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British Columbia to Implement One of the Strictest Lobbying Laws in North America

Fasken
Reading Time 6 minute read

Political Law Bulletin

British Columbia's lobbying law will have a new name, new registration requirements and new ethical restrictions on May 4, 2020. The law, which will be called the Lobbyists Transparency Act, will be one of the strictest lobbying laws in North America.

Scope of the Law will be Broad

Under the new law, lobbying will still be defined broadly as communicating with a "public office holder" in an attempt to influence a legislative proposal, bill, resolution, regulation, program, policy, directive, guideline, grant, financial benefit, outsourcing decision or privatizing decision.[1]

Lobbying will also still include attempting to influence "the awarding, amendment or termination of any contract". This broad provision means that businesses and organizations that sell goods, services or technology to the provincial government or a provincial entity, outside of "an established contract procurement or sales process", are lobbying.[2]

The new law will not change the definition of public office holder. Public office holders will still include: (i) MLAs and Ministers; (ii) ministerial and cabinet appointees[3], (iii) employees and officers of ministries, and (iv) employees in MLAs' Offices and Ministers' Offices. Public office holders will also still include employees, officers and directors of "government corporations"[4], including:

  • Health authorities, such as the Interior Health Authority and the Northern Health Authority;
  • Universities and colleges, such as Okanagan College and Thompson Rivers University;
  • Crown corporations, such as Destination BC and the British Columbia Liquor Distribution Branch; and
  • Regulatory bodies, such as the British Columbia Oil and Gas Commission and the British Columbia Utilities Commission.

That being said, the new law will make a number of changes to the process for filing returns and the content of these returns. 

100-Hour Threshold will be Eliminated

The new law will eliminate the 100-hour threshold. In the past, this threshold has permitted many businesses and organizations to lobby without filing a return. Moving forward, almost all businesses and organizations will be required to file an initial return within 10 days of their first communication with the provincial government or a provincial entity.[5] (Currently, businesses and organizations must file an initial return within 60 days of reaching the 100-hour threshold.[6])

There will be a limited exception for small businesses and organizations (fewer than six employees) that spend less than 50 hours[7] lobbying in any 12-month period. This exception will not apply to organizations that have a primary purpose "to promote or oppose issues" or "to represent the interests of [their] members".[8]

Reporting Requirements will be More Detailed

Under the new law, the most senior officer of a business or organization will still be legally responsible for disclosing the lobbying activities of all employees, officers and directors. Moving forward, the senior officer will also be required to disclose:

  • Information on persons or organizations that have a direct interest in the outcome of their lobbying and that "control or direct" their activities;[9]
  • Information on persons or organizations that have a direct interest in the outcome of their lobbying and that contribute $1000 or more to their lobbying activities;[10]
  • Information on political contributions, sponsorship contributions, and recall contributions made by employees, officers or directors who are engaged in lobbying;[11] and
  • Information on gifts and benefits promised or provided by employees, officers or directors who are engaged in lobbying.[12]

The new law will also create a requirement to file monthly returns. These returns will disclose detailed information on the business or organization's lobbying activities, including information on communications with "senior public office holders". Senior public office holders include:

  • Ministers, Parliamentary Secretaries, and MLAs;
  • Staffs[13] of Ministers' Offices and MLAs' Offices;
  • Deputy Ministers, Assistant Deputy Ministers and Associate Deputy Ministers (and positions of comparable rank) in ministries; and
  • Senior Executives, Chairs and Vice-Chairs of provincial entities.[14]

These monthly returns will disclose the date of the communication, the subject of the communication, the name of the senior public office holder and the name of the lobbyist.[15] They will need to be filed no later than 15 days after the end of each month. If returns are not filed for five consecutive months, a business or organization will be required to file an additional return confirming that they have "not carried on lobbying activities" during the previous five months.

Hospitality, Entertainment and Meals will be Prohibited

Under the new law, lobbyists will be prohibited from promising or providing, directly or indirectly, gifts or benefits to public office holders.[16] Accordingly, hospitality, entertainment and meals will all be prohibited.  There will be a limited exception for gifts and benefits of less than $100 [17] that are given "under the protocol or social obligations that normally accompany the duties or responsibilities" of the public office holder's office.[18]

If a gift or benefit is provided to a public office holder, it will need to be disclosed by the senior officer in a monthly return. The return will detail the date the gift or benefit was provided[19], the value of the gift or benefit and the intended outcome of the lobbying activities.[20]

Legal and Reputational Risk is Substantial

Failure to comply with the Lobbyists Transparency Act will carry significant legal and reputational risk. The Office of the Registrar of Lobbyists for British Columbia is one of the most aggressive lobbying regulators in the country. Between 2015 and 2019, the regulator conducted 44 investigations and 541 reviews. The Office of the Registrar of Lobbyists currently has the ability to publish investigatory reports—and to impose monetary penalties of up to $25,000. Soon, it will also have the ability to prohibit persons from lobbying for a period of up to two years.

Accordingly, businesses and organizations that communicate with the Government of British Columbia should take steps to ensure they have a robust compliance regime.

Please contact the authors, or any member of the political law group at Fasken, for more information on the new law in British Columbia.



[1] Subsection 1(1) of the Lobbyists Transparency Act.

[2] "Guidance Document: Procurement", Office of the Registrar of Lobbyists for British Columbia, October 23, 2019.

[3] Persons who are appointed to an office or body on the recommendation of the Legislative Assembly of British Columbia are not public office holders, per subsection 1(1) of the Lobbyists Transparency Act. Similarly, judges and justices of the peace are not public office holders.

[4] Subsection 1(1) of the Lobbyists Transparency Act.

[5] Subsection 3(4) of the Lobbyists Transparency Act.

[6] Paragraph 3(3)(a) of the Lobbyists Registration Act.

[7] The 50-hour calculation includes all time "directly related to carrying out a lobbying activity", per section 5 of the Lobbyists Transparency Regulation. Accordingly, communication time, travel time and preparation time should be included in the calculation.

[8] Subsection 1(4) of the Lobbyists Transparency Act.

[9] Paragraphs 4(1) (g.1) and (g.2) of the Lobbyists Transparency Act.

[10] Paragraph 4(1)(g.3) of the Lobbyists Transparency Act.

[11] Paragraph 4.2(2)(f) of the Lobbyists Transparency Act.

[12] Section 11 of the Lobbyists Transparency Regulation.

[13] Administrative support staff are not senior public office holders, per subsection 4.2(1) of the Lobbyists Transparency Act.

[14] Subsection 4.2(1) of the Lobbyists Transparency Act.

[15] Paragraphs 4.2(2)(a), (b) and (c) of the Lobbyists Transparency Act.

[16] Subsection 2.4(1) of the Lobbyists Transparency Act.

[17] Section 6 of the Lobbyists Transparency Regulation.

[18] Paragraph 2.4(2)(a) of the Lobbyists Transparency Act.

[19] Subsection 11(a) of the Lobbyists Transparency Regulation.

[20] Section 11 of the Lobbyists Transparency Regulation.