Annual Report 2010–2011

Ensuring compliance with the Act and the Code

As mentioned earlier, I believe that education and outreach activities are key to fostering greater compliance with the Lobbying Act (the Act) and the Lobbyists' Code of Conduct (the Code). However, in order to be fully effective at deterring non-compliance by lobbyists, these activities must be complemented with a program of monitoring, carrying out administrative reviews, and conducting investigations.

To ensure the integrity of the data submitted by lobbyists in monthly communication reports, my Office corresponds with a sample of designated public office holders to verify the accuracy of this information. In addition, my Office reviews applications for exemption from the Act's five-year prohibition on lobbying.

Looking into potential breaches

The legislation provides me with the ability to look into alleged breaches of the Act or the Code. Alleged breaches are identified by my Office or are brought to my attention through external complaints. Anyone can bring allegations of suspected breaches of the Act or the Code to my attention. I take all allegations seriously and each one is assessed based on its own merit before I determine a specific course of action. Allegations are received from government departments, parliamentarians and private citizens.

I also open files based on my own observations of information published in the media and other sources of information, or through monitoring of information submitted to the Registry. My staff monitors publicly available information to identify individuals, firms or organizations which may be conducting lobbying activities and determines if they are registered in accordance with the requirements of the Act. If they are not registered, I may choose to send them an advisory letter to inform them about the requirement to register under the Act, and make them aware of where they can obtain additional information.

During the past year, a number of lobbyists voluntarily disclosed that they had failed to comply with certain requirements of the Act, such as time limits for registration or reporting of monthly communications. I generally look favourably at such voluntary disclosures. However, before deciding on the appropriate course of action, I will direct that a review be conducted to assess the facts of the case, including the compliance history of the registrant.

The chart below demonstrates the breakdown of allegations of potential breaches of the Act or the Code that came to my attention in 2010–2011, by source.

Figure 2: Breakdown of allegations, by source
Breakdown of allegations, by sourceDescription of Figure 2

Conducting administrative reviews

The Process

I will initiate an administrative review if, through monitoring of publicly available information, a complaint, or voluntary disclosure, I become aware of a potential breach of the Act or the Code. It is worth noting that an administrative review is not a formal investigation. This year, I initiated 37 administrative reviews.

The objective of an administrative review is to assess the allegation, research the facts of the case, and provide me with a report. Administrative reviews are often quite extensive in order to provide with sufficient information and analysis about the alleged contravention, to enable me to determine a suitable means of ensuring compliance. In addition, as my decisions are subject to judicial review in Federal Court, a well-documented administrative review is imperative.

Outcomes of administrative reviews

There are four possible outcomes following an administrative review.

  1. The review is closed because the allegation was unfounded. Reasons why allegations are unfounded include: it did not involve a registrable communication; the activity was not undertaken for payment; or, the 'significant part of duties' threshold for registration was not met by the corporation or organization employing the individual. In such cases, I will advise the person and the complainant of my decision by letter.

    Case study 1: Allegation unfounded

    In June 2010, I initiated an administrative review after receiving a written complaint that an individual had engaged in unregistered lobbying. The complainant's allegation was based on information published on a website describing the individual as lobbying the federal government on policy issues. After conducting interviews with the complainant, the subject and his employer, my Investigations Directorate provided me with an Administrative Review Report stating that the allegations were unfounded, as there was no evidence that the subject had ever communicated or arranged meetings with federal public office holders for payment, and on behalf of his employer or client. The review was closed and I informed both the subject and the complainant of my findings.

  2. The review is closed even though the allegation is well-founded. In cases where I consider the gravity of the transgression to be low, I may choose to employ alternative compliance measures that I consider better suited to ensuring compliance with the Act. These measures would include, for instance, educating the person on the requirements of the Act or requesting that a correction be made to the Registry of Lobbyists. In my view, such files do not warrant a referral to the Royal Canadian Mounted Police (RCMP) or a formal investigation under the Act. However, once an administrative review is closed, these individuals are subject to further monitoring by my Office to ensure that they remain in compliance.

