A Veterans Affairs staffer who was left a $5,000 bequest by a woman he helped obtain disability and pension benefits has been on a bit of a roller coaster ride over the last five years. The employer said he couldn’t keep it, then a court said he could. Now the Federal Court of Appeal has ruled he can’t.
But Veterans Affairs balked. It said he couldn’t keep it because it would be a conflict of interest. The worker appealed, went through a couple of grievance procedures, and was told he couldn’t accept it. He appealed those rulings to the Federal Court, which overturned the ruling and said he could keep the money. (As reported in the April 12, 2006, issue of Canadian Employment Law Today See below for link to that article.)
But that ruling was appealed, and the Federal Court of Appeal overturned it, reverting back to the decision that said he couldn’t keep the money. The unique case provides an interesting look at the concept of conflict of interest, which rears its head in almost every workplace.
Federal Court said he could keep it, Court of Appeal said no
A federal government worker who helped veterans with their pension and benefits can’t keep a $5,000 inheritance left to him by a widow of a Second World War veteran, the Federal Court of Appeal has ruled. The ruling overturned a Federal Court decision from last year that said he could keep the money.
Daniel Assh, a lawyer at the Department of Veterans Affairs in Edmonton who worked as a pensions advocate, was left a $5,000 bequest in the will of Maria Orn. Orn was a widower Assh had helped obtain benefits between 1993 and 1996. He had no contact with her after 1996.
Orn made changes to her will in 2001, leaving specific legacies totaling more than $100,000. One of the changes was the $5,000 payment to Assh as a thanks for all his help. She died about three weeks after making the changes.
When he found out, Assh immediately told his supervisor. He said he had no prior knowledge of the will and that his acceptance of the legacy could not give rise to a conflict of interest because she was obviously not expecting further services from him. And, since she died leaving no children, she could not have left him the legacy in the expectation that he would give them special assistance. He said he intended to accept the legacy.
His supervisor told him to hold off until it had been cleared through the appropriate departmental channels. A number of grievances followed and each time the employer ruled he could not keep the money. But the Federal Court disagreed in an October 2005 ruling, stating he could in fact keep the money.
That decision was appealed, and in November the Federal Court of Appeal overturned the ruling. The Court of Appeal said taking the money would amount to 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 said.
The Court of Appeal said the relevant legal test is whether a reasonable person, who was informed of the facts of a given case, and had thought the matter through in a practical manner, would think that a pension advocate’s acceptance of a legacy could influence the advocate to give preferential treatment to clients.
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, there was still a perceived conflict.
“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 argued that denying Assh the legacy didn’t impose a hardship on him.
“He has, after all, been remunerated for his services from public funds,” the Court of Appeal said. “Precluding him from accepting the legacy does not adversely impact his constitutional rights, reputation or career … (his) conduct in dealing with the issue has been exemplary and reflects very well on him.”
For more information see:
• Assh v. Canada (Attorney General), 2006 CarswellNat 3536 (F.C.A.)
…but decision wasn’t unanimous
While the Federal Court of Appeal upheld an earlier arbitration decision that Daniel Assh couldn’t accept the $5,000 bequest, the decision wasn’t unanimous.
In a dissenting opinion, Justice Nadon of the Federal Court of Appeal said acceptance of the $5,000 legacy by Assh wouldn’t have been contrary to the Conflict of Interest and Post-Employment Code for the public service.
Pointing to section 27 of the code (see sidebar below), Justice Nadon said the test for determining whether a public servant’s conduct gives rise to an apparent conflict of interest is analogous to that for a reasonable apprehension of bias.
In Threader v. Canada (Treasury Board), a 1987 ruling by the Federal Court of Appeal, Justice Nadon pointed out that the court said: “Would an informed person, viewing the matter realistically and practically, and having thought the matter through, think it more likely than not that the public servant, whether consciously or unconsciously, will be influenced in the performance of his official duties by considerations having to do with private interests.”
Veterans Affairs didn’t prohibit acceptance of unsolicited bequests
Justice Nadon said that Veteran Affairs had not prohibited the acceptance of unsolicited bequests. Rather, it told employees to report the matter so “the appropriate conflict of interest process will be followed.”
The essential question in this case was whether an informed person, having thought the matter through, would think that in accepting Orn’s $5,000 bequest, Assh could be influenced in the performance of his official duties, said Justice Nadon.
“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.
No contact with her for five years
Assh represented Orn, a veteran’s widow and also a veteran of the Second World War, between 1993 and 1996 with respect to her application for a widow’s pension and a disability pension.
Five years later, in 2001, Orn amended her will, while in hospital, to give him $5,000 as a token of her appreciation for his assistance in obtaining her pensions. She died shortly after, and had absolutely no contact with Assh between 1996 and 2001.
“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,” said Justice Nadon. “The informed person is asked to take a hard look at the facts and direct his mind to whether on those facts, (he) 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.”
Impact of the bequest
If the $5,000 were to have any impact on Assh at all, it would likely create an incentive for him to perform excellent work for all his clients. Justice Nadon said he didn’t see how an informed person could conclude that accepting the $5,000 would lead to Assh giving preferential treatment to some of his clients in the expectation of a cash payout at the end.
“Mrs. Orn made a legacy in favour of (Assh) 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, having said that, Justice Nadon said the court may well be right that the better solution might be a total ban preventing public servants from accepting legacies in circumstances similar to those in this case.
“However, that solution has yet to be adopted by Veterans Affairs and, as a result, we must decide the issue on the basis of the code and the facts before us,” said Justice Nadon.
What the public sector’s conflict of interest code says
Section 27 of the Conflict of Interest and Post-Employment Code for the public service states:
“Gifts, hospitality or other benefits that could influence employees in their judgment and performance of official duties and responsibilities must be declined. Employees must not accept, directly or indirectly, any gifts, hospitality or other benefits that are offered by persons, groups or organizations having dealings with the government.”
Civil servant can keep $5,000
Deceased woman left Veterans Affairs worker money in her will; court says he can keep it