Significant changes to the Lobbyists' Code of Conduct ("Code") will come into force on July 1, 2023. These changes will impact all businesses and organizations that lobby the federal government, including those who lobby on grants, contributions and financial benefits.

The Code will apply equally to employees and officers who lobby on behalf of an employer and to consultants and contractors who lobby, for payment, on behalf of a client. The former are known as in-house lobbyists; the latter are consultant lobbyists.

Clarification of Ban on Communications with "Close Relationships"

Rule 4.1 of the new Code will prohibit a lobbyist from lobbying1 a public office holder if the public office holder "could reasonably be seen to have a sense of obligation towards" the lobbyist due to a "close relationship."2 A "close relationship" is now defined as:

A close bond – based on personal affection, on mutual trust or loyalty, or on professional, business or financial interdependence – that extends beyond simply being acquainted.3

The ban will apply to "close family relationships" and to "close personal relationships." It will also extend to some professional relationships, including:

  • "close working relationships, such as prominent or longstanding professional relationships developed by working closely together"
  • "close financial relationships, such as sharing ownership in property or co-managing shared investments"
  • "close business relationships, such as owning or closely collaborating in a business or in a consortium of businesses".4

The ban will apply for as long as the "close relationship" exists. In other words, it is not a time-limited restriction.

Additional Lobbying Ban will be Imposed

Rule 4.3 of the new Code will create an additional prohibition on communications with public office holders not covered by Rule 4.1.

This back-stop rule will prohibit a lobbyist from lobbying a public office holder if the public office holder "could reasonably be seen to have a sense of obligation towards" the lobbyist "in circumstances beyond the scope of other rules in [the] Code".5

Rule 4.3 will apply, for example, where a public office holder was previously employed by a lobbyist, a lobbyist's employer or a lobbyist's client.6 It will also apply where a "close family member of the official" is currently employed by a lobbyist, a lobbyist's employer or a lobbyist's client.7

Lobbyists Still Prohibited from Misleading, and Sharing Confidential Information

Rules 2.1 and 2.2 will continue to prohibit lobbyists from making misleading communications and from sharing confidential information received from public office holders.

  • Rule 2.1 places a positive obligation on lobbyists to "take reasonable steps to not mislead" anyone, including both public office holders and the public.8 This means lobbyists should take steps to evaluate the accuracy and completeness of the information in their communications.
  • Rule 2.2 prohibits the use and the sharing (with anyone) of confidential information received from a public office holder, unless the public office holder consents.

Under Rule 1.1, lobbyists will continue to be prohibited from concealing the identity of their clients and/or employers during communications with public office holders.

Overhaul of Cooling-Off Period for "Political Work"

Rule 4.2 will prohibit a lobbyist from lobbying a public office holder for up to 24 months following "political work" for that public office holder.9 (The current Code, which will cease to have effect after June 30, provides for a cooling-off period of up to 48 months.10)

Under the new Code, political work is defined broadly as "work of a political or partisan nature... for the benefit of an official." This includes both paid and unpaid work. It also includes work performed before, during, and after an election period. Political work encompasses activities performed for candidates, nomination contestants, and leadership contestants.11

Political work includes:

  • canvassing
  • carrying out political or campaign event logistics
  • coordinating campaign office logistics
  • developing or coordinating political messaging or advertising
  • directing or coordinating political research or data analysis
  • distributing or disseminating campaign materials
  • fundraising, including soliciting or gathering donations
  • organizing political fundraising
  • organizing political or campaign events
  • performing political research or data analytics tasks
  • preparing a candidate or official for an appearance, including speeches and debates
  • serving as a campaign manager
  • serving as a designated spokesperson
  • serving in a senior position in a leadership or election campaign
  • serving on the executive of an electoral district association

Political work does not include:

  • attending a fundraising or campaign event
  • membership in a political party
  • expressing personal political opinions
  • making a political contribution
  • personally displaying election signs
  • posting digital campaign material

During the cooling-off period, the restriction covers lobbying communications with the public office holder (who benefited from the political work) as well as lobbying communications with "associates" of that public office holder.12

  • In the context of a Member of Parliament, an "associate" includes all staff members (including parliamentary and constituency staff members) of the MP.
  • In the context of a Minister,13 an "associate" includes all staff members (including ministerial, parliamentary and constituency staff members) of the Minister. It also includes the Minister's Parliamentary Secretary, if any, and all staff members of the Parliamentary Secretary.
  • In the context of a Senator, an "associate" includes all staff members (including parliamentary staff members and constituency staff members, if any) of the Senator.

