Registration

SOR/2008-116 April 17, 2008

LOBBYING ACT

Lobbyists Registration Regulations

P.C. 2008-769 April 17, 2008

Her Excellency the Governor General in Council, on the recommendation of the President of the Treasury Board, pursuant to section 12 (see footnote a) of the Lobbying Act (see footnote b), hereby makes the annexed Lobbyists Registration Regulations.

LOBBYISTS REGISTRATION REGULATIONS

INTERPRETATION

1. The following definitions apply in these Regulations.

“Act” means the Lobbying Act. (Loi)

“Commissioner” means the Commissioner of Lobbying appointed under subsection 4.1(1) of the Act. (commissaire)

“consultant lobbyist” means an individual who is required to file a return under subsection 5(1) of the Act. (lobbyiste-conseil)

“in-house lobbyist” means an employee of a corporation or organization who is named in the return filed under subsection 7(1) of the Act. (lobbyiste salarié)

“member of a transition team” means any person referred to in subsection 2(3) of the Act. (membre d’une équipe de transition)

FILING OF RETURNS

2. (1) Subject to subsection (2), a return shall be filed electronically.

(2) A return may be filed in paper format if the person filing the return

(a) has difficulty filing the return electronically because of a disability; or

(b) does not have access to a computer system that allows them to file it electronically.

3. (1) A return referred to in section 5 of the Act that is filed in paper format shall be in Form 1 of the schedule.

(2) A return referred to in section 7 of the Act that is filed in paper format on behalf of a corporation shall be in Form 2 of the schedule.

(3) A return referred to in section 7 of the Act that is filed in paper format on behalf of an organization shall be in Form 3 of the schedule.

4. (1) A return that is filed in paper format must be delivered to the Commissioner’s office by mail, by facsimile transmission or by hand.

(2) A return is deemed to have been received

(a) on the date of receipt stamped on the document by the Commissioner’s office, if the return is delivered by mail or by hand; or

(b) on the date indicated by the receiving apparatus, if the return is sent by facsimile transmission.

(3) A facsimile copy of the return is deemed to be the original.

REGISTRATION OF CONSULTANT LOBBYISTS

INITIAL RETURN

5. A consultant lobbyist shall, with respect to a return filed under subsection 5(1) of the Act, include, in addition to the information required under subsection 5(2) of the Act, the following:

(a) if the client is a corporation, whether the consultant lobbyist is a member of the board of directors of the corporation;

(b) if the client is an organization, whether the consultant lobbyist is a member of, or a member of the board of directors of, the organization;

(c) if the consultant lobbyist ceases to hold a designated public office on or after July 2, 2008 and they file the return less than five years after ceasing to hold the designated public office, whether they are subject to the five-year prohibition on lobbying set out in section 10.11 of the Act and, if not, the reason that they are not subject to it; and

(d) if the consultant lobbyist ceased to be a transition team member on or after January 24, 2006 and they file the return less than five years after ceasing to carry out those functions, whether they are subject to the five-year prohibition on lobbying set out in section 10.11 of the Act and, if not, the reason that they are not subject to it; and

(e) the name and title of the client’s principal representative with whom the consultant lobbyist deals.

MONTHLY RETURN

6. For the purposes of paragraph 5(3)(a) of the Act, the following types of communication are prescribed if made orally and arranged in advance of the communication:

(a) a communication referred to in any of subparagraphs 5(1)(a)(i) to (vi) of the Act that is initiated by a person other than a public office holder; and

(b) a communication referred to in either subparagraph 5(1)(a)(v) or (vi) that is initiated by a public office holder.

7. The consultant lobbyist shall, with respect to a return filed under subsection 5(3) of the Act, include, in addition to the information required under paragraph 5(3)(a) of the Act, the following:

(a) the position title of the designated public office holder; and

(b) the name of the branch or unit and the name of the department or other governmental institution in which the designated public office holder is employed or serves at the time of the communication.

REGISTRATION OF IN-HOUSE LOBBYISTS (CORPORATIONS AND ORGANIZATIONS)

INITIAL RETURN

8. The officer responsible shall, with respect to a return filed under subsection 7(1) of the Act, include, in addition to the information required under subsection 7(3) of the Act, the following:

(a) if an in-house lobbyist ceases to hold a designated public office on or after July 2, 2008 but less than five years before the return is filed, whether they are subject to the five-year prohibition on lobbying under section 10.11 of the Act and, if not, the reason why they are not subject to it; or

(b) if an in-house lobbyist ceases to be a transition team member on or after January 24, 2006 but less than five years before the return is filed, whether they are subject to the five-year prohibition on lobbying under section 10.11 of the Act and, if not, the reason why they are not subject to it.

