BETWEEN:
and
THE ATTORNEY GENERAL FOR CANADA
REASONS FOR ORDER
[1] This is an application for judicial review of a decision at the Final Level of a grievance instituted by the Applicant, Daniel Assh, with the Department of Veterans Affairs dated the 6th day of November, 2002 wherein it was determined that the Applicant should not receive a bequest in the sum of $5000.00 left to him in the will of the late Maria Adrienne Orn.
[2] The Applicant was at all material times a public servant employed as a lawyer by the Department of Veterans Affairs in the capacity of a Pensions Advocate. That position is a curious one in that, while employed by and paid by the government, the mandate of the job requires that such person act as an advocate for veterans seeking to acquire or improve pension and other benefits from the Department. A Work Description states in part that such person:
Counsels and advises clients, their representatives and witnesses as to the pension process, which includes documentary, oral and opinion evidence necessary to present their case to the Tribunal to obtain a favourable ruling. Recommends possible sources for such information, so that clients can take steps to obtain the benefits to which they are entitled and makes referrals as required. Provides legal opinion explaining the need for additional information or the likelihood of obtaining a favourable decision to clients and their representatives.
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Develops and presents to the Tribunal, orally and in writing, arguments in support of a client's application for pension and other benefits to enable the Tribunal to award the maximum pension.
[3] Section 6.2(2) of the Department of Veterans Affairs Act, R.S.C. 1985, c.V-1 affords such person a privilege akin to solicitor-client privilege.
(2) The relationship between the Bureau and a person requesting its assistance is that of solicitor and client, and the Bureau shall not be required in any proceedings before the Veterans Review and Appeal Board to disclose any information or material in its possession relating to any such person.
[4] Thus, while paid by the government, the position involves working with veterans (clients) as a lawyer to maximize their interests in respect of pensions and other benefits afforded to veterans by the government.
[5] In his capacity as a Pensions Advocate, the Applicant assisted Mrs. Maria Orn during the period between 1993 and 1996 in respect of certain pension claims. The uncontested evidence is that the Applicant has had no dealings with or contact with Mrs. Orn since 1996.
[6] On July 8, 2001, Mrs. Orn made a will, with the assistance of a solicitor, in which she made a number of specific bequests in sums such as $50,000, $1,000, $500, $40,000 including a bequest in the sum of $5000 to the Applicant. Again, the uncontested evidence is that the Applicant did not seek such a bequest nor was he informed of its existence until he was contacted by Mrs. Orn's solicitor after her death. Mrs. Orn died some twenty two days after making this will.
[7] The late Mrs. Orn's solicitor corresponded with the Applicant as to the bequest and, in response to a request as to the circumstances in which the bequest arose, stated in a letter to the Applicant dated April 4, 2002:
Further to your letter of March 13th, 2002, this letter is to advise that I have reviewed the Wills of Maria Orn back to and including the joint Wills that she and her late husband made. I can advise that until her last Will, which was prepared a matter of weeks before her death, there was no mention of you in her Will.
The last Will instructions I received from Maria Orn were while she was in the hospital. At that time she advised me that she wished to make a bequest to you because you had been so helpful to her in obtaining the necessary benefits that her late husband was entitled. She expressed to me her deepest appreciation for many people who had helped her and Joe through their lifetime and the $5,000.00, in my opinion, was a token of her appreciation for your assistance to her.
[8] The Applicant promptly reported the fact that he was given this bequest. In an e-mail to his supervisor on August 24, 2001 he said:
I was advised this morning in a phone call from the office of a lawyer named Odishaw (his secretary called) that a previous client named Maria A. Orn, H.O. 4133005 has remembered me in her will. The amount is $5,000.00 and I see no conflict of interest as she leaves no dependants that I could possibly help in the future and she obviously is not expecting anything from me as she passed away in July. I wish to advise that I was unaware of this bequest prior to today Aug. 24th, 2001. I am intending to accept the bequest.
[9] In so reporting, the Applicant complied with a Policy Directive of the Department of Veteran's Affairs which stated:
7. Situations where an employee has been named as a beneficiary in a client's will must be immediately reported to the "designated official" as stipulated in the Conflict of Interest and Post-Employment Policy, i.e. the Deputy Minister. The appropriate Conflict of Interest process will be followed.
