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Executive Government (Canada)

. Canada (Attorney General) v. Democracy Watch

In Canada (Attorney General) v. Democracy Watch (Fed CA, 2020) the Federal Court of Appeal reviewed the scheme of the Lobbying Act in the course of an appeal:
III. The Legislative Regime

[21] The over-arching purpose of the Lobbying Act is to ensure transparency and accountability in the lobbying of public office holders and consequentially increase public confidence in the integrity of government decision-making. To that end, it establishes the Office of the Commissioner of Lobbying. The Commissioner reports directly to Parliament through the Speaker of the House of Commons and the Speaker of the Senate. The Commissioner’s mandate includes the maintenance of a publically accessible system for the registration of paid lobbyists. The Act authorizes the Commissioner to craft policies which give guidance to lobbyists and public office holders about appropriate conduct.

[22] The Act recognizes two categories of lobbyists: in-house lobbyists and consultant lobbyists. Both are required to file returns with the Commissioner setting out various details relating to their activities. The legislative provisions are found in the appendix at the conclusion of these reasons.

[23] A consultant lobbyist is an individual who, on behalf of any person or organization, for payment, communicates with public office holders for enumerated purposes or arranges meetings between a public officer holder and any other individual.

[24] An individual is an in-house lobbyist where the individual is employed by a corporation or organization and their duties include communication with public office holders for enumerated purposes. The communication must constitute a significant part of the duties of an employee or would constitute a significant part of the duties of an employee if it was performed by only one employee (ss. 5(1) and 7(1)). The Act requires the Commissioner to promulgate the Lobbyists’ Code, which provides guidance as to appropriate and inappropriate conduct. The Code applies to all persons required to register under the Act. While the Code is not a statutory instrument as defined by the Statutory Instruments Act, R.S.C. 1985, c. S-22, it imposes obligations on lobbyists, a breach of which can result in a report by the Commissioner to Parliament.

[25] The Act requires the Commissioner to conduct an investigation where the Commissioner has reason to believe that an investigation is necessary to ensure compliance with the Code or the Act. Reports in respect of investigations are tabled in Parliament. Subsection 10.4(1) of the Act reads as follows:
Investigation

10.4 (1) The Commissioner shall conduct an investigation if he or she has reason to believe, including on the basis of information received from a member of the Senate or the House of Commons, that an investigation is necessary to ensure compliance with the Code or this Act, as applicable.

Enquêtes

10.4 (1) Le commissaire fait enquête lorsqu'il a des raisons de croire, notamment sur le fondement de renseignements qui lui ont été transmis par un parlementaire, qu'une enquête est nécessaire au contrôle d'application du code ou de la présente loi
[26] Subsection 10.4(1.1) gives the Commissioner a broad discretion to decide whether to investigate a complaint or to cease an investigation. The range of relevant considerations includes: whether the matter would be more appropriately dealt with under a procedure in another Act of Parliament; whether the matter is sufficiently important; and whether dealing with the matter would serve no useful purpose as too much time has passed. The Commissioner may also decide not to deal with a matter if "“there is any other valid reason for not dealing with the matter.”"

[27] At the conclusion of an investigation, the Commissioner must prepare a report that includes his or her findings, conclusions and the reasons for the conclusions reached and submit the report to the Speakers of the Senate and the House of Commons.
In the appeal, the Court of Appeal held that the Lobbying Act did not provide that an individual citizen has a right to have an investigation conducted by the Commissioner of Lobbying:
[28] It is apparent that the Lobbying Act does not create a right for a member of the public to have a complaint investigated. There is nothing in the language of the statute to suggest that the Commissioner must investigate the public’s complaints. Parliament has established no process, procedures, mechanisms or obligations for disposing of complaints from the public.

[29] To the contrary, an investigation is required where the Commissioner has reason to believe, including on the basis of information received from a member of the Senate or the House of Commons, that an investigation is necessary to ensure compliance with the Lobbyists’ Code or the Lobbying Act. The Lobbying Act does not specify that the Commissioner must take into account information received from the public. In fact, the Lobbying Act does not mention the public in the investigations section at all.

[30] A line in the introduction to the Lobbyists’ Code which encourages the gathering of information is insufficient to create a decision which is subject to judicial review.

[31] Parliament placed an affirmative obligation on the Commissioner to investigate complaints that arise from Parliamentarians. As I outlined earlier, the Act describes in some detail the manner in which those investigations are to be carried out. It imposes a requirement for a decision and a reporting obligation. In contrast, the Act is silent with respect to information received from the public. There is no requirement to issue any decision, or to take any action, with respect to information arising from the public.


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