MONTHLY RETURN

9. For the purposes of subsection 7(4) of the Act, the following types of communication are prescribed if made orally and arranged in advance of the communication:

(a) a communication referred to in any of subparagraphs 7(1)(a)(i) to (v) of the Act that is initiated by a person other than a public office holder; and

(b) a communication referred to in subparagraph 7(1)(a)(v) of the Act that is initiated by a public office holder.

10. The officer responsible for filing shall, with respect to a return filed under subsection 7(4) of the Act, include, in addition to the information required under paragraph 7(4)(a) of the Act, the following:

(a) the position title of the designated public office holder; and

(b) the name of the branch or unit and the name of the department or other governmental institution in which the designated public office holder is employed or serves at the time of the communication.

CLARIFICATION OR CORRECTION OF RETURNS

11. (1) Any clarification to a return requested by the Commissioner under subsection 9(3.1) of the Act shall be provided by the individual who submitted the return, not later than 30 days after the day on which the request is made.

(2) Any correction to a return requested by the Commissioner under subsection 9(3.1) of the Act shall be provided by the individual who submitted the return, not later than 10 days after the day on which the request is made.

(3) A request made by the Commissioner is deemed to have been made on the day on which it is sent.

(4) A clarification or correction to a return is deemed to have been received

(a) on the date of receipt stamped on the document by the Commissioner’s office, if the clarification or correction to the return is delivered by mail or by hand; or

(b) on the date indicated by the receiving apparatus, if the clarification or correction to the return is sent by facsimile transmission.

REPEAL

12. The Lobbyists Registration Regulations (see footnote 1) are repealed.

COMING INTO FORCE

13. These Regulations come into force on July 2, 2008.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

On December 12, 2006, the Federal Accountability Act, an omnibus piece of legislation, received Royal Assent. It amended the Lobbyists Registration Act and renamed it the Lobbying Act. The amendments to the Act enhance transparency by providing Canadians with more timely and comprehensive information on who is lobbying public office holders, and in what context.

The Lobbying Act authorizes the Governor in Council to make regulations to set out the measures necessary to enable lobbyists to comply with the registration requirements of the Act, to assist the Commissioner in his or her mandate to oversee the enforcement of the Act, and to ensure that all aspects of the lobbyists registration regime are adhered to. The Lobbyists Registration Regulations must be completed before the Lobbying Act is brought into force.

The Lobbyists Registration Regulations set the form and manner in which lobbyists must file required returns, which disclose information regarding their lobbying activities. They also set out certain additional information to be disclosed in returns, beyond what is required in the Act. They set the time frames to respond to a request by the Commissioner for correction or clarification of information submitted in returns. These Regulations also describe the type of communication that will trigger monthly returns.

Form and manner of returns

The Regulations require that all returns be filed electronically using the Lobbyists Registration System (LRS). Paper filing is only permitted for persons who have difficulty filing the return in electronic format due to a disability or for those who do not have access to a computer system. Today, more than 99% of returns are filed electronically using the LRS. The LRS is being modified to facilitate the electronic filing process for consultant, in-house organization and in-house corporation lobbyists.

Individuals filing returns in paper format are required to use one of the forms that are scheduled to the Regulations. In order to simplify the filing process, the Regulations now provide for distinct forms for in-house lobbyists (corporation), in-house lobbyists (organization) and consultant lobbyists.

The information on lobbying activities required to be disclosed in a return, whether filed on paper or electronically, is determined by the Act and the Regulations. The way in which the required information is to be submitted is set out in the scheduled forms and will be reflected in the LRS.

Initial returns

The Lobbying Act continues to require that individuals, corporations and organizations register within defined time limits and disclose, as they currently do in initial returns, certain information regarding their lobbying activities. The Regulations update the initial return to reflect the changes to the Act.

The Lobbying Act imposes a five-year post-employment prohibition on lobbying by former designated public office holders, unless excluded or exempted from the ban. The Regulations prescribe that individuals who are subject to the five-year ban indicate in the return whether they have been granted an exemption from the Commissioner or whether the ban does not apply to them for other reasons. This information will appear in the Public Registry (the Registry), ensuring that the Registry accurately presents a lobbyist’s status in relation to the ban.

