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Canada’s Commissioner of Lobbying Wants Big Changes

In March 2020, Canada’s Commissioner of Lobbying (the “Commissioner”) provided insight into recommendations she will be making that would have a significant impact on the federal lobbying regime.

While the Commissioner’s office has not yet published her official recommendations, she has provided a preview of what can be expected through her March 9, 2020 briefing to the Standing Committee on Access to Information, Privacy and Ethics (the “Standing Committee”) and the Investigation Reports (the “Reports”) regarding the actions of two in-house lobbyists.

This political law update is intended as general guidance only. If you have specific questions or concerns, or want to confirm that your organization’s corporate policies and procedures are in line with the contemplated changes, please contact Awi Sinha, Adam Goldenberg, or Jacob Klugsberg. We would be pleased to assist you.

What happened?

On March 9, 2020, the Commissioner briefed the Standing Committee. During her briefing, the Commissioner referenced a number of recommendations to improve the federal lobbying regime, which focused on registration of lobbyists and compliance with lobbying rules.

Also in March, the Commissioner released two Investigation Reports regarding the actions of two in-house lobbyists for an industry association. Both individuals were co-chairs of Chrystia Freeland’s 2015 re-election campaign and subsequently served on the board of her electoral district association. While these activities pre-dated their roles as lobbyists; however, there was a 17- and 15-month overlap, respectively, between serving on the board and lobbying for the industry association.

Although neither lobbyist lobbied Minister Freeland, then Minister of International Trade, both lobbied her Parliamentary Secretary, David Lametti, and his staff. The Commissioner conducted the investigations to determine whether these lobbying activities were in contravention of the Lobbyists’ Code of Conduct (the “Code”). The Reports concluded that neither lobbyist lobbied Minister Freeland and contravened the Code. However, in both reports, the Commissioner recommended changes the Code to broaden and clarify the scope of the rules.

What has the Commissioner suggested she will recommend?

Lower threshold for in-house lobbyist registration

The most notable proposed change would be the elimination of the “significant part” threshold for in-house lobbyists. The current rules require an organization to register when an employee’s lobbying duties constitute a significant part (~20%) of his or her activities, or if the employee’s lobbying duties, together with the lobbying duties of other employees, would meet the 20% threshold for a single employee.

The Commissioner indicated that she will recommend mirroring the changes coming to British Columbia (you can read more about those changes in our blog post here) which would eliminate the threshold and require all individuals engaging in lobbying activities as part of their job to register.

The Commissioner also suggested she will recommend a narrower exemption for small businesses than is provided in the upcoming British Columbia rules. Whereas British Columbia will not require registration for firms with fewer than 6 employees who spend fewer than 50 hours per year lobbying, the Commissioner indicated a preference for the limit to be fewer than eight hours in a three month period.

Establish a minimum ask threshold

When speaking to the Standing Committee, the Commissioner also suggested implementing a new form of threshold based on what an in-house lobbyist is lobbying for. She mentioned, as an example, that any request of $10,000 or more – regardless of how much time was spent lobbying – should require registration. Should this recommendation be implemented, it would be the first rule establishing a dollar figure as a threshold for registration in any Canadian jurisdiction.

Expand the scope of disclosure in monthly communication reports

The Commissioner indicated a desire to expand the scope of monthly communication reports to capture a greater scope of communication. The Commissioner expressed a desire to expand reporting requirements beyond the current constraints of oral communications arranged in advance by someone other than the public office holder. To demonstrate the extent of communications she wished to cover, the Commissioner used the example of “one-hour conversations while you wait for your plane together”.

Harmonize registration criteria

The Commissioner acknowledged that the registration criteria “vary based on whether a business or an organization is involved”. These differences include which officers or employees must be named in the registration and, for organizations, the requirement to describe the organization’s membership. She expressed a desire to harmonize the registration criteria for businesses and organizations.

Update Rule 9 to expand scope

In the Reports, the Commissioner provided some observations which could further expand the scope of Rule 9 of the Code. Rule 9 prevents a lobbyist from lobbying a politician or their staff for five years when the lobbyist has undertaken political activities “which could reasonably be seen to create a sense of obligation”. In essence, this prevents lobbyists from amongst other things, taking a position on a riding association or a political campaign and then lobbying that politician.

In the Reports, the Commissioner acknowledged that Rule 9 does not prohibit an individual who has undertaken political activities for a Minister from lobbying that Minister's Parliamentary Secretary and their staff. This is so, the Commissioner noted, even though the Minister and Parliamentary Secretary share the same political commitments, and the Parliamentary Secretary is appointed to assist the Minister.

The Commissioner suggested that expanding the scope of Rule 9 to include all individuals who share a Minister’s political commitments and operate under their purview in order to capture Parliamentary Secretaries and their staff should be included in future changes to the lobbying regime. The concept of political commitments is not clearly defined and will need to be narrowed when the recommendations are published to avoid capturing vast swaths of elected and appointed officials for all ministries.

Update Rule 6 to narrow focus

The Reports also provide some observations regarding Rule 6 of the Code, which states that lobbyists “shall not propose or undertake any action that would place a public office holder in a real or apparent conflict of interest”.

The Commissioner noted that, while her jurisdiction is limited to the conduct of lobbyists, the wording of Rule 6 requires her to make conclusions that implicate the conduct of public office holders subject to separate ethics regimes. Issues could emerge where the Commissioner of Lobbying and the Conflict of Interest and Ethics Commissioner reach opposing conclusions about the conduct of a public office holder. The Commissioner expressed concerns that finding a real or apparent conflict of interest could lead her to exceed her jurisdiction by ruling on the conduct of public office holders.

The Commissioner indicated a desire to update the wording of Rule 6 to ensure the it is focused exclusively on the conduct of lobbyists without implied reference to the conduct of public office holders.

The bottom line

While the full extent of the Commissioner’s recommendations is unknown, individuals who lobby the federal government can expect a lower bar for registration, a greater range of registerable activity, and new restrictions on non-lobbying interactions with the politicians they seek to lobby. As the Commissioner said in her testimony before the Committee, “As soon as a lobbyist asks for something, it should be recorded in the registry, period”.

While it is important to monitor these developments and keep them in mind when communicating with federal public office holders, any changes will be subject to parliamentary oversight. Changes to the Lobbying Act will need to take the form of legislation, and amendments of the Code will require consultation with stakeholders and referral to the Standing Committee.

Our team at McCarthy Tétrault LLP can help. Please contact Awi Sinha, Adam Goldenberg, or Jacob Klugsberg with any questions or for assistance.