Annotated Lobbying Act

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For more information, please contact:

Office of the Commissioner of Lobbying

Tel: 613-957-2760
Fax: 613-957-3078
Email: QuestionsLobbying@ocl-cal.gc.ca

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Cat. No. Lo5-2/2010
ISBN 978-1-100-51220-4

Table of Contents


Annotated Lobbying Act

R.S.C., 1985, c. 44 (4th Supp.)

Note: This annotated Lobbying Act has been prepared by the Office of the Commissioner of Lobbying as an aid to lobbyists and others interested in this subject. This annotated Act is not intended as a substitute for legal advice and has no official sanction*. The official version of the Lobbying Act is located on the Department of Justice's Laws website.

An Act respecting lobbying

[1988, c. 53, assented to 13th September, 1988]

Preamble

WHEREAS free and open access to government is an important matter of public interest;

AND WHEREAS lobbying public office holders is a legitimate activity;

AND WHEREAS it is desirable that public office holders and the public be able to know

who is engaged in lobbying activities;

AND WHEREAS a system for the registration of paid lobbyists should not impede free and open access to government;

NOW THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., 1985, c. 44 (4th Supp.), preamble; 2003, c. 10, s. 1.


* Emphasis has been added by the Office of the Commissioner of Lobbying of Canada for the purposes of this annotated version of the Act.

Short Title

1. This Act may be cited as the Lobbying Act.

R.S., 1985, c. 44 (4th Supp.), s. 1; 2006, c. 9, s. 66.

Interpretation

Definitions

2. (1) In this Act,

"designated public office holder"

« titulaire d'une charge publique désignée »

"designated public office holder" means

  • (a) a minister of the Crown or a 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 within the meaning of paragraph (a), (a.1) or (d) of the definition "department" in section 2 of the Financial Administration Act,
    • (i) occupies the senior executive position, whether by the title of deputy minister, chief executive officer or by 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 under paragraph 12(c.1)

Position of Comparable Rank

The Commissioner of Lobbying has interpreted the term "comparable rank" in Interpretation of "Comparable Rank" for Designated Public Offices:

"For a position to be considered of comparable rank to an associate or assistant deputy minister, it must meet the following criteria:

A. The position must be classified at the EX-04 level or higher;

or

B. The position's salary must be at the EX-04 minimum or higher, exclusive of performance pay ($152,000 as of ). This excludes EX-03s whose salaries have crossed into the EX-04 salary band through duration in the position;

and

C. The position must report directly to a DPOH [designated public office holder]."

Note: The Designated Public Office Holder Regulations came into force on and were amended in 2010 by SOR/2010-192.

Acting Appointments

The Commissioner has issued an interpretation bulletin on acting appointments, Acting Appointments in Designated Public Office Holder Positions:

"An individual in an acting appointment will be designated as a DPOH if both of the following conditions are present:

  • The acting position is a DPOH position as defined in the Lobbying Act, designated by regulation or is a position of comparable rank.
  • The duration of the acting appointment is longer than four consecutive months over a twelve month period.

If both of these conditions are present, the individual acting in such a position will be designated a DPOH, effective the day after the four month threshold is reached. They will be designated as a DPOH for as long as they hold the position."

"Ethics Counsellor"

"Ethics Counsellor"[Repealed, 2004, c. 7, s. 19]

"organization"

« organisation »

"organization" includes

  • (a) a business, trade, industry, professional or voluntary organization,
  • (b) a trade union or labour organization,
  • (c) a chamber of commerce or board of trade,
  • (d) a partnership, trust, association, charitable society, coalition or interest group,
  • (e) a government, other than the Government of Canada, and
  • (f) a corporation without share capital incorporated to pursue, withoutfinancial gain to its members, objects of a national, provincial, patriotic, religious, philanthropic, charitable, scientific, artistic, social, professional or sporting character or other similar objects;

"payment"

« paiement »

"payment" means money or anything of value and includes a contract, promise or agreement to pay money or anything of value;

Payment

Payment by a Client to a Company or Organization

The Commissioner has interpreted "payment" in a Report on Investigation, The Lobbying Activities of Keith Beardsley:

"… when a company or organization, such as a consulting firm, is paid by clients to perform activities on its behalf, the employees or members of the company or organization performing those activities receive payment for the services that they provide."

Expected Future Remuneration

The Commissioner has interpreted "payment" in a Report on Investigation, The Lobbying Activities of GPG-Green Power Generation Corp. and Patrick Glémaud and Rahim Jaffer:

The Commissioner has taken the view that "… this definition covers situations in which remuneration has not actually taken place, but is expected in the future."

Consultancy Contracts

The Commissioner has interpreted "payment" in a case of a consultancy contract in a Report on Investigation:

The Commissioner's Report on Investigation, The Lobbying Activities of Julie Couillard, provides an example of a consultancy contract to provide services that the Commissioner determined to be sufficient to meet the definition of payment found in the Act.

In this example, evidence obtained during the course of the investigation demonstrated that work performed by a company under a consultancy contract to provide services on behalf of a client was linked to a commission agreement between the client and Ms. Couillard. The registrable lobbying activities that Ms. Couillard performed were thus performed for payment. The company "…was paid a total of $51,277.50 under the consultancy contract, half of which was agreed to be advance payment to Ms. Couillard on her commission under the commission agreement."

The Commissioner has provided an Interpretation Bulletin entitled Boards of Directors: Application of the Act to outside chairpersons and members. This Interpretation Bulletin states the Commissioner's views on the application of the Lobbying Act to persons paid by a corporation or organization to act as chairpersons or members of the board of directors.

"prescribed"

Version anglaise seulement

"prescribed" means prescribed by regulation;

"public office holder"

« titulaire d'une charge publique »

"public office holder" means any officer or employee of Her Majesty in right of Canada and includes

  • (a) a member of the Senate or the House of Commons and any person on the staff of such a member,
  • (b) a person who is appointed to any office or body by or with the approval of the Governor in Council or a minister of the Crown, other than a judge receiving a salary under the Judges Act or the lieutenant governor of a province,
  • (c) an officer, director or employee of any federal board, commission or other tribunal as defined in the Federal Courts Act,
  • (d) a member of the Canadian Armed Forces, and
  • (e) a member of the Royal Canadian Mounted Police;

"registrar"

"registrar"[Repealed, 2006, c. 9, s. 67]

Subsidiary corporation

(2) For the purposes of this Act, a corporation is a subsidiary of another corporation if

  • (a) securities of the first-mentioned corporation to which are attached more than fifty per cent of the votes that may be cast to elect directors of the first-mentioned corporation are held, otherwise than by way of security only, directly or indirectly, whether through one or more subsidiaries or otherwise, by or for the benefit of the other corporation; and
  • (b) the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the first-mentioned corporation.

Corporations

"Corporation" is not a defined term in the Lobbying Act. However, "share capital" corporations are the type of corporation that are covered by the Lobbying Act provisions regarding "corporations". The other type of corporation, the non-share capital corporation, is considered to be an "organization" under the definition in the Act. (See paragraph (f) of the definition of "organization" in section 2). Either type of corporation may fall under the definition of "subsidiary corporation." See Canada Not-for-profit Corporations Act, SC 2009, c. 23, Part II of the Canada Corporations Act, RSC 1970, c. C-32, Canada Business Corporations Act, RSC 1985, c. C-44. There is provincial and territorial legislation regarding corporations in all Canadian jurisdictions.

Note that the jurisdiction of incorporation does not determine the applicability of the Lobbying Act; a corporation incorporated in a foreign jurisdiction but carrying on business within Canada may be subject to the Lobbying Act.

Transition team

(3) Any person identified by the Prime Minister as having had the task of providing support and advice to him or her during the transition period leading up to the swearing in of the Prime Minister and his or her ministry is subject to this Act, except subsections 10.11(2) to (4), as if the person were a designated public office holder during that period.

R.S., 1985, c. 44 (4th Supp.), s. 2;
1995, c. 12, s. 1;
2002, c. 8, s. 182;
2003, c. 10, s. 2;
2004, c. 7, s. 19;
2006, c. 9, s. 67..

