Federal Court of Appeal Decisions

Date: 20090312

Docket: A-128-08

Citation: 2009 FCA 79

 

CORAM:       NADON J.A.

                        SHARLOW J.A.

                        PELLETIER J.A.

 

BETWEEN:

DEMOCRACY WATCH

Appellant

and

BARRY CAMPBELL and

THE ATTORNEY GENERAL OF CANADA

(OFFICE OF THE REGISTRAR OF LOBBYISTS)

 

Respondents

 

 

 

Heard at Toronto, Ontario, on January 12, 2009.

Judgment delivered at Ottawa, Ontario, on March 12, 2009.

 

REASONS FOR JUDGMENT BY:                                                                          PELLETIER J.A.

CONCURRED IN BY:                                                                                                  NADON J.A.

SHARLOW J.A.

 

 

 

                                                                                                                                  Date: 20090312

Docket: A-128-08

Citation: 2009 FCA 79

 

CORAM:       NADON J.A.

                        SHARLOW J.A.

                        PELLETIER J.A.

 

BETWEEN:

DEMOCRACY WATCH

Appellant

and

BARRY CAMPBELL and

THE ATTORNEY GENERAL OF CANADA

(OFFICE OF THE REGISTRAR OF LOBBYISTS)

 

Respondents

 

REASONS FOR JUDGMENT

PELLETIER J.A.

[1]               This appeal deals with the meaning of Rule 8 of the Lobbyists' Code of Conduct (the Code), a code promulgated under the Lobbyists Registration Act, R.S.C. 1985, c. 44 (4^th Supp.) (the LRA). The appeal is from the decision of Deputy Judge Frenette of the Federal Court (the Deputy Judge), dismissing Democracy Watch's application for judicial review of the decision of the Registrar of Lobbyists (the Registrar) dismissing its complaint. The Deputy Judge's reasons (the reasons) are reported as Democracy Watch v. Campbell, 2008 FC 214, 324 F.T.R. 44.

 

THE FACTS

[2]               In September 1999, Mr. Barry Campbell, at Mr. James Peterson's invitation, hosted a fundraising dinner for the latter, a Liberal Member of Parliament who was running for re-election. The circumstances which brought this arrangement to the attention of Democracy Watch were that, at the time, Mr. Peterson was Secretary of State (International Financial Institutions), a cabinet appointment with certain responsibilities in relation to the Department of Finance, while Mr. Campbell was registered pursuant to the LRA with respect to a number of lobbying mandates, one of which involved Mr. Peterson and the Department of Finance.

 

[3]               On April 13, 2000, Democracy Watch complained to the Ethics Counsellor, who was then responsible for the enforcement of the Code. Democracy Watch alleged that Mr. Campbell had breached Rule 8 of the Code which states:

Lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder.

 

[4]               Despite the fact that this complaint was among the first, if not the first, filed by Democracy Watch under the newly promulgated Code, the Ethics Counsellor had not ruled on it by the time the law was amended to transfer responsibility for enforcement of the Code to the Registrar: see S.C. 2004, c. 7, s. 23. On February 25, 2005, the Registrar wrote to Democracy Watch to ask if it was still interested in pursuing its complaint with respect to Mr. Campbell. On June 17, 2005, Democracy Watch indicated that it wanted the Registrar to deal with its complaint.

 

[5]               On October 10, 2006, the Registrar wrote to Democracy Watch to advise it of his findings. The letter began by setting out Rule 8 and noting that "the advice currently provided to lobbyists on Rule 8 is available at the Office of the Registrar of Lobbyists' website." The letter went on to state the view of the Office of Registrar that "improper influence" is a question of fact in each case and that the factors to be taken into account in determining whether any action constitutes an improper influence include, but are not limited to:

·       whether there has been interference with the decision, judgment or action of the public office holder;

·       whether there has been a wrongful constraint whereby the will of the public office holder was overpowered and whether the public office holder was induced to do or forbear an act which he or she would not do if left to act freely; and

·       whether there has been a misuse of a position of confidence or whether the lobbyist took advantage of a public office holder's weakness, infirmity or distress to alter that public office holder's actions or decisions.

