Makhija v. Canada (Attorney General)

Makhija v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2008-03-25
Neutral citation
2008 FC 327
File numbers
T-662-07
Notes
Reported Decision
Decision Content
Date: 20080325
Docket: T-662-07
Citation: 2008 FC 327
Ottawa, Ontario, March 25, 2008
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
NEELAM MAKHIJA
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
AMENDED REASONS FOR ORDER AND ORDER
[1] This is a consolidated proceeding for judicial review of four Investigation Reports rendered by Michael Nelson, Registrar of Lobbyists (the Registrar), in February, 2007 and communicated to the applicant on March 21, 2007, wherein it is concluded that the applicant has contravened subsection 5(1) of the Lobbyists Registration Act, R.S.C. 1985 (4th Supp.), c. 44, as amended (the Act), and Rule 3, and in one instance Rule 2, of the Lobbyists’ Code of Conduct (the Code).
BACKGROUND
[2] The applicant, Neelam Makhija, is an electronic engineer and President of NJM Initiatives Inc. (NJM). NJM is an Ontario registered corporation based in Oakville which advertises expertise in “Federal Technology and Financial Investment Qualifications” and “Proposal Advocacy and Company Representation”.
[3] In October 2005, based on information provided by officials at Industry Canada, the Registrar determined that he had reasonable grounds to believe the applicant had breached the Code with respect to his activities on behalf of four high technology (high tech) companies in British Columbia, namely TIR Systems Inc. (TIR), Infowave Software Inc. (Infowave), Intrinsyc Software Inc. (Intrinsyc) and Wavemakers Inc (Wavemakers).
[4] Pursuant to subsection 10.4(1) of the Act, the Investigations Directorate of the Office of the Registrar of Lobbyists (the ORL) conducted four investigations with respect to the applicant’s activities on behalf of the four high tech companies in question. The investigations included an examination of correspondence among the high tech company in question, the applicant and federal government employees; internal federal government correspondence; agreements between the high tech company and the federal government; contracts and agreements between the high tech company and the applicant or NJM; payments made by the high tech company to the applicant or NJM; the high tech company’s annual and quarterly reports; government information related to the funding program at issue; the Registry of Lobbyists; and, publicly available information from the Internet.
[5] In the spring of 2006, upon completion of these investigations, the Investigations Directorate submitted to the Registrar four preliminary Investigation Reports, each of which concluded that the applicant had not met his obligations under the Act or the Code during the period covered by the investigation in question. The Investigations Directorate was of the view that the applicant had contravened subsection 5(1) of the Act since, for payment, he had acted on behalf of each high tech company to communicate with a public office holder in an attempt to influence the awarding of a financial contribution and to arrange a meeting between a public office holder and each respective high tech company’s representatives. The Investigations Directorate also determined that the applicant had breached the principle of “Professionalism” contained in the Code which requires lobbyists to conform to the Code, the Act and its regulations. Further, all four investigations concluded the applicant had breached Rule 3 of the Code by failing to inform the high tech company in question of his obligations under the Act and by failing to adhere to the Code. Finally, the applicant’s activities on behalf of Infowave were found to have breached the remaining two principles of “Integrity and Honesty” and “Openness” as it was found that he failed to conduct his relations with his client with integrity and honesty and failed to be open and frank about lobbying. With respect to his activities associated with Infowave, he was also found to have breached Rule 2 which requires lobbyists to provide information that is accurate and factual to public office holder and prohibits lobbyists from knowingly misleading anyone.
[6] Subsection 10.4(5) of the Act provides that before finding that a person under investigation has breached the Code, the Registrar must give that person a reasonable opportunity to present their views. Accordingly, on July 25, 2006, the applicant received copies of the preliminary Investigation Reports and was provided an opportunity to make representations in response to the findings contained therein. The applicant’s counsel filed written representations on October 4, 2006. Between October and November 2006, the applicant’s counsel requested on two occasions to be heard orally by the Registrar. His requests to present viva voce evidence were denied and the applicant was informed that upon completion of the Investigation Reports, they would be tabled in Parliament.