    Case Study 2: Allegation is well-founded, alternative compliance measures are employed

    In May 2010, based on information received from the Registration and Client Services Directorate, I initiated an administrative review concerning an allegation that a consultant lobbyist had failed to register an undertaking, and disclose a reportable communication, within the time limits prescribed in the Act. Based on information provided to me in the Administrative Review Report, I determined that the allegation was well-founded. However, I decided that further investigation was not necessary given that the lobbyist had taken immediate steps to comply, and had a strong compliance history, having properly registered over 50 previous undertakings. The registrant was informed of the results of the administrative review in a letter advising him of the consequences of future non-compliance. The individual is subject to further monitoring to ensure that they remain in compliance.

  3. A formal investigation is initiated when I determine that an alleged breach is serious and appears to be well-founded. The Lobbying Act prescribes that I shall initiate an investigation if I have 'reason to believe' that an investigation is necessary to ensure compliance with the Act or the Code. In some instances, I may initiate more than one investigation based on information provided to me in a single Administrative Review Report.

    Case Study 3: Two investigations are initiated based on information obtained during an Administrative Review

    In October 2009, I opened an administrative review after media reports and letters received from complainants, alleged that a lobbyist had placed a public office holder in a conflict of interest by organizing a fundraising event for the public office holder's benefit. During the course of the review, I learned that another registered lobbyist had also actively participated in the organization of the event. Over the following months, the Investigations Directorate verified information in the Registry of Lobbyists, conducted interviews with public office holders, lobbyists and other witnesses, and provided me with an Administrative Review Report. Based on this Report, I determined that there was reason to believe that both lobbyists were in breach of Rule 8 of the Lobbyists' Code of Conduct by actively participating in the organization of a political fundraising event for a public office holder, while lobbying the same individual. On July 29, 2010, I initiated two formal Investigations.

  4. The matter is referred to a peace officer (the RCMP in the case of the Lobbying Act) if I have 'reasonable grounds to believe' that an offence has been committed under the Lobbying Act, or any other Act of Parliament or of the legislature of a province. In such cases, the Act prescribes that I suspend looking into a matter until it has been dealt with by the RCMP.

    Case Study 4: A file is referred to the RCMP, and the investigation is suspended

    In November 2009, I opened an administrative review after a public office holder informed my Office that an unregistered lobbyist contacted his office in an attempt to arrange a meeting on behalf of a client of his firm. In May 2010, based on information provided to me in an Administrative Review Report, I initiated a formal investigation. However, I immediately suspended the investigation and referred the matter to the RCMP as I had reasonable grounds to believe that, by failing to register as a consultant lobbyist, the individual had committed an offence under the Lobbying Act. In November 2010, the RCMP advised me that they were unable to obtain sufficient evidence to proceed with charges. I decided, upon return of the file from the RCMP, that I had sufficient information to continue with a Lobbyists' Code of Conduct investigation. The investigation is ongoing.

It should be noted that the length of time required to complete an administrative review will vary in each case, depending on the complexity of the file, the availability of witnesses or evidence, and other factors. In addition, when a file is referred to the RCMP, I am no longer in control of the length of time it takes to complete a file.

The Lobbying Act also provides me with some degree of discretion. I may, for instance, refuse to look into a matter, or cease looking into a matter, if, in my opinion, it could more appropriately be dealt with under another Act of Parliament; the matter is not sufficiently serious or important; dealing with the matter would serve no useful purpose because of the length of time that has elapsed since the matter arose or for any other valid reason. More detail regarding the factors I consider when applying this discretion is provided in a document entitled "Guiding Principles and Criteria for Recommending Compliance Measures", available on my website.

The table below provides details of the 31 administrative reviews closed in 2010–2011.

