Publication

In keeping with similar laws enacted by the Parliament of Canada and the legislatures of certain other Canadian provinces, including Ontario, British Columbia and Nova Scotia, the Lobbying Transparency and Ethics Act, S.Q. 2002, c. 23 was adopted by Quebec's National Assembly on June 13, 2002. The Act, which draws heavily on its federal counterpart, the Lobbyists Registration Act , R.S., 1985, c. 44 (4th Supp.), seeks to foster transparency in the lobbying of public office holders and to ensure the proper conduct of lobbying activities in the Province of Quebec. It provides for the creation of a public registry in which lobbyists are to be registered and the nature of their lobbying activities disclosed on a continuous basis. The National Assembly has appointed Mr. André C. Côté to serve as Lobbyists Commissioner, in which capacity he is responsible for monitoring and controlling the lobbying of public office holders and is to report to the National Assembly on a yearly basis. The Act prohibits certain practices and provides for disciplinary measures and penalties to be imposed for any violations.

APPLICATION

The Act applies to the activities of lobbyists. It defines three types of lobbyists:

1. A "consultant lobbyist" is any person whose mandate consists, in whole or in part, in lobbying on behalf of another person, in return for compensation.
2. An "enterprise lobbyist" is any person a significant part of whose job or function within a profit-seeking enterprise consists in lobbying on behalf of the enterprise.
3. An "organization lobbyist" is any person a significant part of whose job or function consists in lobbying on behalf of an association or other non-profit group. However, a recently published regulation limits this definition to associations or other non-profit groups constituted to serve management, union or professional interests or the majority of whose members are profit-seeking enterprises.

Lobbying is defined to include any oral or written communication with a public office holder in an attempt to influence or that may reasonably be considered by the initiator of the communication as capable of influencing a decision pertaining to certain categories of subject matter, which categories include any legislative or regulatory proposal or the awarding of any contract, grant, permit, licence or authorization or any other form of benefit.

Persons considered to be public office holders include government ministers and members of the National Assembly and persons on their staff, government employees, persons appointed to a government agency or enterprise within the meaning of the Auditor General Act (R.S.Q., c. V 5.01) and employees of any such agency or enterprise, mayors and municipal councillors.

Certain persons, such as members of the Senate or House of Commons of Canada, employees of the Government of Canada and members of a band council, are excluded from the scope of the Act.

In addition, the Act does not apply in respect of certain activities, including submissions made in judicial or adjudicative proceedings or submissions made to a parliamentary committee. Also excluded are submissions made to a public office holder by a person other than a consultant lobbyist with a view to securing a form of benefit covered by the Act where the public office holder empowered to make the decision to grant the benefit has no discretionary authority. The Act also does not apply to submissions made in public proceedings, or in proceedings that are a matter of public record, to any person or body having jurisdiction or powers conferred by a statute, order in council or ministerial order, or to submissions made in response to a call for public tenders.

CREATION OF A PUBLIC REGISTRY

The Act provides for the creation of a public registry in which all lobbyists must register. This registry is to be kept by the Personal and Movable Real Rights Registrar and be open for inspection, on registry premises or by remote access, by members of the public who may obtain copies of the entries contained therein on payment of the fees prescribed by regulation. Consultant lobbyists must register within 60 days from November 28, 2002 in regard to lobbying activities commenced before that date; in the case of lobbying activities commenced on or after November 28, 2002, the time limit for registration is 30 days from the date on which the consultant lobbyist begins conducting the lobbying activities. The time limit for registration of enterprise and organization lobbyists is 90 days from November 28, 2002, or 60 days from commencement of the lobbying activities, depending on whether such activities were or were not already in progress on November 28, 2002. Registration materials are available online at http://si1.lobby.gouv.qc.ca/.

As prescribed by the Act and the regulation pertaining to the content of the lobbyists registry, registration is effected by filing an initial return in which the lobbyist must provide certain particulars. A consultant lobbyist is then required to disclose, among other things, the nature of his lobbying activities, the range within which his compensation falls (whether it is less than $10,000, more than $100,000 or in a range between those two levels), the identity of his client, the source of any public funding available to the client, the ministerial, deputy ministerial, managerial, professional or other nature of the functions of the public office holder with whom he has communicated or expects to communicate, the techniques of communication that he has used or expects to use and the duration and nature of such communications; the nature and term of any public office held by the consultant lobbyist in the two-year period prior to his engagement by his client must also be disclosed.

For their part, enterprise and organization lobbyists must disclose all of the above-mentioned information with the exception of their compensation, and must in addition provide the identity of the enterprise or group for whom they act, a summary of its business or activities and the identity of any subsidiary or affiliated enterprise that has an interest in the outcome of the lobbying activities. A lobbyist may request that the Lobbyists Commissioner order that some or all of the information contained in the return be kept confidential, for a period of up to six months, if the information relates to an investment project the disclosure of which would be likely to seriously prejudice the economic or financial interest of the client or enterprise for whom the lobbyist is acting.

