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 (4th 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:
|
10.2 (1) The registrar shall develop a Lobbyists'
Code of Conduct respecting the activities described in subsections 5(1) and
7(1).
|
10.2 (1) Le
directeur élabore un code de déontologie des lobbyistes portant sur toutes
les activités visées aux paragraphes 5(1) et 7(1).
|
[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):
|
5. (1) An individual shall file with the registrar,
in the prescribed form and manner, a return setting out the information
referred to in subsection (2), if the individual, for payment, on behalf of
any person or organization (in this section referred to as the "client"),
undertakes to
(a)
communicate with a public office holder in respect of
(i)
the development of any legislative proposal by the Government of Canada or by
a member of the Senate or the House of Commons,
(ii)
the introduction of any Bill or resolution in either House of Parliament or
the passage, defeat or amendment of any Bill or resolution that is before
either House of Parliament,
(iii)
the making or amendment of any regulation as defined in subsection 2(1) of
the Statutory Instruments Act,
(iv)
the development or amendment of any policy or program of the Government of
Canada,
(v)
the awarding of any grant, contribution or other financial benefit by or on
behalf of Her Majesty in right of Canada, or
(vi)
the awarding of any contract by or on behalf of Her Majesty in right of Canada; or
(b)
arrange a meeting between a public office holder and any other person.
|
5.
(1) Est
tenue de fournir au directeur, en la forme réglementaire, une déclaration
contenant les renseignements prévus au paragraphe (2) toute personne
(ci-après « lobbyiste-conseil ») qui, moyennant paiement, s'engage,
auprès d'un client, d'une personne physique ou morale ou d'une
organisation :
a) à communiquer avec le titulaire d'une charge
publique au sujet des mesures suivantes :
(i)
l'élaboration de propositions législatives par le gouvernement fédéral ou par
un sénateur ou un député,
(ii)
le dépôt d'un projet de loi ou d'une résolution devant une chambre du
Parlement, ou sa modification, son adoption ou son rejet par celle-ci,
(iii)
la prise ou la modification de tout règlement au sens du paragraphe 2(1) de
la Loi sur les textes réglementaires,
(iv)
l'élaboration ou la modification d'orientation ou de programmes fédéraux,
(v)
l'octroi de subventions, de contributions ou d'autres avantages financiers
par Sa Majesté du chef du Canada ou en son nom,
(vi)
l'octroi de tout contrat par Sa Majesté du chef du Canada ou en son nom;
b) à ménager pour un tiers une entrevue avec le
titulaire d'une charge publique.
|
[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:
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.
|
Conflits d'intérêts
6. Intérêts concurrentiels
Les lobbyistes ne doivent pas
représenter des intérêts conflictuels ou concurrentiels sans le consentement
éclairé des personnes dont les intérêts sont en cause.
7. Divulgation
Les lobbyistes-conseils doivent
informer les titulaires d'une charge publique qu'ils ont avisé leurs clients
de tout conflit d'intérêts réel, possible ou apparent et ont obtenu le
consentement éclairé de chaque client concerné avant d'entreprendre ou de
poursuivre l'activité en cause.
8. Influence répréhensible
Les lobbyistes doivent
éviter de placer les titulaires d'une charge publique en situation de conflit
d'intérêts en proposant ou en prenant toute action qui constituerait une
influence répréhensible sur ces titulaires.
|
[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, 5th 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:
|
52. The Federal Court of
Appeal may
(a)
quash proceedings in cases brought before it in which it has no jurisdiction
or whenever those proceedings are not taken in good faith;
(b)
in the case of an appeal from the Federal Court,
(i)
dismiss the appeal or give the judgment and award the process or other
proceedings that the Federal Court should have given or awarded,
(ii)
in its discretion, order a new trial if the ends of justice seem to require
it, or
(iii)
make a declaration as to the conclusions that the Federal Court should have
reached on the issues decided by it and refer the matter back for a
continuance of the trial on the issues that remain to be determined in light
of that declaration; and
(c)
in the case of an appeal other than an appeal from the Federal Court,
(i)
dismiss the appeal or give the decision that should have been given, or
(ii)
in its discretion, refer the matter back for determination in accordance with
such directions as it considers to be appropriate.
|
52.
La Cour d'appel fédérale peut :
a) arrêter les procédures dans les causes qui
ne sont pas de son ressort ou entachées de mauvaise foi;
b) dans le cas d'un appel d'une décision de la
Cour fédérale :
(i)
soit rejeter l'appel ou rendre le jugement que la Cour fédérale aurait dû
rendre et prendre toutes mesures d'exécution ou autres que celle-ci aurait dû
prendre,
(ii)
soit, à son appréciation, ordonner un nouveau procès, si l'intérêt de la
justice paraît l'exiger,
(iii)
soit énoncer, dans une déclaration, les conclusions auxquelles la Cour
fédérale aurait dû arriver sur les points qu'elle a tranchés et lui renvoyer
l'affaire pour poursuite de l'instruction, à la lumière de cette déclaration,
sur les points en suspens;
c) dans les autres cas d'appel :
(i)
soit rejeter l'appel ou rendre la décision qui aurait dû être rendue,
(ii)
soit, à son appréciation, renvoyer l'affaire pour jugement conformément aux
instructions qu'elle estime appropriées.
|
[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."
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