[7] In early December 2006, the applicant filed an interlocutory motion to enjoin the Registrar from sending the final Reports to the Registrar General of Canada (the Registrar General). The motion was dismissed by this Court on December 18, 2006. The Registrar drafted four final Investigative Reports, dated February 2007 (together, the Decisions). As was found in the preliminary Investigative Reports, the Decisions concluded that the applicant had breached subsection 5(1) of the Act, Rule 3 of the Code and in the case of Infowave, Rule 2 of the Code. The Registrar submitted the Decisions to the President of the Treasury Board (who acts in place of the Registrar General for the purposes of the Act) and they were tabled in the House of Commons and Senate on March 19, 2007 and March 20, 2007 respectively. The Decisions were communicated to the applicant on March 21, 2007.
[8] It is worthwhile to examine in greater detail the Registrar’s finding of facts and conclusions with respect to each of the four Decisions.
THE TIR DECISION
Findings of Fact
[9] In the TIR Decision, the Registrar provides a detailed factual description of the interaction between the applicant, NJM and TIR. According to the findings of the Registrar, in the fall of 2000, the applicant was in contact with a number of high tech companies in British Columbia to determine if there was a match between their investment needs and the contribution arrangement that might be available through the Technology Partnerships Canada (TPC), a special agency of Industry Canada mandated to provide conditionally repayable contributions to companies in Canada in order to bring research and development in technology to the marketplace. TPC works with the National Research Council (NRC) and the Communications Research Council (CRC) to deliver its financing program. TIR, a corporation based in Burnaby, British Columbia, was one such company seeking funding through the TPC program.
[10] The applicant arranged a series of meetings in Vancouver in December 2000 between TIR, and federal government employees involved in the TPC funding process. TIR submitted its proposal for funding to TPC on January 11, 2001. TIR’s proposal was considered at a TPC prioritization meeting held on February 6, 2001. TIR’s proposal was not selected for further consideration at that time. On February 16, 2001, the President of TIR stated that the applicant had informed him the TIR proposal was still under review by TPC.
[11] A memorandum of understanding (MOU) between NJM and TIR was signed by the applicant on February 23, 2001. According to the preamble of the MOU, NJM was retained to assist in a planning process “with the object of qualifying for and securing financial support from government agencies” among other professional services. TIR was to pay the applicant a fixed amount upon signing of the MOU, as well as a fee calculated at 15% of the government’s financial contribution to the project upon government approval of TIR’s proposal. The MOU contained the following caveat:
The role of NJM concludes with the achievement of the stated objective, i.e. qualifying for government funding. However, as a complimentary service subsequent to approval of funding, ongoing liaison with funding source(s) will be provided, until completion or termination of the project.
[12] On April 6, 2001, the applicant met with a TPC Director and later that day he spoke with the President of TIR to inform him of the meeting. A meeting was scheduled between TIR and TPC for May 2, 2001. The applicant was to be present at this meeting and was described by TIR as “TIR’s representative in Ottawa (Consultant).” The applicant invited a CRC manager to this meeting. That same month, the applicant arranged other meetings between TIR, the investment officer of the TPC and another Industry Canada employee.
[13] An Agreement between the TPC Executive Director (on behalf of the Minister of Industry) and TIR was signed on November 5, 2001, which provided maximum funding to TIR in the amount of $6,636,271. Prior to the signing of this Agreement, TIR had certified to TPC that it would advise if a lobbyist were used for the purpose of its investment proposal and that such a lobbyist would comply with the Act. Section 6.11 of Schedule 1 of this Agreement provided that any person lobbying for TIR in order to obtain the Agreement and any of its benefits would register under the Act.
[14] In September 2003, the applicant met with the Executive Director of TPC concerning TIR. The applicant then negotiated with an investment officer of the TPC regarding amendments to the financing provisions of the Agreement between TIR and the TPC.