The Lobbying Act slightly modifies the manner in which corporations list the names of their corporate lobbyists, by requiring that the names of employees and senior officers that lobby as a significant part of their duties (currently interpreted to mean 20% or more) be listed separately from the names of senior officers who lobby for less than a significant part. This distinction complements the five-year prohibition on lobbying which bans former designated public office holders from lobbying on behalf of a corporation if lobbying constitutes a significant part of their duties. Both the registration form (form 2 in the Schedule) and the LRS will now accommodate two lists.

Current members of boards of directors or members of non-profit organizations who are not employees, but who are remunerated to lobby on behalf of the corporation or organization, are advised to register as consultant lobbyists. To reflect this practice, the Regulations require consultant lobbyists to disclose in their returns whether they are lobbying on behalf of a corporation of which they are a member of the board of directors or on behalf of an organization of which they are a member of the organization or of its board of directors. Disclosing this information in the Registry will provide a more accurate representation of an individual’s lobbying activities.

To better administer the various types of returns required and the associated timelines by which these returns must be filed, consultant lobbyists are asked to indicate in the return the date that they entered into an undertaking and the date the undertaking was terminated. Similarly, corporations and organizations whose employees lobby must provide the date that the requirement to file a return arose and ended.

The Lobbying Act prohibits the payment and acceptance of contingency fees. To facilitate enforcement, consultant lobbyists are asked to certify that the payment for the undertaking for which they are filing a return respects this prohibition.

Monthly returns

In addition to the current returns being filed, the amendments to the Act require all three types of lobbyists to file additional returns regarding prescribed types of communication with designated public office holders on a monthly basis.

The Regulations prescribe the types of communication as oral and arranged communication excluding oral and arranged communication initiated by public office holders related to the development of policy, programs or legislation. Oral and arranged communications relating to contracts and financial benefits must be reported even when initiated by public office holders. This approach is consistent with the principles of the Act by providing comprehensive and timely information on the lobbying of senior government officials without hindering the Government’s ability to consult Canadians by limiting the registration burden on individuals and organizations that are being consulted by the Government.

For the prescribed types of communication, the new monthly returns require all three types of lobbyists to disclose the name, title and department of each designated public office holder with whom they have communicated, the date of the communication and the subject matter of the communication.

Verification of information in returns

The Act requires the Commissioner to establish and maintain a public registry which contains the information submitted in returns. To ensure the validity of the information in the registry, the Act authorizes the Commissioner to verify any information submitted in returns. The Act also requires that individuals who have filed a return clarify any information that they have provided to the Commissioner in the return within 30 days of a request. The Regulations reflect this time limit of 30 days for individuals to respond to the Commissioner’s request for clarification of information. The Regulations add a new requirement that individuals must make any corrections to their returns within 10 days of the Commissioner’s request. This is to ensure that accurate information is presented in the Registry in a timely manner.

Alternatives

The Regulations reflect the amendments to the Act. If these Regulations are not made, there will be no authority to require the filing of monthly returns or to require other information on lobbying activities that is necessary to implement the Act. As well, a failure to prescribe the form and manner for lobbyists to register would mean that individuals would be able to file in any form or manner they choose, thus making the registration system unmanageable.

Benefits and costs

The Act was amended to enhance transparency and ethics in lobbying by providing Canadians with more information regarding lobbying activities. The Regulations support the Act by setting out a registration scheme that ensures transparency is achieved, thereby fulfilling the intent and purpose of the Act. The Lobbying Act builds on the current registration regime by requiring new monthly registrations.

Individuals, corporations and organizations that lobby the Government of Canada are currently required to register. The amendments in the Lobbying Act are not expected to significantly affect the number of organizations and individuals that are required to register. Although the number of transactions registered lobbyists will have with the registry will increase, the on-line Lobbyists Registration System is a key feature in the registration process and will be restructured to ensure that it is user-friendly and efficient in order to decrease the amount of time and effort required to register. The system will be made more coherent and will be equipped with an administrative interface that will facilitate the management of returns by lobbyists thus simplifying and streamlining the registration process.

In order to further minimize the administrative burden on individuals and businesses, the Regulations limit the monthly reporting requirement to arranged, oral communication excluding any government initiated communication related to the development of any legislative proposal; the making or amending of any regulation; and the development or amendment of any policy or program. This approach is responsive to stakeholders’ concerns and is consistent with the Government’s policy on citizen engagement.

Consultation

On-line, public consultations were held between March 1 and March 23, 2007; all registered lobbyists were contacted directly and were provided the opportunity to participate in this consultation. Members of the public were invited to send their views via a questionnaire accessible through the “Consulting Canadians” Web site, the Web sites of the Office of the Registrar of Lobbyists (ORL) and Treasury Board Secretariat (TBS).