 

[A.B., vol. 1, p. 111.]

 

 

[6]               These factors are taken from a publication prepared by the Ethics Counsellor entitled, Rule 8 – Improper Influence – Lobbyists and Leadership Campaigns, which, as of the date of these reasons, could still be found on the Office of the Registrar of Lobbyists' website at: <http://www.ocl-cal.gc.ca/eic/site/lobbyist-lobbyiste1.nsf/eng/nx00029.html>. In its materials, Democracy Watch referred to this document as the "Advisory Opinion", and I will do the same in these reasons.

 

[7]               The Registrar went on to advise that his office examined relevant documents and interviewed key individuals, "including current and former public office holders from the Department of Finance and elsewhere" (A.B., vol. 1, p. 111). On the basis of his view of the requirements of the Rule and the investigative work undertaken by his office, the Registrar concluded as follows:

Based on the evidence gathered, the Office of the Registrar of Lobbyists has determined that Mr. Campbell did not interfere with Secretary of State Peterson's action or decisions and that his accepting to take on the Chair of the Friends of Jim Peterson did not cause Secretary of State Peterson to treat his [Campbell's] client (or ask his staff to treat his [Campbell's] client) favourably. In addition, the Office of the Registrar of Lobbyists has concluded that the role and discretion of officials working on the relevant file had not been in any way constrained.

Therefore, we have concluded that Mr. Campbell did not breach Rule 8 of the Lobbyists' Code of Conduct, when he became Chair of the Friends of Jim Peterson while being registered to lobby the Department of Finance.

[A.B., vol. 1, p. 111.]

 

 

[8]               Thus, the Registrar concluded that he could not find a breach of the Rule in the absence of evidence that Mr. Campbell's involvement in the political fundraising event for Mr. Peterson constituted or led to an actual or attempted interference in the exercise of the discretionary powers vested in Mr. Peterson in his capacity as Secretary of State (International Financial Institutions) or any officials working with him in that position.

 

[9]               The Registrar went on to say that he took a broader view of the Code than did his predecessor, the Ethics Counsellor. Since Democracy Watch attributes some significance to his comments, they are reproduced below:

I take a view of the Lobbyists' Code of Conduct that is more broad than that of the former Ethics Counsellor. You will note that the version of the Code that is posted on the Office of the Registrar of Lobbyists' website no longer includes the constraint that a rule must be broken in order to initiate an investigation. It would be unfair to retroactively impose my approach to enforcement of the Lobbyists' Code of Conduct upon lobbyists who operated under the previous approach to enforcing the Code. However, I will expect lobbyists to observe both the spirit and the letter of the entire Lobbyists' Code of Conduct in their current and future lobbying assignments.

 

[A.B., vol. 1, pp. 111-112.]

 

 

THE DECISION BELOW

 

[10]           Democracy Watch disagreed with the Registrar's decision and brought an application for judicial review, which was heard by the Deputy Judge. A number of arguments made before him were not pursued in this appeal. As a result, this summary of the Deputy Judge's reasons will deal only with those aspects of his decision that were contested before us, namely, the standard of review, the appropriateness of the Registrar's interpretation of Rule 8 in light of the proper standard of review, the application of the doctrine of legitimate expectations and the issue of costs given the submission of Democracy Watch that it is a public interest litigant.

 

[11]           The Deputy Judge addressed the question of standard of review by conducting a pragmatic and functional analysis. On the basis of his analysis, the Deputy Judge found that the applicable standard of review was that of reasonableness, so that he ought not to interfere with the Registrar's decision unless it did not stand up to a somewhat probing examination.

