Recent amendments present significant enforcement risk to individuals, corporations, trade unions and employee organizations that plan to conduct advertising during Alberta local elections, or are contemplating contributing to third parties that will do so.1
These amendments will be in effect for the upcoming Alberta municipal general election on October 18. They are part of Bill 45, the Local Authorities Election Amendment Act, 2020 (No. 2),2 which received Royal Assent on December 9, 2020 and came into force on January 1, 2021.
New Cap on Contributions to Third Party Advertisers
The Local Authorities Election Act3 regulates election advertising by third parties during the election advertising period of local elections.
The election advertising period in a local general election commences May 1 of the year of the election and concludes on the end of the election day.4 The next local general election in Alberta will be held on October 18,5 meaning that any election advertising by third parties in that election will be regulated between May 1 and October 18 of this year.
Election advertising means the transmission to the public by any means during an election advertising period of an advertising message that promotes or opposes the election of a candidate, but does not include:
- the transmission to the public of an editorial, a debate, a speech, an interview, a column, a letter, a commentary or news.
- the distribution of a book, or the promotion of the sale of a book, for no less than its commercial value, if the book was planned to be made available to the public regardless of whether there was to be an election.
- the transmission of a document or the communication directly by a corporation or a group to its members, employees or shareholders.
- the transmission by an individual, corporation or group, on a non-commercial basis on the internet, of the political views of that individual, corporation or group.
- the making of telephone calls to electors only to encourage them to vote.
- advertising by the local jurisdiction in any form.
- the transmission to the public in a local jurisdiction that is not a local jurisdiction for which the advertising message was intended and in which there is no candidate and no vote on a question or bylaw to which the transmission relates.6
Bill 45 places a cap on the amount that a third party can contribute to its own advertising, and places the same cap on the amount an individual, corporation, trade union or employee organization can contribute to a third party for election advertising in a local election. The maximum advertising contribution is now $30,000 per contributor, per third party advertiser.7 Advertising contributions include:
- money paid by a third party from its own funds for election advertising8
- money provided to or for the benefit of a third party9
- real property, goods or services, or the use of real property, goods or services, provided to or for the benefit of a third party for which no compensation from that third party is received10
There was previously no limit to the amount of advertising contributions that could be made to third parties.
Bill 45 does not change the prohibition on corporations, unincorporated organizations, trade unions and individuals who are not resident in Alberta from making contributions to unregistered third parties and candidates in local elections.11
Third Party Advertisers Must be Prepared to Fund Activities from a Broad Base of Contributors
As a result of Bill 45, an individual, corporation, trade union or employee organization planning to spend more than $30,000 conducting election advertising will be required to fund this activity using advertising contributions from a broad base of contributors. The alternative, for a third party advertiser unwilling or unable to seek contributions, is to spend no more than $30,000.
Since money paid by a third party from its own funds for election advertising is an advertising contribution, and therefore subject to the $30,000 advertising contribution limit, it is no longer possible for a third party to use an endless amount of its own funds to conduct election advertising.
Contributors to Third Party Advertisers Now Subject to Administrative Monetary Penalties
Bill 45 amends section 193 of the Local Authorities Election Act to make individuals, corporations, trade unions or employee organizations that make third party advertising contributions in excess of the $30,000 limit per third party advertiser subject to administrative monetary penalties.12
The administrative monetary penalty can be up to $10,000 per contravention.13
Still No Limit to the Amount of Third Party Spending in Alberta Local Elections
The Local Authorities Election Act still does not limit the amount that a third party can spend on its local election advertising.
Senate Elections and Provincial Referendums to be Held in Conjunction With Local General Elections
Bill 45 also harmonizes the dates for Senate nominee elections and referendum votes occurring during a local general election.
Before the Bill 45 amendments, a municipality had authority to pass a by-law prior to June 30 of an election year to move the election day of a local general election to the Saturday before the third Monday in October.14 This created the possibility that electors would have to go to the polls twice, first on a Saturday to vote for municipal and or school trustee candidates in a local general election, and then again on a Monday to cast ballots in a senate nominee election and or referendum vote.
Now, in election years where there is a Senate nominee election under the Alberta Senate Election Act and or a referendum vote under the Referendum Act being held in conjunction with a local general election, the voting day for each of these elections must be on the third Monday in October.15
Why Does Bill 45 Matter?
Bill 45 will have a significant effect on individuals, corporations, trade unions and employee organizations that plan to conduct election advertising during Alberta local elections as they will now be subject to a $30,000 limit on the amount of their own funds that can be used to pay for election advertising.
Contributors to third parties conducting election advertising, including third parties that make advertising contributions toward their own election advertising, risk significant monetary penalties if they exceed the contribution limit of $30,000 per contributor, per third party.
Individuals, corporations, trade unions and employee organizations planning to conduct election advertising, or to contribute to a third party doing so, should have a robust compliance regime in place to ensure that any advertising contributions do not exceed the advertising contribution limit and are compliant with the Local Authorities Election Act.
1. Local election means a local general election or local by-election where municipal councillors or school trustees are elected.
3. Local Authorities Election Act, R.S.A. 2000, c. L-21[PDF] [Local Authorities Election Act].
4. Local Authorities Election Act, paragraph 162(1)(e). In the case of a by-election, the election advertising period begins on the date the by-election is set and concludes at the end of the election day.
6. Local Authorities Election Act, paragraph 162(1)(d).
7. Bill 45, section 3.
8. Local Authorities Election Act, section 168.
9. Local Authorities Election Act, paragraph 162(1)(b).
11. Local Authorities Election Act, subsections 147.2(2), 167(3).
12. Bill 45, paragraph 4(a).
13. Local Authorities Election Act, paragraph 193(5)(a).
14. Local Authorities Election Act, subsection 11(2).
15. Bill 45, section 2.
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.