Canada’s Lobbying Commissioner Seeks Input on Proposed Changes to the Lobbyists’ Code of Conduct

Blake, Cassels & Graydon LLP
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The Office of the Commissioner of Lobbying of Canada (Commissioner) is seeking input from stakeholders on its proposed changes to the present Lobbyists’ Code of Conduct (Code).

Last updated in 2015, the Code is a mandatory code of ethics established under the federal Lobbying Act, with the objective of fostering transparent and ethical lobbying. The Code applies to all consultants and in-house lobbyists when they engage in lobbying activities at the federal level, with breaches potentially resulting in a report to Parliament.

On December 15, 2021, the Commissioner published a draft update to the Code (Draft Code) for commentary. Stakeholders are invited to review the Draft Code and submit their feedback to the Commissioner no later than February 18, 2022.

PROPOSED CHANGES

Among the new draft updates, four proposed changes are of particular importance to lobbyists.

Gifting

The Code currently provides that in order to avoid the creation of a sense of obligation, a lobbyist must not provide or promise a gift, favour, or other benefit to a public office holder, whom they are lobbying or will lobby, which the public office holder is not allowed to accept.

The Draft Code proposes to revise the gifting rule to the following:

Never offer, promise or provide – directly or indirectly – any gift to an official that you lobby or expect to lobby, other than a low-value token of appreciation or promotional item.
“Gifts” include money, a loan, a good or service, entertainment activity, property, or use of property. Gifts can also include tickets, travel, transportation, parking, samples of products or services, and labour. “Low-value” means approximately C$30 in 2022 dollars, including taxes. Low-value items may include a token of appreciation to a public office holder for serving as a speaker, or a promotional item, such as pens, mugs, notepads typically with a corporate brand that is used for marketing purposes.

The Draft Code clearly delineates a monetary limit for acceptable gifting expenses, whereas the present Code does not outline an express amount. Consequently, the Draft Code provides lobbyists with bright-line guidance regarding acceptable gifting practices.

 

Hospitality

The Draft Code proposes to add a new section on hospitality as the following:

Never offer – directly or indirectly – hospitality to an official that you lobby or expect to lobby, other than low value food or beverage for consumption during an in-person meeting, event or reception.
 
“Hospitality” is defined as food or beverage provided for consumption during an in-person meeting, event, or reception, and does not include vouchers or delivery of food or beverage to officials attending by any means other than in person.

This new proposed rule remains consistent with the Commissioner's past guidance to the Code. As with gifts, the Draft Code codifies the acceptable food or beverage consumption costs to be approximately C$30, including taxes, in 2022 dollars.

Close Relationships

In prior years, the Commissioner published guidance to the Code titled Guidance to mitigate conflicts of interest resulting from preferential access (Preferential Access Guidance) which outlines prohibitions in connection to circumstances where a lobbyist engages in lobbying communications with a public office holder with whom they also share a personal or professional bond, such as family (by blood or marriage), close friends, or business partners (sharing ownership, monetary or fiduciarily interest in a business). The Preferential Access Guidance currently provides that a lobbyist may risk placing a public office holder in a conflict of interest by lobbying those with whom they share such a bond.

The Draft Code proposes codifying this requirement as the following new rule:

Never lobby an official with whom you share a close relationship.

The proposed definition of “close relationship” in the Draft Code is broader than that provided in the Preferential Access Guidance. Under the Draft Code, a “close relationship” is defined as a close bond with a public office holder that extends beyond simply being acquainted. This includes close relationships through family (by blood, marriage, or common-law), personal (close friends), work (colleagues in the same office or sitting together on a board of directors), business (owning or collaborating on a business), or financial means (sharing ownership in a property or co-managing shared investments). It is noteworthy that co-workers are caught under this proposed definition. Accordingly, lobbyists would have to consider a growing list of prohibited lobbying communications under the Draft Code.

Political Activity

The Code prohibits lobbyists from lobbying a person who is or becomes a public office holder when they have undertaken political activities on behalf of that person for a specified period of time, as that undertaking could reasonably be seen to create a sense of obligation. If that person is an elected official, the lobbyist shall also not lobby staff in their offices.

The Commissioner published guidance to the Code titled Guidance to mitigate conflicts of interest resulting from political activities (Political Activities Guidance) which differentiates between higher and lower risk political activities. Political activities that are strategic in nature or involve significant interaction with candidates, such as serving as a campaign chair or organizing a political fundraising event, pose a higher risk of creating a sense of obligation on the person who is or becomes a public office holder. The Commissioner indicates that if you engage in such higher-risk political activities, you should not lobby any public office holder who benefited from them, nor their staff, for a period equivalent to a full election cycle, i.e., four years. Political activities that are not strategic in nature and do not involve significant interaction with candidates, such as attending fundraising events or volunteering for a registered party without significant interaction with a candidate, pose a lower risk or no risk of creating a sense of obligation on the person who is or becomes a public office holder.

The Draft Code proposes amending this requirement to the following:

Never lobby an official or their associates if you have done political work – paid or unpaid – for the benefit of the official, unless the cooling-off period has expired.

“Political work” is defined as paid and unpaid work done for the benefit of a person’s political interests or a political party’s interests, in the form of performing roles or tasks during or between election periods. “Political work” does not include:
  • Performing strictly administrative tasks

  • Simply attending a fundraising or campaign event

  • Personally displaying election signs or posting digital campaign material during an election period

  • Expressing personal political views strictly in an individual capacity

  • Making a political donation in accordance with the law

The Draft Code also codifies specific examples of significant political work and other political work.

Under the Draft Code, a “cooling-off period” is defined as when you have done political work for the benefit of a public office holder, the period of time that must pass before you can lobby that official or their associate and is calculated from the day after the political work ended. The Commissioner proposes to quantify an expiry date for the prohibition of lobbying by individuals who have undertaken political work. Notably, the Commissioner proposes that the cooling-off period for having done significant political work is 24 months. This proposed expiry date for significant work is halved in comparison to the four years that is currently expected. For other political work, the cooling-off period proposed is 12 months. The Commissioner may reduce a cooling-off period if the Commissioner believes that it would not be contrary to the purpose of the Code.

NEXT STEPS

Businesses or organizations engaged in lobbying communications with federal public office holders should review the Draft Code in detail, as it will affect future lobbying policies and practices. Any comments must be provided to the Commissioner no later than February 18, 2022, and can be sent by email to engagement@lobbycanada.gc.ca.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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