It is expected that a federal election will soon be called in Canada. If you or your employees communicate with federal officials, guidance from the Commissioner of Lobbying (the "Commissioner") on political activities, preferential access, and gifts could affect your business. Here's what you need to know about the Lobbyists' Code of Conduct (the "Code") in anticipation of the upcoming election campaign.
Briefly, lobbyists may not put a federal public office holder in a conflict of interest. The test, according to the Commissioner, is whether:
[A]n informed person, viewing the matter realistically and practically and having thought the matter through, [would] think that an action taken by a lobbyist has created a sense of obligation on the part of the public office holder, or a tension between the public office holder's private interests and the duty of the public office holder to serve the public interest[.]1
The Commissioner's interpretation of the Code seeks to avoid real or apparent conflicts of interest for federal public officer holders. In practical terms, the Commissioner's current interpretation of the Code means that:
- If you run a local candidate's election campaign and, after the election, she becomes a federal Cabinet minister, then you likely cannot lobby her without breaching the Code.
- If you have a friend, relative, or business associate in Parliament, then you likely cannot lobby them without breaching the Code.
- If you provide a gift, favour, or benefit — anything of value, including providing something at a reduced rate — to a federal official whom you are lobbying or will lobby, then you are likely breaching the Code.
The first of these rules is most directly engaged during an election campaign. With appropriate policies and procedures, leaders in the private and non-profit sectors can ensure that their political activities, and those of their employees, during an election period do not impede their organization's work once the ballots are counted and the business of government starts anew.
This election law primer is intended to convey general guidance on what Canada's lobbying rules could mean for you or your business in the run up to, and during, the 2021 federal election. If you have any specific questions or concerns, please contact, please contact Awanish Sinha, Hartley Lefton, Amanda D. Iarusso, Jacob Klugsberg, Andrew Butler, or Adam Kanji, of our firm's Public Sector. We would be pleased to assist you.
The Lobbyists' Code of Conduct
The Commissioner recently revised her office's interpretation of three key provisions of the Code: Rules 7, 8, 9, and 10. These rules, and particularly Rule 9, will shape how organizations, their employees and consultants interact with federal officials during and after an election campaign.
Rule 9 of the Code concerns political activities. It potentially applies to anyone who becomes involved in an election campaign. If you help someone get elected, then Rule 9 (as the Commissioner has interpreted it) may prevent you from lobbying them or their staff until after the following election.
Whether this prohibition applies to you will depend on whether your political activities are "higher-risk", "lower-risk", or "no-risk". The more frequent, numerous, and strategically or tactically significant your campaign-related activities are, the more likely you are to be subject to Rule 9 after voting day, and your lobbying activities be restricted.
Rules 7 and 8 of the Code concern preferential access. They provide that, if you have a relationship with a federal official "that could reasonably be seen to create a sense of obligation", then you may neither lobby that federal official nor arrange for another person to meet with them.
The Commissioner has broadened and particularized her interpretation of these rules. Lobbying or arranging meetings is prohibited where the lobbyist and the federal official: (i) are related by blood or by marriage, up to uncles, aunts, first cousins, nieces, and nephews; (ii) have bonds of "friendship" or "affection", or "a special kinship that extends beyond simple association"; or (iii) "share an ownership, fiduciary or monetary interest in a business".
Rule 10 of the Code concerns gifts. It bars lobbyists from providing or promising anything of value to a federal official whom they are lobbying or will lobby. According to the Commissioner's updated interpretation of this rule, gifts, favours, and benefits are not allowed unless they are "provided as a normal expression of courtesy or within the customary standards that normally accompany the [federal official]'s position".
For example, if a Cabinet minister speaks at your luncheon during the election campaign, and you give her a branded coffee mug as a token of gratitude, then you will not run afoul of Rule 10. But, if the coffee mug is gold plated, or if it contains a pair of Raptors tickets, then you will run afoul of Rule 10. Consider Rule 10 before inviting a federal official to anything that involves catering and before showing appreciation.
Are you a lobbyist?
