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The Lobbyists Registration Act (the "Act")[1] applies to all persons who lobby the Government of Canada, whether for the benefit of their company or organization, or for the benefit of clients. The Act was amended in 2003 and 2004 to create new requirements, but the amendments are not yet in force. They are expected to be proclaimed in force by the summer of 2005.

There are three main changes that will affect persons who lobby on behalf of corporations and other business enterprises. They are:

• a broader definition of lobbying, which will result in more people having to register under the Act;
• a new regime for company personnel who lobby the federal government, including a new requirement to have the most senior officer of the company responsible for filing returns under the Act; and
• new time limits for filing and renewing filings.

Business enterprises that hire government relations consultants (called "consultant lobbyists" under the Act) or have officers or employees who spend some or all of their time dealing with the Government of Canada (called "in-house lobbyists" under the amended Act) should take note of these amendments. Corporations should also get ready to comply with the requirements of the amendments once they are proclaimed in force. Compliance is important in order to avoid possible penalties under the Act, and, perhaps more importantly, to avoid the potential damage to corporate reputation that could result from non-compliance.

What follows is an overview of the three main changes.

1. Definition of Lobbying

The amendments broaden the definition of "lobbying" by removing the notion of "attempting to influence" from the definition of "lobbying" in the Act. This means that any communication with a public office holder[2] will now be considered lobbying if it relates to:

• the development of any federal legislative proposal,
• the introduction of any federal Bill or resolution or the passage, defeat or amendment of any federal Bill or resolution,
• the making or amendment of any federal regulation,
• the development or amendment of any federal policy or program,
• the awarding of any federal grant, contribution or other financial benefit, or
• the awarding of any federal contract.

The requirement to register in regard to communications concerning federal government contracts does not apply in the case of company personnel who pursue contractual opportunities with the government. Only when a company hires and pays a consultant to help the company obtain a contract is registration required-and it is the consultant who must register, not the company.

It should be noted that, for the most part, the important exemption from all registration requirements of a broad range of communications with public office holders is retained in the amended Act. Such exempt communications to public office holders are:

• any oral or written submissions in any proceedings that are a matter of public record before any Parliamentary committee or any person or body having jurisdiction under a federal statute;
• any oral or written communication with respect to the enforcement, interpretation or application of any federal statute or regulation; and
• any oral or written communication that is limited to a request for information.

2. Corporate In-house Lobbyists

There are important changes to the registration requirements for corporations who have "in-house" officers or employees who communicate with public office holders on behalf of the corporation on matters that constitute lobbying under the Act and do not fall within the exclusions. In essence, the amended Act applies to corporations the same basic regime that is currently being used for organizations only, and makes the new, slightly modified regime applicable for the most part to both corporations and non-profit organizations.

This new regime for in-house corporate lobbyists differs significantly from the current regime, which places the onus of registration for corporate lobbying efforts on the individual employees of the corporation who carry on the lobbying efforts on behalf of the corporation.

The new regime requires the most senior officer[3] of the corporation who is compensated for the performance of his or her duties to register on the corporation's behalf when lobbying efforts constitute a "significant" part of any one person's duties or if the lobbying efforts of numerous employees would constitute a "significant" part of one person's duties if done by only one person. The term "significant" is not defined. The Lobbyists Registration Branch, however, interprets significant to be 20%[4] of a person's time, and there have been no judicial challenges to the interpretation.

Under the new requirements, it will be necessary for the senior officer to provide (i) detailed information about the corporation, (ii) a description of the lobbying efforts of the corporation, (iii) a list of the names of any senior officer (as defined) whose duties include lobbying on behalf of the corporation, regardless of the amount of time spent lobbying, and (iv) the names of all employees who spend a "significant" amount of their time (i.e., 20% or more) lobbying on the corporation's behalf. If any person named in the return is a former public office holder, a description of the offices held must be provided as well.

The treatment of outside directors (i.e., those who are not employees of the company in an employee-employer relationship) does not appear to be affected by the amendments to the Act. The current Interpretation Bulletin issued by the Lobbyists Registration Branch at Industry Canada states that if an outside director receives remuneration beyond reimbursement of expenses, the requirement for registration as a consultant lobbyist applies to any lobbying activities undertaken by that director.[5]

3. Time Limits for Registration and Filing Returns

Under the amended Act, the time limits for filing an initial return remain the same for consultants,[6] corporations and non-profit organizations.[7] However, the amended Act requires all lobbyists to update or renew their filings every six months. Registered lobbyists will be sent update/renewal notices, and those who fail to re-file within thirty days of the expiration of the six-month period will have their registration terminated automatically.

The amended Act also obliges former public office holders who register as lobbyists to provide information on their former positions.

Once the amended Act is proclaimed in force, corporations will have two months from the date the amendments come into force to register under the new requirements by filing a return completed by the most senior officer employed by the corporation.

Consultant lobbyists whose activities did not previously fall under the Act will also have two months to register by filing a return.

[1].    R.S.C. 1985, c. 44 (4th Supp.), as amended.

[2].    A public officer holder is broadly defined in the Act to include virtually all officers and employees of the federal government, as well as all politicians.

[3].    A senior officer in respect of a corporation is defined as the chief executive officer, chief operating officer, president or any other officer who reports directly to the chief executive officer, chief operating officer or president of the corporation.

[4].    According to the current Interpretation Bulletin issued by the Lobbyists Registration Branch at Industry Canada, entitled "Definition of 'Significant Part of the Duties,'" significant means 20% of a person's time or when all the lobbying by all paid employees would amount to 20% or more of the employment time of one employee (http://strategis.ic.gc.ca/epic/internet/inlr-el.nsf/en/lr01065e.html).

[5].    Advisory Opinion entitled "Board of Directors: Application of the Act to Outside Chairs and Members, Number 2 (Revised, 1998)" (http://strategis.ic.gc.ca/epic/internet/inlr-el.nsf/en/lr01048e.html).

[6].    Consultant lobbyists must register within ten days of entering into an undertaking to lobby.

[7].    Corporations and organizations must register within two months after the date on which the requirement to file a return first arises.

The purpose of this document is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault or any member of the Firm on the points of law discussed.

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