Application

Binding on Her Majesty

3. This Act is binding on Her Majesty in right of Canada or a province.

Restriction on application

4. (1) This Act does not apply to any of the following persons when acting in their official capacity, namely,

  • members of the legislature of a province or persons on the staff of such members;
  • employees of the government of a province;
  • members of a council or other statutory body charged with the administration of the civil or municipal affairs of a city, town, municipality or district, persons on the staff of such members or officers or employees of a city, town, municipality or district;
  • members of the council of a band as defined in subsection 2(1) of the Indian Act or of the council of an Indian band established by an Act of Parliament, persons on their staff or employees of such a council;
    • members of an aboriginal government or institution that exercises jurisdiction or authority under a self-government agreement, or under self-government provisions contained in a land claims agreement, given effect by or under an Act of Parliament, persons on the staff of those members or employees of that government or institution;
    • [Repealed, 2003, c. 10, s. 3]
    • [Repealed, 2004, c. 17, s. 20]
  • diplomatic agents, consular officers or official representatives in Canada of a foreign government; or
  • officials of a specialized agency of the United Nations in Canada or officials of any other international organization to whom there are granted, by or under any Act of Parliament, privileges and immunities.
Idem

(2) This Act does not apply in respect of

  1. any oral or written submission made to a committee of the Senate or House of Commons or of both Houses of Parliament or to any body or person having jurisdiction or powers conferred by or under an Act of Parliament, in proceedings that are a matter of public record;
  2. any oral or written communication made to a public office holder by an individual on behalf of any person or organization with respect to the enforcement, interpretation or application of any Act of Parliament or regulation by that public office holder with respect to that person or organization; or
  3. any oral or written communication made to a public office holder by an individual on behalf of any person or organization if the communication is restricted to a request for information.
Idem

(3) Nothing in this Act shall be construed as requiring the disclosure of the name or identity of any individual where that disclosure could reasonably be expected to threaten the safety of that individual.

R.S., 1985, c. 44 (4th Supp.), s. 4;
1994, c. 35, s. 36;
1995, c. 12, s. 2;
2000, c. 7, s. 24;
2003, c. 10, s. 3;
2004, c. 17, ss. 17, 20.

Office of the Commissioner of Lobbying

Commissioner of Lobbying

The Commissioner of Lobbying is an independent agent of Parliament, appointed by resolution of both Houses of Parliament under authority of the Lobbying Act, for a period of seven years. The Commissioner reports directly to both houses of Parliament.

Commissioner of Lobbying

4.1 (1) The Governor in Council shall, by commission under the Great Seal, appoint a Commissioner of Lobbying after consultation with the leader of every recognized party in the Senate and House of Commons and approval of the appointment by resolution of the Senate and House of Commons.

Tenure of office and removal

(2) Subject to this section, the Commissioner holds office during good behaviour for a term of seven years, but may be removed for cause by the Governor in Council at any time on address of the Senate and House of Commons.

Further terms

(3) The Commissioner, on the expiry of a first or any subsequent term of office, is eligible to be reappointed for a further term not exceeding seven years.

Interim appointment

(4) In the event of the absence or incapacity of the Commissioner, or if that office is vacant, the Governor in Council may appoint any qualified person to hold that office in the interim for a term not exceeding six months, and that person shall, while holding office, be paid the salary or other remuneration and expenses that may be fixed by the Governor in Council.

2006, c. 9, s. 68.

Rank and powers

4.2 (1) The Commissioner has the rank and powers of a deputy head of a department, shall engage exclusively in the duties of the office of Commissioner under this Act or any other Act of Parliament and shall not hold any other office or employment for reward.

Duties and functions

(2) The Commissioner's duties and functions, in addition to those set out elsewhere in this Act, include developing and implementing educational programs to foster public awareness of the requirements of this Act, particularly on the part of lobbyists, their clients and public office holders.

Remuneration and expenses

(3) The Commissioner shall be paid the remuneration and expenses set by the Governor in Council.

Pension benefits

(4) The provisions of the Public Service Superannuation Act, other than those relating to tenure of office, apply to the Commissioner, except that a person appointed as Commissioner from outside the public service, as defined in the Public Service Superannuation Act, may, by notice in writing given to the President of the Treasury Board not more than 60 days after the date of appointment, elect to participate in the pension plan provided in the Diplomatic Service (Special) Superannuation Act, in which case the provisions of that Act, other than those relating to tenure of office, apply to the Commissioner from the date of appointment and the provisions of the Public Service Superannuation Act do not apply.

Other benefits

(5) The Commissioner is deemed to be employed in the federal public administration for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act.

2006, c. 9, s. 68.

Staff

Staff of the Commissioner

4.3 (1) Any officers and employees that are necessary to enable the Commissioner to perform the duties and functions of the Commissioner under this Act or any other Act of Parliament shall be appointed in accordance with the Public Service Employment Act.

Technical assistance

(2) The Commissioner may engage on a temporary basis the services of persons having technical or specialized knowledge of any matter relating to the work of the Commissioner to advise and assist the Commissioner in the performance of the duties and functions of the Commissioner under this Act or any other Act of Parliament and, with the approval of the Treasury Board, may fix and pay the remuneration and expenses of those persons.

2006, c. 9, s. 68.

Delegation

Delegation by Commissioner

4.4 The Commissioner may authorize any person to exercise or perform, subject to any restrictions or limitations that the Commissioner may specify, any of the powers, duties or functions of the Commissioner under this Act except

  1. the power to delegate under this section; and
  2. those set out in subsections 10(1), 10.2(1), 10.5(1) and sections 11, 11.1, 14.01 and 14.02.

2006, c. 9, s. 68.

Registration of Lobbyists

Consultant Lobbyists

Requirement to file return

5. (1) An individual shall file with the Commissioner, in the prescribed form and manner, a return setting out the information referred to in subsection (2), if the individual, for payment, on behalf of any person or organization (in this section referred to as the "client"), undertakes to

  • (a) communicate with a public office holder in respect of
    • (i) the development of any legislative proposal by the Government of Canada or by a member of the Senate or the House of Commons,
    • (ii) the introduction of any Bill or resolution in either House of Parliament or the passage, defeat or amendment of any Bill or resolution that is before either House of Parliament,
    • (iii) the making or amendment of any regulation as defined in subsection 2(1) of the Statutory Instruments Act,
    • (iv) the development or amendment of any policy or program of the Government of Canada,
    • the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada, or

Tax Credits

The Commissioner has provided advice to distinguish communicating in respect of the awarding of a grant, contribution or other financial benefit from other activities, such as applying for tax credits, in her advisory opinion - Registration Requirements Related to Tax Credits.

"Tax credits, such as the Scientific Research and Experimental Development investment tax credits, are not considered to be a financial benefit. Therefore, applying for such a tax credit is not deemed to be a registrable activity under the Lobbying Act."

  1. the awarding of any contract by or on behalf of Her Majesty in right of Canada; or

Awarding of a Contract

The Commissioner has commented upon the communications involved in the awarding of a contract in a Report on Investigation, The Lobbying Activities of Julie Couillard:

"Subparagraph 5(1)(a)(vi) of the Act may apply when an individual, for payment on behalf of a client, communicates with a public officer holder for a purpose that is more than a simple request for information. Seeking information regarding the progress of a tendering process or acting as a liaison between a bidder and the Government regarding a request for proposals are registrable activities."

Advisory and Stakeholder Consultations

The Commissioner has provided advice with respect to advisory and stakeholder consultations that are carried out in an environment that is more public or transparent in her advisory opinion Disclosure Requirements Related to Advisory and Stakeholder Consultations.

"[A]s an advisory and stakeholder consultation process approaches the transparency level of a parliamentary committee, the requirement for registration becomes less necessary."

"To arrive at a transparency level that is comparable to that of a parliamentary committee, several factors should be considered. The following are some of the key factors or conditions that increase the transparency of a consultation process:

  • Meetings are fully open to the public, with no restrictions on attendance by invitation, membership or any other form of exclusion. The more restrictive the process the lower the transparency level.
  • Meetings are publicly announced with locations, times, participants, and agendas listed.
  • Consultation results are widely disseminated with no real audience restriction, in hardcopy or electronically shortly after the event, so as to be as timely as possible.
  • Consultation results contain the complete proceedings, minutes, or summaries of what took place with attribution to the specific participants of what they said and to whom."
  1. arrange a meeting between a public office holder and any other person.
Time limit for filing return

(1.1) An individual shall file the return referred to in subsection (1) not later than 10 days after entering into the undertaking.

