For the first time since the Act took effect in 1989, a lobbyist was convicted, July 31, 2013, of violating the federal Lobbying Act. This historic development has implications for both lobbyists and the clients who hire lobbyists.
Andrew Skaling was fined $7,500 after pleading guilty to failure to register as a consultant lobbyist as required by subsection 5(1) of the Lobbying Act. In 2010, he was engaged to lobby federal officials on behalf of the Canadian Network of Respiratory Care, and therefore was required, by law, to register within 10 days of being retained.
There was no suggestion that Mr. Skaling's client did anything wrong, and indeed it was the client that first reported his failure to register to the Office of the Commissioner of Lobbying.
Not only is $7,500 the first fine for a federal lobbying violation, it is the largest fine ever imposed under any of Canada's federal, provincial and municipal lobbying laws.
This historic, successful prosecution highlights the recent increase in intensity of lobbying-law enforcement. According to the Commissioner of Lobbying, as of March 31, 2013, three additional, alleged violations of the Lobbying Act (involving different lobbyists) were before the Royal Canadian Mounted Police for investigation. Several more active cases are in front of the Commissioner.
Implications
The conviction and fine should be a wake-up call, not only to consultants who communicate with government, but also to corporations and organizations that hire consultants. Compliance must be a top corporate priority, because the federal Lobbying Act and provincial and municipal lobbying laws are vigilantly enforced.
Consultants should note the continuing effort of the federal Commissioner of Lobbying, and her office, to crack down on alleged unregistered lobbying. Meanwhile, clients of consultants should pay attention to whether the consultants are complying with all relevant rules, including the Lobbying Act and the Lobbyists' Code of Conduct. A client should also ensure that its contract with a consultant insulates and protects the client in the event of an alleged breach.
Steps that Companies and Organizations Can Take
Standard government-relations consulting contracts do not contain explicit assurances that lobbying transparency/lobbying ethics laws will be honoured. A client should insist on such language, and on adequate protection in the event of an alleged breach.
Remember that what constitutes registrable lobbying may not always be clear. Therefore, a client who hires a consultant (or other third party) in any matter involving a provincial or federal government should ensure that the contract language addresses the potential application of lobbying law.
An employer, too, should ensure that its employment contracts address the need for compliance with lobbying law – and for cooperation with the filing obligation of the CEO. Training of employees, and due diligence, are other components of an appropriate compliance regime.
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