[10] The "appropriate Conflict of Interest process" in this case was the application of the Treasury Board Conflict of Interest Code by the administration. It is agreed by all parties that the relevant provisions of the Code are sections 6(e), 27 and 28 which read:
Principles
6. Every employee shall conform to the following principles:
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(e) employees shall not solicit or accept transfers of economic benefit, other than incidental gifts, customary hospitality, or other benefits of nominal value, unless the transfer is pursuant to an enforceable contract or property right of the employee;
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Gifts, Hospitality and Other Benefits
27. 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.
28. Notwithstanding, acceptance of offers of incidental gifts, hospitality or other benefits arising out of activities associated with the performance of their official duties and responsibilities is not prohibited if such gifts, hospitality or other benefits:
(a) are within the bounds of propriety, a normal expression of courtesy or within the normal standards of hospitality;
(b) are not such as to bring suspicion on the employee's objectivity and impartiality; and
(c) would not compromise the integrity of the government.
[11] The Applicant was advised by letter released April 15, 2002 from his employer that he could not accept the bequest. The essential reason for so advising the Applicant was, as stated in that letter:
Accepting a bequest of $5000 cannot reasonably be considered as a normal expression of courtesy. Acceptance by Public Servants of gifts or bequests from clients may raise some suspicion and result in the public view that preferential services may be available for a price, thus compromising the integrity of the Government. The public must accept that a Public Servant will provide equal services to all.
[12] The Applicant instituted a grievance, his position was set out in his letter of June 26, 2002, which read, in part:
In the present case, it is impossible to imagine that I could be influenced by a bequest that did not exist until five years after I completed my official duties in regards to this former deceased client. I would submit that the purpose and intent of the Conflict of Interest and Post Employment Code for the Public Service is to prevent the purchase of preferential treatment and also the appearance that preferential treatment may have been purchased. In the facts of the present case, both of the above mentioned are impossible.
[13] The Applicant's grievance was turned down at the First and Final Levels. At the First Level, the decision stated, in part:
A review of these facts clearly indicate that the only relationship between you and Mrs. Orn was one of solicitor/client. This relationship was created through the performance of your duties with Veteran's Affairs, duties for which you were fully compensated by the Department in accordance with the terms of your collective agreement. There is no doubt in my mind that Mrs. Orn's decision to name you in her Will was a token of appreciation for your efforts and success of winning her appeal for a widow's pension. This token of appreciation in the amount of $5,000.00 is, in my opinion, a substantial gift of recognition. With respect to the acceptance of gifts and in your particular situation, the Conflict of Interest and Post Employment Code for the Public Service stipulates under Section 6(e) that employees shall not accept transfers of economic benefit other than incidental gifts, customary hospitality or other benefits of nominal value unless the transfer is pursuant to an enforceable contract or property right of the employee.
I do not believe that the bequest in question confers on you either an enforceable contract or property right. Additionally, I am of the view that s.27 of the Conflict of Interest and Post-Employment Code of the Public Service does not sanction the bequest, as s.28(a) requires that the benefit be "within the bounds of propriety, a normal expression of courtesy or within the normal standards of hospitality". For these reasons, I must regrettably concur with Mr. Fenety's decision and deny your grievance.
In closing, I would like to compliment you for the high level of integrity you displayed by bringing this issue to my attention as soon as you were informed of the bequest. Your openness and candidacy throughout this exercise has been a true demonstration of the values and ethics this organization holds in high esteem.
[14] At the Final Level the decision stated, in part:
The intent of the Code is not to prevent clients from offering gifts or other acknowledgements of gratitude, but rather to prohibit Public Servants from accepting such gifts or acknowledgements when they result in a real of potential conflict of interest. I draw your attention to sections 6(a), 6(b), 6(d) and 6(e) of the Code that describes employees' obligations in this regard.
