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Federal Court Provides Insight Into Lobbying Commissioner’s Conflict of Interest Interpretation

By Alexis Levine, Laura Dougan and David Côté (Summer Student)
July 17, 2023

In Democracy Watch Canada v. Attorney General of Canada (Democracy Watch), the Federal Court (Court) held that the Commissioner of Lobbying of Canada (Commissioner) acted reasonably in finding that two former employees of Chrystia Freeland (then the Minister of International Trade) did not create a conflict of interest. Democracy Watch had argued that the employees contravened the Lobbyists’ Code of Conduct (Code) by communicating with the then Parliamentary Secretary to Ms. Freeland, David Lametti, or his staff. This case offers a rare glimpse into how the Code is interpreted by the Commissioner.


Between 2013 and 2017, two individuals worked or volunteered for Ms. Freeland’s election campaign, office, and/or electoral district association. In 2016, both individuals began working for the Council of Canadian Innovators (CCI) and were identified as lobbyists employed by CCI in the Registry of Lobbyists. CCI was registered to lobby Global Affairs Canada (which encompassed the Ministry of International Trade).

CCI reported in the Registry of Lobbyists four communications from the two individuals to Mr. Lametti or his staff. The Commissioner found that, by initiating these communications, the two individuals did not place Ms. Freeland in a conflict of interest, contrary to Rules 6 and 9 of the conflict of interest provisions of the Code. Democracy Watch Canada sought judicial review of the Commissioner’s decisions.

The Court’s Decision

The Court held that the Commissioner’s decisions with respect to both Rules 6 and 9 were reasonable.

Rule 6

Rule 6 states that “a lobbyist shall not propose or undertake any action that would place a public office holder in a real or apparent conflict of interest.” Democracy Watch argued that the Commissioner unreasonably and narrowly interpreted what constitutes an “apparent conflict of interest.” Democracy Watch asserted that the Commissioner conflated the objective test — whether a reasonable observer would conclude that the public office holder’s ability to exercise their official powers, duties, and functions must have been affected by their private interests — with that used to analyze a real conflict of interest by focusing on the actual conduct of the minister. Instead, it argued, the analysis should focus on the behaviour of the lobbyists and whether that behaviour creates an apparent conflict in the eyes of the public.

The Court rejected this argument and held that the Commissioner’s articulation of the test was reasonable. The Commissioner focused on the conduct of the lobbyists, not the minister, and considered all the relevant precedents and source material in articulating the test for an apparent conflict of interest. These precedents and materials supported an objective test based on the actual circumstances, rather than speculation. It was therefore reasonable for the Commissioner to find that a reasonable observer would not conclude that by having conversations with Mr. Lametti and his staff, the individuals would have affected Ms. Freeland’s ability to exercise her official powers, duties, and functions.

Rule 9

Rule 9 provides, “[w]hen a lobbyist undertakes political activities on behalf of a person which could reasonably be seen to create a sense of obligation, they may not lobby that person for a specified period if that person is or becomes a public office holder. If that person is an elected official, the lobbyist shall also not lobby staff in their office(s).

Democracy Watch argued that the Commissioner took too limited of an approach to the interpretation of (1) “that person,” and (2) “staff.” First, they argued that Mr. Lametti and his staff should be included within the scope of “that person” because lobbying Ms. Freeland’s Parliamentary Secretary necessarily entailed the lobbying of Ms. Freeland. Second, they claimed that Mr. Lametti and his staff should be included within the scope of Ms. Freeland’s “staff,” which cannot be lobbied pursuant to Rule 9.

The Court rejected both arguments, finding that it was not unreasonable to interpret “that person” as referring to Ms. Freeland, alone. That interpretation is consistent with the ordinary meaning of those words and with the remainder of Rule 9, which refers to “that person” as being the public office holder with whom lobbying should not be directed. Further, the Court held that it was reasonable for the Commissioner to find that Mr. Lametti and his staff were not Ms. Freeland’s “staff” because Mr. Lametti was an elected official with staff of his own. The minister does not have authority over the terms and conditions of the Parliamentary Secretary’s appointment as she would for her staff.

Key Takeaways

Democracy Watch provides useful insight into the deferential standard of review the Court applies to the Commissioner’s decisions as well as judicial affirmation of the Commissioner’s interpretation of Rules 6 and 9 of the Code. In particular, it confirms that an apparent conflict of interest will be assessed from the viewpoint of a reasonable observer with a focus on the behaviour of the lobbyists. Further, it confirms that the analysis of whether a conflict of interest has been created under Rule 9 must focus on the actual person lobbied and not an indirect connection to the public office holder whom the individuals are prohibited from lobbying. 

For further information, please contact:

Alexis Levine                +1-416-863-3089                   
Laura Dougan             +1-416-863-2187

or any other member of our Public Sector Crisis & Compliance group.