Now you see it, now you don’t (Legal view)

Why a Veterans Affairs staffer wasn’t allowed to keep $5,000, then was, then wasn’t again
By Todd Humber
|Canadian HR Reporter|Last Updated: 12/19/2006

When Maria Orn was on her death bed in Alberta in the summer of 2001, she decided she wanted to do something special. Orn, a widow and a veteran of the Second World War, had no children. Her husband, also a veteran, had already passed away. Therefore, there was no logical heir to her estate.

So she phoned her lawyer and decided to make some changes to her will, divvying up $100,000 between a charity, some friends and a stranger who had helped her out years ago.

That stranger was Daniel Assh, a lawyer who worked as a pensions advocate for Veterans Affairs in Edmonton. He must have been as surprised as anyone when he received a voice mail in August, stating that Orn had passed away and had left him a $5,000 bequest as a token of appreciation for his assistance in helping her obtain benefits from Veterans Affairs between 1993 and 1996. After all, Assh hadn’t kept in touch with Orn. He never asked to be included in her will and hadn’t been in contact with her for more than five years.

Assh did the right thing, and told his supervisor about the $5,000. He also said he planned to keep the money, since he had no previous knowledge of Orn’s intentions and didn’t think his acceptance of the legacy could give rise to a conflict of interest. She was obviously not expecting further services from him. Since she had no children, there was no question that she left him the money in an attempt to secure special assistance for them. But Assh’s supervisor told him to hold off and wait until it had been cleared through the appropriate channels.

Conflict of interest

Veterans Affairs decided he couldn’t keep the money, because of the perceived conflict of interest. Assh protested, but was told repeatedly he couldn’t possibly accept it. He grieved the decision through various levels of the internal grievance procedure to no avail.

Assh then filed an appeal of the decision with the Federal Court. In October 2005, more than four years after the money was left to him, a judge ruled he could accept it. But just when Assh thought it was safe to cash the check, the ruling was appealed. Last month the Federal Court of Appeal, in a 2-1 decision, ruled he couldn’t accept the money after all because it would be a conflict of interest.

“If pensions advocates were permitted to accept a legacy of $5,000 left to them by a client in circumstances similar to those in this case, might they suggest or hint to clients that, if they wanted first-class service, they should leave their pensions advocate a legacy? Or might they assess whether a client was likely to leave a legacy and reserve their best efforts for those whom they thought might benefit them in their will?” the Court of Appeal said.

While there was no suggestion Assh in any way attempted to influence Orn to name him in her will or acted unprofessionally in any manner, accepting the money would create a perceived conflict of interest, the Court of Appeal said.

“A reasonable person would think that there was a realistic possibility that acceptance of this legacy by a pensions advocate could influence the future performance of official duties by that person, and weaken clients’ confidence in the impartiality of the employees of Veterans Affairs on whom they rely,” the Court of Appeal said.

It also pointed out that Assh would suffer no real hardship if he wasn’t allowed to accept the money. After all, he had already been paid for his services out of public funds and precluding him from accepting it would have no impact on his rights, reputation or career.

But the Court of Appeal’s decision wasn’t unanimous. In a dissenting opinion, Justice Marc Nadon said Assh should have been allowed to accept the money.

Policy didn’t ban bequests

After all, Veterans Affairs hadn’t prohibited the acceptance of unsolicited bequests. Rather, it told employees to report the matter so “the appropriate conflict of interest process will be followed.” He argued the essential question in this case was whether an informed person, having thought the matter through, would think that, in accepting Orn’s bequest, Assh could be influenced in the performance of his official duties.

“In other words, would the informed person believe that (Assh’s) dealings with his present and future clients could be affected in such a way as to give rise to concerns that he might favour some clients over others because of the possibility that they might leave him a legacy,” said Justice Nadon. “Although there is no denying the possibility that (Assh) could be influenced by the legacy, that is not, in my view, what the test calls for. The informed person is asked to take a hard look at the facts and direct his mind to whether on those facts, (Assh) could be influenced in his judgment and in the performance of his duties. I am satisfied that, on the facts of the case, the informed person would answer the question in the negative.”

Justice Nadon said if the $5,000 were to have any impact on Assh, it would likely create an incentive for him to perform excellent work for all his clients. He just didn’t buy the argument that accepting the money would somehow lead to Assh giving preferential treatment to some clients in the expectation of a cash payment at the end.

“Mrs. Orn made a legacy in favour of (him) because of her appreciation for the services that he rendered to her in connection with her attempt to obtain a pension,” said Justice Nadon. “Whether or not that is the sole reason for the legacy, I cannot say. I would venture to add, however, that there may well have been more to it than that. The likelihood is that (Assh) treated Mrs. Orn with kindness, respect and consideration throughout their dealings. Thus, when Mrs. Orn decided to change her will, all of these considerations were in her mind and she acted accordingly.”

However, he said the Court of Appeal might be right that a solution to this dilemma lies in a ban preventing public servants from accepting legacies in circumstances similar to this case. But that ban wasn’t in place for Assh, and he should have been allowed to keep the money, he said.

Todd Humber is managing editor of Canadian HR Reporter. He can be reached at todd.humber@thomson.com.

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