Were Trans Mountain Ads Pulled Because of Third Party Election Advertising Rules?

Laura Kane of the Canadian Press reported yesterday that Kinder Morgan has pulled its advertising for the proposed Trans Mountain pipeline expansion until the federal election campaign is completed:

http://www.calgaryherald.com/business/Kinder+Morgan+pulls+Trans+Mountain+pipeline+during+election+campaign/11277087/story.html

The article explores why this decision was made, but there are a few unanswered questions and some misleading political speak in it, so I will try to cut through the spin and explain what the key issue is.

The big question is whether the ads meet the definition of election advertising. I don’t know exactly what ads are at issue here, but it is far form clear that Kinder Morgan’s regular ads promoting the project should be considered election advertising. If they are, then Kinder Morgan will have to register with Elections Canada.

Kinder Morgan seems to be taking the position that the ads aren’t election advertising, but they are pulling them anyways. The Commissioner of Elections may not publicly release his opinion on whether the ads are election advertising, but if Kinder Morgan doesn’t register, it is likely that the Commissioner has told them they do not have to register because the ads aren’t election advertising.

However, if the Commissioner considers that the ads are election advertising, Kinder Morgan will be required to register as a third party because the expenses for the ads are certainly over $500. If this is this case, the fact that Kinder Morgan spent over $500 on election advertising doesn’t mean they broke the law. They wouldn’t even have to yank the ads as long as they register and stay within the expense limits.

This article is a good illustration of the risks that election advertising laws pose to third parties. Kinder Morgan’s ads may or may not be election advertising, but running them during an election campaign has put them in the news in an unfavorable light.

It is very important for third parties to understand whether any political messaging they do during an election campaign will be considered election advertising or not. This determination will affect whether and how advertising may be conducted during the election campaign where the transmission of any political message will be scrutinized for legal compliance.

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