Section 27 of the Code cannot be read in a narrow manner and in isolation of several other parts of the Code. It is your contention that since the bequest originates from a deceased client, it would not be possible for such a gift to influence your judgment or performance of your official duties and responsibilities in respect to that client. However, the intent of the various provisions of the Code is to prevent and to avoid a real or potential conflict of interest in the eyes of the public resulting from your official duties and responsibilities in respect to your present and future clients.
The Department's decisions and actions are focussed on the employee, not the originator of the bequest, and it is for this reason that you were directed to return the bequest to the estate of the deceased client. I have received legal advise to the effect that there is no impediment to your complying with this direction.
[15] Not content with the Final Decision, the Applicant sought a determination from the Canada Public Service Staff Relations Board, an adjudicator of which, in a decision dated August 11, 2004, which will be referred to in more detail later, concluded that the Board had jurisdiction to hear the grievance, that the grievance was upheld and, that the grievor (Applicant) was entitled to accept the bequest in issue.
[16] The government, not content with the adjudicator's decision applied for judicial review by this Court. In a decision dated May 24, 2005 (Canada(Attorney General) v. Assh, 2005 F.C. 734) Strayer D.J. of this Court quashed the decision of the adjudicator on a jurisdictional point and remitted the matter for reconsideration. No appeal was taken from that decision, nor, apparently has the matter been considered further by the adjudicator. In rendering his Reasons however, Strayer D.J. said at paragraph 16:
16 Having regard to the foregoing, it is not necessary or appropriate for me to review the decision of the adjudicator on its merits as in my view it was made without jurisdiction through an unreasonable conclusion as to the application of subsection 92(1). The merits of the case can be addressed on judicial review of the final grievance decision which, as I mentioned earlier, is in abeyance at the moment. Suffice it to say that nothing I have said in these reasons should be taken to suggest that the respondent would not have an arguable case on such judicial review.
[17] As a result of this long history, the matter has now come before this Court by way of a judicial review of the decision at the Final Level of the grievance. At the hearing of this matter Counsel for the Applicant limited the issues to one, namely:
Was the determination at the Final Level of the grievance in error in concluding that the acceptance of the bequest would be in breach of the Conflict of Interest Code.
[18] It is appropriate to begin with the Conflict of Interest and Post-Employment Code for The Public Service. This Code is not a statute nor a regulation, it is a statement of policy setting out how the government will conduct itself and how its employees are expected to conduct themselves in respect of certain matters, including conflict of interest. Matters of policy are set out in the preamble at the beginning of the Code:
Policy Objective
To enhance public confidence in the integrity of the Public Service and its employees.
Policy Statement
It is government policy to minimize the possibility of conflicts between the private interest and the Public Service duties of employees and to resolve any such conflicts in the public interest.
Application
This policy applied to all departments and other portions of the Public Service listed in Part 1 of Schedule 1 of the Public Service Staff Relations Act.
Policy Requirements
Employees must take measures to prevent real, potential, or apparent conflicts in accordance with the principles of conduct and measures in the Conflict of Interest and Post-Employment Code for Public Servants
[19] This Code is to be interpreted in the manner discussed by Strayer J.A. with respect to another government Policy in Endicott v. Canada (Treasury Board), February 16, 2005, 2005 F.C. 253 at paragraph 11:
11 The 1999 Policy in question here was not delegated legislation. It was clearly a directive by Treasury Board as to how departments should deal fairly with their employees. Whether such internal directives create legal rights which a court can define or enforce, appears from the jurisprudence to depend on what the intent was and the context in which the directive was issued.
Strayer D.J. concluded at paragraph 14 that there was no indication in that Policy or its context that it should be treated as law. The same applies to the Code here.
[20] The reason for a Policy such as that set out in the Code has been stated by the Federal Court of Appeal in Threader v. Canada(Treasury Board), [1987] 1 F.C. 41 per Mahoney J.A. for the Court at page 53:
The Crown is quite entitled to demand different standards of its employees than those prevailing in the private sector. It is not only entitled in law to enjoin its servants from putting themselves in a position of an apparent conflict of interest; the rationale for its doing so is patently obvious.
[21] The application of this Code should be made in an informed and purposive manner, the decision maker should be apprised of and take into account all the relevant facts and not come to a superficial decision. The approach should be guided by the test set out by the Federal Court of Appeal in Threader supra at paragraph 23:
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 his private interests?
