Canada: Are Your Communications Compliant? Regulated Period Of 2023 Alberta Provincial Election Already Underway
Political Law Bulletin

Businesses, organizations and consultants should ensure that their activities in Alberta are compliant with campaign finance law and lobbying law, especially since the next provincial general election will occur on May 29.¹

Election advertising has been regulated since January 1 and will continue to be until election day.² A third party must register when it incurs or plans to incur election advertising expenses of at least $1,000.

Critically, only individuals ordinarily resident in Alberta, corporations carrying on business in Alberta, and trade unions and employee organizations in Alberta are eligible to register as third parties engaged in election advertising, or to contribute to third parties for purposes of election advertising.

Not-for-profit organizations must note that their exemption under provincial lobbying law³ does not extend to third-party election advertising. In other words, Alberta non-profits are subject to the election advertising rules.

As grassroots lobbying is also regulated in Alberta, it is possible that a company's or a business group's engagement with the Alberta public could trigger concurrent reporting obligations under both the Election Finances and Contributions Disclosure Act and the Lobbyists Act, or be illegal if the entity is prohibited from engaging in election advertising.

Election Advertising: What is it?

Don't be fooled by the name. Alberta "election advertising" is not limited to advertising. It includes canvassing for the benefit of a political party or candidate, and organizing an event of which a significant purpose is to promote or oppose a political party or candidate.⁴

In Alberta, provincial election advertising also includes any transmission to the public of an advertising message that promotes or opposes a registered party or candidate, as well as advertising that takes a position on an issue that is associated with a registered party or candidate.⁵

Such advertising is regulated during the election advertising period, which in the case of a fixed-date election (such as this year), begins on January 1 and ends on election day.⁶

Only an individual ordinarily resident in Alberta, a corporation carrying on business in Alberta, or an Alberta trade union or employee organization is permitted to engage in election advertising.⁷ Charities may not engage in election advertising.⁸

During any period outside of an election advertising period, the transmission to the public of an advertising message that promotes or opposes a registered party, its leader, a sitting MLA or candidate, a leadership candidate or a nomination contestant (but does not include advertising on issues) is regulated as "political advertising."⁹ "Political advertising" also includes canvassing and organizing events.¹⁰ Only a Canadian citizen, an individual ordinarily resident in Canada, a corporation carrying on business in Canada or incorporated in Canada, or a trade union or employee organization that holds bargaining rights for employees in Canada is permitted to engage in political advertising.¹¹

Complex Rules Govern Third Party Activity

An entity that engages in election advertising or political advertising is subject to complex rules. For example, it is illegal for a third party to collude with a political party or candidate, or with another third party, for the purpose of circumventing a contribution limit or expense limit.¹² A third party must not directly or indirectly accept or use a contribution that it knows or ought to know is from an ineligible contributor or from someone exceeding the contribution limit.¹³ The third party must identify itself in all election advertising and political advertising.¹⁴

Threshold to Register as a Third Party Advertiser Is Extremely Low

A third party must register when it incurs or plans to incur political advertising or election advertising expenses of at least $1,000.

Expenses include the cost of transmitting the advertisement and preparing the creative, as well as costs of canvassing and organizing events. Expenses also include the value of donated goods or services, and the value of the discount on any goods or services purchased for less than their market value.¹⁵

Spending and Contribution Limits

In relation to the 2023 provincial general election, a third party may incur election advertising expenses of up to $159,200 between January 1 and the day before the Election Act campaign period,¹⁶ inclusive, and $159,200 between the first day of the campaign period and election day, inclusive.¹⁷

During the periods in which political advertising is regulated, there is no spending limit for third parties' political advertising.

Only an individual ordinarily resident in Alberta is permitted to contribute to a third party for purposes of election advertising.¹⁸ A corporation or organization (anything except an individual) that is a third party is not permitted to expend its own funds on election advertising.¹⁹

For the purpose of political advertising, a contribution may be made by a Canadian citizen, an individual ordinarily resident in Canada, a corporation carrying on business in Canada or incorporated in Canada, or a trade union or employee organization that holds bargaining rights for employees, and not by a charity.²⁰ A third party that spends its own funds on election advertising is deemed to be a contributor.²¹

An eligible contributor may contribute a maximum of $30,000 annually for election advertising,²² political advertising,²³ or both election and political advertising.²⁴

Ongoing Reporting and Disclosure Obligations

Once an entity registers as a third party engaged in election advertising, its ongoing reporting obligations are significant and include:

• Weekly Contribution Report disclosing names and amounts of eligible contributors who donated more than $250 in aggregate²⁵
• Election Advertising Return due six months after election day²⁶

Additionally, a third party advertiser that incurs election advertising expenses of more than $100,000, must appoint an auditor and file the auditor's report.²⁷

A third party that engages in political advertising must report quarterly on its contributions.²⁸