Details of the 31 administrative reviews closed in 2010-2011
Outcome Number of administrative reviews closed

* Note: Two of the four investigations commenced also resulted in referrals to a peace officer.
Return to reference

Unfounded — Not a registrable communication 2
Unfounded — Not for payment 1
Unfounded — No meetings arranged 1
Unfounded — Not an Improper Influence 1
Unfounded — Not a significant part of duties 1
Unfounded — Communication report filed within prescribed time limits 1
Unfounded — Subtotal 7
Well-founded —Subject to education and further monitoring 17
Well-founded — Investigation commenced* 4
Well-founded — Subtotal 21
Ceased — After consideration of the sufficiency and availability of information 1
Ceased — Subject dealt with in previous Reports on Investigations tabled in Parliament by the former Registrar of Lobbyists 2
Ceased — Subtotal 3
Total number of administrative reviews closed, 2010–2011 31

Conducting investigations

As required by the Lobbying Act (the Act), I will initiate an investigation if I have 'reason to believe an investigation is necessary to ensure compliance with the Act or the Code. In most cases, an investigation is initiated based on information brought to my attention in an Administrative Review Report. In some instances, I may also determine that an investigation is necessary before initiating or completing an administrative review.

During, or upon completion of an investigation, I might also determine that there are 'reasonable grounds to believe' that an offence has been committed under the Act. If so, the Lobbying Act requires that I immediately suspend the investigation and advise a peace officer having jurisdiction to investigate the offence (i.e., the RCMP). If the RCMP decides not to proceed, I may decide to look at the case from the perspective of a breach of the Code.

This year, I initiated eight investigations. I also exercised my authority to cease investigations in three instances. In two cases, the subject matter had been dealt with in previous or impending Reports on Investigation tabled or to be tabled in Parliament. In the other instance, I ceased the investigation after considering the sufficiency and availability of evidence.

Investigation caseload for 2010–2011
Investigation caseload on April 1, 2010 9
New investigations initiated during 2010–2011 8
Investigations closed: Reports to Parliament 3
Investigations closed: Ceased 3
Investigation caseload on March 31, 2011 11

As of March 31, 2011, 11 investigations remained in my Office's caseload. In all cases, the lobbyists are alleged, among other things, to have breached the Principle of 'professionalism' in the Lobbyists' Code of Conduct by failing to properly register, or by failing to observe the highest professional and ethical standards. Ten of the cases relate to individuals who engaged in activity alleged to require registration as a consultant lobbyist, and the other relates to activity allegedly performed by individuals employed by a corporation. Four of 11 cases were initiated internally, primarily as a result of media monitoring. The remaining cases were opened after receiving external complaints, or information provided by federal public office holders. As of March 31, 2011, three of the Investigation Reports provided to me by the Investigations Directorate remained with the subjects of the investigations. As required under the Act, they have been provided with an opportunity to present their views prior to finalizing my Report on Investigation for tabling in both Houses of Parliament.

Referring files to a peace officer

The Lobbying Act requires that I suspend my investigation and immediately advise a peace officer whenever I have reasonable grounds to believe that an offence has been committed. In 2010–2011, I referred two investigation files to the RCMP on the basis of information provided in Administrative Review Reports prepared by my Office. In both cases, the RCMP elected not to initiate proceedings against the subjects. The RCMP also advised me that they would not proceed further with investigations relating to four referrals made by me in 2009–2010. In their responses, the RCMP advised me that they were unable to obtain sufficient evidence to lay a charge, that the subject matter did not lend itself to a strong likelihood of conviction, or that it was not in the public interest to proceed. The response times ranged from three months to 11 months in duration.

When a file is returned to my Office by the RCMP, I look at the matter from the perspective of the Lobbyist's Code of Conduct. I must determine if I have sufficient grounds to continue with a Code of Conduct investigation. Five of the six files returned by the RCMP this year met the criteria and are now the subject of ongoing Lobbyists' Code of Conduct investigations. After considering the views of the RCMP in the remaining case, I determined that I did not have sufficient grounds to continue with a Code of Conduct investigation.

The Lobbying Act also requires that I must immediately suspend any investigation if I discover that the subject matter is already under police investigation. In 2010–2011, two files previously suspended by me for this reason were returned by the RCMP. Both matters are under review to determine whether a breach of the Lobbyists' Code of Conduct has occurred.

Reporting to Parliament

The Lobbying Act requires that, after conducting an investigation, I must prepare a report on the investigation, including the findings, conclusions and reasons for those conclusions, and submit it to both Houses of Parliament.