Under the Lobbying Act, "lobbying" means communicating with federal public office holders2 for payment with regard to a prescribed subject matter. If you are paid to communicate with federal officials in respect of, among other things:
- the making, developing, or amending of federal legislative proposals, bills or resolutions, regulations, policies or programs; or
- the awarding of federal grants, contributions, or other financial benefits,
then you are a lobbyist under federal law, and the Lobbying Act (Canada) and the Lobbyists' Code of Conduct applies to you. Note that the Federal Court recently ruled that "payment" under the Lobbying Act may include non-monetary compensation, such as "a directorship within a corporation or organization, even in circumstances where the position is voluntary".
These rules apply to both types of lobbyists:
- Consultant lobbyists, who paid to communicate with federal public office holders on behalf of a client. These lobbyists may be self-employed, or they may work for government relations, public affairs, or law firms. Note that, where the communicating is done by a consultant lobbyist, the range of prescribed subject matters is slightly broader; a communication in relation to the awarding of a federal government contract is considered lobbying, and so is arranging a meeting between a public office holder and any other person.
- In-house lobbyists, who communicate with federal public office holders on behalf of the corporation or the organization that employs them. If a corporation's or organization's employees devote a significant part (~20%) of his or her activities to lobbying then the corporation or organization must register.3
Are your political activities risky?
If you are a consultant lobbyist, or if your corporation or organization employs one or more in-house lobbyists, then you must keep Rule 9 of the Code safely in mind during the next election campaign. According to the Commissioner's guidance, individuals who undertake "higher-risk political activities" during election season should not lobby any official who benefitted from those activities, or any member of their staff, until after the following election.
The following higher-risk political activities will likely disqualify you from lobbying the politicians whom they benefit until after the subsequent election:
- chairing a campaign or occupying a strategic role on a campaign team or in a party's "war room", serving in a position with a title for a registered federal party, or serving as an officer of a local riding association;
- preparing a candidate for a debate, or acting as a spokesperson for a party, candidate, campaign, or other organization; or
- organizing a fundraiser or otherwise raising funds for a federal party or local campaign.
Lower-risk political activities, such as volunteering, canvassing, or scrutineering on Election Day, may also lead to a lobbying disqualification. The question, according to the Commissioner, is whether the individual's "frequent involvement or involvement in multiple such activities increases the risk of creating a sense of obligation on the part of a public office holder who benefits from them".
Note that, according to the Commissioner's interpretation of Rule 9 of the Code, simply attending fundraisers or "expressing personal political views strictly in an individual capacity" may give rise to a disqualifying sense of obligation. On the Commissioner's current view, then, an employee who frequently tweets their personal partisan views during campaign season could well risk being barred from lobbying federal officials who profit politically from their tweets.
Only two activities are presently classified by the Commissioner as examples of "no risk" activities: displaying campaign signs or posters, and making personal campaign contributions. According to the Commissioner, putting a sign on your lawn or cutting a candidate a cheque will not affect your ability to communicate with federal officials after the election.
The bottom line
If you, or any of your employees, are paid to communicate with federal officials, then it will be important to keep Canada's lobbying laws and related guidance in mind in the coming weeks. Political involvement can have post-election consequences for your business. If you or others in your organization will interact with politicians and political parties during the election period, take the time to ensure that your internal policies and procedures comply with the rules outlined above.
This post is part of our 2021 federal election series. You can access related content here.
1 Office of the Commissioner of Lobbying of Canada, Guidance- Lobbyists' Code of Conduct.
2 Under the Lobbying Act, R.S.C. 1985, c. 44 (4th Supp.), at s. 2(1): "public office holder" means any officer or employee of the federal Crown, including: Senators, Members of Parliament, and their staff; federal appointees; officers, directors, and employees of federal boards, commissions, and tribunals; and members of the Canadian Armed Forces and the RCMP.
3 The Commissioner has recently recommended eliminating the "significant part of duties" threshold and replacing it with an obligation to register, no matter the amount of time spent lobbying.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.