I. Introduction
On July 1, 2023, the Lobbyists’ Code of Conduct, established under the Lobbying Act, RSC 1985, c 44 (4th Supp), (“Act”), is changing. Registered lobbyists must follow the 2015 Code of Conduct (“2015 Code”) until June 30, 2023. Starting July 1, 2023, they must follow the 2023 Code of Conduct (“2023 Code”). This article highlights the differences between the 2015 Code and the 2023 Code.
II. Gifts
A. Conflict of Interest Codes
There are two sources of law regulating the gift limits applicable to Canadian government officials. The first are the Conflict of Interest Codes that govern Members of Parliament, Senators, and the Civil Service. Those codes will not change on July 1, 2023. The rules governing each of these groups are similar, but there are differences of note.
Members of Parliament
Members of Parliament may only accept gifts that are a “normal expression of courtesy or protocol, or within customary standards of hospitality.” If a gift or gifts from one source exceed $200 in a twelve-month period, then the gifts must be reported to the Conflict of Interest and Ethics Commissioner.
Senators
Senators may only accept gifts that are a “normal expression of courtesy or protocol, or within customary standards of hospitality.” If a gift or gifts from one source exceed $500 in a twelve-month period, then the gifts must be reported to the Senate Ethics Officer.
Federal Public Servants
Federal public servants may only accept gifts that are “infrequent and of minimal value” and that are “within the normal standards of courtesy of protocol.” There are reporting requirements, but those requirements are not directly related to the dollar value of the gift. Generally speaking, federal public servants will be expected to follow the limits set forth under the Act and the 2023 Code (discussed below).
B. Lobbyists registered under the Act
On July 1, 2023, the 2023 Code will take effect under the Act. The 2023 Code only applies to lobbyists who must register under the Act. This means that gifts from individuals or organizations that are not required to register under the Act are only subject to the above noted Conflict of Interest Codes.
For those who are registered under the Lobbying Act, the 2023 Code is very stringent. It strictly limits the generosity of lobbyists.
The 2023 Code sets limits on the gifts and hospitality that a lobbyist can provide to a public office holder within a calendar year. The 2015 Code provided that a lobbyist must not provide a gift to a public office holder that the public office holder cannot accept. This provision referred lobbyists to the Conflict of Interest Codes that govern Members of Parliament, Senators and the Civil Service (discussed above).
The 2023 Code establishes both gift and hospitality rules. No single gift or instance of hospitality may exceed $40 per official. The combined value of all gifts and hospitality provided to the same public official in a calendar year cannot exceed $200. However, the Commissioner of Lobbying (“Commissioner”) may grant exemptions to these limits. Furthermore, a customary expression of a lobbyist’s Indigenous cultural tradition or practice is not considered a gift and need not be valued or accounted for under the 2023 Code.
As a matter of transition, the first year under the 2023 Code will end on December 31, 2023. This means that the clock is reset on July 1, 2023, and gifts and hospitality may be provided to a public office holder during the last six months of 2023 based upon the new limits, regardless of the value of gifts provided to the same officer from January 1 to July 1, 2023.
III. Close relationships and political work
Sense of obligation
The 2015 Code prohibited lobbyists from placing public office holders in any conflict of interest through gifts, preferential access, or political activities. Preferential access referred to a conflict of interest between a lobbyist and an officer with “a relationship that could reasonably be seen to create a sense of obligation.” A lobbyist who had performed political work for an officer was prohibited from lobbying that officer for “a specified period.”
The 2023 Code makes these provisions even clearer. It defines “close relationship,” “political work,” and “sense of obligation” and adds a cooling-off period. The 2023 Code defines a “sense of obligation” as “a feeling of owing something (or feeling beholden) to another person.”
The 2023 Code defines a close relationship as including family, personal (including “best friends” and “intimate or romantic partners”), working, business, and financial relationships. Close relationships can create a sense of obligation for the public office holder. A lobbyist cannot lobby a public office holder with whom they have a close relationship.
Paid or unpaid political work can also create a sense of obligation. Therefore, the 2023 Code includes a cooling-off period. The cooling-off period is 24 months for “leadership or senior political roles” (e.g., campaign manager). The cooling-off period is 12 months for “other political roles” (e.g., canvasser). The Commissioner may make exemptions to the cooling-off periods. The 2023 Code explains that political work does not include attending events, displaying campaign material, and the like.
IV. Other new rules
A. Grassroots appeals
The 2023 Code clarifies that the disclosure and trustworthiness rules also apply to “grassroots appeals.” The Act defines “grass-roots communication” as any communication that utilizes the public to pressure a public office holder to endorse an opinion. One example is mass media appeals for action related to a government issue.
Even in grassroots appeals, lobbyists must act in good faith and be open about their client or employer and their purpose. Lobbyists must not mislead public office holders.
B. Disclosure
Under the 2023 Code, consultants lobbying for a client must inform that client that they may have obligations under the Act, regulations and code. In-house lobbyists must inform their employer’s registrant of any lobbying communications. Employers’ registrants must inform lobbying employees of their code obligations. An employer’s registrant is the most senior paid official of a corporation. That official has a duty under the Act to register the employees’ lobbying.
V. Summary
Beginning July 1, 2023, lobbyists registered under the Act must comply with the 2023 Code. This includes recognizing new limits on gifts and hospitality, avoiding the creation of a sense of obligation in public office holders through close relationships or political work, and applying the disclosure and trustworthiness rules to grassroots appeals. Consultants and employers’ registrants must inform their clients or employees, respectively, of their obligations under the Act, regulations, and 2023 Code, and in-house lobbyists must inform their employers’ registrant of all lobbying communications.
Miller Thomson LLP is here to help. If you have questions about the new Lobbyists’ Code of Conduct, or any other matter, please contact the authors.