 

[12]           Applying that standard of review, the Deputy Judge held that the Registrar's decision was not unreasonable. He rejected the argument that the question of the reasonableness of the Registrar's interpretation was res judicata, so far as Democracy Watch was concerned, because that question had been previously decided in proceedings to which Democracy Watch was a party: Democracy Watch v. Canada (Attorney General), 2004 FC 969, [2004] 4 F.C.R. 83 (Democracy Watch). In that case, Gibson J. found that:

I would not be prepared to conclude on the evidence before me that the Ethics Counsellor's interpretation of Rule 8 of the Lobbyists' Code, issued on the 21st of January 2003, and underlying his ruling or decision on the Nine Lobbyists petition or complaint, in and of itself, was such an "unreasonable interpretation", strict as it was, as to give rise to a reviewable error…

 

[Democracy Watch, at para. 85.]

 

 

[13]           The Deputy Judge found that these comments were obiter dicta, in that Gibson J. had previously disposed of the application before him on the ground of bias, and so, his comments had no binding or persuasive effect. Nonetheless, in the context of his analysis of Democracy Watch's allegations of bias – allegations which were not pursued in this Court – the Deputy Judge indicated that he agreed with Gibson J.'s assessment that the Ethics Counsellor's interpretation of Rule 8 was not unreasonable.

 

[14]           The Deputy Judge found that the Registrar investigated the facts surrounding Mr. Campbell's fundraising for Mr. Peterson and that he applied the analysis set out in the Advisory Opinion. The Deputy Judge quoted the Registrar's conclusion that he "found that there were not sufficient indicia of improper influence to support reasonable grounds of belief that Mr. Campbell's actions constituted a breach of Rule 8" (the reasons, at para. 45). The Deputy Judge went on to say that:

While the "reasonable grounds to believe" test is not a significant threshold, as noted by Justice Gibson in Democracy Watch I, it behove the Registrar to not merely have reasonable belief that there was some appearance of impropriety, but that there had been a breach of Rule 8. He did not find that, and was not unreasonable in doing so."

 

[The reasons, at para. 45.]

[15]           On the matter of costs, Democracy Watch argued that it should be awarded its costs against the Attorney General of Canada, but did not seek costs against Mr. Campbell (the reasons, at para. 50). Democracy Watch argued that it was entitled to its costs in any event of the cause in its capacity as a pubic interest litigant, even though counsel for Democracy Watch was acting pro bono.

 

[16]           The Deputy Judge found that all of the issues in the application before him had been dealt with in Democracy Watch. The allegations of bias had been addressed by amendments to the legislation, which dealt with the lack of independence identified by Gibson J. Democracy Watch  also addressed the question of standard of review and the reasonableness of the interpretation of Rule 8 found in the Advisory Opinion, which was adopted by the Registrar. In the result, the Deputy Judge held that the issues raised in the application before him were not questions of public interest, such that Democracy Watch should be relieved of the obligation to pay costs if unsuccessful in its application. As a result, he made an award of costs against Democracy Watch in favour of both Mr. Campbell and the Attorney General.

 

ISSUES

 

[17]           Democracy Watch characterizes the issues in this appeal as follows:

1- What is the appropriate standard of review of the Registrar's decision?

 

2- What is the correct interpretation of Rule 8 of the Lobbyists' Code of Conduct?

 

3- Did the Registrar err in applying the "doctrine of legitimate expectations" to the facts of this case?

 

4- Is Democracy Watch a public interest litigant before this Court?

[18]           The second issue, as framed by Democracy Watch, assumes that the standard of review of the Registrar's decision is correctness. A more neutral statement of the issue would be: "Are there grounds to intervene with respect to the Registrar's interpretation of Rule 8?"

 

[19]           The issue of the application of the doctrine of legitimate expectations does not appear to have been raised before the Deputy Judge. In light of Democracy Watch's submissions, it appears to me that the issue it seeks to address is whether the Registrar fettered his discretion by applying the Ethics Counsellor's interpretation of the Code, rather than his own. I propose to restate this issue as: "Did the Registrar fetter his discretion?"

 

ANALYSIS

 

1- What is the appropriate standard of review of the Registrar's decision?