The exact length of a cooling-off period will depend on a number of factors, including the type, volume and nature of the political work performed. A new provision in the Code gives the Commissioner of Lobbying the flexibility to reduce the length of an individual lobbyist's cooling-off period, following the evaluation of legal submissions.14

Increased Liability for Employees, Officers who Lobby

Under the Lobbying Act, employees and officers who lobby on behalf of their employer do not file individual lobbyist registrations. Instead, a single registration must be filed, on behalf of the entire corporation or organization, disclosing the lobbying activities of all employees and officers of that corporation or organization.15

Legal responsibility for filing, revising, and updating this single registration rests with the employee or officer "who holds the most senior office in [the] corporation or organization" who "is compensated for the performance of their duties".16 In most corporations and organizations, this is the CEO.

(The maximum penalty for filing an incomplete, late, or inaccurate registration, or failing to file at all, is a fine of up to $200,000 and/or a prison term of up to two years.17)

That said, Rule 1.3 imposes an obligation on individual employees and officers to "inform" their employer of their "lobbying activities in order to support accurate registration and reporting".18 This means that employees and officers who withhold information from their employer may be investigated by the Office of the Commissioner of Lobbying.

A somewhat related provision in Rule 1.4 states that the CEO of a corporation or organization must "inform employees who lobby for the employer about their obligations under [the] Code".19 As a result, CEOs should ensure that internal policies, procedures and controls related to lobbying compliance are updated – or, if they do not exist, developed and implemented – and that employees are trained on those policies, procedures and controls.

Code Applies to Grass-Roots Lobbying

The new Code makes it clear that all of its prohibitions and requirements extend to grass-roots communication, commonly called grass-roots lobbying. The Lobbying Act defines grass-roots communication as:

...any appeals to members of the public through the mass media or by direct communication that seek to persuade those members of the public to communicate directly with a public office holder in an attempt to place pressure on the public office holder to endorse a particular opinion20

Accordingly, every business or organization should ensure that its grass-roots communications, including its social media campaigns, identify the business or organization21 and do not contain misleading information.22 It should also ensure any employees who are subject to a post-employment lobbying restriction, such as a cooling-off period, do not work on such campaigns.

High Enforcement Risk

It is strongly recommended that lobbyists consult external legal counsel before responding to inquiries from – or proactively communicating with – the regulator. The Commissioner of Lobbying has broad investigatory powers, including powers:

  • to "compel [persons] to give oral or written evidence on oath"23
  • to "summon and enforce the attendance of persons before the Commissioner"24
  • to "compel persons to produce any documents or other things"25

The Commissioner also has broad police referral powers – and the ability to publish public reports. (In addition, parliamentary committees now frequently conduct parallel (televised) investigations into lobbying-related matters.)

If you'd like more information about the amendments to the Lobbyists' Code of Conduct, please contact a member of our Political Law team. You may also wish to consult our bulletin, "New, Complex Rules for Public Sector Gifts, Hospitality, and Entertainment Coming July 1st."

Footnotes

1. Under the federal Lobbying Act and, consequently, under the Code, lobbying includes any communication with a public office holder in respect of the development, introduction or amendment of a bill, resolution, legislative proposal, regulation, policy, or program. Lobbying also includes a communication about "the awarding of any grant, contribution or other financial benefit by or on behalf of" the federal government and, in some instances, a communication about the "awarding of any contract by or on behalf of" the federal government.

2. Lobbyists' Code of Conduct (2023) ("Code"), rule 4.2.

3. Code, "Definitions" section.

4. Ibid.

5. Code, rule 4.3.

6. Code, "Definitions" section.

7. Ibid.

8. One form of lobbying, known as "grassroots communication," involves communication with members of the public. Misleading the public would be contrary to rule 2.1.

9. Code, rule 4.2.

10. Lobbyists' Code of Conduct (2015), rule 9.

11. Ibid.

12. Code, "Definitions" section.

13. The Code clarifies that a "Minister" includes a Minister of State. A Minister of State is a junior minister assigned by Order in Council to assist a Minister. While the role of Minister of State continues to exist, since November 4, 2015, the public style of Ministers of State has been, simply, "Minister."

14. Code, rule 4.2.

15. Lobbying Act, subs. 7(1).

16. Lobbying Act, subs. 7(6).

17. Lobbying Act, para. 14(1)(b).

18. Code, rule 1.3.

19. Code, rule 1.4.

20. Lobbying Act, paras. 5(2)(j) and 7(3)(k).

21. Code, rule 1.1.

22. Code, rule 2.1.

23. Lobbying Act, sub-para. 10.4(2)(a)(i).

24. Ibid.

25. Lobbying Act, sub-para. 10.4(2)(a)(ii).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.