Lobbying governments at a glance: Cross-Canada updates

In this article we explore the proposed changes to the 2015 edition of the Lobbyists' Code of Conduct, the New Lobbyists' Registry Platform in Québec and lobbying registration changes in the City of Ottawa.

1. Proposed changes to the 2015 edition of the Lobbyists' Code of Conduct

Parliamentary Committees have been very active since Parliament reconvened. Many issues are under review, including the third edition of the Lobbyists' Code of Conduct ("Code") that the Commissioner of Lobbying of Canada Nancy Bélanger referred to the House Standing Committee on Access to Information, Privacy and Ethics back on Nov. 15, 2022 in accordance with section 10.2 (3) of the Lobbying Act.

Anyone – a consultant lobbyist or an in-house lobbyist – paid to communicate with government officials, Ministers of the Crown, MPs, Senators and/or members of their political staff is required to register as a lobbyist under the Lobbying Act and to follow the Lobbyists' Code of Conduct. The renewed Code is intended to provide clarity on the expectations and the rules for the benefit of both lobbyists and public office holders.

Lobby groups and civil society NGOs have concerns with some of the rules of the renewed Code but for different reasons – the new rules are too stringent or do not go far enough. Some of the most controversial rules include the renewed gift-giving and hospitality rule and the reduced "cooling-off" periods for lobbyists doing political work.

The new hospitality rule prevents a lobbyist from offering food and beverage for consumption to a public office holder during an in-person meeting, lobby day, event or reception. The low-value limit is $40 in 2023 dollars and the combined value of hospitality cannot exceed the annual limit of $80 in 2023 dollars within a calendar year. The same rule applies to gifts.

The renewed Code proposes a 24-month cooling down period for political activities that are "strategic, high-profile or important political work for a candidate, official or political party." The renewed Code also proposes a 12-month cooling off period for "other political work" – which by implication is not strategic in nature – "either involving frequent and/or extensive interaction with a candidate or official, or performed on a full-time or near-full-time basis for a candidate, official or political party."

Commissioner Bélanger addressed these two rules at length when appearing before the Committee on Feb. 3, 2023. She noted the proposed rule on the "cooling down" periods for political work is "reasonable," "appropriate" and on "solid constitutional footing." Based on a legal opinion that she received on the rule's compliance with the Canadian Charter of Rights and Freedoms, Commissioner Bélanger is confident that the Courts would likely find the infringement of section 2(b) of the Charter (freedom of speech) is justified as a reasonable limitation under section 1 of the Charter because the rule has been carefully crafted to delineate and limit the restrictions on a lobbyist's freedom of speech^[1] .

Commissioner Bélanger emphasized the renewed Code does not address the gaps in Lobbying Act, for example, the different registration requirements for a consultant lobbyist and an in-house lobbyist regarding the awarding of contracts – the latter only after meeting the 20 per cent lobbying threshold - because it is a non-statutory instrument. Only amendments to the Lobbying Act can change the statutory requirements of the Act. The last review of the Lobbying Act dates back to 2012.

Commissioner Bélanger agreed to wait for possible suggestions and recommendations from the House Standing Committee on Access to Information, Privacy and Ethics on the renewed Code. The Committee is aware that Commissioner Bélanger's preference is for the renewed Code to be in place before the end of this fiscal year on March 31, or the start of the new fiscal year on April 1. The Committee resumed its study of the Code after Feb. 3 and undertook to send a letter to Commissioner Bélanger on March 7. Given the Committee's working calendar, it is unlikely the third edition of the Lobbyists' Code of Conduct will be in force before April. In the meantime, lobbyists are expected to continue to comply with the standards of the 2015 edition of the Lobbyists' Code of Conduct.

2. The new lobbyists' registry platform in Québec: Carrefour Lobby Québec

In the fall of 2022, the government of Quebec implemented a new lobbyists' registry platform – Carrefour Lobby Québec. Registered lobbyists in the province of Québec had until Dec. 10, 2022 or Jan. 13, 2023 – if an extension was granted by the Commissioner of Lobbying – to file their lobbying registration on the new platform.

Any registration imported from the old platform that has not been recreated in Carrefour Lobby Québec by the Dec. 10, 2022 or Jan. 13, 2023 deadlines may now be subject to a request for corrections under section 21 of the Lobbyist Transparency and Ethics Act ("Act"). Under section 21 of the Act, "the necessary corrections must be made within 20 days of the Commissioner's request. If the required corrections are not made within the allotted time, the Commissioner may, in whole or in part, refuse the return or notice or remove it from the registry." While the corrections are being made, the imported registration will be struck from Carrefour Lobby Québec at which time the consultant lobbyist, enterprise lobbyist or organization lobbyist will be prohibited from carrying out its lobbying activities.

Under the new registry system, a lobbyist must create a professional space (Espace professionnel) and a collective space (Espace collectif).

The professional space contains the personal information used by Lobbyisme Québec to confirm the identity of the lobbyist.

Please note that the creation of the professional space is not equivalent to a lobbying registration. It is merely a preliminary step that must be taken by a lobbyist before the most senior officer of a company or organization can disclose the role and duties of the lobbyist in relation to the lobbying activities (called mandates) of the company or organization in the collective space of Carrefour Lobby Québec.

Please note that a consultant lobbyist must join the collective space of his consulting firm, and not the consulting space of his client, to disclose the lobbying activities he/she carries out on behalf of clients.

Once all the required fields of information have been filled out, the company's or organization's most senior officer (or his or her representative) or the consultant lobbyist (or his or her representative), as the case may be, must attest to the veracity of the information contained in the registration.

This same person can then file the registration. Lobbyisme Québec does this instantly, without prior validation, unless otherwise specified.

3. Lobbying registration changes in the City of Ottawa

In early January, Karen E. Shepherd, Integrity Commissioner and Lobbyist Registrar of the City of Ottawa, announced changes to the Lobbyist Registry By-law (By-law No. 2012-309) ("By-law") and the Lobbyists' Code of Conduct.

Changes to the By-law include the redaction of Clause 4(i), which read "communication with a public office holder by an individual on behalf of an individual, business or organization in direct response to a written request from the public office holder," as an exemption from the application of the By-law.

This change does not affect the definition of lobby in the By-law. The definition remains the same.

"lobby" means any communication with a public office holder by an individual who is paid or who represents a business or financial interest with the goal of trying to influence any legislative action including development, introduction, passage, defeat, amendment or repeal of a by-law, motion, resolution or the outcome of a decision on any matter before Council, a Committee of Council, or a Ward Councillor or staff member acting under delegated authority;

The change narrows the list of exemptions to the application of the By-law.

In addition, the By-law includes the addition of a profile review requirement under Section 6(6). "Lobbyists must review their profiles every six (6) months to ensure that the information contained therein is current and complete."

Moreover, Section 6(7), clarifies the application of the By-law to people who have lobbied but have not yet registered: "A person who lobbies as defined by the By-law is subject to the By-law whether they are registered or not."

Lastly, a Section 7 was added to the By-law to list certain City staff members who are subject to post-employment restrictions. The new section reads as follows:

Section 5(3) of the Lobbyists' Code of Conduct was amended to prevent lobbyists from lobbying the City when paid to provide advice to the City. "Lobbyists who receive remuneration to provide advice to the City shall not lobby public office holders on the same subject matter, for which they also provide advice to the City."

Gowling WLG professionals assist clients understand and comply with the wide spectrum of lobbying registration requirements in all jurisdictions across Canada. 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.