On September 20, 2021, Canadians cast their ballots. The Liberal
Party of Canada won a plurality of seats and is expected to be
invited to form a minority government. The new cabinet is
anticipated to be announced in the coming weeks.
Businesses and organizations who plan to reach out to federal
public office holders (whether civil service, elected officials or
political staff) should be mindful that these communications may
constitute lobbying and may be subject to regulatory or compliance
obligations under the federal lobbying regime. The federal lobbying
rules apply both to external consultant lobbyists and in-house
lobbyists alike.
Dealing with public sector officials is subject to several
regulatory considerations that do not apply to interactions in the
private sector. The Lobbying Act (Canada) (Act)
sets out the requirements and rules to follow when lobbying federal
public office holders.
The general rule is that any communication, for one's employer
or paying client, with any federal public office holder on an
enumerated subject matter (described further below) is a lobbying
activity that, absent an exemption, must be disclosed and
registered.
A federal public office holder is broadly defined to include both
elected and non-elected officials, such as Members of Parliament,
Senators, political staff, civil servants, directors, officers or
employees of certain boards, commissions or other tribunals,
members of the Canadian Armed Forces and the Royal Canadian Mounted
Police and most government appointees.
Not all communications with federal public office holders qualify
as lobbying. Generally, communications about (i) government
expenditures, grants and contributions, and (ii) the development or
introduction of new or amended legislation, regulations, programs,
or policies (Enumerated Subject Matters), are considered lobbying
under the Act. For consultant lobbyists, discussions about the
awarding of a contract and arranging a meeting between a federal
public office holder and another person are also considered
lobbying.
Certain limited types of communications are exempt from
registration. These include communications that are a matter of
public record (i.e., to a legislative committee); are made in
connection to the enforcement, interpretation or application of
existing laws; or are restricted to a request for
information.
In addition, the federal lobbying regime allows certain de minimus
communications to be made by in-house employees that do not require
registration. Specifically, in-house lobbyists need only register
when certain thresholds are met, which occurs if the corporation or
organization employs one or more individuals who, alone or
collectively, spend at least 20 per cent of one employee's time
(calculated over a one-month period) lobbying one or more federal
public office holders. Preparatory activities are included in the
calculation. This threshold exemption should only be relied on with
caution and does not apply to consultant lobbyists. It is generally
prudent to register whether or not the threshold will be
exceeded.
Once registration is made, consultant and in-house lobbyists are
also subject to ongoing disclosures and filings, including monthly
communication reports for communications with certain senior
"designated" federal public office holders.
There are a range of other considerations to keep in mind when
lobbying federal public office holders. Businesses engaging
in-house lobbyists as employees should be mindful of
post-employment restrictions for former politicians, political
staff and civil servants. Businesses engaging consultant lobbyists
should avoid paying contingency fees.
Businesses engaged with government should also be mindful of
federal gifting rules, which generally prohibit the giving or
acceptance of gifts or advantages that might reasonably be seen to
have been given to influence a federal public office holder in the
exercise of an official power, duty or function. Gifts of nominal
value given as an expression of courtesy or hospitality are
generally acceptable.
The Lobbyists Code of Conduct (Code) prohibits
lobbyists from providing or promising a gift, favour, or other
benefit to a federal public office holder (whom they are lobbying
or will lobby), which the federal public office holder is not
allowed to accept. The Code also restricts lobbyists who previously
undertook political activities on behalf of an individual who is or
who becomes a federal public office holder from lobbying the same
individual (and their staff).
Contravention of any provision of the Act is an offence and could
lead to a serious investigation, fine and/or imprisonment.
Moreover, contravention of the federal lobbying regime can result
in significant public disclosure and reputational damage.
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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.