[15] On December 16, 2003, NJM, the applicant and TIR entered into a “Settlement and Release” agreement terminating the applicant who acknowledged receipt of payment in the amount of $1,065,121.50. During the relevant period, specifically from October 2000 to December 2003, there was no registration of the applicant or NJM in the Registry.
The Applicant’s Views
[16] Having reviewed the facts that led to the TIR Decision, the Registrar next summarizes the applicant’s response to the preliminary Investigation Reports, as contained in the letter sent by his counsel to the Registrar dated October 4, 2006. This correspondence contained biographical information about the applicant, as well as descriptions of the work he carried out in the 1980s and 1990s. In the letter, applicant’s counsel argued that TPC was actively searching for projects in 2000 and that TPC contacted the applicant to aid them in funding projects. The applicant was of the view that during the period covered by the investigation, the registration requirements of the Act did not apply if a public office holder made a written request to a lobbyist soliciting their advice or comment on a matter. Likewise, applicant’s counsel stated that the arrangement of the meeting in December 2000 was made at the request of TPC officers; was not arranged with respect to any particular company (instead it was organized so the TPC could see a variety of potential companies); and, at that time, the applicant was not yet under a contract with any of the companies. Regarding the May 2001 visit, the applicant argued the meeting was arranged for the benefit of the TPC officer and not TIR. Finally, it was argued that the applicant never communicated with TPC officials in an attempt to influence the TPC funding process. The applicant’s communication with public office holders was necessary for the funding process to function and was restricted to providing TPC with information regarding the companies and with regards to the status of the TPC application. In short, the applicant did not believe he carried out any activity that would have required registration under the Act.
Conclusions
[17] The Registrar analyzed the significance of his findings of fact and concluded the applicant had breached the Act and the Code. The Registrar noted that it is not uncommon for companies seeking a repayable contribution from government organizations to hire individuals to assist them with the application process. In doing so, these individuals may arrange meetings between the company and officials and may communicate with officials on behalf of the company. The Registrar emphasized that such action are legitimate; however, the Act imposes certain obligations of disclosure and behaviour on those who undertake to assist companies in this way and receive payment for doing so.
Breach of the Act
[18] The Registrar considered the wording of section 5(1) of the Act which, during the period of the applicant’s activities on behalf of TIR, read in part as follows:
5.(1) Every individual who, 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 in an attempt to influence
…
(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) arrange a meeting between a public office holder and any other person,
shall, not later than ten days after entering into that undertaking, file with the registrar, in the prescribed form and manner, a return setting out the information referred to in subsection (2).
5. (1) Est tenue de fournir au directeur, dans les dix jours suivant l’engagement, une déclaration, en la forme réglementaire, contenant les renseignements prévus au paragraphe (2) toute personne (ci-après « lobbyiste-conseil ») qui, moyennant paiement, s’engage, auprès d’un client, personne physique ou morale ou organisation :
a) à communiquer avec un titulaire de charge publique afin de tenter d’influencer :
[…]
(v) l’octroi de subventions, de contributions ou 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.
[19] The Registrar analyzed whether the applicant had complied with these legislative requirements. With respect to paragraph 5(1)(a), the Registrar emphasized how the preamble of the MOU between NJM and TIR states that NJM had been retained to the assist with the “objective of qualifying for and securing of financial support” from government agencies and how the list of services to be supplied by NJM included “proposal preparation, initial presentation, submission, discussion and defense.” Further, the MOU provided that NJM would offer “ongoing liaison with funding source(s)” until completion or termination of the project. The Registrar reasoned that this language indicated it was the intention of the parties that NJM would work to influence the awarding of a contribution, contract or financial benefit. The Registrar concluded that during the period of 2001 to 2003, the applicant met with TPC investment officers and other TPC officials to provide information about TIR and its projects. In his communications with TIR, the applicant reported the names of the government employees with whom he met, as well as the names of those employees who supported or intended to support the TIR proposal and the kind of support they could provide. After the signing of the funding agreement between TIR and the TPC, the applicant spoke directly to the TPC to suggest financing changes for the project that were favourable to TIR.
