2020 has been marked by a series of significant public health and economic actions by both the federal and provincial governments in Canada in response to the COVID-19 pandemic.
In developing these policies, governments engaged and continue to engage with business groups, unions, social groups, and non-governmental agencies in Canada. They have received and continue to receive solicited and unsolicited representations from the public, including businesses, as the policies and programs evolve.
Do You Need to Register in New Brunswick’s Lobbyist Registry?
The long-coming proclamation of the New Brunswick Lobbyists’ Registration Act (the “Act”) occurred on April 1, 2017. With it came broad ranging public reporting obligations for lobbyists and potentially serious consequences for non-compliance.
The Act governs all lobbying activities in the Province of New Brunswick and requires each lobbyist to register with an Integrity Commissioner (the “Commissioner”) and to file returns that disclose information about the lobbyist’s activities.
The Act covers not only traditional consultants hired to lobby on behalf of clients, but also employees who lobby government on behalf of their employer. As a result, employees and employers would be well advised to examine the Act and determine whether they are required to file lobbying returns.
What Does the Act cover?
Despite the Act’s broad implications, it does not capture all communications with government. In order to create a reporting obligation, a lobbyist must engage with a public office holder (government official) in an activity that constitutes lobbying.
Who is a Lobbyist?
There are two types of lobbyists.
- A consultant lobbyist is a traditional lobbyist – a paid professional engaged by a client to lobby government.The payment can be in any form of remuneration or benefit.
- An in-house lobbyist is an employee of a person (including a corporation), partnership or organization that meets certain prescribed criteria.In particular, does the individual spend more than 20% of his or her time lobbying on behalf of his or her employer, or is he or she part of a group of employees who, together, spend the equivalent of 20% of the time of one full-time employee lobbying government (all percentages being calculated over a 3-month period)?If so, the individual is an in-house lobbyist.
The calculation of the 20% threshold includes any time spent on behalf of the employer’s parent company and any of its subsidiaries, unless the employer is an organization (which includes non-profit oriented organizations such as business or professional organizations, trade unions, labour organizations, chambers of commerce, other governments, charities, not-for-profits and interest groups).
Public Office Holders
The Act applies to any attempt to influence a public office holder. This includes an MLA, a Cabinet minister, any employee of the provincial public service (including government departments, school districts, health and ambulance authorities and Crown corporations) and members of district education councils and regional health authority boards.
The following are not included within the meaning of public office holder and interactions with any of them do not create a reporting obligation: councillors and employees of municipalities and rural communities, members of local service district councils and members and employees of regional service commissions. Federal elected officials and employees are also not subject to the Act, however a federal statute, the Lobbying Act (Canada), governs lobbying at the federal level.1
To lobby does not include all interactions with the provincial government, but only a discrete set of attempts to influence public officer holders with respect to any of the following:
- the development of a legislative proposal,
- the introduction, passage, defeat or amendment of a public bill or a motion in the Legislative Assembly,
- the making or amendment of a regulation,
- the development, amendment or termination of any policy or program of the government,
- a Cabinet decision to sell all or part or any interest in or asset of any business, enterprise or institution that provides goods or services to the government or the public,
- a Cabinet, Cabinet committee or ministerial decision to have the private sector instead of the government provide goods or services to the Crown, and
- the awarding of any grant, contribution or other financial benefit by or on behalf of the Crown.
For a consultant lobbyist only, lobbying :
- arranging a meeting between a public office holder and any other person, and
- communicating with a public office holder in an attempt to influence the awarding of any contract by or on behalf of the Crown.
Interactions with government on behalf of a client or an employer do not fall under the Act if they relate to, with respect to that specific client or employer:
- the enforcement, interpretation or application of a law or regulation, or
- the implementation or administration of any policy, program, directive or guideline.
A good example is an environmental impact assessment (EIA). The usual interactions that a company and its employees and consultants will have with government officials in connection with an EIA process are excluded, however any attempt to influence changes in the EIA process, or to obtain exemptions not otherwise provided for in law, would constitute lobbying.
Other specific activities are also excluded:
- an individual’s own interactions with government,
- submissions made to the Legislature, its committees or its officers or in direct response to a request for comment from a public officer holder,
- a person who approaches an MLA to assist that MLA’s own constituents, and
- public sector trade union negotiations and the administration of public sector collective bargaining agreements.
A consultant lobbyist and an in-house lobbyist who is not employed by an organization is required to file a return with the Commissioner in relation to his or her lobbying activities. A return relating to an in-house lobbyist employed by an organization must be filed by the senior officer of the organization.
The deadline to file a return depends on the type of lobbyist.
- A consultant lobbyist must file a return within 15 days of starting to lobby on behalf of a client. Every new client and every new engagement on behalf of an existing client will result in a reporting obligation.
- A return relating to an in-house lobbyist must be filed within 2 months after the employee meets the definition of an in-house lobbyist.
In all cases, an updated return must be filed every 6 months, and any change to any information disclosed in a return must also be reported. A return must also be filed at the end of a lobbying engagement by a consultant lobbyist and whenever an in-house lobbyist no longer meets the criteria of an in-house lobbyist.
Despite these deadlines, the Act provides a grace period during the first 3 months of its application for lobbying activity that was actually occurring when the Act came into force (on April 1, 2017) – returns for this type of activity must be filed only by July 1, 2017.
To file a return, a lobbyist (or, in the case of an organization, its senior officer) must register as a user in the Commissioner’s online lobbyist registry.
Information Disclosed in a Return
A return requires the following type of information to be disclosed for each client or employer and, in the case of a consultant lobbyist, for each lobbying activity:
- the name, business name (if any), address and other contact information of the lobbyist,
- the type of lobbyist (consultant or in-house),
- the name, address and other contact information of the client or employer,
- if the individual is an in-house lobbyist not employed by an organization, the name, address and other contact information of any parent company and subsidiary,
- the subject matter of the lobbying activity,
- the ultimate objective of the lobbying efforts,
- the government department or agency that is the target of the lobbying activity,
- the communication methods used,
- whether any MLA has been or will be contacted as part of the lobbying efforts,
- whether the client or employer has received government funding, and if so how much and from what government department or agency, and
- whether the client or employer has received funding from a third party to support the lobbying activities, and if so the name, address and other contact information of the third party.
A return that is filed is published in a lobbyist registry on the Commissioner’s website that will be open to inspection by the public.
What if I Don’t File a Return?
The penalty for a failure to file a return is a fine of up to $25,000. For a second or subsequent offence, the maximum fine is $100,000.
1 Further information on Canada’s federal lobbyist registry can be found at the website for the Office of the Commissioner of Lobbying of Canada at lobbycanada.gc.ca.