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Lobbying in the time of COVID-19 — the rules still apply

This update is part of our continuing efforts to keep you informed about the COVID-19. For the latest information, please visit our COVID-19 hub.

In response to the COVID-19 pandemic, federal and provincial governments are enacting increasingly stringent measures to limit the virus’ spread, including declaring states of emergency and closing non-“essential” businesses. To help mitigate the massive economic impact of these measures, governments are announcing a range of economic relief measures, including assistance to individuals and corporations through many different avenues.

Given the rapidly evolving situation, engaging with public office holders is of paramount importance for a wide range of organizations affected by COVID-19 and governments’ response to it. Those who communicate with government must continue to ensure that their communications comply with lobbying rules. These continue to apply.

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

Ask the right questions

Not all communications with public officials are considered “lobbying”, and lobbying rules and requirements differ in each Canadian jurisdiction. To determine whether your anticipated interactions with government will likely be subject to registration requirements and other lobbying rules, the following are some questions you should consider.

What is the subject matter of your communication?

Lobbying legislation tends to define “lobbying” broadly, in order to capture a wide range of communications. Communication about issues such as the development of legislative proposals or the enactment of a federal or provincial program will likely constitute lobbying. Similarly, discussions regarding the awarding of a contract, grant, contribution, or financial benefit, or a decision to have the private sector provide a good or service to a government or provincial entity will likely be considered lobbying and require registration.

Some lobbying legislation provides for common exceptions to the lobbyist registration requirement. These exceptions include communications regarding the enforcement, interpretation, or administration of a piece of legislation, as well as communications in response to a written request for comment or advice from a public office holder.

With whom are you communicating?

The term “public office holder” in lobbying legislation always applies to a broad, inclusive list of government officials. This will generally include: Ministers and employees in their offices, public servants, Members of Parliament or a provincial legislature and their employees, and others.

There may also be a prohibition against lobbying a politician for whom the lobbyist has engaged in political activities or has a relationship that could place the public office holder in a conflict of interest. It is important to be aware of pre-existing relationships and additional limitations that may be imposed if an individual engages in lobbying.

How much time is your team dedicating to communication with government?

Any communication with government may create an obligation to register. In many jurisdictions, however, there are thresholds based on the number of hours dedicated to lobbying or on whether lobbying constitutes a “significant part” of an employee’s duties.

When did you start lobbying?

There are time limits on how long individuals can engage in lobbying activities before they have to register. If you or your organization has already begun communicating with government, you should be aware of when the registration obligation is triggered.

Know the rules

Lobbying rules vary by jurisdiction. Be sure to familiarize yourself with the rules that apply where you are lobbying.

The bottom line

The economic impact of COVID-19, and governments’ responses to it, will lead to an increased level of dialogue between many organizations and public office holders. Organizations will seek to understand – and shape – the limits that governments are placing on their ability to operate, and the relief that may be – or should be – available to them.

Before you reach out to public officials, take the time to understand the rules that apply in those officials’ jurisdictions. Ensure that your organization has policies and procedures in place to track lobbying activities and to meet statutory disclosure deadlines. Failure to comply with lobbying legislation could result in lobbying bans and significant monetary penalties.