[20] Regarding paragraph 5(1)(b), the Registrar found that the applicant’s role included arranging meetings between TIR and public office holders in May, 2001. Indeed, the applicant “co-ordinated between government and TIR representatives, determining the availabilities of those attending and setting or changing the time and date of the meeting.” Further, the work performed for TIR by NJM or the applicant was for payment.
[21] The Registrar therefore found that the applicant had contravened subsection 5(1) of the Act and stated as follows:
For payment, he acted a consultant lobbyist. He arranged at least one meeting between public office holders and TIR representatives. He communicated with public office holders in an attempt to influence the awarding of a financial contribution by TPC. [The applicant] was required under the [Act] to register as a lobbyist but failed to do so. At the latest, he should have registered within 10 days of the signing of the MOU with TIR on February 23, 2001.
[22] The Registrar rebutted the applicant’s argument that he was not required to register because he was contacted initially by TPC and stated that he had misinterpreted the former paragraph 4(2)(c) of the Act which was in place during the relevant period and which provided public office holders with the ability to seek the advice of a specialist without triggering the requirement for the individual to register. This provision did not sanction a lobbyist to seek out clients and perform lobbying activities on their behalf without registering. Likewise, although the applicant argued he did not attempt to influence TPC official and thus was not required to register, the Registrar was of the view that influence with respect to the decision to invest in a high tech company such as TIR arises in part through the presentation of data regarding the proposed investment, including technical data, financial data and market data. Likewise, the wording of the MOU, in the view of the Registrar, clearly evidences that the intent was that “NJM would carry out these services in order to obtain a financial contribution from TIR for the federal government.”
Breach of the Code
[23] In terms of whether the applicant breached the Code, the Registrar determined that because the applicant was in breach of the Act, his “lobbying on behalf of TIR without registering violates the principle of Professionalism under the Code.” However, during the period covered by the investigation, it was necessary to contravene one or more of the Rules of the Code to be found in breach of the Code. Rule 3 of the Code requires lobbyists to indicate to their client their obligations under the Act and to adhere to the Code. As the applicant was of the view that his activities were not subject to registration under the Act, the Registrar concluded: “It follows, then, that he did not disclose his obligations under the Act to TIR.” The Registrar found the applicant in breach of Rule 3 of the Code.
THE INFOWAVE DECISION
Findings of Fact
[24] As stated, in the fall of 2000, the applicant was in contact with a number of high tech companies in British Columbia to determine if there was a match between their investment needs and the contribution arrangement that might be available through the TPC. Infowave, a corporation based in Burnaby, British Columbia, was, like TIR, one such company seeking funding through the TPC program. According to the Infowave Decision, the applicant arranged a series of meeting in Vancouver to be held in December 2000 between Infowave and federal government employees involved in the TPC funding process. Infowave submitted its funding proposal to TPC in January 2001. In February of that year, Infowave’s proposal was considered at the same TPC prioritization meeting that considered the proposals of TIR, Intrinsyc and Wavemakers. Infowave’s proposal was not selected at that time but remained in consideration for future funding.
[25] An MOU between NJM and Infowave was signed by the applicant on April 12, 2002 which contained the same preamble as the MOU between TIR and NJM. The applicant was to receive $2,000 upon signing of the MOU and upon approval of government funding, a professional fee calculated at a stated percentage (15%) of the total amount of the funding.
[26] The applicant arranged a series of meetings for May 2001 between TPC investment officers, another Industry Canada employee to provide information about Infowave and its product. In April 2003, the applicant also met with the investment officer for “a bit of strategization” to prepare for a meeting in May, 2003.