 

[20]           In its memorandum of fact and law, Democracy Watch undertakes the standard of review analysis and concludes that, in the case of the Registrar's decision, the standard is correctness. Democracy Watch identifies the nature of the question as consisting of three questions of law (the interpretation of Rule 8, the application of the doctrine of legitimate expectations, and its status as a public interest litigant), questions which it says are of general importance and outside the Registrar's area of expertise. In my view, this analysis fails to properly address either the Deputy Judge's reasoning or the nature of the question decided by the Registrar.

 

[21]           The Registrar's decision is a question of mixed fact and law. It involves the application of a legal standard (the interpretation of Rule 8) to a set of facts (Mr. Campbell's involvement in Mr. Peterson's fundraising dinner). Generally, in an application for judicial review, such questions are to be reviewed on the same standard as questions of fact, which is reasonableness, unless it is possible to identify an extricable question of law, in which case the discrete legal question is to be reviewed on the basis which is appropriate in the circumstances: see by analogy Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 26 (Housen).

 

[22]           If an extricable question of law is an issue in a judicial review and that question is one "which is of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise", then the appropriate standard will be correctness: see Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 62; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, at para. 60 (Dunsmuir). On the other hand, where the question of law arises in the course of a tribunal interpreting "its own statute or statutes closely connected to its function, with which it will have particular familiarity", then reasonableness may be the appropriate standard: see Dunsmuir, at para. 54.

 

[23]           In the present case, whether or not Mr. Campbell breached Rule 8 of the Code subsumes the question of the interpretation of Rule 8, an extricable question of law. The interpretation of Rule 8 by the tribunal charged with the responsibility for enforcing the Code is an example of a tribunal interpreting a statute or other normative document with which it has a particular familiarity. In the absence of some other, overriding, consideration, this suggests that the standard of review of that question is reasonableness: see Dunsmuir, at para. 54.

 

[24]           As for the application of the interpretation of Rule 8 to the facts of Mr. Campbell's case, the appropriate standard is that applicable to the review of questions of mixed fact and law, reasonableness.

 

[25]           This Court's role, on appeal from a judicial review of an administrative tribunal's decision, is to determine if the tribunal has correctly identified the appropriate standard of review, and if it has, to confirm that it has properly applied that standard: see Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at para. 43.

 

[26]           In this case, the Deputy Judge's standard of review analysis did not distinguish between the Registrar's decision on the merits of the complaint and his interpretation of Rule 8. He simply decided, after conducting a pragmatic and functional analysis, that the standard of review of the Registrar's decision was reasonableness. He then went on to find that the Registrar's decision was not unreasonable. In proceeding in that truncated fashion, the Deputy Judge misconstrued the nature of the problem before him because he failed to examine separately whether the Registrar's interpretation of Rule 8 was reasonable. In my view, his failure to examine that legal question separately was an error of law.

 

2- Are there grounds to intervene with respect to the Registrar's interpretation of Rule 8?

 

[27]           The authority to promulgate the Code is found at section 10.2 of the LRA, which provides as follows:

 

 

[28]           Subsections 5(1) and 7(1) are parallel provisions; the former deals with consultant lobbyists, while the latter deals with in-house lobbyists. For present purposes, it is sufficient to reproduce subsection 5(1):

 

 

[29]           The preamble to the LRA recognizes that lobbying is a legitimate activity, but that both public office holders and the public have the right to know who is engaged in lobbying activities. The Code, which is reproduced as Schedule A to these reasons, begins with a preamble which restates the preamble to the LRA and emphasizes the role of the Code in promoting public trust in government decision-making. The Code then sets out three principles and eight rules. The principles are: Integrity and Honesty, Openness, and Professionalism. The Rules are grouped under three headings: transparency, confidentiality and conflict of interest. Rule 8 appears as one of the three rules grouped under the latter heading, as reproduced below:

 

 

[30]           One notes that Rule 6 deals with a lobbyist's own conflict of interest, and that Rule 7 requires a lobbyist to disclose any conflict of interest to the public office holders he or she is attempting to influence. It is not necessary to inquire into these Rules any further, other than to note that conflict of interest presumably means the same thing in Rule 8 as it does in Rules 6 and 7.

