Draft guide for brokers : Rules governing lobbying and registration in the Registry of Lobbyists

1. the development, introduction, amendment or defeat of any legislative or regulatory proposal, resolution, policy, program or action plan,
2. the issue of any permit, licence, certificate or other authorization;
3. the awarding of any contract, otherwise than by way of a call for public tenders, or of any grant or other financial benefit or the granting of any other form of benefit determined by government regulation, or
4. the appointment of any public office holder within the meaning of the Act respecting the Ministère du Conseil exécutif or the appointment of any deputy minister or other holder of a position referred to in section 55 of the Public Service Act or any holder of a position referred to in section 57 of that Act, constitutes lobbying or a lobbying activity within the meaning of this Act. To find out more about the interpretation of several of the terms used above, refer to the Lobbyists Commissioner’s notices.

• government ministers and members of the National Assembly, as well as persons on their staff;
• government employees (government departments and agencies);
• persons appointed to a government agency within the meaning of the Auditor General Act, as well as employees of any such agency;
• mayors, municipal or borough councillors, wardens, chairs and other members of the council of a metropolitan community, as well as persons on their staff and employees of municipalities and municipal bodies referred to in section 18 or 19 of the Act respecting the Pension Plan of Elected Municipal Officers (Société du Parc Jean-Drapeau, Société de transport de Lévis, Réseau de transport de la Capitale, Office municipal d’habitation, Cree Nation Government, etc.)

1. communication for the sole purpose of inquiring as to the rights and obligations of a client, an enterprise or an organization;
2. the simple fact of applying for a permit, licence, certificate, authorization, grant or financing benefit or the providing of documents or information required by a public office holder to process such an application;
3. any submission made for the sole purpose of informing a public office holder of the existence and characteristics of a product or service, outside of a contract awarding process;
4. any submission made in response to a written request from a public office holder. However, the Lobbying Act applies to submissions that are outside of the question asked or the request expressed;
5. any submission made in the negotiation, subsequent to the awarding of a contract, of conditions for the performance of the contract. However, the Lobbying Act applies to discussions regarding major changes to such contract or the renewal thereof;
6. any submission made in or prior to judicial or adjudicative proceedings;
7. any submission made to a parliamentary committee or at a public meeting of a municipal council or municipal body;
8. any submission made in public proceedings, or in proceedings that are a matter of public record (draft regulation), to any person or body having jurisdiction or powers conferred by an Act, an order in council or a ministerial order.

1. The lobbyist’s name and address and business name and address;
2. The name and address of the client and the name and address of any person, partnership or association that, to the knowledge of the consultant lobbyist, controls or directs the activities of the client and has a direct interest in the outcome of the consultant lobbyist’s activities on behalf of the client;
   For example, Lina Damico, acting as a representative of the Temporise company, enters into a brokerage contract with a broker for the purchase of a lot. If this broker acts as a lobbyist as part of this mandate, he must enter the name and contact information of his client, Temporise. The broker must also enter the name and contact information of the representative, Lina Damico.
3. If the client is a legal person, the name and address of each subsidiary that, to the knowledge of the consultant lobbyist, has a direct interest in the outcome of the consultant lobbyist’s activities on behalf of the client;
   For example, if the Temporise company purchases a lot for its subsidiary, Dicetis, the broker must also enter the name and address of this subsidiary in the register.
4. If the client is a subsidiary of a legal person, the name and address of that legal person;
   For example, if the Temporise company is itself a subsidiary of Temporium International based in Toronto, the broker must enter the name and address of this parent company.
5. The subject-matter of the consultant lobbyist’s activities, and particulars to identify such subject-matter.
   Following are the main decisions that could be subject to lobbying activities by a broker:
   
   * the development, introduction, amendment or defeat of any legislative or regulatory proposal, resolution, policy, program or action plan;
   Sample wording for a lobbying activity to amend a zoning by-law:
   Submission to amend Zoning By-law No. 01-2345 of the City of Belleville, borough of Bois-Clair, in order to allow for the building of a mixed project (10-storey condominium type building project with commercial spaces) on the lot located at 1234, Saint-André St. East. The amendments consist in authorizing “multifamily dwelling” and “mixed commercial” use classes and in increasing the maximum height authorized in zone A12-345. Currently, the only use class authorized is “arterial commerce”, and the maximum height is limited to five storeys.
   
   * the issue of any permit, licence, certificate or other authorization;
   Sample wording for a lobbying activity to obtain a building permit:
   Submission to the City of St-Georges de Beauce to obtain a building permit further to approval (including by resolution) of a grocery store building project on an immovable subject to the by-law on architectural placement and integration plans (PIIA), located on lot 4 062 678 on the corner of 10th Avenue and 150th Street in St-Georges de Beauce.
   