Updates must be filed by the lobbyist in the event of any changes in the information contained in the initial return, including the termination of the lobbyist's engagement or any new lobbying activities, and the registration must, in any case, be renewed annually.

POWERS OF THE COMMISSIONER

The Lobbyists Commissioner, whose function is to monitor and control lobbying activities in the Province of Quebec, is to submit a draft code of conduct for lobbyists to the National Assembly by February 1, 2003. A document prepared for purposes of consultations to be held with a view to preparing such a draft code of conduct has already been tabled by the Commissioner.

The Act confers broad powers of inspection and inquiry on the Commissioner or any person authorized by him. A person acting as an inspector may enter the offices of a lobbyist or a public office holder and require these individuals to provide any information or document concerning any lobbying activity.

REGULATION OF ACTIVITIES

The Act sets out various prohibitions pertaining to lobbying activities in the Province of Quebec. Among other things, it prohibits:

• lobbying of a public office holder by a person who is not registered in the registry of lobbyists in respect of the lobbying activities concerned;
• performance-based compensation or compensation that is contingent on the achievement of a certain result or degree of success;
• compensation of a consultant lobbyist or enterprise lobbyist from funds derived from a government grant or loan.

Other prohibitions specifically concern lobbyists who have held a public office in the past. These prohibitions include:

• deriving undue advantage from having held a public office;
• lobbying in respect of procedures or negotiations in which the lobbyist was involved during or in connection with the exercise of a public office previously held;
• disclosing confidential information obtained during or in connection with the exercise of a public office previously held, or providing advice on the basis of such information.

Other restrictions concern persons who have held certain specific government positions (which include a member of the Executive Council, Member of the National Assembly authorized to sit in Cabinet, deputy minister or member of the executive staff). The Act prohibits these individuals from acting as consultant lobbyists for a period of one or two years, depending on the position held, following the date as of which they ceased to hold such office. It should be noted that there is no such restriction preventing these individuals from acting as enterprise lobbyists. These same individuals are also prohibited, for the same period of time, from lobbying any public office holder serving in the same institution where they held the government position. However, the prohibitions do not apply where the individuals concerned were already engaged in lobbying activities before June 13, 2002, the date on which the Act came into force, unless they were otherwise subject to a similar prohibition pursuant to a directive or an agreement.

COMING INTO FORCE OF THE ACT

The provisions of the Act are applicable to lobbying activities in progress on June 13, 2002, the date on which the Act came into force. However, because of certain delays in setting up the registry, the time limits for filing the statutory initial returns pertaining to lobbying activities have been set in the manner described under "Creation of a Public Registry".

DISCIPLINARY MEASURES AND PENALTIES

A lobbyist who has seriously or repeatedly breached his obligations under the Act may, upon a decision of the Commissioner, be struck from the lobbyists registry for a period of up to one year. Before issuing such a decision, the Commissioner is required to inform the lobbyist of the nature of the complaints and the evidence compiled against him and allow the lobbyist the opportunity of defending himself. The Commissioner's decision may be appealed by the lobbyist before the Court of Québec. It should be noted, however, that a lobbyist who is found to have breached his obligations under the Act may be required to remit the Government of Quebec the amount or value of any financial or other compensation received by or payable to him on account of the activities that gave rise to the breach. In such a case, the Act provides that the enterprise or group for which the lobbyist was acting at the time of the breach is solidarily liable with the lobbyist for payment of the Government's claim.

The Act also prescribes penalties in the form of fines of up to $25,000 for a lobbyist who:

• contravenes the registration requirements;
• registers false or misleading information;
• breaches an obligation under the Act or code of conduct;
• engages in lobbying activities in contravention of a decision of the Commissioner cancelling or prohibiting his registration as a lobbyist.

In the event of second or subsequent offences, the fines may be as high as $50,000.

REGULATORY PROVISIONS

The Government may make regulations, among other things, in order to exclude certain persons, bodies, agencies or lobbying activities from the application of the Act or set conditions under which such persons, bodies, agencies or lobbying activities are subject to its application. The Government may also establish, by regulation, other forms of benefits considered to constitute subject matter in respect of which decisions of public office holders may be influenced. Lastly, the Government may prescribe media and modes for the transmission of returns and notices of change required for the registration of a lobbyist in the registry and may set fees for the filing and consultation of returns.

To date, the only regulations that have been published and enacted by order in council have to do with the lobbyists registry and the definition of an organization lobbyist.

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