(1.2) and (1.3) [Repealed, 2006, c. 9, s. 69]

Contents of return

(2) The return shall set out the following information with respect to the undertaking:

  • (a) the name and business address of the individual and, if applicable, the name and business address of the firm where the individual is engaged in business;
  • (b) the name and business address of the client and the name and business address of any person or organization that, to the knowledge of the individual, controls or directs the activities of the client and has a direct interest in the outcome of the individual's activities on behalf of the client;
  • (c) where the client is a corporation, the name and business address of each subsidiary of the corporation that, to the knowledge of the individual, has a direct interest in the outcome of the individual's activities on behalf of the client;
  • (d) where the client is a corporation that is a subsidiary of any other corporation, the name and business address of that other corporation;
  • (e) where the client is a coalition, the name and business address of each corporation or organization that is a member of the coalition;
    • (e.1) the client is funded in whole or in part by a government or government agency, the name of the government or agency, as the case may be, and the amount of funding received;
  • (f) particulars to identify the subject-matter in respect of which the individual undertakes to communicate with a public office holder or to arrange a meeting, and any other information respecting the subject-matter that is prescribed;
  • (g) the fact that the undertaking does not provide for any payment that is in whole or in part contingent on the outcome of any matter described in subparagraphs (1)(a)(i) to (vi) or on the individual's success in arranging a meeting referred to in paragraph (1)(b);
  • (h) particulars to identify any relevant legislative proposal, Bill, resolution, regulation, policy, program, grant, contribution, financial benefit or contract;
    • (h.1) if the individual is a former public office holder, a description of the offices held, which of those offices, if any, qualified the individual as a designated public office holder and the date on which the individual last ceased to hold such a designated public office;

Disclosure of Previous Public Offices

The Commissioner has issued an interpretation bulletin, Disclosure of Previous Public Offices, regarding the requirement to disclose previous public office held:

"If a consultant lobbyist or any employee named in a return was at any time during their career a public office holder […], disclosure of all such positions […] is required. This includes employment for a short duration, such as student employment, co-operative education and summer positions with the federal government."

"[L]obbyists and registrants must disclose the following: the period of employment; the branch or unit where the work was performed; and the title of the position. A "unit" means any organizational structure, such as the department, branch, division, directorate, or office."

"Consultant lobbyists or any employee named in a return must also indicate if any of the listed public offices were designated, and if so, the date on which they last ceased to hold such a designated public office. The regulations also require registrants to indicate if they are exempt from the five-year lobbying prohibition, and if so, they must indicate the reason the ban does not apply." They may do this by referring to the exemption number provided by the Commissioner.

  • (i) the name of any department or other governmental institution in which any public office holder with whom the individual communicates or expects to communicate in respect of any matter described in subparagraphs (1)(a)(i) to (vi) or with whom a meeting is, or is to be, arranged, is employed or serves;
  • (j) if the individual undertakes to communicate with a public office holder in respect of any matter described in subparagraphs (1)(a)(i) to (vi), particulars to identify any communication technique that the individual uses or expects to use in connection with the communication with the public office holder, including any appeals to members of the public through the mass media or by direct communication that seek to persuade those members of the public to communicate directly with a public office holder in an attempt to place pressure on the public office holder to endorse a particular opinion (in this Act referred to as "grass-roots communication"); and
  • (k) such other information relating to the identity of the individual, the client, any person or organization referred to in paragraph (b), any subsidiary referred to in paragraph (c), the other corporation referred to in paragraph (d), any member of a coalition referred to in paragraph (e) or any department or institution referred to in paragraph (i) as is prescribed.
Requirement to file monthly return

(3) The individual 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 (1), that

  • (a) sets out, with respect to every communication referred to in paragraph (1)(a) that is of a prescribed type and that was made in that month involving a designated public office holder and relating to the undertaking,
    • (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;
  • (b) if any information contained in the return filed under subsection (1) is no longer correct or additional information that the individual would have been required to provide under that subsection has come to the knowledge of the individual after the return was filed, provides the corrected or additional information; and
  • (c) if the undertaking has been performed or terminated, advises the Commissioner of that fact.

Communicating with Designated Public Office Holders

The Commissioner has issued an interpretation bulletin, Communicating with Designated Public Office Holders, regarding communicating with designated public office holders:

"Monthly returns must be filed not later than 15 days after the end of any month in which communication of a prescribed type involving a designated public office holder took place. The Lobbyists Registration Regulations prescribe the types of communications that must be reported in a monthly report as "oral and arranged communications excluding oral and arranged communications initiated by public office holders related to the development of policy, programs or legislation." In-house and consultant lobbyists must report all oral and arranged communications relating to financial benefits, even when initiated by a public officer holder. Likewise, consultant lobbyists must report oral and arranged communications relating to a contract regardless of who initiated the communication."

"Monthly returns must disclose the name, title or military/RCMP rank, and department of each designated public office holder with whom a lobbyist has communicated, the date of the communication, and the subject matter of the communication."

First monthly return

(4) The first return filed under subsection (3) shall, despite paragraph (3)(a) , set out the information required by that paragraph in respect of communications made between the day on which the undertaking referred to in subsection (1) was entered into and the end of the month immediately before the filing of the return.

Exception

(4.1) Subject to subsection (4.2) , no return is required under subsection (3) if no communication referred to in paragraph (3)(a) was made during the period with respect to which the return is to set out information, and if the circumstances referred to in paragraphs (3)(b) and (c) have not arisen.

Return — six-month period

(4.2) In any case, no more than five months shall have elapsed since the end of the month in which a return was last filed without a return being filed by the individual under subsection (3) even if, since the last return, no communication was made as referred to in paragraph (3)(a) and the circumstances referred to in paragraphs (3)(b) and (c) have not arisen, in which case the report shall so state.

Termination of reporting obligation

(4.3) The obligation to file a return under subsection (3) terminates when the undertaking has been performed or is terminated and a report has been filed under that subsection advising of that fact in accordance with paragraph (3)(c).

Information requested by Commissioner

(5) An individual who files a return shall provide the Commissioner, in the prescribed form and manner, with such information as the Commissioner may request to clarify any information that the individual has provided to the Commissioner pursuant to this section, and shall do so not later than thirty days after the request is made.

Restriction on application

(6) This section does not apply in respect of anything that an employee undertakes to do on the sole behalf of their employer or, where their employer is a corporation, in respect of anything that the employee, at the direction of the employer, undertakes to do on behalf of any subsidiary of the employer or any corporation of which the employer is a subsidiary.

For greater certainty

(7) For greater certainty, an individual who undertakes to communicate with a public office holder as described in paragraph (1)(a) is not required to file more than one return under subsection (1) with respect to the undertaking, even though the individual, in connection with that undertaking, communicates with more than one public office holder or communicates with one or more public office holders on more than one occasion.

R.S., 1985, c. 44 (4th Supp.), s. 5;
1995, c. 12, s. 3;
1999, c. 31, s. 163(F);
2003, c. 10, s. 4;
2006, c. 9, ss. 69, 81.

Communicating with Federal Public Office Holders

The Commissioner has provided advice regarding communications with public office holders in interpretation bulletins and advisory opinions. Short summaries of that advice are provided below.

"Communication, in the context of the Act, involves verbal (e.g., arranged meetings, phone calls, informal communication, and grass-roots communications) or written (hard copy or electronic format) contact with a public office holder." (See Communicating with a Public Office Holder)

"Government-initiated activities that fall within the definition of communication include round-table discussions and other types of advisory and stakeholder consultations on policy proposals. In cases where the communications take place in an open forum in which the subject matters, the names of participants and the name of the government organizations represented are a matter of public record, registration would not be required. With advisory and stakeholder consultations, where industry and other participants exchange views with POHs on broad-based, horizontal issues, the transparency of the consultations factors into the requirement to register." (See Disclosure Requirements Related to Advisory and Stakeholder Consultations)

"For initial registrations, communications with a public office holder may be registrable if they meet the other criteria set by the Act, such as payment or significant part of duties. Initial registration is always required whether the communication is initiated by the lobbyist or the public office holder. Undertaking oral and arranged communications with certain senior officials (designated public office holders) may require individuals or organizations to file a monthly report." (See Communicating with Designated Public Office Holders)

Board of Directors

The Commissioner has provided advice regarding communications with public office holders by members of boards of directors in an advisory opinion, Boards of Directors: Application of the Act to outside chairpersons and members.

"The role of a chairperson or a member of a board of directors is generally to oversee the operations of a company or a non-profit organization. These duties, however, can sometimes involve communications with federal public office holders. If the chairperson or member of the board is not an employee of the company or non-profit organization in an employee-employer relationship and receives remuneration beyond reimbursement of expenses, the requirement for registration as a consultant lobbyist applies to their lobbying activities."