 

[31]           In his decision, the Registrar adopted the interpretation of Rule 8 set out in the Advisory Opinion, which, as noted, was written by the Ethics Counsellor at a time when the latter was responsible for the enforcement of the Code. Given the Advisory Opinion's prominence in the Registrar's decision, it is useful to examine it in more detail.

 

[32]           The Ethics Counsellor began his analysis by noting that the Code does not prohibit lobbyists from placing public office holders in a conflict of interest: it prohibits lobbyists from placing public office holders in a conflict of interest by proposing or undertaking activities that would constitute an improper influence on a public office holder.

 

[33]           The Ethics Counsellor's analysis of Rule 8 then focused on the meaning of "improper influence". He quoted Black's Law Dictionary, 5^th ed., an often cited American reference work, which equates "improper influence" with "undue influence". He referred to the following definition of "undue influence" from Black's Law Dictionary:

Any improper or wrongful constraint, machination, or urgency of persuasion whereby the will of a person is overpowered and he is induced to do or forbear an act which he would not do or would do if left to act freely. Influence which deprives person influenced of free agency or destroys freedom of his will and renders it more the will of another than his own. Misuse of position of confidence or taking advantage of a person's weakness, infirmity, or distress to change improperly that person's actions or decisions.

 

 

[34]           The Ethics Counsellor then went on to note that the seventh edition of the same work "more succinctly, again equates 'improper influence' to 'undue influence' and defines the phrase as the 'improper use of power or trust in a way that deprives a person of free will and substitutes another's objective.'"

 

[35]           Based on these definitions, the Ethics Counsellor articulated his view as to the limitations to be placed on Rule 8:

These set a very high, but fair, standard for determining whether a lobbyist has put a public office holder in a conflict of interest by "proposing or undertaking any action that would constitute an improper influence" on this individual. This standard must be set high to avoid allegations being made that a lobbyist has breached the Lobbyists' Code of Conduct simply by virtue of carrying out a legitimate lobbying activity in a normal professional fashion.

 

[36]           This is followed by the enumeration of some of the factors to be considered in deciding whether any action, proposed or undertaken by a lobbyist, has resulted in "improper influence". Those factors were set out earlier in these reasons, but are repeated here for ease of reference:

·            whether there has been interference with the decision, judgment or action of the public office holder;

·            whether there has been a wrongful constraint whereby the will of the public office holder was overpowered and whether the public office holder was induced to do or forbear an act which he or she would not do if left to act freely; and

·            whether there has been a misuse of position of confidence or whether the lobbyist took advantage of a public office holder's weakness, infirmity or distress to alter that public office holder's actions or decisions.

 

[37]           If the Ethics Counsellor's view of the meaning to be given to Rule 8 is unreasonable, then the Registrar erred in law in adopting that interpretation.

 

[38]           The Registrar was no doubt influenced by Gibson J.' s decision in Democracy Watch in which the latter held that the Ethics Counsellor's view, while strict, was not so unreasonable as to give rise to a reviewable error: see Democracy Watch, at para. 85. As noted above, the Deputy Judge accepted Gibson J.'s view.

 

[39]           For the reasons that follow, I am of the view that the interpretation given to Rule 8 by the Ethics Counsellor, and subsequently adopted by the Registrar, was unreasonable.

 

[40]           To properly understand Rule 8, one must grasp the concept of conflict of interest, a notion which is very elastic:

Conflict of interest takes many different forms and invites many different definitions and techniques of regulation. Its definition depends on the dynamics of the particular trade or calling in question. There is often no single definition for any particular trade or calling.

[Cox v. College of Optometrists of Ontario (1988), 65 O.R. (2d) 461 (Div. Ct), at p. 468 (Cox).]