[22] There is no privative clause with respect to a decision of the grievance board. The grievance board at the Final Level was required to consider a factual analysis of the circumstances of this particular case and apply the Code to such circumstances. As such, a mixture of law and fact is under consideration, the decision of such board is to be reviewed on the basis of reasonableness simpliciter.
[23] In this instance, the grievance board, Final Level, stopped at a superficial level in assessing the facts and applying them to the relevant provisions of the Code. The facts of this case are difficult, but required a more probing analysis than that afforded by the Board.
[24] A more probing analysis of the Code and its application to the facts of this case was made by the Canada Public Service Staff Relations Board in Assh v. Treasury Board Veterans Affairs, 2004 PSSRB 111, [2004] CPSSRB No. 100, an analysis with which this Court fully agrees. This Court accepts and adopts the findings and analyses made at paragraphs 66 to 74 of that decision, which paragraphs are reproduced below:
66 Section 6(e) prohibits the solicitation or acceptance of transfers of economic benefit, unless the transfer is pursuant to an enforceable contract or property right of the employee. However, in so stating, it also acknowledges that "incidental gifts, customary hospitality, or other benefits of nominal value", either are or may be acceptable. That issue is more specifically addressed in section 28. There is a problem in that the exception language used in section 6(e) differs from the language used in section 28. Section 6(e) would appear to preclude an employee, such as the grievor, from accepting a benefit that was of more than nominal value. I am not prepared to find that $ 5,000.00 is of nominal value in this case. Nevertheless, that may be immaterial because upon the death of the Testatrix, the bequest became an enforceable property right of the grievor, and the transfer of the $ 5,000.00 to the grievor would be pursuant thereto.
67 Addressing section 27, because the benefit takes effect only upon the death of the Testatrix and the grievor had no previous knowledge of the bequest, I find the bequest could not influence the grievor in his judgement and performance of duties and responsibilities. Furthermore, the Testatrix would not after her death be having any dealings with the government, and there was no evidence or suggestion that her estate would be.
68 Turning now to section 28 and the specific facts, the sum of money involved is $ 5,000.00. Section 28 allows for the acceptance of "gifts ... or other benefits" provided the three preconditions in subsections (a), (b) and (c) have been met. There is no doubt the amount itself takes the bequest outside a normal expression of courtesy and outside the normal standards of hospitality as contemplated in section 28 (a). However, section 28(a) contains the disjunctive "or" and, accordingly, as long as the bequest falls within one of the three descriptive phrases therein, the requirement of section 28(a) will be met. Taking into account the fact that the sum of money was a bequest, a number of factors must be considered in determining whether the sum of $ 5,000.00 is "within the bounds of propriety". Before addressing that issue, however, it is expedient to review the bequest in light of sections 28(b) and (c).
69 Section 28(b) requires the bequest "not be such as to bring suspicion on the employee's objectivity and impartiality". The bequest only takes effect upon the death of the Testatrix. At that point, there is no evidence, or even a suggestion, that the grievor would be in a position to act, in the course of his employment, in a manner that would benefit the Testatrix, or some other person at her behest. While the employer's position was that a person such as the Testatrix, once having been a client of the grievor and the Department, remains a client for all time may be correct under these circumstances; nevertheless, it is material and significant that the grievor last provided services to the Testatrix in 1996, some five years before she made her will, and has had no contact with her since that date. It is also significant that the grievor had not been a beneficiary in any previous will, that he was named as a beneficiary in her will made on July 8, 2001, and that he was not aware of this fact until the Testatrix's solicitor and executor advised him of the fact in a telephone call on August 24, 2001. Based upon the foregoing, I have concluded that the nature of the bequest, including the date it was made and the fact the grievor had long before concluded his work for the Testatrix, had closed her file, and had had no contact with her since closing the file, are not such as to bring suspicion on the grievor's objectivity and impartiality. Therefore, the precondition contained in section 28(b) has been met.