   * the awarding of any contract, otherwise than by way of a call for public tenders, or of any grant or other financial benefit or the granting of any other form of benefit determined by government regulation;
   
   Sample wording for a lobbying activity to obtain a leasing contract for a city-owned immovable: Submission to the City of Gatineau to obtain a leasing contract on a historic building (179 Promenade du portage) to house a municipal library, an art gallery or public services (office or points of services to citizens).
6. The duration of the lobbying activities (or the start and end date of the lobbying activities). The start date to enter in the Registry is the date at which the lobbyist began his lobbying activities with a public office holder, not the date at which the client or superior gave the mandate. When the lobbying activities have not yet started, the date to enter is the date at which the activities are likely to be carried out (for example the date scheduled for a meeting or a telephone conversation regarding the mandate registered in the Registry);
7. The name of any parliamentary, government or municipal institution in which any public office holder being lobbied is employed or serves, and the nature of his functions (ministerial, deputy-ministerial, managerial, professional or other);
8. The range within which the amount or value of any financial or other compensation received or to be received in return for the lobbyist’s activities falls: less than $10,000, from $10,000 to $50,000, from $50,000 to $100,000 and $100,000 or more;
   
   On this topic, representatives of the Lobbyists Commissioner have informed us that a broker who acts as a consultant lobbyist must disclose only the portion of his remuneration that concerns his lobbying activities. It is not necessary to disclose the exact amount. The broker must estimate the value of what he receives for his lobbying activities and indicate what portion or range of value to disclose when registering in the Registry of lobbyists. For example, the broker can enter “less than $10,000.”
9. The techniques of communication the consultant lobbyist has used or expects to use. Our broker discloses that he expects to use the following techniques: Meetings, written communications, telephone calls, and that he will organize an interview for a third party, i.e. the representative of Temporise, Mrs. Lina Damico.
10. The nature and term of any public office the consultant lobbyist held in the two years preceding the date on which he was engaged by the client.
    To make sure the above is clearly understood, we encourage you to consult the Registry of Lobbyists.

No. The purpose of a “catch-all” registration would be to cover all situations and avoid having to identify exactly what lobbying activities are being carried out with public institutions.

It might be tempting for a broker to have a “catch-all” registration in the Registry of Lobbyists to avoid having to make changes to his registration each time new activities are carried out or new public institutions are involved.

However, “catch-all” registrations are prohibited by the Lobbyists Commissioner, who published a notice on this topic in 2012 (Notice 2012-01). This type of registration is too general and is not consistent with the objectives of the Lobbying Act. All mandates registered in the Registry of Lobbyists must clearly and accurately describe the lobbying activities carried out by the lobbyist with Québec public office holders on behalf of an enterprise, organization or client.
A mandate that would be worded in general terms, provide for a long period of time, and refer to all public institutions that are liable to be involved in the activities is not in keeping with the spirit of the Lobbying Act.

Therefore a broker cannot register with a general subject-matter of “making a submission to the City of Montreal and its municipal agencies to promote residential and commercial projects and make the necessary amendments to municipal by-laws to ensure the success of these projects.” Or “This mandate is for the years 2015 to 2016 and the representations will take the form of meetings, telephone contact or written and other communications deemed appropriate.”

1. Obtain a client code by completing the appropriate electronic form or by contacting the Customer Department of the Direction des registres et de la certification du ministère de la Justice. To do so, visit the Registry of Lobbyists website at www.lobby.gouv.qc.ca.
2. Prepare the initial registration, which can be completed and sent in electronic or paper form. The initial registration and all amendment notices and renewals sent electronically are free. Fees ($165 in 2017) apply to any initial registrations or renewals sent in paper form.

Yes. A notice of change must be filed in the Registry for any change to the content of the initial registration, including changes resulting from the termination of the mandate or from the undertaking of new lobbying activities. Such change must be made by the 30th day following the change. For example, if a broker registered in Registry of Lobbyists learns on January 4, 2017 that his mandate is amended, he has until February 4, 2017 to make the necessary changes to his registration in the Registry of Lobbyists.

Yes, he may request to have a confidentiality order issued, but this will not necessarily be granted. A confidentiality order is an exception to the general principle of disclosure of information to the Registry of Lobbyists. It is a decision by the Lobbyists Commissioner by which all or part of the information contained in a mandate registered in the Registry of Lobbyists remains confidential during a given period.

A confidentiality order does not release anyone from the obligation to register in the Registry of Lobbyists. The only effect of a confidentiality order is to temporarily prevent the public from finding out about certain details. When the application period of the order expires, the information becomes public and available in the Registry of Lobbyists.
After completing his analysis, if the Lobbyists Commissioner refuses to make confidential the information contained in the registration form, this information must be made public in a mandate registered in the Registry of Lobbyists in accordance with the terms of the Lobbying Transparency and Ethics Act.

On what will the Lobbyists Commissioner’s decision be based?

The Lobbyists Commissioner will only issue a confidentiality order regarding the information registered in the Registry of Lobbyists if the applicant (consultant lobbyist or senior officer of an enterprise) demonstrates that the disclosure of the information concerning his client’s or enterprise’s investment project would likely seriously prejudice the economic or financial interests of his client or enterprise.
An order cannot be issued for information regarding an investment project that is too general, hypothetical, random or based on unknown data.

