Communicating with the Federal Government: A Refresher

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On September 20, 2021, Canadians cast their ballots. The Liberal Party of Canada won a plurality of seats and is expected to be invited to form a minority government. The new cabinet is anticipated to be announced in the coming weeks.
 
Businesses and organizations who plan to reach out to federal public office holders (whether civil service, elected officials or political staff) should be mindful that these communications may constitute lobbying and may be subject to regulatory or compliance obligations under the federal lobbying regime. The federal lobbying rules apply both to external consultant lobbyists and in-house lobbyists alike.
 
Dealing with public sector officials is subject to several regulatory considerations that do not apply to interactions in the private sector. The Lobbying Act (Canada) (Act) sets out the requirements and rules to follow when lobbying federal public office holders.
 
The general rule is that any communication, for one’s employer or paying client, with any federal public office holder on an enumerated subject matter (described further below) is a lobbying activity that, absent an exemption, must be disclosed and registered.
 
A federal public office holder is broadly defined to include both elected and non-elected officials, such as Members of Parliament, Senators, political staff, civil servants, directors, officers or employees of certain boards, commissions or other tribunals, members of the Canadian Armed Forces and the Royal Canadian Mounted Police and most government appointees.
 
Not all communications with federal public office holders qualify as lobbying. Generally, communications about (i) government expenditures, grants and contributions, and (ii) the development or introduction of new or amended legislation, regulations, programs, or policies (Enumerated Subject Matters), are considered lobbying under the Act. For consultant lobbyists, discussions about the awarding of a contract and arranging a meeting between a federal public office holder and another person are also considered lobbying.
 
Certain limited types of communications are exempt from registration. These include communications that are a matter of public record (i.e., to a legislative committee); are made in connection to the enforcement, interpretation or application of existing laws; or are restricted to a request for information.
 
In addition, the federal lobbying regime allows certain de minimus communications to be made by in-house employees that do not require registration. Specifically, in-house lobbyists need only register when certain thresholds are met, which occurs if the corporation or organization employs one or more individuals who, alone or collectively, spend at least 20 per cent of one employee’s time (calculated over a one-month period) lobbying one or more federal public office holders. Preparatory activities are included in the calculation. This threshold exemption should only be relied on with caution and does not apply to consultant lobbyists. It is generally prudent to register whether or not the threshold will be exceeded.
 
Once registration is made, consultant and in-house lobbyists are also subject to ongoing disclosures and filings, including monthly communication reports for communications with certain senior “designated” federal public office holders.
 
There are a range of other considerations to keep in mind when lobbying federal public office holders. Businesses engaging in-house lobbyists as employees should be mindful of post-employment restrictions for former politicians, political staff and civil servants. Businesses engaging consultant lobbyists should avoid paying contingency fees.
 
Businesses engaged with government should also be mindful of federal gifting rules, which generally prohibit the giving or acceptance of gifts or advantages that might reasonably be seen to have been given to influence a federal public office holder in the exercise of an official power, duty or function. Gifts of nominal value given as an expression of courtesy or hospitality are generally acceptable.
 
The Lobbyists Code of Conduct (Code) prohibits lobbyists from providing or promising a gift, favour, or other benefit to a federal public office holder (whom they are lobbying or will lobby), which the federal public office holder is not allowed to accept. The Code also restricts lobbyists who previously undertook political activities on behalf of an individual who is or who becomes a federal public office holder from lobbying the same individual (and their staff).
 
Contravention of any provision of the Act is an offence and could lead to a serious investigation, fine and/or imprisonment. Moreover, contravention of the federal lobbying regime can result in significant public disclosure and reputational damage.

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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