In February 2021, the Commissioner of Lobbying of Canada (Lobbying Commissioner) published a report entitled Improving the Lobbying Act: Preliminary Recommendations (Report) in response to a November 2020 request from the House of Commons Standing Committee on Access to Information, Privacy and Ethics (Standing Committee). The Report outlines the Lobbying Commissioner’s preliminary recommendations for improving the federal lobbying regime.
STATUTORY REVIEW PROCESS
Canada’s Lobbying Act (Act) has a built-in five-year review process for reviewing the Act. The last statutory review undertaken by the Standing Committee was in 2012, which resulted in 11 recommendations from the Standing Committee, none of which resulted in legislative changes. The Act has been up for statutory review since 2017 but that review has yet to take place.
STANDING COMMITTEE HEARING
On November 16, 2020, the Standing Committee adopted a motion to begin a study on questions of conflict of interest and lobbying in relation to pandemic spending. Consequently, the Lobbying Commissioner appeared as a witness before the Standing Committee on November 27, 2020 and briefed the Standing Committee on the administration and enforcement of the Act.
The Lobbying Commissioner presented several recommendations at the hearing, at which point the Standing Committee requested that these recommendations be tabled with the clerk, leading to the present Report.
THE PRELIMINARY RECOMMENDATIONS
The Report contains 11 preliminary recommendations to enhance transparency, efficiency, fairness and clarity. Notably, if adopted, the preliminary recommendations would effectively eliminate the registration threshold for in-house lobbyists, and significantly change registration timeline requirements, monthly communication reporting requirements and various compliance measures.
Registration Threshold (In-House Lobbyists): The Lobbying Commissioner recommends removing the current registration threshold requirement for in-house lobbyists (corporations and organizations) and replacing it with a default requirement that all in-house lobbyists must register unless a limited exemption is met. This is comparable to the British Columbia regime enacted last year.
Registration Timeline: In an effort to harmonize registration timelines for in-house and consultant lobbyists, the Lobbying Commissioner recommends a 15-day registration time limit to be applicable to both types of lobbyists.
Monthly Communication Reports: The Act currently provides that monthly returns must set out detailed reporting for every oral communication with a designated public office holder that is arranged in advance and initiated by a lobbyist. The Lobbying Commissioner proposes to expand the scope of this requirement such that that all oral communications with designated public office holders are subject to monthly reporting requirements, regardless of who initiated the meeting or whether or not the meeting was arranged in advance.
Other recommendations made by the Lobbying Commissioner include the following proposed changes to the Act:
Make reporting requirements for organizations (in-house lobbyists) mirror those of corporations (in-house lobbyists)
Consider paid members of boards of directors as employees of corporations and organizations
Expand the required reporting content of monthly communication reports to include certain details related to each lobbying activity
Harmonize the five-year post-employment prohibition on lobbying by making former designated public office holders subject to the same post-employment restrictions, regardless of whether they are employed by a corporation or an organization
Add a range of compliance measures, such as training, administrative monetary penalties and temporary prohibitions, in addressing contraventions of the Act
Allow orders issued by the Lobbying Commissioner, such as summonses and production orders, to become orders of the Federal Court
Allow referrals relating to alleged offences under the Act or under other federal or provincial legislation to be made not only to peace officers, but also to any other appropriate authority, including the Lobbying Commissioner’s provincial counterparts
Provide immunity against civil or criminal proceedings for the Lobbying Commissioner and those acting on behalf or under the direction of the Lobbying Commissioner
On February 12, 2021, the Office of the Lobbying Commissioner also released guidance with regard to COVID-19 emergency funding and registration requirements (Guidance). The Guidance outlines that communications with federal public office holders about the making, developing, or amending of a government-funding program linked to COVID-19 are registrable activities under the federal lobbying regime. The Guidance further clarifies that where eligibility for federal government-funding programs is determined by discretionary factors, such as proposal to obtain a grant or contribution, applications to such programs constitutes a registrable activity. This contrasts with applications made to federal government-funding programs that determine eligibility based on non-discretionary factors, which does not classify as a registrable activity.
The Guidance also sets out new disclosure requirements in connection to COVID-19 emergency funding received. Lobbying regulators in Alberta and British Columbia have made similar updates.
Taken together, the Standing Committee study, the Report and the Guidance demonstrate an increased focus on lobbying laws in the wake of COVID-19.
The Standing Committee will consider these recommendations and may initiate a statutory review. Presently, there are no pending legislative changes. However, businesses and organizations who participate in communications with federal public officer holders should carefully monitor federal developments in this regard.
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Maria Nasr 416-863-2297
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