B.C’s lobbying rules are changing (again) — here’s what you need to know
On May 4, 2020, significant changes to British Columbia’s lobbyist registration regime will come into effect. These latest reforms are statutory and regulatory. Statutory, because the implementation of the Lobbyists Registration Amendment Act, 2018 will transform the Lobbyists Registration Act into the Lobbyists Transparency Act (the “Act”). Regulatory, because the Lobbyists Transparency Regulation (the “Regulation”) will replace the Lobbyists Registration Regulation.
If you communicate with British Columbia government officials as part of your business, the revised rules will apply to you. Under the new rules, violations could result in monetary penalties of up to $25,000 and a ban on lobbying of up to two years.
This lobbying law update is intended as general guidance only. If you have specific questions or concerns, or want to confirm that your organization’s corporate policies and procedures are in line with the amended Act and the new Regulation, please contact Awi Sinha, Alexandra Cocks, Adam Goldenberg, or Jacob Klugsberg. We would be pleased to assist you.
British Columbia’s Lobbyists Registration Amendment Act, 2018 passed third reading in the Legislative Assembly on November 26, 2018. The Act is intended to reflect the provincial government’s commitment to reforming the province’s lobbying rules, with the aim of increasing transparency.
On November 25, 2019, the government announced that the provisions of the Act that have not yet come into force will do so on May 4, 2020. The same day, the B.C. government published the Regulation. It, too, will come into force on May 4, 2020.
What will change?
The Act and the Regulation will significantly alter British Columbia’s lobbyist registration rules. In addition to the title of the Act changing from the Lobbyists Registration Act to the Lobbyists Transparency Act, the following changes will take effect on May 4, 2020:
- In-house lobbying will immediately trigger a registration obligation
From May 4, 2020, an “organization” (such as a corporation, a trade union, a charity, or a government other than the Government of British Columbia) will be required to file a return with the provincial Registrar of Lobbyists within 10 days after any of the organization’s paid employees, officers, or directors has become an “in-house lobbyist” by lobbying a provincial public office holder.
This obligation to file a return will fall on the organization’s most senior paid officer (usually the President, CEO, or Executive Director) or, if the organization’s most senior officer is not paid, on the organization’s most senior in-house lobbyist.
Crucially, this obligation will arise regardless of the amount of time that the organization’s paid employees, officers, and directors have spent on provincial lobbying activities, either individually or collectively. There will no longer be a registration “threshold”, i.e., a number of hours that an organization’s personnel may collectively devote to lobbying without the organization’s incurring registration obligations.
The current rules require an organization to register when its paid employees, officers, and/or directors collectively devote at least 100 hours annually to provincial lobbying. This means that, conversely, if an organization’s in-house lobbying efforts stay below the 100-hour threshold, no registration is required. Ontario, by comparison, has a similar rule; however the threshold is only 50 hours in a year.
The Act will do away with the 100-hour threshold, with a carve-out for small organizations, discussed below. There will no longer be any number of hours that an organization’s employees, officers, and directors may devote to lobbying without triggering an obligation to register. As a result, there will likely be many organizations that will be required to register for the first time because of their paid employees’, officers’, and directors’ lobbying activities after May 4, 2020.
In order not to penalize small businesses and non-profits, an exception will be added to permit paid employees, officers, and directors of organizations with fewer than six employees to lobby without registration, provided that the organization’s lobbying activities have totaled fewer than 50 hours in the preceding 12 months. As discussed below, this would mean that, once the 50-hour threshold has been reached, the organization’s most senior paid officer (or most senior in-house lobbyist) would have 10 days to register. However, this exception will not be available to organizations whose primary purpose is to represent the interests of its members or to promote or oppose issues — i.e., small industry associations and advocacy organizations — unless the lobbying in question is not for either purpose.
- Consultant lobbyists will only need to register after they start to lobby
The amended Act will permit a “consultant lobbyist” — an individual who, for payment, undertakes to lobby on behalf of a client — not to register right away. After May 4, 2020, consultant lobbyists will need to file registration returns within 10 days of beginning to lobby on behalf of a client.
Under the existing rules, consultant lobbyists are required to register within 10 days of entering into an agreement to lobby on behalf of a client, regardless of when the lobbying activities take place.
Organizations that employ in-house lobbyists, by contrast, will have less time to register. Organizations are currently not required to register in respect of in-house lobbying until 60 days after one or more of their paid employees, officers, and directors becomes an in-house lobbyist for the first time. After May 4, 2020, the organization will be required to register within 10 days of when one of the organization’s paid employees, officers, or directors lobbies for the first time.