[27] Infowave’s repayable contribution agreement with the TPC Executive Director was signed on December 8, 2003. The maximum funding for Infowave was set at $7,289,500. The agreement contained the same section 6.11 of Schedule 1 as the agreement between TIR and the TPC which provides that any person lobbying for Infowave in order to obtain the Agreement and any of its benefits would register under the Act.
[28] By letter to NJM dated November 4, 2003, Infowave advised that the TPC funding agreement required the applicant to confirm that he did not solicit the agreement with TPC on behalf of Infowave. Infowave submitted a similar representation to TPC and requested the applicant contact them immediately if he had information “inconsistent with these representations.”
[29] Infowave waived its right under the MOU for a complimentary service of ongoing liaison with funding sources and requested NJM not to engage in such activities except at the request of the company. The applicant signed his acknowledgement and agreement to this waiver by letter dated November 4, 2003. On March 24, 2004, the applicant, on his own behalf and on behalf of NJM, signed a “Compliance Certificate” to certify that he did not solicit the agreement between TPC and Infowave and that he did not engage in lobbying on behalf of Infowave. He acknowledged that Infowave was relying on this certificate in its dealings with TPC.
[30] Two days later the applicant cancelled the MOU for “personal reasons” effective immediately. In its third quarter report for 2004, Infowave stated that TPC would reduce its funding by 15% or $1.1 million which “equals the amount Infowave was to pay a consultant for assisting the development of Infowave’s “technology road map” and the application for TPC funding.” Due to the cancellation of the MOU, NJM was paid the signing fee of $2,000 but no further payments were made. During the relevant period, specifically from October 2000 to November 2003, there was no registration of the applicant or NJM in the Registry.
The Applicant’s Views
[31] The Registrar summarizes the applicant’s response to the Preliminary Investigation Report, as contained in the letter by his counsel to the Registrar dated October 4, 2006. It is not necessary to reiterate the arguments raised in the letter since the Registrar summarizes the letter in the same manner as was done in the TIR decision.
Conclusions
[32] The Registrar analyzed the significance of his findings of fact and concluded the applicant had breached the Act and the Code. The Registrar again noted that it is not uncommon or illegitimate for companies seeking a repayable contribution from government organizations to hire individuals to assist them with the application process; however, the Act imposes certain obligations of disclosure and behaviour on those who undertake to assist companies in this way and receive payment for doing so.
Breach of the Act
[33] The Registrar (as in the TIR decision) considered the wording of section 5(1) of the Act during the period of the applicant’s activities on behalf of Infowave analyzing whether or not the applicant had complied with these legislative requirements. With respect to paragraph 5(1)(a), the Registrar again emphasized how the preamble of the MOU between Infowave and TIR states that NJM had been retained to the assist with the “objective of qualifying for and securing of financial support” from government agencies and how the list of services to be supplied by NJM included “proposal preparation, initial presentation, submission, discussion and defense.” Further, the MOU provided that NJM would offer “ongoing liaison with funding source(s)” until completion or termination of the project. The Registrar reasoned that this language indicated it was the intention of the parties that NJM would work to influence the awarding of a contribution, contract or financial benefit. During the relevant period, the applicant met with TPC investment officers and other TPC officials to provide information about Infowave and its projects. Again, it was found that the applicant “co-ordinated between government and Infowave representatives, determining the availabilities of those attending and setting or changing the time and date of the meeting.” Also, the work performed for Infowave by NJM or the applicant was for payment. The Registrar therefore found that the applicant had contravened subsection 5(1) of the Act.
[34] As in the TIR Decision, the Registrar stated that the applicant had misinterpreted the former paragraph 4(2)(c) of the Act and was therefore not exempt from registration by virtue of this provision. Likewise, although the applicant argued he did not attempt to influence TPC officials and thus, was not required to register, the Registrar was of the view that influence with respect to the decision to invest in a high tech company (such as Infowave) arises in part through the presentation of data regarding the proposed investment which includes technical data, financial data and market data. Likewise, the Registrar found the MOU evinces the intent “NJM would carry out these services in order to obtain a financial contribution from TIR for the federal government.”