When investigating an alleged breach of the Lobbyists' Code of Conduct, I am in effect performing the function of an administrative tribunal — the Act states that "for the purpose of conducting the investigation, the Commissioner may [proceed] in the same manner and to the same extent as a superior court of record." I am, therefore, obligated to apply certain standards of procedural fairness and natural justice. To that end, the Lobbying Act requires that, before tabling a Report on Investigation in both Houses of Parliament, I must provide the subject under investigation with an opportunity to present his or her views. My practice is to share a copy of my Office's Investigation Report with the subject, requesting that he or she respond within 30 days. Extensions to that period have been granted upon request.

My Reports on Investigation take into account the Investigation Report that was provided to me by my Office, as well as any views presented by the subject. In 2010–2011, five Investigation Reports had been submitted to individuals to provide them with an opportunity to present their views. As previously mentioned, at the end of March 2011, three Reports remained with subjects in order to allow them to present their views for my consideration.

Three Reports on Investigation were tabled in February 2011

Although breaches of the Code do not carry penalties in terms of fines or jail terms, the public disclosure of the offence by tabling Reports on Investigation in Parliament serves as a specific deterrent for the individual in question and as a general deterrent for all lobbyists. I tabled three such Reports on Investigation in 2010–2011, on the lobbying activities of Mr. Bruce Rawson, Mr. Michael McSweeney, and Mr. Will Stewart.

Bruce Rawson

The Report on Investigation relating to the lobbying activities of Mr. Bruce Rawson involved a case of paid consultant lobbying conducted by Mr. Rawson in 2004, on behalf of two British Columbia mining companies. In June 2006, the Registrar of Lobbyists, my predecessor, determined that there were reasonable grounds to believe that a breach of the Lobbyists' Code of Conduct had occurred and commenced an investigation. The file was transferred to the RCMP, who decided not to proceed with an investigation under the Lobbyists Registration Act. I inherited this case when I took office and completed the investigation in 2010.

I concluded that Mr. Rawson engaged in activities that required him to register as a lobbyist when, for payment, he arranged client meetings with public office holders. By failing to properly register these activities, he was in breach of the Principle of Professionalism, Rule 2 (Accurate Information) and Rule 3 (Disclosure of Obligations) of the Lobbyists' Code of Conduct.

Michael McSweeney

In this Report on Investigation, I found that Mr. Michael McSweeney, an in house (organization) lobbyist employed by the Cement Association of Canada, was in breach of Rule 8 (Improper Influence) of the Lobbyists' Code of Conduct. Mr. McSweeney helped organize a fundraising dinner in September 2009, for then Minister of Natural Resources, the Honourable Lisa Raitt.

The investigation concluded that Mr. McSweeney played a key role in the organization of the event by selling tickets, an activity which was seen to advance the Minister's private interest. During that period, Mr. McSweeney was registered to lobby on behalf of the Cement Association of Canada in respect of subjects that fell within the purview of the Minister of Natural Resources, and communicated with the Minister directly in respect of registrable subjects.

I concluded that the intersection of the lobbying and political activities placed the Minister in an apparent conflict of interest and, therefore, that Mr. McSweeney was in breach of Rule 8 (Improper Influence) of the Lobbyists' Code of Conduct.

Will Stewart

During the course of the administrative review of Mr. Michael McSweeney's case, I was made aware that another lobbyist also played a role in organizing the same fundraising event for the Minister of Natural Resources. Mr. Will Stewart was a consultant lobbyist with undertakings on behalf of various clients. I commenced an investigation in July 2010, which concluded that Mr. Stewart played a major role in the organization of the event, including selling tickets.

During that same period, Mr. Stewart was registered to lobby in respect of subjects that fell within the purview of the Minister of Natural Resources, and communicated with her directly in respect of registrable subjects.

I concluded, in my Report on Investigation, that Mr. Stewart's actions placed the Minister in an apparent conflict of interest and that he was, therefore, in breach of Rule 8 (Improper Influence) of the Lobbyists' Code of Conduct.

