Written By Will Osler and Rebecca Taylor
Canada's new Lobbyists' Code of Conduct (the Code) came into effect on July 1, 2023. The Code operates alongside the other ethical regimes for federal officials, and seeks to "foster transparent and ethical lobbying of federal officials." Individuals who must file returns or employees who are named in a return required by the Lobbying Act must also comply with the Code.
Compliance with the Code seeks to strengthen lobbying's ethical culture, avoid placing federal officials in actual or apparent conflicts of interest, and contribute to the public's confidence in the integrity of federal government decision-making and government institutions. If a lobbyist fails to comply with the Code, then the Commissioner of Lobbying has the power to launch an investigation, which can lead to in a public report to Parliament.
- The Code introduces a new low-value amount for gifts or hospitality of $40 per person, per event. The annual limit is $200.
- Grassroots lobbying activities are now subject to the Code.
- Lobbyists are prohibited from lobbying an official who could reasonably be seen to have a sense of obligation towards the lobbyist as a result of a close relationship or in other circumstances beyond the Code's scope.
- The cooling off period is reduced from four years to one or two, depending on the significance of the lobbyist's role.
Grassroots Communications & Disclosure Obligations
Following concerns about informal discussions and lobbying activities in Ottawa, grassroots lobbying activities are now caught by the Code. Grassroots communications include appeals to the general public through mass media or direct communication, which encourage members of the public to communicate with an official in order to put pressure on the official to endorse a certain viewpoint.
Lobbyists must identify their client or employer, as well as the purpose of their communications, when they lobby an official. When lobbying on a client's behalf, lobbyists must inform their client that they have obligations under the Lobbying Act, its regulations and the Code—and that the client may have similar obligations. Similarly, when a lobbyist engages in lobbying activities as part of their employment, they must inform their employer of such activities to ensure they are properly registered in the Registry of Lobbyists. Employer registrants must also inform any employees engaged in lobbying activities of their obligations under the Code.
Sense of Obligation
The Code had previously required lobbyists to refrain from proposing or taking any action that would place a public office holder in either a conflict of interest. In the 2023 update to the Code, lobbyists cannot lobby an official where the official could reasonably be seen to have a sense of obligation towards the lobbyist because of their close relationship or for reasons not listed in the Code.
The Code defines sense of obligation as a "feeling of owing something (or feeling beholden) to another person." For example, an official may be seen to have a sense of obligation towards another person include those where the lobbyist: employed the official before they became an official; employed or employs an official's close family member; engaged in partisan activities for the official's benefit; or provided gifts or hospitality in excess of the Code's annual limit to the official before they became an official. Similarly, an official may be seen to have a sense of obligation towards a lobbyist if the lobbyist's client or employer provided gifts or hospitality in excess of the Code's annual limit.
Close relationships are defined as close bonds that extend beyond acquaintances and include family relationships, personal relationships, working relationships, business relationships and financial relationships.
The new Code reduces the cooling-off period from four years to either one or two years, depending on the lobbyist's prior political work for the official's benefit. Political work is divided into three broad categories, each with its own cooling-off period:
- leadership or senior political roles (serving as campaign manager, designated spokesperson, in a senior leadership or election campaign position, or serving on the executive of an electoral district, or organizing political fundraising or campaign events) are subject to a 24-month cooling off period;
- other political roles (canvassing, fundraising, distributing or disseminating campaign materials) are subject to a 12-month cooling off period; and
- engaging in fundraising that could reasonably be seen to be significant to the official is subject to a 12-month cooling-off period.
The Commissioner may reduce each of these cooling-off periods on a case-by-case basis.
The Commissioner of Lobbying has hinted that there may be further updates to lobbying rules to come, including stricter sanctions and increased reporting obligations for lobbyists who meet with officials informally. We continue to monitor updates to the lobbying rules for new developments.
If you have any questions on navigating lobbyist compliance matters, please contact the authors of this blog.