 

[41]           The common element in the various definitions of conflict of interest is, in my opinion, the presence of competing loyalties. This was articulated in the Cox case as follows:

Conflict of interest in this context means a personal interest so connected with professional duty that it might reasonably be apprehended to give rise to a danger of actually influencing the exercise of the professional duty.

[Cox, at p. 469.]

 

[42]           The same emphasis on divided loyalties can be found in a passage from a recent decision of the Supreme Court:

A "conflict of interest" was defined in Neil as an interest that gives rise to a substantial risk that the lawyer's representation of the client would be materially and adversely affected by the lawyer's own interests or by the lawyer's duties to another current client, a former client, or a third person…

[Strother v. 3464920 Canada Inc., 2007 SCC 24, [2007] 2 S.C.R. 177, at para. 56 (Strother).]

 

[43]           The Canadian Bar Association's Code of Professional Conduct, under the heading of "Conflict of Interest between Lawyer and Client", contains the following prohibition:

3. The lawyer shall not act for the client where the lawyer's duty to the client and the personal interests of the lawyer or an associate are in conflict.

 

[Canadian Bar Association, Code of Professional Conduct (Ottawa: Canadian Bar Association, 2006), at p. 46.]

 

 

[44]           If one looks to the same authority as the Ethics Counsellor, that is, the seventh edition of Black's Law Dictionary, "conflict of interest" is defined as follows:

conflict of interest. 1. A real or seeming incompatibility between one's private interests and one's public or fiduciary duties. 2. …

 

[45]           As this brief survey demonstrates, the idea of conflict of interest is intimately bound to the problem of divided loyalties or conflicting obligations. While the specific facts giving rise to a conflict of interest will vary from one profession to another, that which leads to the conclusion that a person is subject to a conflict of interest is the presence of a tension between the person's duty and some other interest or obligation.

 

[46]           Turning now to Rule 8, it will be recalled that it provides as follows:

8. Improper Influence

Lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder.

 

 

[47]           The Ethics Counsellor found that Rule 8 did not prohibit lobbyists from placing public office holders in a conflict of interest, but only prohibited them from placing public office holders in a conflict of interest by proposing or undertaking activities which would amount to improper influence.

 

[48]           With respect, this is a deeply flawed reading of the Rule. The Rule prohibits lobbyists from placing public office holders in a conflict of interest. The words "by proposing or undertaking any action that would constitute an improper influence on a public office holder" are properly read as an attempt to elaborate on the meaning of "conflict of interest" in the context of the regulation of lobbyists, and not as a limitation on the scope of the prohibition. It can hardly advance public confidence in the integrity and transparency of government decision-making to condone certain conflicts of interest, while prohibiting others. Any conflict of interest impairs public confidence in government decision-making.

 

[49]           Beyond that, the rule against conflicts of interest is a rule against the possibility that a public office holder may prefer his or her private interests to the public interest. If one looks to the passages cited above, they refer to the possibility that one private interest may interfere with the discharge of one's public duty:

Conflict of interest in this context means a personal interest so connected with professional duty that it might reasonably be apprehended to give rise to a danger of actually influencing the exercise of the professional duty.

[Cox, at p. 469.]

A "conflict of interest" was defined in Neil as an interest that gives rise to a substantial risk that the lawyer's representation of the client would be materially and adversely affected by the lawyer's own interests or by the lawyer's duties to another current client, a former client, or a third person.

[Strother, at para. 56.]

A real or seeming incompatibility between one's private interests and one's public or fiduciary duties.

[Black's Law Dictionary, 7th ed., s.v. "conflict of interest".]

[Emphasis added.]

 

 

[50]           In Cox, the Ontario Divisional Court made this point explicitly:

Conflict of interest does not require proof of actual influence by the personal interest upon the professional duty any more than it requires proof of actual receipt of a benefit.

[Cox, at p. 469.]

 

[51]           The Ethics Counsellor's position that Rule 8 only prohibits those acts which demonstrably result in actual interference in the public office holder's discharge of his duty mistakes conflict of interest for corruption.