Managing our caseload

The number of administrative reviews and investigations has increased since my Office was established in July 2008. This year alone, more than twice as many administrative reviews have been opened as in previous years, and three times as many were closed. In response to the increasing caseload, I implemented new processes and improved existing ones.

In order to manage the growing caseload, several initiatives were undertaken by my Office. First, a process was put in place to ensure that a preliminary assessment of each allegation is undertaken to determine the most appropriate course of action for ensuring compliance. Existing processes were streamlined to allow for an early determination of whether a transgression is minor in nature, or more serious. Minor transgressions, such as late registrations or voluntary disclosures of non-compliance, are examined in light of the registrant's compliance history and whether measures have been taken to avoid future transgressions. In more serious cases, such as unregistered lobbying, a more extensive administrative review is conducted, involving interviews and more detailed analysis.

In 2010–2011, a document entitled "Guiding Principles and Criteria for Recommending Compliance Measures" was prepared by my Office to formally document the approach it follows in recommending the proper course of action in each case of an alleged breach of the Act or the Code, taking into account the gravity of the alleged offence. These principles help ensure that breaches of the Act and Code are treated in a fair and consistent manner. This document is available on my Office's website.

As my Office was completing its third year of operation, I decided it was timely to conduct an internal review of all files opened or closed since its creation in July 2008. I commenced a review in March 2011, to provide me with confidence in the accuracy of the data about each and every file that has ever been dealt with by my Office. In addition, I am reviewing files opened and closed by my predecessor, the Registrar of Lobbyists, which were transferred to my Office upon its establishment. I intend to make the results of this review public in my next Annual Report.

Applying compliance measures

The Lobbying Act sets the penalties, including fines and jail terms, to be applied upon conviction in a court of law for an offence under the Act. If, during an investigation, I believe 'on reasonable grounds' that a person has committed an offence, I must advise a peace officer and immediately suspend my investigation. This is the only enforcement option available to me under the legislation. The peace officer having jurisdiction to investigate the matter, generally the RCMP in the case of the Lobbying Act, will consider the case in consultation with legal counsel at the Department of Justice and federal prosecutors at the Department of Public Prosecutions. Together, they determine whether or not to lay charges.

For less serious transgressions, such as late filings of monthly communication reports, I exercise discretion when determining compliance measures. In my opinion, the public interest would not be well served if I were to refer every case, regardless of its gravity, to the RCMP. It is my view that less serious offences do not warrant a criminal investigation. I believe that compliance is sometimes best ensured through a process of education, correction of information in the Registry of Lobbyists, and ongoing monitoring of the lobbyists at fault.

Educating lobbyists who commit less serious breaches of the Act and monitoring their activities are suitable means of achieving compliance and ensuring transparency of lobbying activities conducted at the federal level. Transparency is best achieved when the information in the Registry of Lobbyists is up-to-date and accurate. That is the reason why, for less serious transgressions, I focus on ensuring that registrants clearly understand the requirements of the Act and the Code, and can demonstrate that transgressions will be avoided in the future. In 2010–2011, I opened 10 administrative reviews as a result of voluntary disclosures by lobbyists.

Case Study 5: A case of voluntary disclosure

In November 2010, my Office received a letter from the officer responsible for filing returns for a corporation registered as employing in-house lobbyists. The registrant informed my Office that he had neglected to file a communication report for an oral and arranged meeting between one of his employees and a designated public office holder occurring in August 2010 and, as such, failed to file a return within the time limit prescribed by the Lobbying Act. In response, the registrant was advised to immediately file a return in respect of the reportable communication, and provide my Office with a written explanation of the delay.

An administrative review was conducted. Although the review uncovered that the individual had breached the Act by failing to report a prescribed communication within the time limits set out in the Act, I decided to close the file and further educate the registrant, for the following reasons:

  • the registrant voluntarily disclosed the omission;
  • the registrant's compliance history is strong, having in the past reported numerous communications within the time limit prescribed in the Act; and
  • the registrant demonstrated that the corporation had taken measures to avoid similar transgressions in the future.

