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Cabinet (Executive Government) - Lobbying Act (Canada). Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal found that a federal Lobbyist Act appeal was moot after statutory changes, and that the case did not merit hearing regardless:[1] The appellant, Democracy Watch, appeals from the judgment of Furlanetto J. of the Federal Court (the Federal Court) rendered on June 20, 2023 (2023 FC 825), which dismissed the appellant’s application for judicial review of two reports of the Commissioner of Lobbying of Canada (the Commissioner). In its reports, the Commissioner concluded that the Lobbyists’ Code of Conduct (former Code), developed pursuant to subsection 10.2(1) of the Lobbying Act, R.S.C., 1985, c. 44 (4th Supp.), was not breached by two registered lobbyists.
[2] Specifically, the Commissioner was tasked with determining whether the registered lobbyists had breached Rules 6 and 9 of the former Code–which related to conflicts of interest–by attempting to lobby the then Minister of International Trade after having conducted political activities on her behalf. The appellant alleges that the Federal Court erred by finding that the Commissioner’s interpretation and application of Rules 6 and 9 of the former Code were reasonable.
[3] It is noteworthy that a new version of the former Code came into force on July 1, 2023, (current Code).
[4] Namely, the current Code does not contain former Rules 6 and 9. In fact, they no longer exist. Current Rule 4.3 replaces former Rule 6 and current Rule 4.2 replaces former Rule 9 (see Office of the Commissioner of Lobbying of Canada, Renewing the Lobbyists’ Code of Conduct–Updated standards for ethical and transparent lobbying (Ottawa: OCLC, 2022) at 15–18).
[5] Given the coming into force of the current Code, this Court must now determine whether the appellant’s appeal has become moot and, if so, whether it should exercise its discretion to hear it. A matter becomes moot when there is no longer a live controversy affecting the rights of the parties (Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC), 57 D.L.R. (4th) 231, [1989] 1 S.C.R. 342 at 353 (Borowski)). A court must consider the following criteria when deciding to exercise its discretion to hear a moot matter: (i) whether there exists an adversarial context; (ii) whether deciding the matter would result in a waste of judicial resources; and (iii) whether the Court would exceed its proper role by deciding the issue (Borowski at 358–63).
[6] It is apparent that no live controversy exists in this case. The appellant acknowledged that it is not pursuing this appeal with the objective of finding the registered lobbyists in contravention of the former Code, but rather to seek guidance, "“going forward”", on the interpretation of specific expressions contained in the former Code (Memorandum of fact and law of the Appellant at para. 8). Although the appellant contends that some expressions contained in the former Code also appear in the current Code, their meaning remains to be informed by the entirety of the new text of the Sections or Rules of the current Code in which they appear. Hence, considering that: (i) the former Code, which contextualized these expressions, no longer exists; (ii) the issues that were before the Commissioner will not arise in the same way under the current Code; and (iii) the current Code was not before the Commissioner nor before the Federal Court, no live issue remains between the parties. This Court has consistently held that a "“mere jurisprudential interest fails to satisfy the need for a concrete and tangible controversy”" (Canadian Union of Public Employees (Air Canada Component) v. Air Canada, 2021 FCA 67 at para. 7; see also Public Service Alliance of Canada v. Canada (Attorney General), 2021 FCA 90; Peckford v. Canada (Attorney General), 2023 FCA 219). We are therefore of the view that this appeal is moot.
[7] Neither has the appellant convinced us that we should exercise our discretion to hear the appeal. A weighing of the Borowski factors strongly opposes the hearing of the appeal as it would result in a waste of judicial resources and offend the principle of judicial economy. Further, the appellant has not persuaded us that the issues raised are elusive of review. It would be inappropriate for the Court to rule on the interpretation of expressions and rules contained in the former Code. Should these issues arise again; the appellant will have the opportunity to challenge the interpretation of these expressions in the context of the current Code and the Commissioner will provide its interpretation. In sum, the appellant is asking our Court to provide a legal opinion in the abstract, which is not our role, as ruling on these issues in the absence of a live controversy would lead the Court to overstep its adjudicative role. . 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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