Date: 20081215
Docket: A-132-08
Citation: 2008 FCA 402
CORAM: NADON
J.A.
BLAIS
J.A.
PELLETIER
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
NEELAM MAKHIJA
Respondent
REASONS FOR JUDGMENT
PELLETIER J.A.
[1]
This is an
appeal from the decision of Martineau J. of the Federal Court (2007 FC 327) in
which the application judge allowed Mr. Neelam Makhija's application for
judicial review of four decisions of the Registrar of Lobbyists on the ground
that the Registrar lacked the jurisdiction to investigate since Mr. Makhija had
not "registered" as a lobbyist under the Lobbyists Registration
Act, R.S.C. 1985 (4th Supp.), c. 44 (as amended) (the Act).
[2]
The
substance of the application judge's reasoning is found at paragraph 84 of his
Amended Reasons for Order which reads as follows:
[84] An
individual who
engages in lobbying activities is required to register under the Act and
individual who fails to do so is in breach of the Act. However, based on the
statutory scheme as it existed during the relevant period, the Registrar was
not empowered to investigate an alleged breach of the Act. The Registrar's
jurisdiction was confined to investigating alleged breaches of the Code. Given
that the applicant [Mr. Makhija], by failing to register, was not subject to
the Code, I am of the view the Registrar exceeded his jurisdiction and erred in
issuing (and tabling in Parliament) the Four Decisions.
[3]
For the
reasons which follow, I am of the view that the application judge erred in
coming to the conclusion he did with respect to the Registrar's jurisdiction
and that the matter must be returned to him for a new hearing on the merits of
the application for judicial review.
[4]
The
purpose of the Act, as set out in its Preamble, is to enable "public
office holders and the public […] to know who is engaged in lobbying
activities." Lobbying activities, which give rise to the obligation to
file the prescribed form, are defined (in the case of consultant lobbyists) at
paragraph 5(1)(a) of the Act in the following terms:
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5.
(1)(a) communicat[ing] with a public office holder in respect of
(i)
the development of any legislative proposal by the Government of Canada or by
a member of the Senate or the House of Commons,
(ii)
the introduction of any Bill or resolution in either House of Parliament or
the passage, defeat or amendment of any Bill or resolution that is before
either House of Parliament,
(iii)
the making or amendment of any regulation as defined in subsection 2(1) of
the Statutory Instruments Act,
(iv)
the development or amendment of any policy or program of the Government of
Canada,
(v)
the awarding of any grant, contribution or other financial benefit by or on
behalf of Her Majesty in right of Canada, or
(vi)
the awarding of any contract by or on behalf of Her Majesty in right of Canada; or
(b) arrang[ing] a meeting between a public office
holder and any other person.
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5.
(1)a) à communiquer avec le titulaire d'une charge publique au sujet
des mesures suivantes :
(i) l'élaboration de propositions
législatives par le gouvernement fédéral ou par un sénateur ou un député,
(ii) le dépôt d'un projet de loi ou d'une
résolution devant une chambre du Parlement, ou sa modification, son adoption
ou son rejet par celle-ci,
(iii) la prise ou la modification de tout
règlement au sens du paragraphe 2(1) de la Loi sur les textes
réglementaires,
(iv) l'élaboration ou la modification d'orientation
ou de programmes fédéraux,
(v) l'octroi de subventions, de
contributions ou d'autres avantages financiers par Sa Majesté du chef du
Canada ou en son nom,
(vi) l'octroi de tout contrat par Sa
Majesté du chef du Canada ou en son nom;
b) à ménager pour un tiers une entrevue avec le
titulaire d'une charge publique.
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[5]
It is
important to recognize that it is the fact of undertaking such activities which
gives rise to the obligation to file the prescribed form. This appears, in the
case of consultant lobbyists, from the opening words of section 5:
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5. (1) An individual shall
file with the registrar, in the prescribed form and manner, a return setting
out the information referred to in subsection (2), if the individual, for
payment, on behalf of any person or organization (in this section referred to
as the "client"), undertakes to:
(a) communicate with
a public office holder …
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5. (1) Est tenue
de fournir au directeur, en la forme réglementaire, une déclaration contenant
les renseignements prévus au paragraphe (2) toute personne (ci-après
« lobbyiste-conseil ») qui, moyennant paiement, s'engage, auprès d'un
client, d'une personne physique ou morale ou d'une organisation :
a) à communiquer avec le titulaire d'une
charge publique …
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[6]
Consequently,
the obligation to file the prescribed form arises every time a person
undertakes to engage in lobbying activities on behalf of a client.
