Public access to the government and public office holders for the purposes of lobbying is integral to the democratic process. In order to maintain democratic accountability and the transparency of access to public office holders, the federal government created a lobbyist registration system in 1998. Five provinces (Ontario, British Columbia, Quebec, Nova Scotia and Newfoundland) have similarly enacted lobbyist legislation and one province is in the process of doing so.

The pre-amble to the federal Lobbyists Registration Act states that “lobbying public office holders is a legitimate activity” but also cautions that “it is desirable that public office holders and the public be able to know who is engaged in lobbying activities.” For this reason, the Federal Act requires the registration of any person who is engaged in any communication with a public office holder about a government decision, or in an attempt to influence a government decision. It should be noted that a casual conversation with a public office holder, even if the conversation is initiated by the public office holder, is also captured. However, in general, it will not be considered lobbying to enquire about publicly available information or to make submissions, in proceedings that are a matter of public record, to a body or person having statutory jurisdiction.

Two types of people must register under the federal system: consultant lobbyists and in-house lobbyists. A consultant lobbyist is a person who is paid to lobby for an organization. An in-house lobbyist refers to an employee in an organization (for profit or not-for-profit) who spends 20 per cent or more of his or her time and duties lobbying. If a group of employees of an organization spend, in aggregate, 20 per cent or more of their time lobbying, these employees will also be required to register. For the most part, a volunteer lobbyist does not have to register but there are exceptions.

Important amendments to the Lobbyists Registration Act will soon come into force (although the types of lobbyists required to register will remain unchanged since last amended in 2005). These amendments appear in the proposed Federal Accountability Act by which the Lobbyists Registration Act will be renamed the Lobbying Act to highlight the fact that the scope of the legislation goes beyond registration requirements.

In addition, the Federal Accountability Act will significantly stiffen penalties for contravention of the federal lobbying legislation. Penalties will apply to an individual for failure to file a return, or for making false or misleading statements in a return or other document, and could include publication of the offence, prohibitions from lobbying for up to two years, and fines up to $50,000 or $200,000, and/or imprisonment of up to six months or two years, depending upon the type of offence. The monetary penalties represent a significant increase from the current limits of up to $25,000 or $100,000, depending upon the type of offence.

As evident in the pre-amble to the Lobbyists Registration Act, the policy behind lobbying legislation is to recognize the right to lobby, while ensuring greater transparency.

Torkin Manes Cohen Arbus LLP, Barristers & Solicitors is a full-service, Toronto-based law firm, committed to providing personalized and high-quality legal services. For more information about the firm, its areas of practice and its lawyers, please visit http://www.torkinmanes.com.

Linda Godel is a lawyer at Torkin Manes and a member of the firm’s Business Law group. She can be reached at (416) 643 8809 or lgodel@torkinmanes.com. Allan Oziel is a student-at-law in the Torkin Manes’ Business Law group.

Editor’s Note: Unregistered lobbying is both illegal and subject to intense scrutiny and business leaders can either be convicted and fined, or suffer the damage to their corporate reputation. To prevent this from occurring, the CRFA has taken the means necessary to ensure its members register as lobbyists in order to protect them from prosecution.

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