The registrant was reminded, in writing, that failing to file a monthly communication return within the time limit prescribed constituted a breach of the Lobbying Act. The registrant was also informed no further action would be taken. The registrant continues to be monitored to ensure ongoing compliance.

Although I feel that education and monitoring are important compliance tools, I recognize that certain minor transgressions, such as habitual late filing, do negatively affect the transparency of lobbying activities. Other than referrals to a peace officer, the Lobbying Act offers no enforcement alternatives. I believe that such transgressions may warrant sanctions or penalties that would fall somewhere between the two extremes currently being utilized: the system of education, correction and monitoring I employ, at one end, and the tabling of a Report on Investigation in both Houses of Parliament and/or criminal proceedings with resulting fines, jail terms and possible prohibition, at the other.

To address this lack of flexibility in my enforcement options, in my March 2011 submission to the House of Commons Standing Committee on Access to Information, Privacy and Ethics3, I recommended the establishment of an administrative monetary penalty system (AMP). In my view, not all transgressions have the same gravity. An AMP system would introduce a continuum of progressively more severe sanctions appropriate to the existing range of possible breaches. Publicizing when and to whom administrative monetary penalties are being applied would also serve as a general deterrent to all lobbyists. Such systems exist in other lobbying legislation across Canada, as well as in other federal legislation.

Verifying the accuracy of monthly communication reports

The Lobbying Act requires registered lobbyists to disclose 'oral and arranged' communications about registrable subject matters with designated public office holders (DPOHs) on a monthly basis. These reports provide the public with information about the date and subject matter of these communications, as well as the name and title of the DPOH with whom the communication took place. In addition to verifying initial registrations for completeness, my Office validates a sample of monthly communication reports for accuracy by requesting written confirmation from the relevant DPOH.

The following table highlights the types and frequency of errors reported by the DPOHs contacted.

Figure 3: Types of errors reported by DPOHs through verification of monthly communication reports'.
Types of errors reported by DPOHs through verification of monthly communication reports.Description of Figure 3

Each month, my Office verifies approximately five percent of the communication reports filed in the Registry of Lobbyists. From April 2010 until February 2011, more than 70 letters were sent to designated public office holders to verify 396 of approximately 8,400 reports submitted by registrants. Respondents identified 67 errors, the vast majority of which were of a clerical nature (e.g., names spelled incorrectly)4. The lobbyists were requested to make the appropriate corrections to their reports.

Reviewing applications for exemptions from the five-year prohibition on lobbying

In 2008, the Lobbying Act introduced a five-year prohibition on lobbying for former designated public office holders. This prohibition is intended to prevent former high-level federal decision-makers from using advantages and personal connections derived from their government positions for lobbying purposes. However, the Act provides me with the authority to exempt individuals from the application of the prohibition, if I am of the opinion that such an exemption would not be contrary to the purposes of the Act.

A process to review applications for exemption was developed and implemented to ensure that I am provided with sufficient information regarding whether to grant an exemption or not. Although it is not prescribed by the Act, I have decided, in the interest of fairness, to provide the applicant with an opportunity to present his or her views on my intent to grant or deny an exemption before I render my final decision.

The Act sets out circumstances or factors that I may consider when determining whether an exemption to the five-year prohibition should be granted, such as:

  • the individual was a designated public office holder for a short period;
  • the individual was a designated public office holder on an acting basis;
  • the individual was employed under a program of student employment; or
  • the individual had administrative duties only.

In 2010–2011, I received five applications for exemption from the five year prohibition and one application was carried over from the previous fiscal year. Three of the applications were withdrawn after the applicants were made aware of the limited set of criteria for granting an exemption under the Act. I denied two of the remaining three exemption requests because the applicants could not demonstrate that their employment as a designated public office holder fell within the criteria for exemptions set out in the Act. I granted one exemption to an individual formerly employed as a summer student in a Minister's Office, whose duties were primarily administrative in nature. As required by the Act, the exemption was made public on my website. As of March 31, 2011, there were no ongoing exemption reviews.