- Only one registration will be required
The amended Act will also clarify the number of returns that a lobbyist or an organization that employs an in-house lobbyist must file. After May 4, 2020, a consultant lobbyist will only be required to file a single return for each undertaking, regardless of the number of “lobbying activities” involved in that undertaking.
The current rules are silent regarding the number of returns that organizations with in-house lobbyists need to file. The Act will fill this gap by clarifying that, after May 4, 2020, an organization will only need to file a single registration, regardless of the number of in-house lobbyists or number of lobbying activities conducted by the in-house lobbyists named in the registration.
- Lobbyists and organizations will need to provide more detail about their lobbying activities
There are a number of changes regarding what will need to be communicated in a registration return. After May 4, 2020:
- Consultant lobbyists and organizations with in-house lobbyists will need to identify, in addition to whom they are lobbying, the intended outcome of their lobbying efforts.
- Consultant lobbyists and organizations with in-house lobbyists will be required to identify persons or organizations that have contributed $1,000 or more towards their lobbying activities in the previous 12 months and that have a direct interest in the outcome of those activities. This mirrors the Ontario rules, which require consultant lobbyists and organizations with in-house lobbyists to disclose the names of non-government entities or organizations that have provided $750 or more during the previous fiscal year to support their lobbying activities.
- Consultant lobbyists and organizations with in-house lobbyists will need to disclose not only “the name of any government, government agency or Provincial entity that has funded, in whole or in part, the [consultant’s] client or [the] organization [that employs in-house lobbyists] within the preceding 12 months, and the amount of that funding”, but also “the name of any government, government agency or Provincial entity from which the client or organization has requested funding within the preceding 12 months, and the amount of that requested funding”.
- Consultant lobbyists will need to identify whether they have been “engaged to lobby on behalf of a client of a person or organization” and, if so, “the name and business address of the client”. This will seek to prevent entities from keeping their lobbying activities secret by retaining consultant lobbyists indirectly.
- Consultant lobbyists will need to identify whether all or part of the payment they have received is contingent on the outcome of a lobbying activity or successfully arranging a meeting. This is less strict than the federal lobbying rules and the provincial rules in Alberta, Ontario, Québec, and Prince Edward Island, which ban contingent fees altogether.
- Lobbyist registration returns will need to include a declaration of whether the lobbyist(s) named in the return is/are bound by a relevant code of conduct that is publicly available and administered by an organization, as well as information about the code of conduct and the administering organization.
- Monthly returns will be required
The Act will, for the first time in British Columbia, require consultant lobbyists and organizations that employ in-house lobbyists to file monthly activity reports. Once the remaining provisions of the Act come into force, these monthly returns will be required to contain details of the registrant’s lobbying activities, including who is lobbying whom, when, and about what, and the particulars of any gifts to public office holders or political contributions made by lobbyists or (in the case of consultant lobbyists) by their clients since the start of the previous provincial election.
A monthly return will not be required if no lobbying activities have occurred in the preceding month. However, if no lobbying activities have occurred for five months, then a return stating as much will need to be filed at the end of the sixth month. This requirement will replace the organization’s existing obligation to file a return “within 30 days of the end of each 6-month period after the date of filing the previous return”.
- Gifts to public office holders will be (all but) banned
After May 4, 2020, lobbyists may not give or promise to give gifts, either directly or indirectly, to any public office holder whom the lobbyist is lobbying. The only exception is for gifts “under the protocol or social obligations that normally accompany the duties or responsibilities of office of the public office holder”, and only to the extent that the total value of all such gifts in a 12-month period does not exceed $100.
- The Registrar will have broader enforcement powers
In addition to the current administrative monetary penalties of up to $25,000, the amended Act will give the Registrar the ability to impose a prohibition on lobbying and related activities of up to two years.
- Mandatory five-year review
The Act will require a committee of the Legislative Assembly to review the Act at least once every five years, and submit a report to the Legislative Assembly within one year of beginning the review. The report may recommend amendments to the Act.
The bottom line
Jurisdictions across Canada are trending towards lobbying rules that require more registration, that track and publicize more activity, and that stiffen punishments for contraventions. These trends are evident in the latest changes to British Columbia’s lobbying rules — particularly the elimination of registration thresholds, enhanced reporting requirements, a new category of prohibited conduct, and new penalties that can be levied against rule breakers.
Everyone who engages with government in British Columbia — whether they are obligated to register under the soon-to-be-former rules or not — should take time to review these legislative and regulatory changes and understand their impact before May 4, 2020.
Our team at McCarthy Tétrault LLP can help. Please contact Awi Sinha, Alexandra Cocks, Adam Goldenberg, or Jacob Klugsberg with any questions or for assistance.