70 Section 28(c) requires the bequest "would not compromise the integrity of the government". Relying once again upon all of the facts discussed in the preceding paragraph, I have concluded that the bequest would not compromise the integrity of the government and accordingly, the precondition contained in section 28(c) has been met. In this regard, I have considered the Supreme Court of Canada's decisions in Neil Fraser v. Public Service Staff Relations Board [1985] 2 S.C.R. 455 and Ontario Public Service Employees' Union, Marie Wilkinson, Edward E. Faulknor and Russell B. Smith v. Attorney General for Ontario et al., 41 D.L.R. (4th) 1, with respect to balancing the rights of public servants as individuals with necessary infringements of those rights because of the nature of their employment.
71 In the Fraser case, Chief Justice Dickson began his judgment at page 457, in the following manner:
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Does an adjudicator err in law, for the purpose of s.28 of the Federal Court Act ... when he or she confirms the discharge of a federal public servant who expresses views highly critical of the Government? Central to that issue is the proper legal balance between (i) the rights of an individual, as a member of the Canadian democratic community, to speak freely and without inhibition on important public issues and (ii) the duty of an individual, qua federal public servant, to fulfil properly his or her functions as an employee of the Government of Canada. |
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72 Essentially the Supreme Court found that the fundamental rights of individuals who serve in the public service should not be limited arbitrarily, while at the same time recognizing that the nature of the public service does impose some restrictions upon them that are justified by "the public interest in both the actual, and apparent, impartiality of the public service". (See Fraser at page 470.)
73 Turning now to whether the bequest meets the remaining precondition in section 28(a) of being "within the bounds of propriety", the starting point has to be the nature of the 'gift' or the 'benefit'. Because we are dealing with a testamentary bequest, the amount of the bequest in and of itself is not as significant. The significance of the amount should be weighed in relation to relevant matters such as the size of the estate; the reasonableness of the overall bequests in terms of amounts, dependents and potential dependents; legal rights or challenges; and, the natural or anticipated objects of the Testatrix's affection. While I do not have a list of the assets of the estate, given the bequests contained in the will, it is reasonable to assume the estate is of sufficient substance to render the bequest to the grievor as being within the bounds of propriety, and hence meeting the requirement of section 28(a). The sum is not overwhelming and it appears reasonable given the scope of the beneficiaries named in the will. The Testatrix's spouse predeceased her and she had no children. The Testatrix's will demonstrated an interest in providing benefits to a wide host of objects including a nephew and his wife who were to receive the sum of $ 50,000.00, a grand-niece and her spouse who were to receive 45% of the residue of the estate, charities, a library, friends, and someone such as the grievor whom she regarded with some fondness or for whom she had some appreciation. This type of will is not out of the ordinary.
74 My conclusions with respect to some or all of the preconditions contained in section 28 may have been quite different if the facts had indicated the grievor engaged in a course of conduct that either suggested or demonstrated he had exerted some undue influence upon the Testatrix, or otherwise engaged in some inappropriate conduct in the course of his employment or outside his employment vis-à-vis the Testatrix. It is necessary that whenever public servants are providing services to people who are or may be susceptible to the influence of others, we hold them to a high standard. I believe the employer was quite rightly concerned about the impression the general public would have upon learning that a pension advocate, being a lawyer, benefited under the will of a client. As a general principle, I, too, share a concern in this regard. However, when all the facts are considered, it was clear there was nothing wrong, or even suspicious, about the grievor's conduct in relation to the Testatrix. Furthermore, he had no expectation or knowledge that she may have been considering to benefit him through her will.
[25] This Court therefore finds that the Applicant is entitled to accept the bequest at issue. Costs in the sum of $500 are awarded to the Applicant.
JUDGE
Toronto, Ontario
October 14, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2039-02
STYLE OF CAUSE: DANIEL ASSH
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: OCTOBER 12, 2005
APPEARANCES:
Mr. Steven Welchner FOR THE APPLICANT
Mr. Robert A. L. Drummond FOR THE RESPONDENT
SOLICITORS OF RECORD:
Welchner Law Office
Ottawa, Ontario FOR THE APPLICANT
John H. Sims Q.C.
Deputy Attorney General of Canada
FOR THE RESPONDENT