In this presentation, Cyrus Reporter offers a review of registration requirements for associations, as well as an update on Lobbying Act 5 Year Review and Lobbyists' Code of Conduct and Rule 8.

1. An Update For “In House” Lobbyists
Presented by: Cyrus Reporter, Counsel FMC LLP
Phone: +1 613 783 9630
Email: cyrus.reporter@fmc‐law.com
LinkedIn: http://ca.linkedin.com/pub/cyrus‐reporter/2/842/414
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2. Topics
1. Review of Registration Requirements for Associations
2. Update: Lobbying Act 5 Year Review
3. Update: Lobbyists’ Code of Conduct & Rule 8
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3. Lobbying Act Preamble
• Free and open access to government is an important matter of
public interest.
• Lobbying public office holders is a legitimate activity.
• It is desirable that public office holders and the public be able
to know who is engaged in lobbying activities.
• The system for the registration of paid lobbyists should not
impede free and open access to government.
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4. What is Lobbying?
Lobbying is communicating with a public office holder, for
payment in respect of:
• The development of any legislative proposal,
• Introduction, defeat or amendment of any Bill or resolution,
• Making or amendment of any regulation,
• Development or amendment of any policy or program,
• Awarding of any grant, contribution or other financial benefit,
• Awarding of any contract (consultants),
• Arranging a meeting between a public office holder and any
other person. (consultants)
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5. Public Office Holders (POH)
Means any officer or employee of Her Majesty in right of Canada and
includes:
• A member of the Senate or the House of Commons and any person on the
staff of such a member,
• A person who is appointed to any office or body or with the approval of the
Governor in Council or a minister of the Crown, other than a judge
receiving a salary under the Judges Act or the lieutenant governor of a
province,
• An officer, director or employee of any federal board, commission or other
tribunal as defined in the Federal Courts Act,
• A member of the Canadian Armed Forces, and
• A member of the Royal Canadian Mounted Police.
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6. Activities Not Considered Lobbying
• Oral or written submissions to a parliamentary committee
where there is a public record
• Oral or written submissions made to any person or body which
has jurisdiction under a federal statute, in proceedings that are
a matter of public record
• Oral or written communication made to a public office holder
with respect to the enforcement, interpretation, or application
of any existing federal statute or regulation by that official
• Oral or written communication made to the public office
holder if the communication is restricted to a simple request
for information
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7. Categories of Lobbyists
1. Consultant Lobbyists
A person hired to communicate on behalf of a client
(consultants, lawyers, accountants etc)
2. In House Lobbyists (Corporation)
An employee of a “for profit” entity who lobbies to an extent
described in the Act.
3. In House Lobbyist (Organization)
An employee of a “not for profit” entity who lobbies to an
extent described in the Act.
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8. Triggering the Requirement for an
Association to Register
• If total lobbying activities by employees would constitute a
significant part of the duties of a single equivalent employee
• “Significant part” is deemed to be 20% over a month period
• Activities include preparation for lobbying
• Registration for the organization must be filed not later than
two months after the day on which the requirement to file
arises
• Registration is the responsibility of the most senior paid
executive of the organization
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9. Registration Information
The following information must be disclosed in an initial filing:
• Name and position title of senior officer;
• Name and business address for organization;
• General description of organization’s activities;
• General description of organization’s membership;
• Names of employees who lobby including, as applicable, the senior officer;
• Indication if employees are former public office holders, designated public
office holders, former transition team members and if exemptions granted;
• Details re: subject matters including legislation, bills or resolutions,
regulations, policies, programs, grants, contributions or other financial
benefit sought;
• Name of government department or other institution lobbied;
• Source and amount of any government funding provided as well as
expectation of funding; and
• Communication techniques used, including grassroots lobbying
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10. Additional Monthly Disclosures
Required no later than 15 days after the end of every month if:
• Oral and Arranged communication with a Designated Public
Office Holder (DPOH) took place during the month being
reported upon,
• Information contained in an active return is no longer correct
or additional information that the lobbyist has become aware
of should be included in an active return,
• The lobbying activities have terminated or no longer require
registration,
• Five months have elapsed since the end of the last month in
which a return was filed.
