The Lobbying Activities of Neelam J. Makhija on Behalf of TIR Systems, Ltd.
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Companies seeking a repayable contribution from government organizations such as Technology Partnerships Canada sometimes hire individuals to assist them with managing the application process and presenting their case to officials in the best possible light. These individuals may also arrange meetings between the company and officials or may communicate with officials to clarify technical details of a company's proposal. Similarly, a practical issue such as a company's location in Canada may lead the company to decide that hiring a person to be regularly "on the ground" in Ottawa to work with government officials, is more efficient than having their own staff travel frequently across the country.
These are legitimate actions on the part of companies and those they hire. The Lobbyists Registration Act acknowledges this legitimacy but imposes certain obligations of disclosure and behaviour on those who for payment, undertake to assist companies in this way.
I have concluded that Mr. Makhija did not meet his obligations under the Lobbyists Registration Act and the Lobbyists' Code of Conduct. This chapter contains my reasons for reaching this conclusion.
During the period of Mr. Makhija's activities on behalf of TIR, subsection 5(1) of the Lobbyists Registration Act provided, in part, that:
Every individual who, for payment, on behalf of any person or organization, undertakes to
(a) communicate with a public office holder in an attempt to influence
(v) the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada, or
(vi) the awarding of any contract by or on behalf of Her Majesty in right of Canada, or
(b) arrange a meeting between a public office holder and any other person,
shall, not later than ten days after entering into that undertaking, file with the registrar, in the prescribed form and manner, a return setting out the information referred to in subsection (2).
The following examines whether Neelam Makhija complied with these elements of the subsection with respect to his activities on behalf of TIR.
Undertaking to Communicate with a Public Office Holder in an Attempt to Influence the Awarding, on Behalf of Her Majesty in Right of Canada, of a Grant, Contribution or other Financial Benefit or a Contract
The preamble of the MOU of February 23, 2001 between NJM Initiatives and TIR Systems states that NJM had been retained to assist in a planning process "with the objective of qualifying for and securing of financial support from government agencies". The list of services to be supplied by NJM includes "proposal preparation, initial presentation, submission, discussion, and defense." The MOU also provides that subsequent to approval of government funding, NJM would offer TIR "ongoing liaison with funding source(s)" until completion or termination of the project. The language of the agreement indicates that it was the intention of the parties that NJM would work to influence the awarding of a contribution, contract or financial benefit to TIR.
During the period 2001-2003:
- Mr. Makhija met with TPC investment officers and other TPC officials to provide information about TIR and its projects.
- In his communications with TIR, Mr. Makhija reported the names of the government employees with whom he met; the names of those who supported or intended to support the TIR proposal; and, the kind of support those employees could provide.
- Mr. Makhija stated to TIR that he advised TPC of the merits of the TIR project and assessed whether TPC was amenable.
- TIR reported that Mr. Makhija had stated his intention to contact a government employee at the National Research Council in order to build support for the TIR project.
- After the signing of the funding agreement between TPC and TIR, Mr. Makhija spoke directly with TPC to suggest financing changes for the project that were favourable to TIR.
Arranging a Meeting Between a Public Office Holder and any other Person
Mr. Makhija's role included arranging meetings between TIR and public office holders. These meetings took place in Ottawa and in Vancouver. For example:
- A meeting was arranged in Ottawa on May 2, 2001, involving the TIR President and Vice-President, and TPC staff.
- In May 2001, a TPC investment officer and another Industry Canada employee attended a second meeting with TIR in Vancouver. Mr. Makhija was responsible for the arrangements of this meeting as well. He co-ordinated between government and TIR representatives, determining the availabilities of those attending, and setting or changing the time and date of the meeting. He reported to the parties on the progress of his arrangements, the names of those attending, and the details regarding the meeting once set. TIR acknowledged that Mr. Makhija arranged meetings and expressed its appreciation to him for this work.
