissioner’s request for clarification of information. The Regulations add a new requirement that individuals must make any corrections to their returns within 10 days of the Commissioner’s request. This is to ensure that accurate information is presented in the Registry in a timely manner.
The Lobbying Act is a highly restrictive law whose regulations reflect the spirit of the Act. Details matter. Corporations, and Not-For-Profit 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 requirement to register, as well as corporations and organizations, are well advised to consult with counsel to ensure they understand the full implications of the lobbying registration requirements, as well as the timeframes in which to comply. The Act creates strict liability offenses and what may appear as a minor mistake could have serious consequences.