"Consultant lobbyists are also required to disclose whether they are lobbying on behalf of a corporation of which they are a member of the board of directors or whether they are lobbying on behalf of an organization of which they are either a member of the organization or a member of its board of directors. Disclosing this information in the Registry of Lobbyists provides a more accurate representation of an individual's lobbying activities."

6. [Repealed, 2003, c. 10, s. 5]

In-House Lobbyists (Corporations and Organizations)

Requirement to file return

7. (1) The officer responsible for filing returns for a corporation or organization shall file with the Commissioner, in the prescribed form and manner, a return setting out the information referred to in subsection (3) if

  • (a)the corporation or organization employs one or more individuals any part of whose duties is to communicate with public office holders on behalf of the employer or, if the employer is a corporation, on behalf of any subsidiary of the employer or any corporation of which the employer is a subsidiary in respect of
    • (i) the development of any legislative proposal by the Government of Canada or by a member of the Senate or the House of Commons,
    • (ii) the introduction of any Bill or resolution in either House of Parliament or the passage, defeat or amendment of any Bill or resolution that is before either House of Parliament,
    • (iii) the making or amendment of any regulation as defined in subsection 2(1) of the Statutory Instruments Act,
    • (iv) the development or amendment of any policy or program of the Government of Canada, or
    • (v) the awarding of any grant, contribution or other financial benefit by or on behalf of Her Majesty in right of Canada; and

Tax Credits

The Commissioner has provided advice in her advisory opinion Registration Requirements Related to Tax Credits to distinguish situations such as applications for tax credits, from cases in which there is no entitlement to the awarding of the grant, contribution or other financial benefit in question.

"Tax credits, such as the Scientific Research and Experimental Development investment tax credits, are not considered to be a financial benefit. Therefore, applying for such a tax credit is not deemed to be a registrable activity under the Lobbying Act."

Definition of "Employs" or "Employer"

As there is no definition of "employs" or "employer" in the Lobbying Act, the Commissioner has provided her perspective in a Report on Investigation, The Lobbying Activities of GPGGreen Power Generation Corp. and Patrick Glémaud and Rahim Jaffer, by referring to the general law for assistance. She stated: "It is clear that all relevant factors must be taken into consideration when making a determination regarding the existence of an ‘employer-employee relationship.'"

The Supreme Court of Canada has emphasized that "there is no universal test to determine whether a person is an employee or an independent contractor." Rather, an enquiry must be made to answer the question "… whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker's activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker's opportunity for profit in the performance of his or her tasks. (671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 at para 47, [2001] 2 SCR 983).

Other relevant factors are: "[t]he selection process, hiring, discipline, training, evaluation, assignment of duties and the length of time the services are provided" See Pointe-Claire (City) v. Quebec (Labour Court), [1997] 1 SCR 1015 at paragraph 47.

(b) those duties constitute a significant part of the duties of one employee or would constitute a significant part of the duties of one employee if they were performed by only one employee.

A Significant Part of Duties

The Commissioner has provided an interpretation bulletin, A Significant Part of Duties ("The 20% Rule"), to provide assistance to corporations and organizations that must determine whether they have met this requirement to register.

"In the case of corporations or organizations, the officer responsible for filing the return must determine whether or not lobbying constitutes a significant part of the duties of those employees who communicate with public office holders and who are subject to the 20% rule. This can be done using various approaches. One way is to estimate the time spent preparing for communicating (researching, drafting, planning, compiling, travelling, etc) and actually communicating with public office holders."

"In situations where the time related to lobbying is difficult to estimate, the officer responsible for filing will have to estimate the relative importance of the lobbying activities by examining, for example, the various duties for which the employee is responsible and determining the proportion related to lobbying activities. Both methods may be used in conjunction if the situation is unclear. In any case, the officer responsible will be accountable for the decision as to whether or not a registration is necessary."

"In order to provide a time basis for estimating the relative importance of lobbying activities, and considering that reporting requirements cover monthly periods, a period of one month should also be used. Assuming a five-day work week, an individual would have to lobby the equivalent of one day per week to reach the threshold."

For an example of a situation where the Commissioner determined that communications with public office holders by two individuals was sufficient, cumulatively, to constitute "a significant part of the duties of one employee" (See The Lobbying Activities of GPG-Green Power Generation Corp. and Patrick Glémaud and Rahim Jaffer)

Advisory and Stakeholder Consultations

The Commissioner has addressed the matter of advisory and stakeholder consultations in an interpretation bulletin, Disclosure Requirements Related to Advisory and Stakeholder Consultations.

"[A]s an advisory and stakeholder consultation process approaches the transparency level of a parliamentary committee, the requirement for registration becomes less necessary."

To arrive at a transparency level that is comparable to that of a parliamentary committee, several factors should be considered. The following are some of the key factors or conditions that increase the transparency of a consultation process:

  • Meetings are fully open to the public, with no restrictions on attendance by invitation, membership or any other form of exclusion. The more restrictive the process the lower the transparency level.
  • Meetings are publicly announced with locations, times, participants, and agendas listed.
  • Consultation results are widely disseminated with no real audience restriction, in hardcopy or electronically shortly after the event, so as to be as timely as possible.
  • Consultation results contain the complete proceedings, minutes, or summaries of what took place with attribution to the specific participants of what they said and to whom."
Time limit for filing return

(2) The officer responsible for filing returns shall file a return not later than two months after the day on which the requirement to file a return first arises under subsection (1).

(2.1) [Repealed, 2006, c. 9, s. 70]

Contents of return

(3) The return shall set out the following information:

  • (a) the name and business address of the officer responsible for filing returns;
  • (b) the name and business address of the employer;
    • (b.1) if the employer is a corporation, the name and business address of every subsidiary of the corporation that, to the knowledge of the officer responsible for filing returns, has a direct interest in the outcome of an employee's activities on behalf of the employer in respect of any matter described in subparagraphs (1)(a)(i) to (v); (b.2) if the employer is a corporation that is a subsidiary of any other corporation, the name and business address of that other corporation;
  • (c) a description in summary form of the employer's business or activities and any other information to identify its business or activities that is prescribed;
  • (d) if the employer is an organization, a description of the organization's membership and any other information to identify its membership that is prescribed;
  • (e) if the employer is funded in whole or in part by a government or government agency, the name of the government or agency, as the case may be, and the amount of funding received;
  • (f) if the employer is an organization, the name of each employee any part of whose duties is as described in paragraph (1)(a);
    • (f.1) if the employer is a corporation,
      • (i) a list including the name of each senior officer or employee a significant part of whose duties is as described in paragraph (1)(a), and
      • (ii) a second list including the name of each other senior officer any part of whose duties is as described in paragraph (1)(a) but without constituting a significant part;
  • (g) particulars to identify the subject-matter of any communication that any employee named in the return has made or is expected to make with a public office holder in respect of any matter described in subparagraphs (1)(a)(i) to (v) and any other information respecting that subject-matter that is prescribed;
  • (h) if any employee named in the return is a former public office holder, a description of the offices held, which of those offices, if any, qualified the employee as a designated public office holder and the date on which the employee last ceased to hold such a designated public office;

Disclosure of Previous Public Offices

The Commissioner has issued an interpretation bulletin, Disclosure of Previous Public Offices, regarding the requirement to disclose previous public office held:

"If a consultant lobbyist or any employee named in a return was at any time during their career a public office holder […], disclosure of all such positions […] is required. This includes employment for a short duration, such as student employment, co-operative education and summer positions with the federal government."

"[L]obbyists and registrants must disclose the following: the period of employment; the branch or unit where the work was performed; and the title of the position. A "unit" means any organizational structure, such as the department, branch, division, directorate, or office."

"Consultant lobbyists or any employee named in a return must also indicate if any of the listed public offices were designated, and if so, the date on which they last ceased to hold such a designated public office. The regulations also require registrants to indicate if they are exempt from the five-year lobbying prohibition, and if so, they must indicate the reason the ban does not apply." They may do this by referring to the exemption number provided by the Commissioner.