The work performed for TIR by NJM Initiatives and Mr. Makhija was for payment. NJM and TIR signed a Memorandum of Understanding on February 23, 2001 that set NJM's remuneration at the following rate:
(1) upon signing of the MOU, $2,000, which would be deducted from (2); and
(2) upon approval of government funding, a professional fee of 15% of the total amount of the funding.
On May 15, 2001, TIR paid NJM the $2,000 (and GST) referred to in (1) above; the 15% professional fee of $995,440.65 on December 16, 2003; and, on December 18, 2003, $69,680.85 representing the GST on professional fee. In an agreement signed by the parties in December 2003, NJM and Mr. Makhija acknowledge receipt of $1,065,121.50, representing the sum of the professional fee and GST.
Mr. Makhija's lawyer argues that Mr. Makhija was not required to register because he was contacted initially by TPC and asked to find companies. This is an incorrect interpretation of the former paragraph 4(2)(c) of the Lobbyists Registration Act, which was in effect during the period of Mr. Makhija's activities on behalf of TIR. This part of the LRA provided public office holders with the ability to seek the advice of a specialist without triggering the requirement for the individual or organization to register. It did not sanction a lobbyist to seek out clients and perform lobbying activities on their behalf without registering.
He further argues that the meetings he arranged did not require registration. With respect to the meeting that he arranged in December 2000 I cannot dispute this assertion, since I have no evidence that there was an undertaking in place between Mr. Makhija and TIR at that time with respect to securing a TPC contribution agreement. However, Mr. Makhija arranged at least one meeting after an MOU for his services was signed in February 2001.
Mr. Makhija argues that he did not attempt to influence TPC officials to award contributions. However, the means by which influence may be brought to bear are many and varied. In this Investigation Report, I am not suggesting that Mr. Makhija used unsavoury means of persuasion or personal connections to influence the awarding of a TPC contribution. Influence with respect to the decision to invest in a high-technology company such as TIR arises in part through the presentation of data regarding the proposed investment, including technical data, financial data and market data. The MOU between TIR and NJM provides for, among other services, compilation of material supplied by the company and other sources; proposal preparation; initial presentation; submission; discussion; and, defence. The intent of the MOU is clearly that NJM would carry out these services in order to obtain a financial contribution for TIR from the federal government.
My conclusion is that Mr. Makhija contravened subsection 5(1) of the Lobbyists Registration Act. For payment, he acted as a consultant lobbyist. He arranged at least one meeting between public office holders and TIR representatives. He communicated with public office holders in an attempt to influence the awarding of a financial contribution by TPC. Mr. Makhija was required under the Lobbyists Registration Act to register as a lobbyist but failed to do so. At the latest, he should have registered within 10 days of signing the MOU with TIR on February 23, 2001.
Individuals who must register as lobbyists in accordance with the requirements of the Act must also comply with the Lobbyists' Code of Conduct. The Lobbyists' Code of Conduct contains three principles, including the following:
Lobbyists should observe the highest professional and ethical standards. In particular, lobbyists should conform fully with not only the letter but the spirit of the Lobbyists' Code of Conduct as well as all the relevant laws, including the Lobbyists Registration Act and its regulations.
Mr. Makhija's lobbying on behalf of TIR without registering violates the Principle of Professionalism under the Lobbyists' Code of Conduct because he was in breach of his obligations under the Lobbyists Registration Act.
The Lobbyists' Code of Conduct includes eight Rules that flow from the Lobbyists' Code of Conduct's three Principles. During the period covered by this investigation, it was necessary to contravene one or more of the Rules in order to be found in breach of the Lobbyists' Code of Conduct. Rule 3, under the heading of Transparency, reads as follows:
Disclosure of Obligations
Lobbyists shall indicate to their client, employer or organization their obligations under the Lobbyists Registration Act, and their obligation to adhere to the Lobbyists Code of Conduct.
Mr. Makhija's view, as evidenced by his lack of registration and as confirmed by his written submission during the investigation, was that his activities were not subject to registration under the Act. It follows, then, that he did not disclose his obligations under the Act to TIR.
My conclusion is that Mr Makhija breached Rule 3 of the Lobbyists' Code of Conduct.