Exemption Review Service Standards

In light of the experience my Office and I have acquired in applying the requirements of the Act with respect to exemption requests, I decided it was time to establish clear service standards to monitor our performance in responding to such requests. In 2010–2011, my Office developed and implemented the following service standards that apply to the length of time it takes to complete selected portions of the exemption review process.

  1. Acknowledgement of application: Upon receipt of an application for exemption, the Commissioner endeavours to send an acknowledgement letter to the applicant within seven days of the application being received.
  2. Commissioner's Letter of Intent: The Commissioner endeavours to inform the applicant, in writing, of the decision that she intends to make and the reasons for the decision within 60 days of receiving the application containing all required information.
  3. Commissioner's final decision: The applicant will be given a reasonable opportunity to present his or her views regarding the decision that the Commissioner intends to make (through the Commissioner's Letter of Intent). The Commissioner endeavours to advise the applicant in writing of her final decision (and the reasons for that decision) within 30 days from receipt of the applicant's response to the Commissioner's Letter of Intent.
  4. Publication of exemptions granted: When an exemption has been granted, the Commissioner endeavours to make her decision and the reasons for it public, within 48 hours of notifying the applicant, by posting a notice on the Office's website.

These standards will be implemented in 2011–2012 and reported on in future annual reports.

Addressing court challenges

One ongoing application for judicial review of decisions made by my predecessor, the Registrar of Lobbyists, was finally decided this year. In March 2007, the Registrar of Lobbyists completed four Reports on Investigation concerning allegations of unregistered lobbying by Mr. Neelam Makhija. The Reports, which were tabled in both Houses of Parliament, concluded that Mr. Makhija contravened the former Lobbyists Registration Act when he failed to register his activities on behalf of four corporations, and that his activities were in breach of the Lobbyists' Code of Conduct.

Mr. Makhija sought judicial review of the Registrar's decisions, as set out in the four reports, claiming that he was not a lobbyist and that the Registrar had made a legal error. He asked that the decisions be overturned and that the reports be withdrawn from Parliament. In March 2008, the Federal Court overturned the Registrar's decisions and ordered that the four Reports on Investigation that were tabled in Parliament be withdrawn. This decision placed into question the Registrar's ability to table findings regarding apparent breaches of the Act and to initiate a Code of Conduct investigation of persons failing to register as lobbyists.

That decision was appealed by the Attorney General and the Federal Court of Appeal quashed the decision of the Federal Court, concluding that the Registrar was entitled to conduct an investigation once he had reasonable grounds to believe that a breach of the Code had occurred, even if the person under investigation had not registered as a lobbyist. That decision resolved the question of the Registrar's jurisdiction raised by the Federal Court. Leave to appeal the decision to the Supreme Court of Canada was sought, but that application was denied by the Supreme Court.

As a result, the application for judicial review was sent back to the Federal Court to make a decision based on the merits of Mr. Makhija's application for judicial review. The Federal Court declared, in February 2010, that the Registrar's conclusions regarding the breaches of the Lobbyists' Code of Conduct were reasonable and thus valid and legal in the circumstances. With respect to the Registrar's conclusion that Mr. Makhija had breached the Lobbyists Registration Act, the Court declared that the Registrar was not entitled to reach that conclusion under the Act and quashed that portion of each of the four Reports on Investigation tabled by the Registrar. This decision was appealed to the Federal Court of Appeal and finally decided in December 2010, when the Federal Court of Appeal affirmed the Federal Court's decision.5

The question of the Commissioner's ability to investigate an apparent breach of the Act or the Code had been clarified in July 2008, when amendments to the legislation contained in the Lobbying Act set out the authority of the Commissioner to launch an investigation when the Commissioner considers it necessary to ensure compliance with the Act or the Code.


Footnotes

3 – Karen E. Shepherd, "Administering the Lobbying Act — Observations and Recommendations Based on the Experience of the Last Five Years". Return to reference 3

4 – Monthly communication reports submitted during March and April 2011, reporting oral and arranged communications that took place in February and March 2011, have not yet been verified. Sampling is done on a monthly basis. Return to reference 4

5 – Neelam Makhija v. Attorney General of Canada, 2010 FCA 342. Return to reference 5