(h.1) to (h.3) [Repealed, 2006, c. 9, s. 70]

  • (i) particulars to identify any relevant legislative proposal, Bill, resolution, regulation, policy, program, grant, contribution or financial benefit;
  • (j) the name of any department or other governmental institution in which any public office holder with whom any employee named in the return communicates or is expected to communicate in respect of any matter described in subparagraphs (1)(a)(i) to (v) is employed or serves;
  • (k) particulars to identify any communication technique, including grass-roots communication within the meaning of paragraph 5(2)(j), that any employee named in the return uses or is expected to use in connection with any communication in respect of any matter described in subparagraphs (1)(a)(i) to (v); and
  • (l) any other information that is prescribed that relates to the identity of the officer responsible for filing returns, the employer, any subsidiary referred to in paragraph (b.1), any corporation referred to in paragraph (b.2) of which the employer is a subsidiary, any employee referred to in paragraph (f) or (f.1) or any department or institution referred to in paragraph (j).
Requirement to file monthly return

(4) 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 (1), that

  • (a) sets out, with respect to every communication referred to in paragraph (1)(a) that is of a prescribed type and 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,
    • (i) the date of the communication,
    • particulars, including any prescribed particulars, to identify the subject matter of the communication, and
    • (iii) any other information that is prescribed;
  • (b) if any information contained in the return filed under subsection (1) is no longer correct or additional information that the officer would have been required to provide under that subsection has come to the knowledge of the officer after the return was filed, provides the corrected or additional information; and
  • (c) if the employer no longer employs any employees whose duties are as described in paragraphs (1)(a) and (b), advises the Commissioner of that fact.

Communicating with Designated Public Office Holders

The Commissioner has issued an interpretation bulletin, Communicating with Designated Public Office Holders, regarding communicating with designated public office holders:

"Monthly returns must be filed not later than 15 days after the end of any month in which communication of a prescribed type involving a designated public office holder took place. The Lobbyists Registration Regulations prescribe the types of communications that must be reported in a monthly report as "oral and arranged communications excluding oral and arranged communications initiated by public office holders related to the development of policy, programs or legislation." In-house and consultant lobbyists must report all oral and arranged communications relating to financial benefits, even when initiated by a public officer holder. Likewise, consultant lobbyists must report oral and arranged communications relating to a contract regardless of who initiated the communication."

"Monthly returns must disclose the name, title or military/RCMP rank, and department of each designated public office holder with whom a lobbyist has communicated, the date of the communication, and the subject matter of the communication."

First monthly return

(4.1) The first return filed under subsection (4) shall, despite paragraph (4)(a), set out the information required by that paragraph in respect of communications made between the day on which the requirement to file a return first arose under subsection (1) and the end of the month immediately before the filing of the return.

Exception

(4.2) Subject to subsection (4.3), no return is required under subsection (4) if no communication referred to in paragraph (4)(a) was made during the period with respect to which the return is to set out information and if the circumstances referred to in paragraphs (4)(b) and (c) have not arisen.

Return — six-month period

(4.3) In any case, no more than five months shall have elapsed since the end of the month in which a return was last filed without a return being filed under subsection (4), even if, since the last return, no communication was made as referred to in paragraph (4)(a) and the circumstances referred to in paragraphs (4)(b) and (c) have not arisen, in which case the report shall so state.

Termination of reporting obligation

(4.4) The obligation to file a return under subsection (4) terminates when the employer no longer employs any employees whose duties are as described in paragraphs (1)(a) and (b) and a report has been filed under that subsection advising of that fact in accordance with paragraph (4)(c).

Information requested by Commissioner

(5) If the Commissioner requests information to clarify any information that has been provided to the Commissioner under this section, the officer responsible for filing returns shall, in the prescribed form and manner, not later than thirty days after the request is made, provide the Commissioner with the information.

Definitions

(6) In this section,

"employee"

« employé »

"employee" includes an officer who is compensated for the performance of their duties;

"senior officer"

« cadre dirigeant »

"senior officer", in respect of a corporation, means
  1. a chief executive officer, chief operating officer or president of the corporation, or
  2. any other officer who reports directly to the chief executive officer, chief operating officer or president of the corporation.

"officer responsible for filing returns"

« déclarant »

"officer responsible for filing returns" means the employee who holds the most senior office in a corporation or organization and is compensated for the performance of their duties;

R.S., 1985, c. 44 (4th Supp.), s. 7;
1995, c. 12, s. 3;
2003, c. 10, s. 7;
2006, c. 9, ss. 70, 81.

Communicating with Federal Public Office Holders

The Commissioner has provided advice regarding communications with public office holders in interpretation bulletins and advisory opinions. Short summaries of that advice are provided below.

"Communication, in the context of the Act, involves verbal (e.g., arranged meetings, phone calls, informal communication, and grass-roots communications) or written (hard copy or electronic format) contact with a public office holder." (See Communicating with Federal Public Office Holders)

"Government-initiated activities that fall within the definition of communication include round-table discussions and other types of advisory and stakeholder consultations on policy proposals. In cases where the communications take place in an open forum in which the subject matters, the names of participants and the name of the government organizations represented are a matter of public record, registration would not be required. With advisory and stakeholder consultations, where industry and other participants exchange views with POHs on broad-based, horizontal issues, the transparency of the consultations factors into the requirement to register." (See Disclosure Requirements Related to Advisory and Stakeholder Consultations)

"For initial registrations, communications with a public office holder may be registrable if they meet the other criteria set by the Act, such as payment or significant part of duties. Initial registration is always required whether the communication is initiated by the lobbyist or the public office holder. Undertaking oral and arranged communications with certain senior officials (designated public office holders) may require individuals or organizations to file a monthly report." (See Communicating with Designated Public Office Holders)

Crown Corporations

Most communications involving officials of a Crown corporation are not registrable.

"Communication between officials employed in a Crown corporation and federal public office holders concerning its mandate, operation, funding and other related matters is not a registrable lobbying activity."

Advisory Opinion - Crown Corporations and Registrable Activities under the Lobbying Act

Departmental Corporations

Most communications involving departmental corporations are not registrable.

"Communication between officials employed in a departmental corporation and federal public office holders concerning its mandate, operation, funding and other related matters, is not a registrable activity."

Advisory Opinion - Departmental Corporations and Registrable Activities under the Lobbying Act

Shared Governance Organizations

Most communications involving shared governance organizations are not registrable.

"Communication between officials employed in a shared governance organization and federal public office holders concerning its mandate, operation, funding and other related matters is not a registrable activity."

Advisory Opinion - Shared Governance Organizations and Registrable Activities under the Lobbying Act

The Academic Sector

The Commissioner has provided advice regarding registration to the academic sector in an advisory opinion, Registration Requirements Related to the Academic Sector:

"All university and college faculty members may not be required to register as in-house lobbyists for the sole reason that the institution communicates with public office holders. It is the most senior officer of the organization who must register and list personnel within the institution who lobby. Similarly, the most senior officer of the organization is required to register the names of staff members responsible for government relations or for securing grant funding (excluding research grants provided by organizations with peer review processes)."

"The situation differs when faculty members provide independent advice to government bodies but are not speaking on behalf of the institution where they are employed to teach or conduct research. […] [W]here faculty members communicate an independent opinion on a matter of public policy, but are not specifically paid by their employer or a third party to express that opinion, registration is not required."

Boards of Directors

The Commissioner has provided advice in an advisory opinion, Boards of Directors, Application of the Act to outside chairpersons and members regarding registration for persons who are members of the board of directors of a corporation or an organization:

"The role of a chairperson or a member of a board of directors is generally to oversee the operations of a company or a non-profit organization. These duties, however, can sometimes involve communications with federal public office holders. If the chairperson or member of the board is not an employee of the company or non-profit organization in an employee-employer relationship and receives remuneration beyond reimbursement of expenses, the requirement for registration as a consultant lobbyist applies to their lobbying activities."

"The requirement for registration under section 7 of the Act as an in-house lobbyist (corporations and organizations) may apply if the chairperson or member of a board of directors of a corporation, company, association, or non-profit organization is also an employee of that organization."

Certification

Certification

7.1 Every individual who submits a return or other document to the Commissioner pursuant to this Act shall certify on the return or other document or, where it is submitted in electronic or other form in accordance with subsection 7.2(1), in such manner as is specified by the Commissioner, that the information contained in it is true to the best of their knowledge and belief.

1995, c. 12, s. 3;
2006, c. 9, s. 81.

Documents in Electronic or Other Form

Submission of documents

7.2 (1) Subject to the regulations, any return or other document that is required to be submitted to the Commissioner under this Act may be submitted in electronic or other form by such means and in such manner as is specified by the Commissioner.

Time of receipt

(2) For the purposes of this Act, any return or other document that is submitted in accordance with subsection (1) is deemed to be received by the Commissioner at the time provided for in the regulations.

Date of Reception of Returns

The Lobbyists Registration Regulations establish when a return is deemed to be received.

"A return is deemed to have been received

  1. on the date of receipt stamped on the document by the Commissioner's office, if the return is delivered by mail or by hand;
  2. on the date indicated by the receiving apparatus, if the return is sent by facsimile transmission; or
  3. on the date that it enters the registry of the Commissioner's office, if the return is filed electronically."

