This year marks the 30th anniversary of the first lobbying law in Canada. In 1989, Parliament enacted the Lobbyists Registration Act and it was proclaimed into force on September 30, 1989. That legislation is now known as the Lobbying Act.
Numerous developments in lobbying law in Canada have taken place since that time. Over 30 years, every province has enacted lobbying legislation. The final province to do so, Prince Edward Island, has enacted a Lobbyists Registration Act that came into force on April 1, 2019. Some municipalities are captured by provincial lobbying legislation; others have enacted municipal bylaws establishing their own lobbying registries.
Fundamentals
The basic elements of lobbying legislation are similar in Canadian jurisdictions. Lobbyists are required to register their lobbying activities, whether they are performed on behalf of clients (consultant lobbyists) or as employees of corporations or organizations (in-house lobbyists). Lobbying is communicating with specified public office holders, for payment, concerning subject matters defined in legislation. Time limits and the amount of lobbying activity that trigger registration requirements are defined in the legislation. Registration is performed online and the registry is accessible to the public. However, there are variations in Canada’s lobbying regimes regarding the public office holders captured by legislation, the thresholds for registration and the types of communications that must be recorded. Lawyers who lobby or have clients who lobby, particularly in more than one jurisdiction, should be aware of those differences.
New jurisdictions
As noted, Prince Edward Island has enacted legislation that will, for the first time, provide information regarding the communications of lobbyists with members of the Legislative Assembly, their staff, provincial government employees and persons appointed to provincial offices and bodies.
In November 2018, the Yukon Territorial Government’s proposed Lobbyists Registration Act was enacted by the Legislative Assembly and received Royal Assent. When the legislation comes into force, Yukon will become the first territory in Canada to establish a registry of lobbyists.
Recent developments
The federal Registry of Lobbyists is in its 30th year. The federal legislation was last amended in 2008, when the former Lobbyists Registration Act was renamed the Lobbying Act. At that time, the new position of Commissioner of Lobbying, reporting directly to Parliament, replaced the former Registrar of Lobbyists. The Lobbying Act also provided the Commissioner with a mandate to develop educational programs for lobbyists, their clients and public office holders. In 2018, the Commissioner signed a Memorandum of Understanding with the federal Conflict of Interest and Ethics Commissioner, to establish a framework for cooperation on education and outreach to public office holders and lobbyists.
The Lobbying Act requires a review by a Parliamentary committee every five years. The last review was completed in 2013, although no legislative changes resulted from that review.
In British Columbia, the Lobbyists Registration Act has established a 100-hour threshold requirement for the registration of in-house lobbying activities. In June 2018, the B.C. Registrar of Lobbyists published a Guidance Document, instructing corporations and organizations that lobby in B.C. to consider preparatory activities directly related to and necessary for lobbying to be included in the in-house calculation of whether the 100-hour threshold for registration of lobbying activities has been met. The inclusion of more activity within the 100 hours may capture more corporations and organizations, requiring more lobbying registrations.
British Columbia has also introduced Bill 54, the Lobbyists Registration Amendment Act, 2018, which will provide for greater transparency regarding the control, direction and funding of lobbying; provide for new monthly reports on who has been lobbied and require lobbyists to declare gifts, as well as political contributions. These changes may be implemented once the Lobbyists Registry has been updated to accommodate changes to the law.
In Alberta, changes to the Lobbyists Act came into force in June 2018. Those changes included new prohibitions on gift-giving and the receipt of contingency fees by lobbyists. They also reduced the organization lobbyist threshold from 100 to 50 hours annually and included preparation time. The government funding reporting requirements for lobbyists have been expanded and the definition of lobbying has been amended to clarify that grassroots lobbying is a form of lobbying captured by the legislation.
In QuĂ©bec, Bill 6 was introduced in the National Assembly in February 2019 to make two changes long sought by the Lobbyists Commissioner (Commissaire au lobbyisme). Bill 6 will transfer responsibility for the Registry of Lobbyists from QuĂ©bec’s Personal and Movable Real Rights Registry Office within the Department of Justice to the Lobbyists Commissioner. In addition, the limitation period for the commencement of prosecutions under the Lobbying Transparency and Ethics Act will be lengthened from the current one year from the date of an offence to three years after knowledge of the offence is available or a maximum of seven years from the date of an offence. These amendments will implement one of the recommendations of QuĂ©bec’s Charbonneau Commission.
Lobbying legislation is not restricted to the federal and provincial levels. In Newfoundland and Labrador, the City of St. John’s is subject to the provincial law. In QuĂ©bec, municipalities are also subject to the provincial law.
Municipalities also regulate lobbying activity. In Ontario, changes made to the City of Toronto Act and to the Municipal Act in 2006 have provided authority to municipalities to establish registries of lobbyists. This has led to an increase in the number of municipalities that have done so. Toronto, Ottawa, Hamilton and Vaughan have established registries and other municipalities are considering implementing registries as well.
In Winnipeg, absent legislative authority to establish a registry of lobbyists, the City has created a voluntary registry of lobbyists.
Conclusion
Lobbying law in Canada is changing. Remember to keep up to date if you have clients that lobby or if you have a retainer with a client that involves a lobbying mandate.
Bruce Bergen is senior counsel, Office of the Commissioner of Lobbying