Breach of the Code
[35] In terms of whether the applicant breached the Code, the Registrar determined that because the applicant was in breach of the Act, his “lobbying on behalf of Infowave without registering violates the principle of Professionalism under the Code.” The Registrar also considered the two remaining principles of the Code, finding that the applicant had violated these principles by “failing to conduct his relations with his clients with integrity and honesty and by failing to be open and frank about his lobbying.” However, again it was emphasized that during the period covered by the investigation, it was necessary to contravene one or more of the Rules of the Code to be found in breach of the Code.
[36] Rule 3 of the Code requires lobbyists to indicate to their client their obligations under the Act and to adhere to the Code. As the applicant was of the view that his activities were not subject to registration under the Act, the Registrar concluded: “It follows, then, that he did not disclose his obligations under the Act to Infowave.” The Registrar found the applicant in breach of Rule 3 of the Code.
[37] Rule 2 of the Code requires lobbyists to provide accurate and factual information to public office holders and to not knowingly mislead anyone. The Registrar emphasized that the applicant has signed statements to confirm he did not solicit the agreement with TPC and that he did not engage in lobbying on behalf of Infowave and had done so known that Infowave was relying on these statements in its dealings with TPC and others. The Registrar concluded that the applicant breached Rule 2 in that “he either knowingly misled Infowave or, in failing to exercise proper care, he inadvertently did so.”
THE INTRINSYC DECISION
Findings of Fact
[38] Following a similar pattern as the two decisions described above, the Registrar found that the applicant arranged a series of meetings in Vancouver in December 2000 between Intrinsyc, a corporation based in Vancouver, British Columbia, and federal government employees involved in the TPC funding process. Intrinsyc submitted its funding proposal to TPC in January 2001. In February of that year, Intrinsyc’s proposal was not selected by the TPC, although it too remained in consideration for future funding.
[39] An MOU between NJM and Intrinsyc was signed by the applicant on March 26, 2001 which contained the same preamble as discussed above. The applicant, yet again, was to receive a fixed amount upon signing of the MOU and a stated percentage of the total amount of the financial contribution upon approval of government funding.
[40] During the period from 2001 to 2003 the applicant met with investment officers and other TPC officials to provide information about Intrinsyc and its product. During that same time frame, the applicant arranged meetings between Intrinsyc and the TPC.
[41] Intrinsyc entered into its repayable contribution agreement with the TPC Executive Director on August 9, 2002. The maximum funding for Intrinsyc was set at $6,636,271. NJM was paid the MOU signing fee of $2,000 and further payments totalling $393,367.93 throughout 2003.
The Applicant’s Views
[42] The Registrar next reviews the applicant’s response to the Preliminary Investigation Report, as contained in the letter by his counsel to the Registrar dated October 4, 2006. The Registrar summarizes the letter in the same manner as was done in both the TIR and the Infowave Decisions.
Conclusions
[43] The Registrar concluded the applicant had breached the Act and the Code, again emphasizing that it is not illegitimate for companies seeking a repayable contribution from government organizations to hire individuals to assist them with the application process. Nevertheless, the Act imposes certain obligations of disclosure and behaviour on those who undertake to assist companies in this way and receive payment for doing so.
Breach of the Act
[44] The Registrar (as in the TIR Decision and the Infowave Decision) considered the wording of section 5(1) of the Act during the period of the applicant’s activities on behalf of Intrinsyc. With respect to his analysis of paragraph 5(1)(a), the Registrar noted how the preamble of the MOU between Intrinsyc and TIR states that NJM had been retained to the assist with the “objective of qualifying for and securing of financial support” from government agencies and how the list of services to be supplied by NJM included “proposal preparation, initial presentation, submission, discussion and defense.” Further, the MOU provided that NJM would offer “ongoing liaison with funding source(s)” until completion or termination of the project. The Registrar reasoned that this language indicated it was the intention of the parties that NJM would work to influence the awarding of a contribution, contract or financial benefit. During the period of 2001 to 2003, the applicant met with TPC investment officers and other TPC officials to provide information about Intrinsyc and its projects. Again, it was found that the applicant “co-ordinated between government and Intrinsyc representatives, determining the availabilities of those attending and setting or changing the time and date of the meeting.” The work performed by NJM or the applicant was for payment. The Registrar therefore found that the applicant had contravened subsection 5(1) of the Act.