The Commissioner will render his decision based on the following criteria:

1. the broker acting as a lobbyist must demonstrate that the disclosure of the information concerning his client’s or his enterprise’s investment project would likely seriously prejudice the economic or financial interests of his client or enterprise. In principle the information already known or available to the public cannot be the subject of a confidentiality order;
2. the risk of serious prejudice to the economic or financial interests must be probable and not merely possible or hypothetical. It must be based on objective facts: allegations, concerns or hypotheses are not sufficient;
3. the serious prejudice to the economic or financial interests must be described in precise rather than general terms. The applicant must also demonstrate that the prejudice would likely be caused immediately or in the near future.
   How can I apply for a confidentiality order?
A separate form must be completed for each investment project for which a confidentiality order is being requested. A confidentiality order can only be given regarding an initial registration, a renewal registration or a notice of amendment preauthorized and validated by the Registry of Lobbyists’ Registrar. For more information on confidentiality orders, visit the Lobbyists Commissioner website.

How long does a confidentiality order last?
 

A confidentiality order is for a period of six months from the date of filing of the mandate concerned in the Registry. It can be extended upon request from the broker, with the Commissioner’s authorization, for a period determined by the Commissioner. An extension can be renewed following the same process.

A broker acting as a lobbyist must comply with the Code of Conduct for Lobbyists. The Code is available online on the Publications Québec website. Following are the broker’s main obligations when acting as a lobbyist; they are largely similar to the broker’s obligations under the Regulation respecting brokerage requirements, professional conduct of brokers and advertising:

• discharge the obligations pertaining to their lobbying activities and conduct such activities with honesty and integrity;
• refrain from making false or deceptive representations to a public office holder and from intentionally misleading anyone;
• not induce a public office holder to contravene the standards of conduct applicable to him or her; • refrain from directly or indirectly exerting undue pressure on a public office holder;
• inform clients of their duties and obligations under the Lobbying Act, the regulations thereunder and the Code of Conduct for Lobbyists;
• When they communicate with a public office holder, specify the identity of the client whose interests they are representing as well as the purpose of the communication;
• not, by any means whatsoever, conceal or try to conceal the identity of the client whose interests they are representing.

The Lobbying Act provides for certain prohibited acts. They include (but are not limited to) the following:

• engaging in lobbying activities without being registered in the Registry of Lobbyists in respect of such activities;
• engaging in lobbying activities in return for compensation that is contingent on the achievement of a result or the degree of success of such activities;
The notion of return for compensation is that which, by agreement, is given in exchange for lobbying activities carried out by the consultant lobbyist.
  
  The compensation may be money, property, a service or a promise of money, property or service.
The compensation that is contingent on the achievement of a result or the degree of success of his activities is prohibited where it concerns communications made as part of the broker’s lobbying activities, and not communications related to the sales commission. Therefore a broker could not enter into an agreement with a client to the effect that a brokerage contract will be awarded on the condition that he obtains the desired amendment to a zoning by-law.
• derive undue advantage from having held a public office, or lobby in respect of a procedure, negotiation or other specific operation in which the person was involved in or in connection with the exercise of that office.  

The Lobbyists Commissioner is appointed by and reports to the National Assembly. The Commissioner monitors and controls lobbying activities involving public office holders.

The powers of the Lobbyists Commissioner are similar to those of the OACIQ Syndic. In order to carry out his monitoring and control role, the Lobbyists Commissioner has powers of inspection and investigation. When he has reasonable cause to believe that the Lobbying Transparency and Ethics Act or the Code of Conduct for Lobbyists has been breached, he may act or authorize any person to act as an inspector to verify the application of the provisions of the Lobbying Act or the Code.

The individuals concerned by an investigation (lobbyists or public office holders) must cooperate with the investigator appointed by the Lobbyists Commissioner and provide access to the documents requested.

• The Lobbying Transparency and Ethics Act also gives the Commissioner the power to: issue and publish notices concerning the carrying out, interpretation or application of the Act, a regulation thereunder, or the Code of Conduct;
• issue confidentiality orders;
• impose disciplinary measures.

Offences under the Lobbying Act and the Code of Conduct for Lobbyists may carry penalties and/or disciplinary measures and/or civil sanctions.

Penalties: a person found guilty of an offence is liable to a fine of up to $25,000, which can be doubled in case of repeated offence.

Disciplinary measures: a lobbyist who gravely and repeatedly breaches his obligations under the Lobbying Act or the Code of Conduct for Lobbyists is liable to disciplinary action by the Lobbyists Commissioner. The Commissioner may prohibit registration in the Registry of Lobbyists or order the cancellation of all submissions concerning the lobbyist for a maximum period of one year.

Civil sanctions: Finally, the Attorney General may, on receiving an inquiry report from the Lobbyists Commissioner ascertaining that a lobbyist has in any way breached the obligations imposed under the Lobbying Act or the Code of Conduct, claim from the lobbyist the amount or value of any compensation received by or payable to the lobbyist on account of the activities having occasioned the breach.