The consultation process gave stakeholders, lobbyists and Canadians the opportunity to provide their views on proposed options and the design of the registration system. More specifically, the Government sought input on key elements of the Regulations including the types of communication requiring the filing of the new monthly returns and the level of detail regarding the subject-matter that should be disclosed. Views were also sought on non-regulatory aspects of the registration system, such as the help services of the ORL and the helpfulness of interpretation bulletins and other instructional products.

The results of the consultations helped inform the preparation of the Lobbyists Registration Regulations and will guide the ORL in designing and tailoring the online registry to ensure maximum user friendliness.

The proposed Regulations were pre-published on January 5, 2008 for a 30-day comment period. During this period, which ended on February 4, 2008, twelve submissions were received from various stakeholders representing all three types of lobbyists, as well as one submission from an individual Canadian. Most of the comments presented touched on similar issues, including:

• Concerns that if registrants’ email addresses were published online in the registry, they could be harvested for spam purposes. The Regulations have been amended and registrants will no longer be required to provide their email address in returns. The Office of the Commissioner of Lobbying will continue to request email addresses for administrative purposes; however, email addresses will not appear in the public registry as a component of the business address.
• Comments regarding the prescribed types of communication for monthly returns. A few commented that the monthly returns should cover all communications. Others suggested that the concept of “oral and arranged” be further defined. The intent in prescribing all oral and arranged communications initiated by a lobbyist and those oral and arranged communications initiated by a public office holder that relate to a contract or financial benefit is to achieve a balance between enhancing transparency and limiting the reporting burden on lobbyists. The terms “oral” and “arranged” may be understood with reference to their common and ordinary meanings. Further interpretation or guidance on whether certain lobbying activities would fall within the scope of these terms may be issued by the Commissioner.
• Requests for clarification regarding the date that a paper return or other paper documents would be considered received by the Commissioner. The Regulations have been updated to prescribe the date of receipt of paper documents by the Commissioner.
• Comments touching on the provisions of the Act itself, which go beyond the regulation-making powers of the Governor in Council.
• Observations focusing on the administrative processes of the Office of the Registrar and Commissioner. These recommendations were referred to that Office for consideration.

Compliance and enforcement

Individual consultant lobbyists and officers responsible for filing on behalf of corporations and organizations are responsible for complying with the Act. The Commissioner of Lobbying has the authority to interpret the Act and Regulations and to issue bulletins and advisory opinions on the Act to facilitate compliance. The Commissioner is also mandated with providing and directing educational and outreach functions to lobbyists to promote compliance through direct communications, information sessions, media relations, conferences, learning events, and dialogue with other jurisdictions.

The Registry Web site material is being reviewed and updated continually to make sure that the various users understand all of the processes related to the filing of returns. The updated Web site material will be presented in plain language with easily understood directions and information for lobbyists, public office holders and the public. A continuous improvement approach is being taken on the on-line system, to ensure that the LRS is regularly updated to meet the needs of users.

The Lobbying Act expands the investigative powers of the Commissioner of Lobbying allowing for investigations, where necessary, to ensure compliance with the Act as well as the Lobbyists’ Code of Conduct. The Regulations support the Commissioner by setting time limits for individuals who have filed a return to respond to a request for clarification or correction of the information submitted to the Commissioner. When the Commissioner makes the request, the Commissioner will indicate which type of request he or she is making and the time limit that applies under the Regulations.

The Lobbying Act expands the timeframe under which possible contraventions of the Act may be investigated and prosecuted. The Act also expands the offences and doubles applicable fines. If an individual is convicted of an offence under the Act and in addition to any sentence that may be imposed by a court, the Commissioner may, if it is in the public interest, prohibit the individual from lobbying for up to two years.

Contact

Lobbyists Registration Regulations
Strategic Policy
Corporate Priorities, Planning and Policy Renewal Sector
Treasury Board of Canada Secretariat
140 O’Connor Street
Ottawa, Ontario
K1A 0R5
Telephone: 613-957-8485
Fax: 613-952-1010
Email: StrategicPolicy-PolitiqueStrategique@tbs-sct.gc.ca

Footnote a
S.C. 2006, c. 9, s. 79 and ss. 81(g)

Footnote b
R.S., c. 44 (4th Supp.); S.C. 2006, c. 9, s. 66

Footnote 1
SOR/95-579

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