[45] As occurred in the TIR and Infowave Decisions, the Registrar rebutted the applicant’s arguments as follows: the applicant misinterpreted the former paragraph 4(2)(c) of the Act; the applicant was required to register since the applicant undertook to influence the TPC decision to invest in Intrinsyc in part through the presentation of data regarding the proposed investment, including technical data, financial data and market data; and, that in consideration of the wording of the MOU, the intent was “clearly that NJM would carry out these services in order to obtain a financial contribution from TIR for the federal government.”
Breach of the Code
[46] In terms of whether the applicant breached the Code, the Registrar determined that because the applicant was in breach of the Act, his “lobbying on behalf of Intrinsyc without registering violates the principle of Professionalism under the Code.” Again, given that the applicant was of the view that his activities were not subject to registration under the Act, the Registrar concluded: “It follows, then, that he did not disclose his obligations under the Act to Intrinsyc.” The Registrar found the applicant in breach of Rule 3 of the Code.
THE WAVEMAKERS DECISION
Findings of Fact
[47] The Registrar found as a fact that the applicant also arranged a series of meetings in Vancouver in December 2000 between Wavemakers and federal government employees involved in the TPC funding process. Wavemakers submitted its funding proposal to TPC in January 2001. In February of that year, (unlike in the other three proposals), Wavemakers’ financing proposal was selected for further funding consideration.
[48] An MOU between NJM and Wavemakers was signed by the applicant on February 23, 2001 with the same preamble contained in the three other MOU’s. Likewise, in a similar fashion, the applicant was to receive a fixed amount upon signing of the MOU and a stated percentage of the total amount of the financial contribution upon approval of government funding.
[49] During the period from 2001 to 2003 the applicant communicated with TPC officials to regarding Wavemakers’ funding proposal. In that same time, the applicant arranged meetings between Wavemakers, investment officers of the TPC and an Industry Canada employee.
[50] Wavemakers entered into its repayable contribution agreement with the TPC Executive Director on October 24, 2001. The maximum funding for Wavemakers was set at $4,418,283. Section 6.11 of Schedule 1 of this agreement provided the same requirement that any person lobbying for Wavemakers in order to obtain the Agreement and any of its benefits would register under the Act.
[51] NJM was paid the MOU signing fee of $2,000 plus G.S.T. and further payments totalling $291,136.03 from March 2002 to January 2004. The first of these checks was made payable to the applicant himself, the rest were made out to NJM. From October 2000 to January 2004, there was no registration of the applicant or NJM in the Registry.
The Applicant’s Views
[52] The Registrar then considers the applicant’s response to the Preliminary Investigation Report, as contained in the letter by his counsel to the Registrar dated October 4, 2006. The Registrar summarizes the letter in the same manner as was done in the three other Decisions.
Conclusions
[53] The Registrar concluded the applicant had breached the Act and the Code. He first notes that it is not illegitimate for companies seeking a repayable contribution from government organizations to hire individuals to assist them with the application process. However, for those who undertake to assist companies in this way and receive payment for doing so, the Act imposes certain obligations of disclosure and behaviour on lobbyists.
