Canada: Changes to the "Lobbying Act"

The purpose of this bulletin is to highlight two significant changes to the law in regards to lobbying the Government of Canada. The Government has passed a new regulation, which expands the definition of a Designated Public Office Holder to now include every member of the House of Commons and Senate, as well as certain staff in the Office of the Leader of the Opposition in both the House of Commons and the Senate. The change came into effect on September 20th, 2010.

The second notable change relates to the Lobbyists' Code of Conduct, and more specifically, the types of political activity which would violate Rule 8 of the Code. The Commissioner for Lobbying has now issued two guidance documents that clearly indicate that the Commissioner sees certain political activities engaged in support of a politician, whom they are also lobbying, as an improper influence.

Regulations Amending the Definition of a Designated Public Office Holder – September 20, 2010

As stated above, the Government passed a regulation, pursuant to the Lobbying Act, which expanded the definition of Designated Public Office Holder. Up until September 20th, a designated public office holder included a minister, any member of the minister's exempt staff, a deputy minister, associate deputy minister, assistant deputy minister, or the equivalent, as designated by regulation.

The Lobbying Act requires that oral and arranged communication with a Designated Public Office Holder, including meetings and telephone calls, be reported 15 days after the end of the month in which the communication occurred. This is commonly referred to as the Monthly Reporting Rule. This requirement added an extra level of transparency that went beyond the semi-annual reports and updates required in law by the Lobbying Act for all lobbyists.

These monthly reports show which lobbyists are meeting with which designated public office holders, i.e. ministers, and senior public officials and, for what purpose. As a result of the new recent regulation, these reports must now also include meetings with members of parliament, whether in Government or the Opposition, as well as the staff of the leaders of the Opposition in the House and in the Senate. The immediate effect will be to put an extra reporting burden on all lobbyists, whether consultant lobbyists, or in-house lobbyists. The readers of this bulletin are encouraged to speak with legal counsel if they have any questions in regards to the application of the expanded rule.

Commissioner's Guidance on Conflict Of Interest – Rule 8 (Lobbyists' Code of Conduct)

The Lobbying Act makes provisions for a Lobbyists' Code of Conduct, which those involved in lobbying must follow, or be in breach of the Act. Rule 8 of the Lobbyists' Code of Conduct states "Lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder."

In 2002, the former Ethics Counselor received a number of allegations that registered lobbyists had breached the Lobbyists' Code of Conduct by lobbying a federal department at the same time that they were involved in assisting the Minister responsible for that department on a possible bid for the leadership of a political party.

The Ethics Counselor, formerly the person responsible for overseeing Canada's lobbying regime, issued a set of guidelines entitled "Rule 8 – Improper Influence – Lobbyists and Leadership Campaigns" (the "2002 Guidelines"). The Guidelines became the subject of a decision of the Federal Court of Appeal in 2009, in which the Court held that the Guidelines were unreasonable.

Following the decision, in November 2009, the current Commissioner of Lobbying issued a revised set of Guidelines. The Commissioner's Guidance reads, in part, as follows:

A lobbyist may be in breach of Rule 8 if:

  • The lobbyist's actions create a real conflict of interest for a public office holder, or
  • The lobbyist's actions create the appearance of a conflict of interest for a public office holder.

While the determination of what constitutes an improper influence upon a public office holder remains a question of fact in each case, the Commissioner's Guidance states:

Depending on the specific circumstances, a competing obligation or private interest could arise from factors such as, but not limited to:

  • the provision of a gift, an amount or money, a service, or property without an obligation to repay
  • the use of property or money that is provided without charge or at less than its commercial value
  • political activities.

The Guidelines further explain that "lobbyists should endeavour to conduct themselves in the highest ethical manner thus avoiding situations which could create real or apparent conflict of interest for a public office holder." The Commissioner then lists three examples of activities that might create an improper influence: gift, money, or political activities. Some have argued that the Guidance document essentially suggests that political activities are akin to a monetary gift or bribe.

The Guidance documents issued by the Commissioner became the focus of criticism from industry stakeholders, academics and other interested parties. For its part, the Canadian Bar Association issued a public legal opinion which argued that the constraints imposed on political activities were unconstitutional. By way of response, the Commissioner issued a further clarification to her original Guidelines on July 23, 1010.

The clarification states that political activities should be considered along a spectrum from a low degree of involvement to a high degree of involvement. Political activities by a lobbyist that are characterized as entailing a low degree of involvement include voting in an election, placing a sign on a lawn, attending a fundraising event, such as a barbeque or golf tournament, or donating money to an election campaign, within the contribution limits established in the Canada Elections Act.

Political activities that would be considered as entailing a high degree of involvement include being a member of a public office holder's constituency association, organizing a fundraising event, or participating in a campaign for the election of the public office holder. The Commissioner has indicated that these types of activities could put the lobbyist in breach of the Code of Conduct.

While the clarification document provided additional insight into the Commissioner's thinking on this issue, it did not satisfy her critics. Many continue to believe that the limits imposed on political activity are unlawful. The Commissioner's position is that she is not restricting political activity, but rather the Guidelines merely restrict lobbying activity by those who are politically active. The debate surrounding this issue will likely have to be settled by the Federal Court in the context of some future case.

The suggestion, however, that the Commissioner will retroactively look at an individual lobbyist's political activities will likely cause most active lobbyists to shy away entirely from any active political activity in the future, and will limit any individuals, currently actively involved in the political process, or those who may become so engaged, from engaging in any lobbying activity with that MP in the future. Until the matter is settled, lobbyists should be extremely careful about the type of political activity they undertake.

About BLG

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions