Quebec Elections: Vigilance Is Essential in Interactions With Government Entities and Public Office Holders

In the run-up to the provincial election in Quebec, which is set to take place on October 3, 2022, businesses and organizations should be reminded of the importance of adhering to the framework governing political activity and interactions with public office holders. This framework is comprised of, among others, the Lobbying Transparency and Ethics Act (Lobbying Act), the Code of Conduct for Lobbyists (Code of Conduct) and the Regulation respecting ethics and discipline in the public service (Regulation), with the latter governing conflicts of interest.

Lobbyism is not directly governed by the Election Act, nor is it circumscribed to election periods. However, the rules governing this type of interaction remain particularly relevant in the run-up to the Quebec elections, a period when communications with public office holders may increase significantly.

In our Blakes Bulletin: Quebec Elections: Reminders on Financing, Election Expenses and Political Advertising, we also examine the applicable rules in Quebec pertaining to financing, election expenses and political advertising.

PUBLIC OFFICE HOLDERS

For the purposes of the Lobbying Act, public office holders are defined as follows:

• Government ministers and members of the National Assembly, as well as members of their staff

• Government employees

• Persons appointed to a government agency within the meaning of the Auditor General Act, as well as employees of any such agency

• Persons appointed to a non-profit agency established for the purpose of managing and providing financial support for activities of a public nature out of funds originating principally from the government, without itself delivering products or services to the public, 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 members of 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

It should also be noted that, within the meaning of the Auditor General Act, government agencies include, among others, any organization in which more than 50% of the voting shares of its capital stock are owned by a public body or by another government agency.

LOBBYING ACTIVITIES

A lobbying activity is defined as being a communication by any means with a public office holder for the purpose of influencing decision-making in relation to:

• the development, introduction, amendment or defeat of any legislative or regulatory proposal, resolution, policy, program or action plan;

• the issue of any permit, licence, certificate or other authorization;

• 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

• the appointment of certain administrators of state, deputy ministers or public officials.

The arranging by a lobbyist of a meeting between a public office holder and any other person is also considered to be a lobbying activity.

The Lobbying Act does not apply to certain activities, such as:

• submissions made in or prior to judicial or adjudicative proceedings;

• submissions made in public proceedings, or in proceedings that are a matter of public record, to any person or body having jurisdiction or powers conferred by an Act, an order in council or a ministerial order;

• submissions made in the negotiation, subsequent to the awarding of a contract, of conditions for the performance of such contract;

• submissions made in response to a written request from a public office holder, including any submission made in response to a call for public tenders issued under the public office holder’s authority; and

• communications for the sole purpose of inquiring as to the nature or scope of the legal rights or obligations of a client, an enterprise or a group in application of the law.

LOBBYING OBLIGATIONS

The Lobbying Act provides for the mandatory registration of lobbyists, as well as updating of certain information on lobbyists and their activities, in the Lobbyists Registry, with the aim of making the lobbying of public office holders in Quebec both transparent and accessible.

As such, anyone who engages in lobbying activities must be duly registered in the Lobbyists Registry. Consultant lobbyists must be registered no later than 30 days after they begin conducting their lobbying activities, whereas enterprise and organization lobbyists have no more than 60 days to register following the start of their lobbying activities.

Registered lobbyists are required to meet specific obligations. For instance, the Lobbying Act sets out that certain persons having held office in public entities may not carry out lobbying activities for a determined period.

The Lobbying Act also prohibits certain practices and sets out disciplinary measures and penalties for violations of the Lobbying Act and the Code of Conduct.

Lobbyists may not receive compensation or remuneration that is contingent on the achievement of a result or derived from a grant or loan from the government, a municipality or a government or municipal body or agency.

Lobbyists must also refrain from taking any action that would call into question the neutrality and objectivity of a public office holder within a government body. This type of situation may arise when trading goods or services with a public office holder.

Outside of the general duties of lobbyists set out in the Code of Conduct, including in respect of honesty, integrity and professionalism, no definition is provided anywhere of the concept of conflict of interest between lobbyists and public office holders. However, the Regulation allows for a more concrete interpretation of the above-mentioned duties. In fact, section 6 of the Regulation provides that no public servant may accept any gift, token of hospitality or benefit other than customary benefits of modest value. According to Lobbyisme Québec, the concept of "customary benefits of modest value" has yet to be defined and, as such, its interpretation may vary based on the person receiving such benefits. It is therefore suggested to proceed with caution when offering gifts or other types of benefits. Further information may be found on Lobbyisme Québec’s website, under the section "Cadeaux et marques d’hospitalité à un élu ou à un fonctionnaire" (available in French only).

A lobbyist found to have breached the Lobbying Act and/or the Code of Conduct is liable to penalties, which include fines ranging from C$500 to C$50,000 and disciplinary measures, including a prohibition of registration for a given period and the cancellation of their entries in the Lobbyists Registry. It goes without saying that any such penalty or measure usually incurs significant reputational consequences. 

Lobbyists are therefore advised to consult, as needed, their legal counsel or the Commissioner of Lobbying to ensure that their activities are compliant with the Lobbying Act and applicable regulations.

For further information, please contact:

Patrick Lapierre           +1-514-982-4105
Simon Seida                 +1-514-982-4103

or any other member of our Public Sector Crisis & Compliance group.