Breach of the Act
[54] The Registrar (as occurred in the three other Decisions) considered the wording of section 5(1) of the Act during the period of the applicant’s activities on behalf of Wavemakers. The Registrar quotes the same phrases cited above from the preambles of the MOUs in question to highlight that the applicant was retained to the assist with the “objective of qualifying for and securing of financial support” from government agencies and how the list of services to be supplied by NJM included “proposal preparation, initial presentation, submission, discussion and defense.” Further, as the MOU provided that NJM would offer “ongoing liaison with funding source(s)” until completion or termination of the project, the Registrar concluded that this language evidences the intention of the parties that NJM would work to influence the awarding of a contribution, contract or financial benefit. During the period of 2001 to 2003, the applicant met with TPC investment officers and other TPC officials to provide information about Wavemakers and the project it was proposing for funding. Again, it was found that the applicant “co-ordinated between government and Wavemakers representatives, determining the availabilities of those attending and setting or changing the time and date of the meeting.” The work performed by NJM or the applicant was for payment. The Registrar therefore found that the applicant had contravened subsection 5(1) of the Act.
[55] As in the other Decisions, the Registrar found the applicant had misinterpreted the former paragraph 4(2)(c) of the Act; was required to register since the applicant undertook to influence the TPC decision to invest in Wavemakers (through the presentation of data regarding the proposed investment, including technical data, financial data and market data); and, that per the MOU, the intent was “clearly that NJM would carry out these services in order to obtain a financial contribution from TIR for the federal government.”
Breach of the Code
[56] The Registrar determined that because the applicant was in breach of the Act, his “lobbying on behalf of Wavemakers without registering violates the principle of Professionalism under the Code.” Again, given that the applicant was of the view that his activities were not subject to registration under the Act, the Registrar concluded: “It follows, then, that he did not disclose his obligations under the Act to Wavemakers” in breach of Rule 3 of the Code.
APPLICATION FOR JUDICIAL REVIEW
[57] On April 20, 2007, the applicant filed four separate applications for judicial review of the Decisions (T‑662‑07, T‑664‑07, T‑665‑07 and T‑666‑07) alleging that the Registrar erred in law in holding that the applicant breached the Act and the Code. The applicant seeks an order quashing the Decisions and causing the Registrar General to withdraw them from the Parliament of Canada. The applicant also seeks a declaration that he is not a lobbyist under the Act and that he has not infringed the Act or Code. This Court ordered that the four files be consolidated under the current Court file (T‑662‑07) on May 14, 2007.
[58] In this judicial review, the applicant alleges the Registrar erred in his interpretation of the Act. Counsel for the applicant raises many of the same arguments that were raised in the written submissions provided to the Registrar in October 2006. First, it is argued that the applicant never acted as a lobbyist. In this regard the applicant has never communicated with a “public office holder” in an attempt to influence the awarding of any grant, contribution, contract or other financial benefit. Any communication that the applicant had with TPC officials or other “public office holders” is characterized as “strictly limited to communicating the salient features of the project and to facilitate, within the companies, the response to questions raised by the TPC review process.” Secondly, the applicant alleges that TPC actively solicited the assistance of the applicant. By virtue of subparagraph 4(2)(c) of the Act as it read in 2003 (which allowed public office holders to seek the advice of a specialist without triggering requirement for the individual to register), the applicant states he was not required to register. Thirdly, the applicant argues that changes to the Act which came into force on June 20, 2005 reveal a legislative intent to target “direct attempts” to influence government officials. In this instance, all of the dealings the applicant had with TPC officials were incidental to the obligations he had to the high tech companies, and are thus not aptly characterized as direct attempts to influence public office holders. Finally, the applicant argues that the Act is a penal statute and should therefore be interpreted strictly. The applicant emphasizes that the sanctions contemplated by the Act are not limited to fines and imprisonment. Indeed, given that the Registrar has the discretion to present his final Investigation Reports to the Registrar General for tabling before Parliament “represents a level of personal humiliation for that applicant that is very real …”. Applying these strict rules of interpretation to the Act, it is submitted that the applicant was not “attempting to influence government” as set out in the Act.
PRELIMINARY ISSUE
[59] In the course of the hearing, questions were raised by the Court regarding the jurisdicti