Federal Lobbying Act Rules for Post-Election Corporate Lobbying

Written By Edward S. Goldenberg, Milos Barutciski, William S. Osler and Enzo J. Barichello, Q.C.

Another minority Parliament in Ottawa combined with the implications of the international financial situation will undoubtedly give rise to new policy directions on a range of issues. This is a critical time for businesses to review their government relations strategies with regard to economic, regulatory and other policy matters that may affect their interests, as well as to make their views on these matters known to government policy-makers. At the same time, it is essential that corporations be familiar with the recent changes to Canada's federal lobbying rules as of July 2, 2008. These new rules, adopted pursuant to the Accountability Act in December 2006, have made the regulatory framework for lobbying the federal government considerably more onerous than before.

Corporate representatives engaged in lobbying federal officials must now be mindful of the titles and roles of the officials with whom they communicate and the types of communication conducted. Corporations that have previously been required to make bi-annual filings as a result of their lobbying activities will now also have to make monthly reports if they engage in prescribed communications with certain specified senior government officials, or “designated public office holders”.

The following provides a brief description of the new rules with respect to lobbying the Canadian federal government by corporate officers and employees.

Corporate Lobbying

Communications by corporate employees with federal public office holders on behalf of the corporation and in relation to (i) the adoption or modification of federal legislative proposals, laws, regulations, policies or programs, or (ii) any grant, contribution or other financial benefit, are considered to be lobbying for the purposes of the Lobbying Act.

Public Office Holders

The definition of “public office holder” is broad and includes all officers and employees of the federal government, Senators and Members of Parliament, persons appointed to any government office or body, officers, directors or employees of any federal board, commission or tribunal, and members of the Canadian Armed Forces or the Royal Canadian Mounted Police.

Corporate Lobbyist Registration

The chief executive officer of a corporation is responsible for ensuring that the corporation files prescribed returns with the Commissioner of Lobbying if one or more employees of the corporation engage in lobbying activities that would constitute a “significant part” of an employee's duties if they were performed by one employee. The “significant part” threshold is deemed by the Commissioner to be 20 percent of a full-time employee's duties. The reporting obligation can therefore be triggered where several employees each engage in a relatively small amount of lobbying and those activities cross the “significant part” threshold in the aggregate.

The basic corporate lobbying return provides general information about the corporation, the subject matter and particulars of its lobbying activities. The return must be renewed every six months or updated more frequently where there has been a change in the information in the return. Returns are publicly available through the Internet.

Monthly Returns

The new rules that came into force on July 2, 2008, also require the filing of monthly returns if corporate lobbyists engage in pre-arranged oral communications with a designated public office holder, or DPOH. DPOHs are key decision makers within government and include Ministers, Ministers of State and their staff, Deputy Ministers, Associate Deputy Ministers and Assistant Deputy Ministers and other high-level officials in the Canadian Forces and the government designated by regulation.

Monthly returns with respect to DPOH communications must identify the name, title or rank, and the federal government institution of the DPOH, the subject matter of the communication and the date on which the communication took place.

The Commissioner of Lobbying

The Commissioner is a newly-established independent officer of Parliament who replaces the former Registrar of Lobbyists and who has expanded authority to enforce the Lobbying Act and the Lobbyists' Code of Conduct. The Commissioner has broad investigative powers and may require any person or former DPOH to verify information contained in a monthly return.

Additional Changes

Other important changes to the federal lobbying rules, with respect to both in-house and consultant lobbyists, include:

• A “cooling off period” in the form of a prohibition from lobbying for former DPOHs and former designated members of the Prime Minister's transition teams, during a period of five years after they cease to carry out those responsibilities;
• An extension from two to 10 years of the limitation period during which potential summary conviction infractions under the Lobbying Act may be investigated and prosecuted;
• The doubling of the monetary penalties for lobbyists who are found guilty of breaching the requirements of the Lobbying Act;
• A complete ban on contingency fees for consultant lobbyists. Consultant lobbyists are not permitted to receive any payment that is in whole or in part contingent on the outcome of their lobbying, and clients of consultant lobbyists are not permitted to make any such payment to a consultant lobbyist; and
• A monthly reporting requirement for consultant lobbyists with respect to pre-arranged oral communications with designated public office holders.