Lobbyists Registration Regulations, SOR/2008-116, s 4(2).

1995, c. 12, s. 3;
2006, c. 9, s. 81.

Storage

7.3 (1) Subject to the regulations, any return or other document that is received by the Commissioner may be entered or recorded by any information storage device, including any system of mechanical or electronic data processing, that is capable of reproducing the stored return or other document in intelligible form within a reasonable time.

Evidence

(2) In any prosecution for an offence under this Act, a copy of a return or other document that is reproduced as permitted by subsection (1) and certified under the Commissioner's signature as a true copy is admissible in evidence without proof of the signature or official character of the person appearing to have signed the copy and, in the absence of evidence to the contrary, has the same probative force as the original would have if it were proved in the ordinary way.

1995, c. 12, s. 3;
2006, c. 9, s. 81.

Registry

8. [Repealed, 2006, c. 9, s. 71]

Registry

9. (1) The Commissioner shall establish and maintain a registry in which shall be kept a record of all returns and other documents submitted to the Commissioner under this Act and of any information sent under subsection 9.1(1) and responses provided relative to that information.

Form of registry

(2) The registry shall be organized in such manner and kept in such form as the Commissioner may determine.

Audit

(3) The Commissioner may verify the information contained in any return or other document submitted to the Commissioner under this Act.

Clarifications and corrections

(3.1) Every individual who is required to submit returns or other documents referred to in subsection (1), or to provide responses referred to in that subsection, shall provide in the prescribed time, manner and form any clarification or correction to them that the Commissioner requires.

Access to registry

(4) The registry shall be open to public inspection at such place and at such reasonable hours as the Commissioner may determine.

R.S., 1985, c. 44 (4th Supp.), s. 9;
1995, c. 12, s. 5;
2006, c. 9, ss. 72, 81.

Confirmation of lobbying activity information

9.1 (1) The Commissioner may send to any present or former designated public office holder information derived from that referred to in paragraph 5(3)(a) or 7(4)(a)and provided in returns filed under subsection 5(3) or 7(4) in order that the office holder — in the prescribed time, manner and form — confirm to the Commissioner its accuracy and completeness or correct and complete it.

Verifying the Accuracy of Monthly Communication Reports

The Commissioner has implemented a system to verify the accuracy of monthly communication reports.

Every month, the Office of the Commissioner of Lobbying verifies the accuracy of a sample of approximately five percent of all monthly communication reports submitted by lobbyists for the previous month by requesting written validation from the relevant Designated Public Office Holder. The Office of the Commissioner of Lobbying follows up with registrants regarding all errors that are identified during this process.

Report

(2) The Commissioner may, in a report under section 11 or 11.1, report on the failure by a present or former designated public office holder to respond relative to information sent under subsection (1) or the provision by such a person of an unsatisfactory response.

2006, c. 9, s. 73.

Interpretation bulletins

10. (1) The Commissioner may issue advisory opinions and interpretation bulletins with respect to the enforcement, interpretation or application of this Act other than under sections 10.2 to 10.5.

Interpretation bulletins not statutory instruments

(2) The advisory opinions and interpretation bulletins are not statutory instruments for the purposes of the Statutory Instruments Act and are not binding.

R.S., 1985, c. 44 (4th Supp.), s. 10;
1995, c. 12, s. 5;
2004, c. 7, s. 20;
2006, c. 9, s. 74.

Lobbyists' Remuneration

Prohibition — lobbyist

10.1 (1) An individual who is required to file a return under subsection 5(1) shall not receive any payment that is in whole or in part contingent on the outcome of any matter described in subparagraphs 5(1)(a)(i) to (vi) or on the individual's success in arranging a meeting referred to in paragraph 5(1)(b).

Contingency Fees

A contingency fee is a fee that is payable in whole or in part based upon a successful result or outcome. This could be a fee based upon a percentage of money awarded or a fee that is only paid if a successful outcome is reached. Prior to July 2, 2008, contingency fees had to be reported in a consultant lobbyist's registration. Since that date, they have been prohibited under the Lobbying Act.

The Commissioner has reported upon one case in which an arrangement that may be construed as a contingency fee was used. The Report on Investigation The Lobbying Activities of Julie Couillard describes Ms. Couillard's contract with her client, which included an agreement that her client would pay commission fees on a sliding scale in the event that it obtained "… an irrevocable contractual commitment pursuant to the request for proposals", along with a lease for a specified amount of office space in a new building. The agreement with her client also specified that Ms. Couillard would be paid commission fees which would increase along with the duration of the lease.

However, prior to the enactment of the Lobbying Act in July 2008, there was no prohibition against contingency fees in the Lobbyists Registration Act, (ARCHIVED - Lobbyists Registration Act) only a requirement for a consultant lobbyist to identify that receipt of such a fee was expected. Ms. Couillard did not do that, as she did not register as a lobbyist.

Prohibition — client

(2) The client of an individual referred to in subsection (1) shall not make any such payment to the individual.

1995, c. 12, s. 5;
2004, c. 7, s. 21;
2006, c. 9, s. 75.

Restriction on Lobbying Activity

Five-year prohibition — lobbying

10.11 (1) No individual shall, during a period of five years after the day on which the individual ceases to be a designated public office holder,

  • (a) carry on any of the activities referred to in paragraph 5(1)(a) or (b) in the circumstances referred to in subsection 5(1);
  • (b) if the individual is employed by an organization, carry on any of the activities referred to in paragraph 7(1)(a) on behalf of that organization; and
  • (c) if the individual is employed by a corporation, carry on any of the activities referred to in paragraph 7(1)(a) on behalf of that corporation if carrying on those activities would constitute a significant part of the individual's work on its behalf.

Five-Year Prohibition on Lobbying Activities

For an example of a situation in which the five-year prohibition on lobbying activity was the subject of a Report on Investigation, see Report on Investigation, The Lobbying Activities of Keith Beardsley. In this report, the Commissioner concluded that an attempt to arrange a meeting with a public office holder was a registrable lobbying activity, but that a person subject to the five-year prohibition on lobbying activities was prohibited from engaging in such an activity.

Exception

(2) Subsection (1) does not apply in respect of any designated public office that was held only because the individual participated in an employment exchange program.

Exemption

(3) On application, the Commissioner of Lobbying may, on any conditions that the Commissioner specifies, exempt an individual from the application of subsection (1) if the Commissioner is of the opinion that the exemption would not be contrary to the purposes of this Act having regard to any circumstance or factor that the Commissioner considers relevant, including whether the individual

  • (a) was a designated public office holder for a short period;
  • (b) was a designated public office holder on an acting basis;
  • (c) was employed under a program of student employment; or
  • (d) had administrative duties only.
Publication

(4) The Commissioner shall without delay cause every exemption and the Commissioner's reasons for it to be made available to the public.

2006, c. 9, s. 75.

Application for exemption

10.12 (1) Any person who is subject to this Act as if they were a designated public office holder by reason of subsection 2(3), may apply to the Commissioner for an exemption from section 10.11.

Commissioner may exempt

(2) The Commissioner may, on any conditions that the Commissioner specifies, exempt the person from the application of section 10.11 having regard to any circumstance or factor that the Commissioner considers relevant, including the following:

  • (a) the circumstances under which the person left the functions referred to in subsection 2(3);
  • (b) the nature, and significance to the Government of Canada, of information that the person possessed by virtue of the functions referred to in subsection 2(3);
  • (c) the degree to which the person's new employer might gain unfair commercial advantage by hiring the person;
  • (d) the authority and influence that the person possessed while having the functions referred to in subsection 2(3); and
  • (e) the disposition of other cases.
Publication

(3) The Commissioner shall without delay cause every exemption and the Commissioner's reasons for it to be made available to the public.

Audit

(4) The Commissioner may verify the information contained in any application under subsection (1).

2006, c. 9, s. 75.

Lobbyists' Code of Conduct

Lobbyists' Code of Conduct

10.2 (1) The Commissioner shall develop a Lobbyists' Code of Conduct respecting the activities described in subsections 5(1) and 7(1).

The Lobbyists' Code of Conduct consists of a preamble that states the purpose of the Code, a set of principles that set out the goals and objectives of the Code, along with rules that provide detailed requirements for the behaviour of lobbyists. The Code is intended to provide an assurance that lobbying is performed ethically and to the highest standards.

Consultation

(2) In developing the Code, the Commissioner shall consult persons and organizations that the Commissioner considers are interested in the Code.