 

[52]           Improper influence has to be assessed in the context of conflict of interest, where the issue is divided loyalties. Since a public office holder has, by definition, a public duty, one can only place a public office holder in a conflict of interest by creating a competing private interest. That private interest, which claims or could claim the public office holder's loyalty, is the improper influence to which the Rule refers.

 

[53]           The Ethics Counsellor made a point of saying that the threshold for Rule 8 must be set high, so that lobbyists are not subject to criticism for legitimate lobbying activities. A lobbyist's stock in trade is his or her ability to gain access to decision makers, so as to attempt to influence them directly by persuasion and facts. Where the lobbyist's effectiveness depends upon the decision maker's personal sense of obligation to the lobbyist, or on some other private interest created or facilitated by the lobbyist, the line between legitimate lobbying and illegitimate lobbying has been crossed. The conduct proscribed by Rule 8 is the cultivation of such a sense of personal obligation, or the creation of such private interests.

 

[54]           As a result, I conclude that the Registrar's interpretation of Rule 8 was unreasonable, and that his decision must therefore be set aside. In light of this conclusion, it is not necessary to deal with the second issue raised by Democracy Watch, whether it be described as the application of the doctrine of legitimate expectations or as fettering discretion. The Registrar will have to develop his own approach to the interpretation and application of Rule 8, in light of the principles set out in these reasons.

 

[55]           It remains only to consider the issue of an appropriate remedy. Given that the facts giving rise to Democracy Watch's complaint are almost ten years in the past, a question arises as to whether the interests of justice would be served by remitting this matter to the Registrar for a fresh decision in light of these reasons. The powers of this Court are set out at section 52 of the Federal Courts Act, R.S.C. 1985, c. F-7:

 

 

[56]           Paragraph 52(b)(iii) authorizes the Court, on appeal from the Federal Court, to make a declaration as to the conclusions which the Federal Court should have reached and to refer the matter "for a continuance of the trial on the issues that remain to be determined in light of that declaration." This contemplates proceedings of an interlocutory nature ("continuance of the trial"). Paragraph 52(b)(ii) allows the Court "in its discretion, [to] order a new trial if the ends of justice seem to require it." The only circumstance in which the Court could order a new trial is if the appeal was successful. Applying this paragraph by analogy to the facts of this case, Democracy Watch has been successful in attacking the Registrar's interpretation of Rule 8, and, to that extent, the appeal has been successful. However, given that the events underlying Democracy Watch's complaint are almost ten years old, it is doubtful that the interests of justice require that this complaint be returned for a new hearing and a fresh decision. Enough time has passed that this matter should be allowed to lapse.

 

[57]           The original decision found that Mr. Campbell had not engaged in misconduct. In setting that decision aside, I make no finding as to the propriety or impropriety of Mr. Campbell's conduct. Democracy Watch has achieved its objective of clarifying the interpretation of the Code; the particulars of a specific complaint are, by this point, secondary.

[58]           As for the question of costs, Democracy Watch, as the successful party, would normally be entitled to its costs both here and below. Thus, the question of Democracy Watch's public interest standing is of no consequence in relation to costs. I would grant Democracy Watch its costs against the Attorney General, both in this Court and in the Federal Court.

 

[59]           I would not grant Democracy Watch its costs against Mr. Campbell. While it is not Democracy Watch's fault that its complaint was allowed to languish for five years, it is not Mr. Campbell's either. Given that the positions taken by Mr. Campbell and the Attorney General were substantially the same, I think it appropriate that there be no award of costs against Mr. Campbell, either in this Court or in the Federal Court.

 

[60]           As a result, I would allow the appeal and I would set aside the decision of the Deputy Judge and, making the order that the Deputy Judge ought to have made, I would set aside the decision of the Registrar, dated October 10, 2006, but I would not remit the matter to the Registrar for a new decision. I would award Democracy Watch its costs against the Attorney General in this Court and in the Federal Court. I would make no order of costs with respect to Mr. Campbell.

