Jacques J.M. Shore, C.M.
Partner
Article
9
Parliament has recessed for the summer. As we take stock of the many subjects that occupied Members of Parliament from January to June 2023, the amended Lobbyists' Code of Conduct ("Code") under the Lobbying Act is on their list of accomplishments. What does this mean for your organization or corporation, and the potential lobbying activities that you plan to undertake in the fall of 2023?
The 2023 Lobbyists' Code of Conduct came into force on July 1, 2023 to replace the 2015 Code of Conduct. The 2023 Code attempts to encapsulate the purpose of the Lobbying Act by providing standards to govern and guide lobbyists in the course of lobbying activities to promote public transparency and accountability about who is being paid to lobby public office holders and to protect public confidence in the integrity of government institutions and decision-making.
Four objectives guided the Commissioner in the development of the 2023 Code.
The scope of the 2023 Code applies "to the lobbying activities and interactions that lobbyists have with officials that they lobby or expect to lobby." The Code, the Lobbying Act, nor any of the guidance documents produced by the Office of the Commissioner of Lobbying of Canada ("OCL") define the expression "expects to lobby." This area requires clarification given the implications for lobbying registration and reporting requirements.
The Code also sets out the expectations, which continue to reflect the fundamental nature of the values that underpin the principles, and that are intended to guide lobbyists in complying with the Code's rules of conduct: transparency, respect for government institutions, integrity, honesty and professionalism.
The Application section of the 2023 Code clearly stipulates that any individual who lobbies on a registrable subject matter for a client or employer must be identified as a lobbyist in the Registry of Lobbyists. This includes every consultant lobbyist, meaning an individual who lobbies, including arranging meetings, on behalf of a client for money or anything of value. This also includes all registered organization or corporation in-house lobbyists who lobby for their employer and who must be identified by their employer in the Registry of Lobbyists. A corporation must identify all senior officers who lobby as well as other employees who lobby as a significant part of their individual work duties. The implications for non-compliance may lead to an investigation by the Commissioner and a public investigation report to Parliament.
The 2023 Code includes some significant substantive changes in the following areas: disclosure, rules on gift and hospitality, and cooling off periods for political work as well as new rules on "close relationships" and "sense of obligation."
The 2023 Code introduces a specific rule for in-house lobbyists who lobby on behalf of their employer.
1.3 When you lobby as part of your employment, inform your employer (as represented by the registrant) about your lobbying activities in order to support accurate registration and reporting in the Registry of Lobbyists.
1.4 If you are the registrant for an employer, inform employees who lobby for their employer about their obligations under this Code.
As a result, it is critical to note that employees must report their lobbying activities to their employers, and this ultimately puts the onus on employers to implement appropriate reporting systems and compliance promotion initiatives to enhance transparency and awareness of obligations.
The 2023 Code introduces a rule (rule 5) on close relationships to prohibit lobbyists from lobbying a public office holder where the public office holder "could reasonably be seen to have a sense of obligation" towards the lobbyist because the lobbyist has a close relationship with the with the public office holder.
The definition of close relationships includes examples of close family relationships, close professional relationships, close working relationships, close business relationships and close financial relationships.
This means that the responsibility to track and monitor client/employer close relationships will be challenging for many organizations and corporations to track and fully understand the networks and relationships of their clients.
The rules related to gifts, hospitality and close relationships include the option of requesting an exemption from Commissioner.
The 2023 Code reformulates the conflict of interest rule (rule 6) of the 2015 Code. The focus is no longer on whether the lobbyist's conduct has put the public office holder in a real or apparent conflict of interest. Rather, the focus lies on whether the public officer holder could have a "sense of obligation" (rule 7 of the 2023 Code) towards the lobbyist. For example, a sense of obligation exists where the lobbyist or the lobbyist's client or employer have employed a public office holder before they became a public office holder or employed or continue to employ a close family member of the public office holder.
Lobbying initiatives require special considerations and must be considered with care to ensure compliance with requirements. While the 2023 Code does provides enhanced clarity compared to the 2015 Code, particularly with respect to the rule on gifts and hospitality, the new rules on "close relationships" and "sense of obligation" are broad in scope and will likely present significant implementation challenges.
Gowling WLG professionals assist clients understand and comply with the wide spectrum of lobbying registration requirements in all jurisdictions across Canada and different levels of government. Should you require legal assistance in navigating the variety of lobbying rules and requirements that exist at the federal, provincial and municipal levels, please do not hesitate to contact us.
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