Referral

(3) The Code shall be referred to a committee of the House of Commons before being published under subsection (4).

Code not a statutory instrument

(4) The Code is not a statutory instrument for the purposes of the Statutory Instruments Act, but the Code shall be published in the Canada Gazette.

1995, c. 12, s. 5;
2003, c. 10, s. 8;
2004, c. 7, ss. 22, 39;
2006, c. 9, s. 81.

Compliance with Code

10.3 (1) The following individuals shall comply with the Code:

  1. an individual who is required to file a return under subsection 5(1); and
  2. an employee who, in accordance with paragraph 7(3)(f) or (f.1), is named in a return filed under subsection 7(1).

Breaches of the Lobbyists' Code of Conduct

The Federal Court of Canada and the Federal Court of Appeal have considered the application of the Lobbyists' Code of Conduct to persons who are required by the Lobbying Act to register as lobbyists.

The Federal Court of Appeal has confirmed two important points. First, that breaches of the Code are not sanctioned by charges and penalties, but rather by the Commissioner's Reports on Investigation to Parliament. Second, the Federal Court of Appeal confirmed that in the case of the Code, "… the defence of error of law is no excuse." (See Makhija v Canada (Attorney General), 2010 FCA 342 at paragraph 7.)

The Federal Court has confirmed section 10.3 of the Lobbying Act by stating that in "…investigating whether a person has breached the Code, the Registrar must first determine whether the person has engaged in lobbying activities that trigger the obligation to register. If so, the person is subject to the Code, and the Registrar may proceed to determine whether the Code had been breached." (See Makhija v Canada (Attorney General), 2010 FC 141 at paragraph 18.) (At present, the Commissioner, as the Registrar's successor, is bound by this ruling.)

Application of the Lobbyists' Code of Conduct

The Commissioner has reported upon the lobbying activities of a number of persons she determined were engaged in registrable lobbying activity, but had not registered as lobbyists. The Commissioner takes the view "that those who are engaged in registrable lobbying activity must comply with the Lobbyists' Code of Conduct," not only those who do in fact register as lobbyists. See "Report on Investigation - The Lobbying Activities of Julie Couillard", see "Report on Investigation - The Lobbying Activities of GPG - Green Power Generation Corp. and Patrick Glémaud and Rahim Jaffer".

Non-application of section 126 of the Criminal Code

(2) Section 126 of the Criminal Code does not apply in respect of a contravention of subsection (1).

Non-application of section 126 of the Criminal Code

Section 126 of the Criminal Code, RSC 1985, c. C-46, states: "Every one who, without lawful excuse, contravenes an Act of Parliament by wilfully doing anything that it forbids or by wilfully omitting to do anything that it requires to be done is, unless a punishment is expressly provided by law, guilty of an indictable offence and liable to imprisonment for a term not exceeding two years."

This exemption means that individuals cannot face criminal sanctions for contraventions of the Lobbyists' Code of Conduct.

1995, c. 12, s. 5;
2003, c. 10, s. 9.

Investigations

Investigation

10.4 (1) The Commissioner shall conduct an investigation if he or she has reason to believe, including on the basis of information received from a member of the Senate or the House of Commons, that an investigation is necessary to ensure compliance with the Code or this Act, as applicable.

Commissioner‘s Authority to Conduct Investigations

The Federal Court of Appeal has confirmed the authority of the Commissioner to conduct investigations.

As long as the Commissioner has "…reasonable grounds for believing that a breach of the Code has occurred," the Commissioner is "…entitled to conduct an investigation, whether or not the person concerned has filed a prescribed form with respect to the lobbying activities in question, to see if the person had complied with the terms of the Code." (See Makhija v Canada (Attorney General), 2008 FCA 402 at paragraph 11.)

Exception

(1.1) The Commissioner may refuse to conduct or may cease an investigation with respect to any matter if he or she is of the opinion that

  1. the matter is one that could more appropriately be dealt with according to a procedure provided for under another Act of Parliament
  2. the matter is not sufficiently important;
  3. dealing with the matter would serve no useful purpose because of the length of time that has elapsed since the matter arose; or
  4. there is any other valid reason for not dealing with the matter.

Factors in Considering Alleged Transgressions of the Act or Code

The Office of the Commissioner of Lobbying has established criteria for the application of enforcement measures in the document Guiding principles and criteria for recommending compliance measures.

"The [Office of the Commissioner of Lobbying] takes into account the following two elements in the analysis of an alleged transgression of the Act or Code: the nature of the act or omission, and the evidence of negligence or wilful misconduct of the individual. During the course of an administrative review, the Investigations Directorate will conduct an analysis of both elements and recommend appropriate compliance measures that reflect an assessment of the knowledge, fault and intent of the subject. Formal investigations will be recommended where a sufficiency of evidence exists that non-compliance was the outcome of negligence or intent."

Compliance Measures

The Office of the Commissioner of Lobbying uses a variety of alternative compliance measures in appropriate cases.

The OCL will consider the following factors when determining how to address suspected, alleged or known transgressions of the Act or the Lobbyists' Code of Conduct, in order to ensure that compliance measures are applied in a manner that is fair and consistent:

  • The nature and gravity of the alleged transgression.
  • The degree of injury (transparency, public confidence and trust).
  • The length of time that has elapsed since the act or omission was committed.
  • Whether the matter is more appropriately dealt with under another Act of Parliament.
  • The person's degree of knowledge of the Act and Code.
  • The degree of negligence or intent.
  • Whether the act or omission was voluntarily disclosed by the subject.
  • The subject's compliance history.
  • The impact of a Report to Parliament on:
    • general deterrence (lobbyists);
    • specific deterrence (the person); or
    • the Commissioner's mandate to ensure transparency, and enhance public confidence and trust in the integrity, objectivity and impartiality of government decision-making.
  • The availability and quality of evidence.
  • Whether the matter is sufficiently important.
  • Any other relevant factor or circumstance."

For more details, see Guiding principles and criteria for recommending compliance measures.

Powers of investigation

(2) For the purpose of conducting the investigation, the Commissioner may

  • (a) in the same manner and to the same extent as a superior court of record,
    • (i) summon and enforce the attendance of persons before the Commissioner and compel them to give oral or written evidence on oath, and
    • (ii) compel persons to produce any documents or other things that the Commissioner considers relevant for the investigation;
      and
  • (b) administer oaths and receive and accept information, whether or not it would be admissible as evidence in a court of law.
Investigation in private

(3) The investigation shall be conducted in private.

Evidence in other proceedings

(4) Evidence given by a person in the investigation and evidence of the existence of the investigation are inadmissible against the person in a court or in any other proceeding, other than in a prosecution of a person for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made to the Commissioner.

Opportunity to present views

(5) Before finding that a person has breached the Code, the Commissioner shall give the person a reasonable opportunity to present their views to the Commissioner.

Opportunity to Present Views

The Commissioner has developed a process to comply with subsection 10.4(5) and ensure administrative fairness. The Commissioner sends a copy of the Investigations Directorate's report to the subject of the investigation, asking for written comments within 30 days. Comments provided are considered by the Commissioner and included in any Report on Investigation tabled in Parliament.

For more details, see Guiding principles and criteria for recommending compliance measures.

Confidentiality

(6) The Commissioner, and every person acting on behalf of or under the direction of the Commissioner, may not disclose any information that comes to their knowledge in the performance of their duties and functions under this section, unless

  • (a) the disclosure is, in the opinion of the Commissioner, necessary for the purpose of conducting an investigation under this section or establishing the grounds for any findings or conclusions contained in a report under section 10.5;
  • (b) the information is disclosed in a report under section 10.5 or in the course of a prosecution for an offence under section 131 of the Criminal Code (perjury) in respect of a statement made to the Commissioner; or
  • (c) the Commissioner believes on reasonable grounds that the disclosure is necessary for the purpose of advising a peace officer having jurisdiction to investigate an alleged offence under this or any other Act of Parliament or of the legislature of a province.
Advice to peace officers

(7) If, during an investigation under this section, the Commissioner believes on reasonable grounds that a person has committed an offence under this or any other Act of Parliament or of the legislature of a province, the Commissioner shall advise a peace officer having jurisdiction to investigate the alleged offence and immediately suspend the Commissioner's investigation.

Suspension of investigation

(8) The Commissioner shall immediately suspend an investigation under this section if he or she discovers that the subject-matter of the investigation is also the subject-matter of an investigation to determine whether an offence under this or any other Act of Parliament or of the legislature of a province has been committed or that a charge has been laid with respect to that subject-matter.