Communications With the Public on Issues Can Constitute Both Election Advertising and Grassroots Lobbying

Under the Lobbyists Act, communication with a public office holder, directly or through grassroots communication, in an attempt to influence any of the following types of government decisions, constitutes lobbying:²⁹

• The development, enactment, amendment or termination of any legislation, including bills, resolutions, regulations and orders in council
• The development, establishment, amendment or termination of any program, policy, directive or guideline of the Alberta Government or a prescribed provincial entity
• The awarding of any grant or financial benefit by or on behalf of the Alberta Government or a prescribed provincial entity
• A decision privatization or outsourcing decision by the Cabinet
• The awarding of a contract by or on behalf of the Alberta Government or a prescribed provincial entity (in relation to consultant lobbyists only)

Grassroots communication means an appeal to members of the public through the mass media or by direct communication that seeks to persuade members of the public to communicate directly with a public office holder in an attempt to place pressure on the public office holder to endorse a particular opinion.³⁰

A business or non-exempt organization³¹ whose web page, social media post, radio broadcast or television message encourages the public to contact a public office holder to take position on a government decisions could be engaging in grassroots lobbying. If the communication simultaneously takes a position on an issue associated with an Alberta provincial political party or candidate then it will constitute election advertising and require registration.

Consequences of Non-Compliance

A third party that violates a provision of the Election Finances and Contributions Disclosure Act may be liable to a fine of up to up to $100,000.³²

The requirements are complex, and the risk of adverse consequences is real. Know the rules and act with confidence. Each business or organization should take steps, now, to ensure that its public communications in Alberta are fully compliant with both the Election Finances and Contributions Disclosure Act and the Lobbyists Act.

Footnotes

1. Election Act, R.SA. 2000, c. E-1, s. 38.1.

2. Election Finances and Contributions Disclosure Act, R.S.A. 2000, c. E-2, subclause 44.1(d.1)(i).

3. The Lobbyists Act, S.A. 2007, c. L-20.5, subclause 1(1)(g)(iv) and clause 3(1)(i), excludes employees of a non-profit organization, association, society, coalition or interest group, except one that is constituted to serve management, union or professional interests or that has a majority of members that are profit-seeking enterprises or representatives of profit-seeking enterprises,

4. Election Finances and Contributions Disclosure Act, subs. 44.1(1.1).

5. Election Finances and Contributions Disclosure Act, clause 44.1(1)(d).

6. Election Finances and Contributions Disclosure Act, subclause 44.1(1)(d.1)(i).

7. Election Finances and Contributions Disclosure Act, subs. 9.1(5).

8. Ibid.

9. Election Finances and Contributions Disclosure Act, clause 44.1(1)(g).

10. Election Finances and Contributions Disclosure Act, subs. 44.1(1.3).

11. Election Finances and Contributions Disclosure Act, subs. 9.1(5.1).

12. Election Finances and Contributions Disclosure Act, s. 41.42, subs. 44.11(5).

13. Election Finances and Contributions Disclosure Act, subs. 44.201(7).

14. Election Finances and Contributions Disclosure Act, s. 44.8.

15. Election Finances and Contributions Disclosure Act, clause 44.1(1)(e).

16. Technically, the date of the writ of election addressed to the returning officer of each electoral division. Election Act, subclause 1(1)(b.1)(ii), s. 39.

17. Election Finances and Contributions Disclosure Act, subs. 44.11(1), s. 41.5.

18. Election Finances and Contributions Disclosure Act, subs. 44.2(1).

19. Election Finances and Contributions Disclosure Act, s. 44.21.

20. Election Finances and Contributions Disclosure Act, subs. 44.2(2).

21. Election Finances and Contributions Disclosure Act, s. 44.21.

22. Election Finances and Contributions Disclosure Act, subs. 44.201(1).

23. Election Finances and Contributions Disclosure Act, subs. 44.201(2).

24. Election Finances and Contributions Disclosure Act, subs. 44.201(3).

25. Election Finances and Contributions Disclosure Act, subs. 44.81(1).

26. Election Finances and Contributions Disclosure Act, subs. 44.9(1).

27. Election Finances and Contributions Disclosure Act, s. 44.91.

28. Election Finances and Contributions Disclosure Act, s. 44.82.

29. Alberta Lobbyists Act, clause. 1(1)(f).

30. Alberta Lobbyists Act, clause. 1(1)(e). Grassroots communication, however, does not include communication between an organization and its members, officers or employees or between a person or partnership and its shareholders, partners, officers or employees

31. A non-profit organization is not exempt from the Lobbyists Act if it is constituted to serve management, union or professional interests or has a majority of members that are profit-seeking enterprises or representatives of profit-seeking enterprises

32. Alberta Election Finances and Contributions Disclosure Act, s. 49.1.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.