[7]
The Act
also authorizes the Registrar General of Canada to designate a person as the Registrar
who is responsible for maintaining a registry of the prescribed forms filed by
persons undertaking lobbying activities: see section 8 of the Act. The Act
directs the Registrar, in consultation with persons or organizations having an
interest in the subject matter, to develop a Lobbyist's Code of Conduct "respecting
the activities described in subsections 5(1) and 7(1).": see section 10.2
of the Act. The activities described in subsections 5(1) are those described in
paragraphs 5(1)(a) and (b) of the Act. Subsection 7(1) deals with
in-house lobbyists – the activities with respect to those lobbyists are
substantially the same as those described in paragraph 7(1)(a) of the
Act.
[8]
Since it
is the agreement to undertake lobbying activities which gives rise to the
obligation to file the prescribed form, it is not surprising that it is this
same agreement which gives rise to the obligation to comply with the Code:
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10.3(1) The following individuals shall comply with
the Code:
(a) an individual who is required to file a
return under subsection 5(1);
and
(b) an employee who,
in accordance with paragraph 7(3)(f) or (f.1), is named in a return filed under subsection 7(1).
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10.3(1)
Doivent se conformer au code :
a) la personne tenue de fournir une déclaration en
application du paragraphe 5(1);
b) l'employé qui, aux termes des alinéas
7(3) f) ou f.1), est
nommé dans une déclaration fournie en application du paragraphe 7(1).
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[9]
It follows
from this that the application judge erred when he found that Mr. Makhija "by
failing to register, was not subject to the Code… : see paragraph 84 of the
application judge's reasons. If Mr. Makhija was required to file the prescribed
form because he agreed to undertake lobbying activities, he was, by the same
token, required to comply with the Code.
[10]
The Registrar's
powers of investigation, which were the subject of the application for judicial
review, are set out in section 10.4 of the Act:
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10.4(1) Where the registrar believes on
reasonable grounds that a person has breached the Code, the registrar shall
investigate to determine whether a breach has occurred.
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10.4(1) Le directeur
fait enquête lorsqu'il a des motifs raisonnables de croire qu'une personne a
commis une infraction au code.
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[11]
As a
result, assuming that the Registrar had reasonable grounds for believing that a
breach of the Code had occurred, he was entitled to conduct an investigation,
whether or not the person concerned had filed a prescribed form with respect to
the lobbying activities in question, to see if the person had complied with the
terms of the Code.
[12]
The
application judge's error with respect to the application of the Code to a
person who had not filed a prescribed form in relation to his lobbying
activities caused him to cut short his consideration of Mr. Makhija's
application for judicial review without considering the merits of the
application. The matter must therefore be returned to him so as to allow him to
conclude the task which was before him.
[13]
I would
therefore allow the appeal, set aside the orders of the application judge:
1)
allowing the application for judicial review from each of the four decisions
which were under review;
2) quashing each of the four decisions under review;
3)
directing the registrar to take all necessary steps with the President of the
Treasury Board to have removed the four decisions that were tabled in the House
of Commons and the Senate on March 19, 2007 and March 20, 2007 respectively;
4) allowing Mr. Makhija the costs of the application;
and remit the
matter to the application judge with a direction that he decide the application
for judicial review on the basis that the Registrar had the jurisdiction to
undertake an investigation as to whether a breach of the Code had occurred.
[14]
Since the
Attorney General of Canada has not asked for costs of the appeal, none will be
granted.
"J.D.
Denis Pelletier"
"I
agree
M. Nadon J.A."
"I
agree
Pierre Blais J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-132-08
APPEAL FROM
AN ORDER OF THE HON. MR. JUSTICE MARTINEAU, FEDERAL COURT, DATED MARCH 10, 2008
AND AMENDED ON MARCH 25, 2008, T-662-07
STYLE OF CAUSE: Attorney
General of Canada
and Neelam Makhija
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 17, 2008
REASONS FOR JUDGMENT BY: PELLETIER J.A.
CONCURRED IN BY: NADON J.A.
BLAIS J.A.
DATED: December 15, 2008
APPEARANCES:
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Nathalie Benoit
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FOR THE APPELLANT
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Michael M.
Bergman
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FOR THE RESPONDENT
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SOLICITORS
OF RECORD:
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John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE APPELLANT
|
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Bergman Harold
& Associates
Montréal, Quebec
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FOR THE RESPONDENT
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