Investigation continued

(9) The Commissioner may not continue an investigation under this section until any investigation or charge regarding the same subject-matter has been finally disposed of.

1995, c. 12, s. 5;
2003, c. 10, s. 10;
2004, c. 7, ss. 23, 39;
2006, c. 9, ss. 77, 81.

Resumption of an Investigation after a Referral to a Peace Officer

In cases in which the Commissioner has reasonable grounds to believe an offence has been committed under the Lobbying Act, the matter is referred to a peace officer (usually, the Royal Canadian Mounted Police [RCMP]). The Commissioner must then immediately suspend her investigation. If the RCMP decides not to pursue the matter, the Commissioner may resume the investigation under the Lobbyists' Code of Conduct if she has reason to believe an investigation is necessary to ensure compliance with the Act or the Code. Examples of cases that were initially referred to the RCMP before the Commissioner resumed the investigation and tabled a Report on Investigation to the House of Commons and Senate include The Lobbying Activities of Julie Couillard, The Lobbying Activities of Keith Beardsley, The Lobbying Activities of GPG-Green Power Generation Corp. and Patrick Glémaud and Rahim Jaffer, The Lobbying Activities of Mark Jiles, The Lobbying Activities of Graham Bruce, and The Lobbying Activities of René Fugère and André Nollet.

For more details, see Guiding principles and criteria for recommending compliance measures.

Report on investigation

10.5 (1) After conducting an investigation, the Commissioner shall prepare a report of the investigation, including the findings, conclusions and reasons for the Commissioner's conclusions, and submit it to the Speaker of the Senate and the Speaker of the House of Commons, who shall each table the report in the House over which he or she presides forthwith after receiving it or, if that House is not then sitting, on any of the first fifteen days on which that House is sitting after the Speaker receives it.

Contents of report

(2) The report may contain details of any payment received, disbursement made or expense incurred by an individual who is required to file a return under subsection 5(1) or by an employee who, in accordance with paragraph 7(3)(f) or (f.1), is named in a return filed under subsection 7(1), in respect of any matter referred to in any of subparagraphs 5(1)(a)(i) to (vi) or 7(1)(a)(i) to (v), as the case may be, or of any payment made by the client of an individual who is required to file a return under subsection 5(1) in respect of any matter referred to in any of subparagraphs 5(1)(a)(i) to (vi), any communication referred to in paragraph 5(1)(a) or any meeting referred to in paragraph 5(1)(b), if the Commissioner considers publication of the details to be in the public interest.

1995, c. 12, s. 5;
2003, c. 10, s. 11;
2004, c. 7, ss. 23, 39;
2006, c. 9, s. 78.

10.6 [Repealed, 2006, c. 9, s. 78]

Reports to Parliament

Annual report

11. The Commissioner shall, within three months after the end of each fiscal year, prepare a report with regard to the administration of this Act during that fiscal year and submit the report to the Speaker of the Senate and the Speaker of the House of Commons, who shall each table the report in the House over which he or she presides forthwith after receiving it or, if that House is not then sitting, on any of the first fifteen days on which that House is sitting after the Speaker receives it.

R.S., 1985, c. 44 (4th Supp.), s. 11;
1995, c. 12, s. 6;
2004, c. 7, s. 24;
2006, c. 9, s. 78.

Special reports

11.1 (1) The Commissioner may, at any time, prepare a special report concerning any matter within the scope of the powers, duties and functions of the Commissioner if, in the opinion of the Commissioner, the matter is of such urgency or importance that a report on it should not be deferred until the next annual report.

Tabling of special report

(2) The Commissioner shall submit the special report to the Speaker of the Senate and the Speaker of the House of Commons, who shall each table the report in the House over which he or she presides forthwith after receiving it or, if that House is not then sitting, on any of the first fifteen days on which that House is sitting after the Speaker receives it.

2006, c. 9, s. 78.

Regulations

Regulations

12. The Governor in Council may make regulations

  • (a) requiring a fee to be paid on the filing of a return or a return of a class of returns under section 5 or 7, or for any service performed or the use of any facility provided by the Commissioner, and prescribing the fee or the manner of determining it;
  • (b) respecting the submission of returns or other documents to the Commissioner under this Act, including those that may be submitted in an electronic or other form under section 7.2, the persons or classes of persons by whom they may be submitted in that form and the time at which they are deemed to be received by the Commissioner;
  • (c) respecting the entering or recording of any return or other document under section 7.3;
  • (c.1) designating, individually or by class, any position occupied by a public office holder as a position occupied by a designated public office holder for the purposes of paragraph (c) of the definition "designated public office holder in subsection 2(1)" if, in the opinion of the Governor in Council, doing so is necessary for the purposes of this Act;
  • (d) prescribing any matter or thing that by this Act is to be or may be prescribed; and
  • (e) generally for carrying out the purposes and provisions of this Act.

R.S., 1985, c. 44 (4th Supp.), s. 12;
1995, c. 12, s. 7;
2003, c. 10, s. 12;
2006, c. 9, ss. 79, 81.

Regulations

Two sets of regulations have been enacted under the Lobbying Act: the Lobbyists Registration Regulations and the Designated Public Office Holder Regulations.

Recovery of Fees

Recovery of fees

13. Any fee required by the regulations to be paid constitutes a debt due to Her Majesty in right of Canada and may be recovered in any court of competent jurisdiction.

R.S., 1985, c. 44 (4th Supp.), s. 13;
1995, c. 12, s. 7.

Offences and Punishment

Contravention

14. (1) Every individual who fails to file a return as required under subsection 5(1) or (3) or 7(1) or (4), or knowingly makes any false or misleading statement in any return or other document submitted to the Commissioner under this Act or in any response provided relative to information sent under subsection 9.1(1), whether in electronic or other form, is guilty of an offence and liable

  • (a) on summary conviction, to a fine not exceeding $50,000 or to imprisonment for a term not exceeding six months, or to both; and
  • (b) on proceedings by way of indictment, to a fine not exceeding $200,000 or to imprisonment for a term not exceeding two years, or to both.
Other contraventions

(2) Every individual who contravenes any provision of this Act — other than subsections 5(1) and (3), 7(1) and (4) and 10.3(1) — or the regulations is guilty of an offence and liable on summary conviction to a fine not exceeding $50,000.

Limitation

(3) Proceedings by way of summary conviction in respect of an offence under this section may be instituted at any time within but not later than five years after the day on which the Commissioner became aware of the subject-matter of the proceedings but, in any case, not later than ten years after the day on which the subject-matter of the proceedings arose.

R.S., 1985, c. 44 (4th Supp.), s. 14;
1995, c. 12, s. 7;
2006, c. 9, s. 80.

Prohibition on communication

14.01 If a person is convicted of an offence under this Act, the Commissioner may — if satisfied that it is necessary in the public interest, taking into account the gravity of the offence and whether the offence was a second or subsequent offence under this Act — prohibit for a period of not more than two years the person who committed the offence from effecting any communication described in paragraph 5(1)(a) or 7(1)(a) or arranging a meeting referred to in paragraph 5(1)(b).

2006, c. 9, s. 80.

Publication

14.02 The Commissioner may make public the nature of the offence, the name of the person who committed it, the punishment imposed and, if applicable, any prohibition under section 14.01.

2006, c. 9, s. 80.

Review by Parliament

Review of Act by parliamentary committee

14.1 (1) A comprehensive review of the provisions and operation of this Act must be undertaken, every five years after this section comes into force, by the committee of the Senate, of the House of Commons, or of both Houses of Parliament, that may be designated or established for that purpose.

Review and report

(2) The committee referred to in subsection (1) must, within a year after the review is undertaken or within any further period that the Senate, the House of Commons, or both Houses of Parliament, as the case may be, may authorize, submit a report on the review to Parliament that includes a statement of any changes to this Act or its operation that the committee recommends.

2003, c. 10, s. 13.

Review of the Lobbying Act

A review of the Lobbying Act has been carried out by the Standing Committee on Access to Information, Privacy and Ethics. The statutory review of the Lobbying Act resulted in a report by the Standing Committee on Access to Information, Privacy and Ethics, tabled in May 2012. The Government provided its response to that report in September 2012.

Coming into Force

Coming into force

15. This Act or any provision thereof shall come into force on a day or days to be fixed by proclamation.

[Note: Act in force September 30, 1989, see SI/89-193.]

Office of the Commissioner of Lobbying

Tel: 613-957-2760
Fax: 613-957-3078
Email: QuestionsLobbying@ocl-cal.gc.ca