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11. Designated Public Office Holders (DPOH)
The LA defines DPOH as:
• A minister of the Crown or a minister of state and any person
employed in his or her office who is appointed under
subsection 128(1) of the Public Service Employment Act,
• Any other public office holder who, in a department within the
meaning of paragraph (a), (a.1) or (d) of the definition
“department” in section 2 of the Financial Administration Act:
– occupies the senior executive position, whether by the title of deputy
minister, chief executive officer or by some other title, or
– is an associate deputy minister or an assistant deputy minister or
occupies a position of comparable rank, and
– Any individual who occupies a position that has been designated by
regulation under the provisions of the Lobbying Act.
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12. Other Designated Public Office Holders
The first eleven positions or classes of positions were designated by way of regulation on July 2, 2008:
• Chief of the Defence Staff
• Vice Chief of the Defence Staff
• Chief of Maritime Staff
• Chief of Land Staff
• Chief of Air Staff
• Chief of Military Personnel
• Judge Advocate General
• Any positions of Senior Advisor to the Privy Council Office to which the office holder is appointed by the
Governor in Council
• Deputy Minister (Intergovernmental Affairs) Privy Council Office
• Comptroller General of Canada
• Any position to which the office holder is appointed pursuant to paragraph 127.1(1)(a) or (b) of the Public
Service Employment Act
The next three positions or classes of positions were designated by way of regulation on September 20,
2010:
• Members of Parliament
• Senators
• Staff working in the offices of the Leader of the Opposition in the House of Commons and in the Senate,
appointed pursuant to subsection 128(1) of the Public Service Employment Act.
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13. Communications with a DPOH
A communication must be disclosed in a monthly report if:
• It is both oral and arranged,
• It is requested by the lobbyist,
• There is a time interval between the request and the
communication,
• The arranged communication is:
– A phone conversation,
– A meeting,
– Any other oral communications.
• It is initiated by a DPOH when the subject matter refers to the
awarding of grants, contributions or other financial benefits
and the awarding of any contract.
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14. Communications with a DPOH
The monthly returns regarding communications with a DPOH
must include:
• Name and position/rank of DPOH,
• Government institution of DPOH,
• Date of the communication,
• Subject matter of the communication,
The Commissioner may verify with DPOH the content of the
monthly return.
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15. Penalties (Breaches of the Act)
• Up to $50,000 and/or six months in jail on summary conviction
• Up to $200,000 and/or two years in jail on indictment
• Proceedings by way of summary conviction:
– may be instituted at any time within but not later than five years after the day
on which the Commissioner became aware of the subject matter of the
proceedings, and
– not later than ten years after the day on which the subject‐matter of the
proceedings arose.
Note: The above penalties apply to every individual who fails to file a return or
who knowingly makes any false or misleading statement in any return or other
document submitted to the Commissioner, including a DPOH or a former
DPOH who is asked to verify a monthly communications report.
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16. Lobbying Act 5 Year Review
• Standing Committee on Access to Information, Privacy and
Ethics currently conducting a statutory review of the Act
• Hearings began Dec. 13, 2011
• Over 20 witnesses so far including the federal Commissioner,
provincial authorities, CBA
• Final witnesses will be heard next week
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17. Lobbying Act 5 Year Review
Common recommendations include:
• Creation of new administrative monetary penalties
• Elimination for “significant part of duties” test
• Improving transparency of “monthly reports”
• Harmonizing filing requirements for organizations and
corporations
• Changing the requirement for Board Directors to register
(including not for profit)
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18. Lobbyists’ Code of Conduct & Rule 8
• Code of Conduct came into effect in 1997
• Complimentary to the Lobbying Act but does not have effect of
legislation
• Purpose is to ensure that lobbying occurs at highest possible
ethical level
• Like similar Codes it lays out objectives and goals without
prescribing specific standards
• The Code lays out eight “rules” or objectives
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19. Lobbyists’ Code of Conduct & Rule 8
• Rule 8 re: “improper influence” prohibits lobbyists from placing public
office holders in a conflict of interest or a perceived conflict of interest
• Recent rulings by Commissioner have caused great concern
• Opinions and 2009 Federal Court of Appeal case may put into question
ability of lobbyists to engage in certain political activities
• What constitutes a breach would depend on the facts in each case
• Key is creating a “tension” between a public office holder’s public duties vs
a private obligation that could be created by a lobbyist’s activities
• Issue has been forcefully argued at Standing Committee hearings
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20. The preceding presentation contains examples of the kinds
of issues companies dealing with lobbying could face. If you
are faced with one of these issues, please retain professional
assistance as each situation is unique.

21. Thank You
Cyrus Reporter
cyrus.reporter@fmc‐law.com
http://ca.linkedin.com/pub/cyrus‐reporter/2/842/414
+1 613 783 9630