Prince Edward Island Lobbying Regime on the Horizon
February 1, 2018
Recently, the Prince Edward Island Legislative Assembly passed the Lobbyists Registration Act (Act). The passage of this legislation marks an important step towards establishing a lobbying regime in the province. A proclamation date has not yet been announced, but in other jurisdictions it has typically required several months between passage and proclamation to allow for an office and registry to be established. Currently, Prince Edward Island remains the only province (including the three territories) in Canada that does not have some form of lobbying law.
Once in force, the Prince Edward Island regime will be substantially similar to other provincial and federal regimes by regulating the disclosure of advocacy of public office holders and registration of in-house and consultant lobbyists.
REGULATED LOBBYISTS AND LOBBYING ACTIVITIES
The Act regulates in-house and consultant lobbyists. The registration thresholds for in-house lobbyists will be exceeded if a partnership, organization, corporation or person employs one or more employees whose duties (alone or collectively) are to lobby for at least 50 hours in a three-month period. There are no equivalent thresholds for consultant lobbyists since they qualify as lobbyists immediately upon undertaking to lobby on behalf of a client. The lobbying activities regulated under the Act generally apply to both in-house and consultant lobbyists and include communications with a public office holder in an attempt to influence:
- The development of a legislative proposal by the Government of Prince Edward Island or by a member of the Legislative Assembly
- The introduction of a bill or resolution in the Legislative Assembly or the passage, defeat or amendment of any bill or resolution that is before the Legislative Assembly
- The making or amendment of any regulation made by a minister or the Lieutenant Governor in Council
- The development or amendment of a policy or program of the Government of Prince Edward Island or the termination of any program of the government
- A decision by the executive council to transfer from the Crown for consideration, all or part of, or any interest in or asset of, any business, enterprise or institution that provides goods or services to the Crown or to the public
- A decision by the executive council, a committee of the executive council or a minister to have the private sector instead of the Crown provide goods or services to the Crown, or
- The awarding of any grant, contribution or other financial benefit by or on behalf of the Crown.
The Act also regulates certain lobbying activities specific to consultant lobbyists, including communicating with a public office holder in an attempt to influence the awarding of any contract by or on behalf of the Crown, or arrange a meeting between a public office holder and any other person.
The Act, like other federal and provincial legislation, regulates communicating with a public office holder in an attempt to influence the awarding of any contract by or on behalf of the Crown, but only in respect of advocacy by consultant lobbyists. It follows that communications absent awarding or negotiating contracts by in-house personnel would not constitute lobbying.
WHO IS A PUBLIC OFFICE HOLDER?
A public office holder, as defined under the Act, includes a member, officer or employee of the Legislative Assembly (including their staff), as well as employees of the Government of Prince Edward Island (including all ministers and political staff). A public office holder will also include members, officers or employees of an education authority, and persons who are appointed to any office or body by or with the approval of the Lieutenant Governor in Council or a minister (except a judge or a justice, a member of an administrative tribunal exercising a judicial function or the Information and Privacy Commissioner appointed pursuant to Freedom of Information and Protection of Privacy Act).
LOBBYIST REGISTRY IN PRINCE EDWARD ISLAND
Once proclaimed in force, the Prince Edward Island lobbying regime will require that consultant and in-house lobbyists submit a return to the Registrar of Lobbyists (Registrar). Consultant lobbyists will be required to file a return within 10 days after beginning any lobbying activities, and subsequently every six months within 30 days of the previous return date. Of note, a consultant lobbyist performing an undertaking to lobby will be required to file a return within 10 days of the date the legislation comes into force.
An in-house lobbyist, on the other hand, will be required to submit a return within two months after beginning their role, and subsequently every six months within 30 days of the previous return date. An in-house lobbyist will also be required to file a return within two months of the date the legislation comes into force.
EXEMPTIONS UNDER THE ACT
The Act exempts certain communications from the disclosure requirements and does not apply to the following types of communications:
- Oral or written submissions made in proceedings that are a matter of public record to a committee of the Legislative Assembly or to any body or person having jurisdiction or powers conferred by or under an Act.
- Oral or written submissions made to a public office holder by an individual on behalf of a person, partnership or organization regarding the enforcement, interpretation or application of any Act or regulation made under any Act by that public office holder regarding that person, partnership or organization.
- Oral or written submissions made to a public office holder by an individual on behalf of a person, partnership or organization with respect to the implementation or administration of any policy, program, directive or guideline by that public office holder regarding that person, partnership or organization.
- Oral or written submissions made to a public office holder by an individual on behalf of a person, partnership or organization, in direct response to an oral or written request from a public office holder for advice or comment.
- Oral or written submission made to a member of the Legislative Assembly by an individual on behalf of a constituent of the member regarding any personal matter of that constituent unless the submission is made in respect of influencing the awarding of any contract by or on behalf of the Crown, arranging a meeting between a public office holder and any other person, or a private bill for the special benefit of that constituent.
- Any communication made to a public office holder by a trade union regarding the administration or negotiation of a collective agreement or matters related to the representation of a member or former member of a bargaining unit who is or was employed by the Government of Prince Edward Island, by an education authority.
CONFLICTS OF INTEREST
Like other jurisdictions, lobbyists will be prohibited from knowingly placing a public office holder in a position of real or potential conflict of interest in Prince Edward Island. However, the Act does not currently define what constitutes a conflict of interest.
The Act, like other provincial and federal regimes, prohibits consultant lobbyists from accepting contingency fees for successful lobbying outcomes. The Act further prohibits clients of a consultant lobbyist from making any payment to a consultant lobbyist that is contingent on the consultant lobbyist’s degree of success in lobbying.
POST-EMPLOYMENT RESTRICTIONS FOR FORMER PUBLIC OFFICE HOLDERS
Under the Act, former public office holders, which include ministers, deputy ministers or an equivalent position in the premier’s office, members or officers of the Legislative Assembly, the Secretary to Treasury Board and the clerk or clerk assistant of the executive council, will be prohibited from lobbying as a consultant lobbyist or in-house lobbying for a period of six months after their position has ceased.
PROHIBITED ACTIVITIES AND PENALTIES UNDER THE ACT
The Act provides that a consultant or in-house lobbyist would be guilty of an offence and subject to monetary fines if they undertake any of the following prohibited activities:
- Violating or failing to comply with the provisions relating to filing a return in the Act
- Knowingly making a false or misleading statement in a return or other document submitted to the Registrar
- Lobbying a public office holder when not registered in the Registry regarding those lobbying activities, or
- Knowingly placing a public office holder (if in the course of lobbying him or her) in a position of real or potential conflict of interest.
The Registrar may prosecute a lobbyist for any of the above offences within two years of the alleged offence. Where the lobbyist is convicted, a maximum monetary fine of C$25,000 may be imposed.
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