 

"J.D. Denis Pelletier"

"I agree

     M. Nadon J.A."

 

"I agree

     K. Sharlow J.A."

 

 

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

DOCKET:                                                                              A-128-08

 

STYLE OF CAUSE:                                                              Democracy Watch v. Barry Campbell and The Attorney General of Canada (Office of the Registrar of Lobbyists)

 

PLACE OF HEARING:                                                        Toronto, Ontario

 

DATE OF HEARING:                                                          January 12, 2009

 

REASONS FOR JUDGMENT BY:                                     PELLETIER J.A.

 

CONCURRED IN BY:                                                         NADON J.A.

                                                                                                SHARLOW J.A.

 

DATED:                                                                                 March 12, 2009

 

APPEARANCES:

David Baker Balpreet Singh (student)	FOR THE APPELLANT
Peter H. Griffin Jordan Goldblatt   Michael H. Morris Derek C. Allen	FOR THE RESPONDENT (Barry Campbell)   FOR THE RESPONDENT (The Attorney General of Canada)

 

SOLICITORS OF RECORD:

Baker Law Toronto, Ontario	FOR THE APPELLANT
Lenczner Slaght Royce Smith Griffin, LLP Toronto, Ontario   John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT (Barry Campbell)   FOR THE RESPONDENT (The Attorney General of Canada)

 

 

Schedule A

 

Lobbyists' Code of Conduct

Preamble

The Lobbyists' Code of Conduct is founded on four concepts stated in the Lobbying Act:

• Free and open access to government is an important matter of public interest;
• Lobbying public office holders is a legitimate activity;
• It is desirable that public office holders and the public be able to know who is attempting to influence government; and,
• A system for the registration of paid lobbyists should not impede free and open access to government.

The Lobbyists' Code of Conduct is an important initiative for promoting public trust in the integrity of government decision-making. The trust that Canadians place in public office holders to make decisions in the public interest is vital to a free and democratic society.

To this end, public office holders, when they deal with the public and with lobbyists, are required to honour the standards set out for them in their own codes of conduct. For their part, lobbyists communicating with public office holders must also abide by standards of conduct, which are set out below.

Together, these codes play an important role in safeguarding the public interest in the integrity of government decision-making.

Principles

Integrity and Honesty

Lobbyists should conduct with integrity and honesty all relations with public office holders, clients, employers, the public and other lobbyists.

Openness

Lobbyists should, at all times, be open and frank about their lobbying activities, while respecting confidentiality.

Professionalism

Lobbyists should observe the highest professional and ethical standards. In particular, lobbyists should conform fully with not only the letter but the spirit of the Lobbyists' Code of Conduct as well as all the relevant laws, including the Lobbyist Registration Act and its regulations.

 

 

Rules

Transparency

1. Identity and purpose

Lobbyists shall, when making a representation to a public office holder, disclose the identity of the person or organization on whose behalf the representation is made, as well as the reasons for the approach.

2. Accurate information

Lobbyists shall provide information that is accurate and factual to public office holders. Moreover, lobbyists shall not knowingly mislead anyone and shall use proper care to avoid doing so inadvertently.

3. Disclosure of obligations

Lobbyists shall indicate to their client, employer or organization their obligations under the Lobbyists Registration Act, and their obligation to adhere to the Lobbyists' Code of Conduct.

Confidentiality

4. Confidential information

Lobbyists shall not divulge confidential information unless they have obtained the informed consent of their client, employer or organization, or disclosure is required by law.

5. Insider information

Lobbyists shall not use any confidential or other insider information obtained in the course of their lobbying activities to the disadvantage of their client, employer or organization.

Conflict of interest

6. Competing interests

Lobbyists shall not represent conflicting or competing interests without the informed consent of those whose interests are involved.

7. Disclosure

Consultant lobbyists shall advise public office holders that they have informed their clients of any actual, potential or apparent conflict of interest, and obtained the informed consent of each client concerned before proceeding or continuing with the undertaking.

8. Improper influence

Lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder.